Sunday 14 June 2009

Is Martha Nussbaum a liberal elitist?

Martha Nussbaum is a great philosopher. She has great ideas; writes beautifully, cogently, and persuasively; and offers deep and perceptive reading of others' work (this is not as usual as you might expect). Furthermore you couldn't describe her as an elitist in the usual academic sense of living in an ivory tower making obscure or irrelevant pronouncements on the state of human nature. Indeed she has been involved for decades in development work (most especially with Amartya Sen's Capability Approach) focussing particularly on the awful and coercive social arrangements many women around the world are forced to live under. She once wrote a scathing and influential essay, which I admire very much, condemning American academic feminism for its narcissistic focus on the personal and the West, rather than the political and the rest.

So not an academic ivory tower elitist. But there is still something odd about how Nussbaum works.
I've seen her address the Human Development and Capability Association (HDCA) twice as president and key-note speaker. The first time she gave a lecture on freedom of conscience in American law, giving examples of cases in which someone was fired for refusing to work on Saturday (because of her religious beliefs). I found it strange that given the subject of the conference - removing the burden of global poverty - the subject Nussbaum chose to talk about was the rather specific issue of constitutional protection for religious preferences as understood in the American tradition.

The second time (in Delhi of all places!) she spoke again about American constitutional law (recycled from this). Apparently it is terrible that the conservative majority in the US supreme court interpreted laws so narrowly that i) a sexual discrimination case was thrown out for breaching time-limits and ii) a Seattle school-board desegregation policy was ruled to violate the 'equal protection' clause (14th Amendment).

The problem, Nussbaum claims, is that jurists are resorting to an overly formal interpretation of law which is i) minimalist - nothing beyond the law and ii) literalist - understands the text as fars as possible as the law-makers did. Instead, judges should adopt a 'literary' approach and attend to the personal and collective situations and histories involved as if plaintiffs were characters in a novel. This is the heart of her 'legal philosophy', as worked out in Poetic Justice (1995) where she suggests Dickens' Hard Times shows the importance of such a literary understanding of law. (By the way, not a good book to use as a paradigm of her method: the characters are just cardboard cut-outs moved around like pawns for Dickens' own polemical purposes. It is generally considered Dickens' worst novel.)

There are 2 issues here. Firstly, Nussbaum the social-justice-campaigner seems to have been captured by the American legal-political complex. Her understanding of problems seems to come through the prism of American style formal legal institutions, and her solutions are for better constitutions (based on her reading of Aristotle), interpreted by liberal judges (in the American sense of 'liberal', i.e. the lft of the Democratic party). Thus her plan for development in India seems to consist of hoping that there may be a majority of judges on its supreme court who think like her: sensitive to people's stories of injustice - which they will pluck from the many thousands of petitions they receive - and radical in their interpretation of the constitution in their efforts to redress that injustice. Where is the politics, economics, institutions, citizens, or democracy? Indeed where is the reality, for where in the poor world do we find functioning legal institutions in the first place and where do the poor have access to them?

Secondly, it seems that Nussbaum's real problem with the present US supreme court is that there is now a conservative majority (the 1950's-60's liberal dream-team is long gone). Her literary legal philosophy seems plausible and is backed by the deeply affecting personal stories she reads into legal cases. But note that whatever the merits of this legal philosophy in general, her use of it is always restricted to finding and relating the (American Democrat) liberal story. This is not really neutral or open evaluation. There's no space for relating and examining the story of the parents and children who were complaining that Seattle had no good reason to be busing their children to distant schools, only for the liberal story of institutional racism.

So it looks like American liberalism comes first, then the philosophy; and that we have here a peculiar intellectual elitism which places the interpretative classes (humanities professors presumably) in charge of solving the world's problems through the interpretation of texts.

Update: For the 2009 Human Development conference in Lima, Nussbaum gave a keynote address on Equality and Love at the End of The Marriage of Figaro: Forging Democratic Emotions (seemingly  just this lecture in memory of Robert Solomon recycled and repurposed). I didn't attend, but apparently many people wondered about this odd choice.