Martha Nussbaum’s Flawed Humanism

In her new book, Martha Nussbaum stitches together what she calls “the cosmopolitan tradition,” mines and judges it, then moves on to her own (better) thinking about the demands of justice and law. The four thinkers she studies—Cicero, Marcus Aurelius, Hugo Grotius, and Adam Smith—share an attachment to a universal natural standard that can and should be applied to politics, both national and international. This natural standard combines a view of human nature, natural law, and (in Smith’s phrase) “natural liberty.” Humans are endowed by nature with freedom and normative guidance for its use. Where the tradition’s members fall short, Nussbaum believes, is in failing to see all the dictates of justice, as well as too narrowly construing its lodestar, dignity.

To rectify these shortcomings, Nussbaum proposes her emphatically egalitarian and inclusive “Capabilities Approach”: Certain sets of vital capacities merit moral respect, which means that the mentally impaired and animals fall within dignity’s compass. Human dignity then requires a lengthy list of social and material “entitlements” in order to be fully honored and realized. Echoing John Rawls, she does not think that accidents of time, place, social status, or natural endowments should ground the duties of justice. Our basic duties are to humanity in general, and they flow, as it were, in concentric circles from that abstract humanity inward: Duties to one’s little platoons and nation are best seen as specific applications of a general service to humanity. The real citizen, the true citizen, is “the world citizen.”

These moral commitments, and the vision that flows from them of a dignified humanity respectful of all its members (and of animate nature), inform Nussbaum’s choice of authors and her reading of them. As one might suspect, there are problems inherent in this sort of committed engagement.

A Committed Reader

First, we should acknowledge that, to her credit, Nussbaum reads old authors, even dead white males. Her four authors, she says, are “major philosophers” still worthy of study. Engagement with them can help our own thinking (although that “help” includes seeing them as sources of contemporary blind spots). Reading them can also help us understand how today’s world came about. Cicero begat Grotius and Grotius begat modern international law, a major legal and moral achievement that we need to appreciate, as well as develop. There are lessons to learn from reading these authors.

However, there are limits to Nussbaum’s appreciation of these “major philosophers” and strict limits to her engagement with them. She never acknowledges any intellectual superiority on their part. She is their sovereign judge. As a result, she does not engage them open-mindedly, thinking she might have something important to learn, something that would change her mind. Nor does she engage them dialectically. They don’t really get a chance to respond to her criticisms, and they don’t get to challenge her criteria or aims. This is very much a one-sided “philosophical” exercise.

As a result, while there are many passages of fine reading throughout the book (I particularly liked her discussion of Adam Smith), she too often either underinterprets her authors on key points, not making their best case, or overinterprets them, commiting eisegesis on them.  

Cicero’s Task and Art

For an illustration of her approach, we need look no further than her treatment of Cicero on two important topics: property and natural law. She correctly notes that there is a tension in Cicero’s thought on these topics, but she fails to consider that it might have been intentional. By his own profession, Cicero was an adherent of the New Academy, of academic skepticism, yet he cast his influential work, On Duties, largely in a Stoic idiom. As a Socratic, he recognized the imperative of relentless inquiry; as a statesman, he recognized the political community’s need for settled doctrine, for sound opinion. Threading this needle was a task that called for exquisite art. It called for the judicious use of Stoic teaching.

Nussbaum wants the authority of Nature, but also the autonomy of reason and will.

Cicero begins his treatment of property with a ringing endorsement of its legitimacy and the strict duty in justice to respect it. Right after, however, he lays out the possible historical sources of property, both communal and private. Some are of rather dubious moral quality. At this point, Nussbaum puts two and two together and observes, “we cannot help noticing that he has not said nearly enough to explain his strong preference for existing distributions.” She is right in this, though she would not be the first reader to make such an observation. In fact, one could think that Cicero himself was aware of the gap. The immediate juxtaposition of strong affirmation and weak support is practically an invitation to think about the justice of existing arrangements. For the unthinking, however, the strong opening defense bolsters the disposition to respect private property—a disposition that Cicero had reason to think needed bolstering after Julius Caesar’s assaults on it in order to gain popular favor. (Nussbaum herself recognizes this Ciceronian concern.)

On the other hand, Cicero later takes certain steps to “naturalize” property by softening the claims of the conventional division of property. Property must serve human needs, and in times of scarcity or imperious need, the needy may appropriate the property of another without moral qualm. This teaching appeals to our compassion and our moral intuitions, but it also opens a Pandora’s box of possible, even likely, imprudent or pretextual appeals to necessity. Aware of the box, Cicero did not trumpet the teaching. Thoughtful readers could draw their own conclusions, both from the argument and his silence.

Nussbaum, however, wants the Stoic Cicero to go even further than he did, and to acknowledge not only the moral claims that needy neighbors or fellow citizens can make upon each other, but also the claims that penurious “peoples and countries” have upon wealthy ones. To be sure, she is aware of moral and practical problems with international aid and redistribution and discusses them in a later chapter. But she exhibits no sense of what might have stayed Cicero’s pen. She only sees “Cicero’s strong and utterly unjustified account of property rights.”

She therefore asks, “Why not say, instead, that such claims to ownership are always provisional, to be adjudicated along with claims of need? By emphasizing need himself, as a legitimate source of moral claims, Cicero has left himself wide open to this objection.” She turns into an argumentative defect what was an obvious dictate of prudence. Cicero, however, has an easy retort to her criticism and her counterproposal. What society could live with the norm that “claims to ownership are always provisional, [and are] to be adjudicated along with claims of need?” That she didn’t even conceive of Cicero dealing prudently with these delicate matters suggests the blinders of committed reading. It can take on a more active form as well.

Natural Law or “Moral Law”?

The “Stoic” Cicero wrote of “natural law.” Nussbaum, however, regularly recasts it as “moral law” or “moral norms.” Put another way, she tends to “Kantianize” her Stoic and Stoic-influenced authors (including Marcus Aurelius and Grotius): “We want to say, with Kant and the Stoics. . . ” Contained in this terminology are matters of great import. Kant strictly separated nature and morality, natural laws and moral laws. The former enjoined physical necessity; the latter were products of rational autonomy, the ability to legislate for oneself in accord with the mere form of law. In casting natural law as moral law, Nussbaum transforms both.

Nature as norm and source of norms is demoted, and reason as autonomous self-legislating is promoted. And with nature demoted and rationality promoted, morality can be cast as significantly “free-standing.” On the other hand, the appeal to “natural law” means that the full apparatus of Kantian thought need not be invoked. What results, therefore, is a self-standing human autonomy ostensibly authorized by Nature. In so doing, Nussbaum refuses to fish or cut bait. She wants the authority of Nature, but also the autonomy of reason and will. None of the thinkers she invokes exactly serves her purpose, but she can make them do so collectively. This makes for forced readings. It also shows her rather selective attitude toward things.

Human Dignity and Christianity

What she calls “the cosmopolitan tradition” is in important ways her own creation: “I select examples that follow a particular logical trajectory.” For instance, she acknowledges that “my primary modern figures, Grotius and [Adam] Smith, exemplify a Protestant cosmopolitan tradition, rather than the Catholic tradition that begins from Aristotle and develops in rather different ways.” The “the” in “the cosmopolitan tradition” therefore means “my,” as in “selected for my purposes.” A further sign of this is that the “Protestant” in “Protestant cosmopolitan tradition” is rather misleading. She writes appreciatively of Grotius that he “is deeply indebted to Cicero and the Stoics; he views his enterprise as a continuation of theirs. Famously, and shockingly, even while professing himself a devout Christian, he denies that politics needs a theistic Christian foundation.” She wants her cosmopolitan tradition “neat,” that is, without faith.

Isn’t Christianity arguably the greatest cause of the western belief in the equality and unconditional dignity of all human beings?

Nussbaum exhibits a clear desire to steer clear of Christianity’s contributions to our understanding of dignity. For her, to begin with, it is “Cynic/Stoic cosmopolitanism [that] urges us to recognize the equal, and unconditional, worth of all human beings.” In general, “[t]he insight that politics ought to treat human beings as equal and as having a worth beyond price is one of the deepest and most influential insights in western thought; it is responsible for much that is fine in the modern Western political imagination.”

Here one must ask, is the cause adequate to the effect? More pointedly, where’s Christianity? Isn’t it arguably the greatest cause of the western belief in the equality and unconditional dignity of all human beings? Quantitatively, did Stoicism promote these ideas as effectively as Christianity? Qualitatively, did Stoicism affirm the “unconditional” worth of all human beings in the way that Christianity did? Did it really affirm the “infinite” worth of all human beings, as she says? (What does “infinite” mean in this context? She does not tell us.) Christianity certainly did. According to it, the Infinite died for all human beings, who are created in Its image and likeness. That Sacrifice made the point of infinite human worth in a truly infinite way.

While she has specific reasons for eschewing Catholicism (including its endorsement of hierarchy), Nussbaum takes three tacks in dealing with Christianity’s contributions to the idea and belief in human dignity: She ignores it, tries to shoehorn Stoicism into Christianity itself, and puts forth her own understanding of dignity, one that does not owe anything to Christianity. She thus puts a considerable burden on her argument for dignity by denying any recourse to faith.

Dignity for Nussbaum encompasses humans and animals, and within the former, it embraces humans that are “severely cognitively-challenged” or even “comatose.” As for animals, it affirms their intrinsic value in a sweepingly egalitarian way. “[N]o animals are lower or higher than others in the evaluative sense.” That her notion of dignity is capacious is therefore quite clear. Its grounds and coherence are less so, especially when one considers what they cannot be: They cannot be based in religious faith or on philosophical, that is, “metaphysical,” grounds. And whatever other grounds present themselves must bow before her commitment to egalitarianism. Her requirements are thus both exiguous and expansive. Her “capabilities approach” is designed to meet these criteria.

Some “cluster” of vital capacities—they need not include rationality—is sufficient, says Nussbaum, to elicit or engender the “moral responses” of “wonder, awe, and respect.” This “sentimental” criterion serves to bring animals into the dignity fold, as well as to justify respecting humans whose rational capacities are impaired or suspended. This, therefore, appears to be an attractive solution. But certain of its theoretical assumptions and practical implications give one pause.

Since she eschews metaphysical thinking, the capacities exhibited by living things and by humans have no ontological mooring or meaning. Capacities are detached from what philosophers from Aristotle to Hans Jonas have called organic form (eidos) or “soul” (psuché). In a similar way, her egalitarianism does not allow her to rank the various capacities of animate beings, including humans. What’s left is a range of equally respectable vital capacities that she says stimulate our “moral response,” but which do not require us to delve more deeply into them. It comes as no surprise, then, that in addition to sentiment, her understanding of morality involves equal doses of imagination and commitment. Reason and being are secondary.

All this has significant practical consequences. Speaking of human beings, she declares that:

 [w]e may conclude, as I do, that at least some human capacities must be present in order for a being to be treated as equal—thus a person in a persistent vegetative state, or perhaps an anencephalic child, would not count. But perception, emotional capacities, and the ability to move are all human capacities, and some cluster of them is sufficient for equal respect.

One cannot but note that her capacious, inclusive approach, her focus upon a range of “human capacities,” has its limits. He who lives by “capacities,” dies by “incapacities,” or at least loses the moral respect owed to dignity, when enough are lost or not present. “Unconditional” has lapsed into “conditional”. Suicide and euthanasia thus enter the picture.

When one turns to her for help in drawing the line between “worth-living” or “not-worth-living,” her scale is sliding (elsewhere she calls it “open-ended”), and finally comes down to someone’s particular judgment. “[S]ome cluster of them is sufficient” both flows from and leads to “as I [judge sufficient]”. A calculus thus opens up that cannot fail to be influenced by many subjective and social factors like, for instance, whether one lives in the Netherlands.

Nussbaum’s notion of dignity thus exhibits contradictory features: it wants to do too much work and it doesn’t do nearly enough. A genuinely dialectical engagement with western civilization’s various strands, including Christianity and the Catholic tradition she eschews, would therefore serve her agenda in important ways, while also tempering it. It would also reveal, I believe, the deeper sources of her commitments, which go well beyond the Stoics. She seems to me both to ape and forget the source of her hopes for full equality and dignity: the City of God.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 12, 2020 at 15:48:07 pm

For a consideration of other problems with Nussbaum’s and Sen’s approach, see Den Uyl, Douglas J., and Douglas B. Rasmussen. "Liberalism in Retreat." The Review of Metaphysics 62, no. 4 (2009): 875-908.

read full comment
Image of Douglas B. Rasmussen
Douglas B. Rasmussen
on June 14, 2020 at 03:56:29 am

Thank you for the fine discussion. Though an agnostic I think I broadly agree with your critique. I'm now doing a project on Siedentop:

read full comment
Image of Daniel Klein
Daniel Klein

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.