Legal theory and gendered history.

• Author: Kessler-Harris, Alice
• Position: The Works of Martha C. Nussbaum: Feminism and Liberalism; History, Identity and Sexuality; Gender and Development

As a group, historians tend to be, if not anti-theoretical, at least atheoretical. We back away from developing theory, although we shamelessly adopt and adapt it and frequently invoke it to legitimize our interpretations. Marx, Freud, Foucault and Martha Nussbaum have all entered our work. Historians tend to use theory to sustain flimsy or controversial evidence--to provide the scaffolding that supports our conclusions. My comments in this Article address how we do that. How do we test abstract and thinly rooted theoretical frames against historical evidence that has often been carefully amassed and allowed to speak only for itself? How, specifically, do we do that with the work of Martha Nussbaum?

For those of us who work on gender, Nussbaum's work has played a crucial role. We rely on books like Nussbaum's Sex and Social Justice (1) as a guide. When we want to think about what liberalism means for women in the contemporary world, we turn to Martha Nussbaum. And when we get involved in debates about cultural relativism, it is Martha we turn to. We do so not because only a few people write cogently about feminist theory; rather, we do so because few scholars approach feminist theory with both anecdotal knowledge and legal expertise. Let me try to explain why that is important. Martha's work has been guided by an effort to explore questions of values in general, and, in particular, questions of how aspirations to achieve a good society influence American law, international law, and public policy) But the historian who admires that goal also pauses to push the question a step further. How, we ask of Martha, do you understand the meaning of "good"? Historians might rephrase the question to ask, what does "the good" mean in any given society at a particular moment in time? Who defines "the good"? Who sets its boundaries? How is "the good" realized under particular historical circumstances? How is it rewarded? How does a particular image of "the good" produce particular behaviors, and under what conditions?

This effort to construct a society, as lived and experienced, has been enabled by a gendered history. Beyond rehabilitating the lives of previously unknown women, beyond celebrating their accomplishments, beyond uncovering gendered relationships, historians have, in the past two decades, turned to asking why and how the role of gender matters in the process of historical change. Is it merely a delightful piece of trivia to discover that the relationships among men and women in the nineteenth century were far more complicated than we ever imagined they were? Can we find some larger meaning in our discovery that same-sex and companionate relationships, though sometimes hidden, existed in far greater numbers than anybody ever imagined? (3) We are now confronted with providing adequate answers to the question of whether gender matters at all.

The answers that we provide often rest on a deep historical understanding of the belief systems within which ordinary people made decisions about their own lives. For example, if we discover that same-sex relationships were much more frequent than we had ever imagined, we need to ask how they figure not within our own social parameters, but within the historical circumstances experienced at particular moments in the past. Were such relationships socially sanctioned or socially condemned? With what fervor? Among what classes, generations and sexes did they occur? How do we actually see people imagining themselves in the lives that they lived? These are the kinds of questions that we seek to answer by placing ourselves in the mindsets of those we study. They separate us from the philosopher by provoking us to think more deeply about how "the good" is differently constructed at different moments in time.

A few historical examples will illustrate the point. Edward Hallet Carr, one of Britain's premier historians, wrote an influential book called What Is History? in the early 1950s. (4) Carr argues that historians are inevitably products of their own time. (5) The questions they ask and the hypotheses they put forward emerge from their own experiences, and tend to reflect their own visions of a desired future. (6) The historical past, in Carr's view, is merely a figment of the present out of which the historian writes. (7) By the same token, we look back on history and comprehend its meaning as a force that shapes the way we think about the future. This poses a bit of a conundrum. If the historian's capacity to interpret the past is limited by his or her vision and perspective, then there can be no "past" that does not reflect a rather limited future.

If freedom, for example...