Nussbaum:  liberalism and feminism.
28 March 2006

Some background:

Liberalism:  holds that a government’s authority “is justified only if the government can show those who live under it that it secures their liberty.  A central thesis of contemporary liberalism is that government must be neutral in debates about the good human life.”

Rawls:  “justice as fairness,” veil of ignorance, original position…  Two principles:  1.  Certain liberties are basic because required for us to exercise our moral powers (rationality, justice) and are to be equally provided to all:  liberty of conscience, freedom on thought, freedom of association, equal political liberties, freedom and integrity of the person, and the liberties that maintain the rule of law; 2. “difference principle”:  social positions open to all to compete for, differences only acceptable if they improve the situation of those who are worst off.

Nussbaum
•	liberalism and feminism at odds (since liberalism insufficiently radical)?  Nussbaum:  No, but there are two areas – 1. need and dependency, 2. justice in the family – where liberalism has yet to provide adequate answers, from the point of view of feminism.  These demand a recasting of liberalism.  By recasting liberalism in light of feminist critiques, we can actually strengthen and improve liberalism in general.

Need and dependency
•	social contract theory usually assumes contract between equals.  But this is just a fiction.  There are always inequalities, especially in the case of children, the aged, and the disabled.
•	“Any real society is a caregiving and care-receiving society, and must therefore discover ways of coping with these facts of human neediness and dependency that are compatible with the self-respect of the recipients and do not exploit the caregivers.  This is a central issue for feminism since, in every part of the world, women do a large part of this work, usually without pay, and often without recognition that it is work.  They are often thereby handicapped in other functions of life” (486).
•	Kantian “split” between animal and rational selves problematic because
1.	it ignores that our dignity is the dignity of a certain sort of animal.  (We are inherently mortal, biological.  We’re not like God.  We have distinctively human dignity, not a Godlike dignity.)
2.	it denies that animality can have dignity (and this raises problems with our relationships with other animals and the natural world).
3.	it ignores the fact that disease, old age, accident, etc. can impede our rational/moral functions just as much as our other animal functions.
4.	it wrongly casts us as atemporal.
•	Rawls’ assertion that animals are not party to the social contract seem s to apply also to dependent humans.  Even though Rawls raises the issue of dependent humans, he postpones it to the legislative stage.  Nussbaum wants it considered in the original position.  (Rawls treats dependency as a special case rather than as universal.)
•	The solution?  Three things:
1. 	Add need for care to list of Rawlsian goods.
2. 	Reconceive Rawlsian goods as capabilities, not things.
3. 	Add other capability-like items (e.g., social basis of health, social basis of imagination and emotional well-being) to list of Rawlsian goods.
•	A more fundamental problem.  Rawls’ primary goods are introduced to support moral powers (rationality, justice).  This still seems to deny the full humanity of those who are dependent.  Big problem for child rights, etc.
•	So, in addition, to the above 3 revisions, we need also to revise our political conception of the person in a way that unites the animal and the rational, and acknowledges that there are many types of dignity (not just the single, Godlike dignity associated with rationality alone).  This new conception of the person needs also to recognize the ubiquity of dependence-relations.  This may well rule out contractarianism altogether.  Nussbaum recommends replacing the contractarian approach with an Aristotelian approach.

Justice in the family
•	the most difficult problem liberal theory faces in the area of women’s equality
•	the family is both a significant arena in which people pursue and transmit their conceptions of the good, and “one of the most non-voluntary and pervasively influential of social institutions, and one of the most notorious homes of sex hierarchy, denial of equal opportunity, and sex-based violence and humiliation” (491).
•	a society committed to equal justice for all citizens must constrain the family in order to ensure this equal justice.  However, most liberal theories distinguish between the public and private spheres, and only recognize the government’s right to constrain citizens in the public sphere.  This public-private distinction serves to protect male privacy, not female (or child) privacy:  “an injury got up as a gift” (Catherine MacKinnon).
•	Rawls’ two (inconsistent?) claims about this:
1.	family forms part of society’s basic structure;
2.	however, the two principles of justice, that apply to the basic structure do not apply directly to the internal life of the family (analogy with voluntary institutions, such as universities, religious institutions).
•	Nussbaum’s “three large questions” about this:
1. 	if the family is part of the basic structure, how can it also be voluntary?  “The institutions of the basic structure are those whose influence is pervasive and present from the start of a human life.  The family is such an institution; universities, and churches… are not” (492).
2. 	Rawls regards the Western nuclear family as quasi-natural, but it is not a universal or necessary structure.  This structure is as open to negotiation in the original position as any other.
3. 	Rawls doesn’t recognize that the family is a creation of state action.  The state says what counts as a family, how to get in or out of one, and what rights family members have.
•	Nussbaum argues that we ought to consider the question of what sorts of family associations best protect the liberties and opportunities of their members.  The family is not sacrosanct.  It is not “a mystical unity over and above the lives of its members” (494).  The family ought to ensure the well-being of its members, not the other way around.
•	A further question:  “what other affective an associational ties deserve public protection and support?” (495).
•	The largest difference this approach will make is in the lives of female children.  “My approach judges that the protection of girls’ capabilities warrants an interventionist strategy” (495).

Conclusion
•	If this approach seems difficult and complicated, it is only because life is difficult and complicated, and the task of balancing self-definition/liberty against protection from tyranny is difficult and complicated.  However, engaging this difficulty is valuable and fruitful.

Next class:  Tong.