People Over Doctrines
Rawls’ problematic “reasonableness” criteria were derived from his broader corpus of work. However, his original position (no pun intended) was that a person could be ethically reasonable by meeting two core conditions: first, they must be willing to propose fair terms of cooperation and abide by them, provided others do as well (let us call this the “good faith” condition). Second, they must accept the “burdens of judgment,” which is to say they must acknowledge that many of the disagreements between interlocutors are not easily attributable to either party being factually wrong, illogical, deviant, etc. In many cases the truth will be more-or-less indeterminable—in fact, the virtual entirety of human judgment occurs under uncertainty of varying degrees.
Again, foundational to the free-standing justification of liberalism is what Nussbaum calls the “method of avoidance:” while a position cannot be entirely neutral (almost by definition), one should generally refuse to rely upon controversial metaphysical, religious, epistemological, or even ethical doctrines (Nussbaum 2011: 16). On these grounds she accepts Rawls’ “good faith” condition; however, she suggests his “burdens of judgment” criterion may be superfluous and theoretical in nature, and so she sets it aside along with the other aforementioned theoretical criteria.
In its stead, she offers that a view can be described as “ethically reasonable” insofar as it is grounded in the notion of equal respect for persons. Consequently, individuals should tolerate—and institutions should be as equivocal as possible between—conflicting CDs and LPs, even if they seem illogical, provided they are ethical.
That is, liberalism should be premised on a respect for persons rather than their views. Nussbaum analogizes this respect to the Kantian notion of viewing people as ends, and never as mere means:[7] we respect others’ convictions because we understand them to be worthy of the same dignity as our own.
She Who Lives by the Sword…
While Nussbaum makes a compelling argument for rejecting Rawls’ burdens of judgement criteria, her replacement (equal respect) may itself be a spurious violation of the method of avoidance—particularly insofar as she conflates equality with “identity,” “equivocality” etc. This is not the only conceivable method of fairness. To help motivate this concern, consider the value of respecting women:
According to most liberal interpretations (including Nussbaum’s own), the best way to show respect for women is to treat them exactly the same as men. However, the classical conception of justice is not ”to treat everyone the same” but instead “to treat those who are the same in a roughly commensurate fashion”—according to which there are two forms of injustice (Nietzsche 2011: 45-50):
- Treating people significantly different when they are in fact the same, or…
- Treating people the same when they are importantly different.
In this spirit, traditionalists argue that the liberal conception fails to respect women qua women: they are only valued in those aspects in which they can easily be interchanged with men (i.e. as a worker, a voter, a consumer, etc.). It is rarely considered just how much is built into this discourse. For instance, it is presupposed that the only (or in any case, best) ways of empowering women, and people in general, is to give them opportunities for prolific professional titles, higher salaries, etc. (Penny 2011). That there are alternative, perhaps more contextually relevant, forms of power, significance, or satisfaction is overlooked in favor of capitalist interpretations of value.[8]
In defiance of this paradigm, a traditionalist would argue that the best way to respect women is to acknowledge differences between the sexes and to honor gender roles. This neither entails nor implies treating women as 2nd class citizens—instead, that women and men have reciprocal, complimentary, and interdependent (rather than identical) rights and duties. It does not disregard “women’s rights” (e.g. socio-political participation, education, protection from violence/ exploitation), but rather radically changes the nature of feminism (Ahmed 2012; Lais 2013; Shams 2012). In fact, a more careful examination of social dynamics in “traditional” societies would reveal that women have a good deal more power than Western liberals generally assume.
The lives of women are often held to be more valuable than their male counterparts: men are considered to be expendable/replaceable (which is why they are subject to extreme physical labor, sent out to hunt or off to war, etc.). In the “high culture” of these societies, even a superficial survey of art–be it literature, music, or visual media–tends not merely to objectify, but to idolize women. This same reverence underlies calls to “defend women’s honor,” and motivated most of the great feats of mythical heroes (as well as the everyday efforts of ordinary men to provide for their families). Even calls for modesty of dress and segregation of the sexes are generally based in a concern about the weakness of men, and a fear of women’s power over them, which they are held to often exert effortlessly and unintentionally.
While there may be much to critique about “traditional” views of women, it would be simply incorrect and ignorant to claim they were (are) generally viewed as weak or inferior to men. Instead, each sex was (is) held to exert different types of strength, cunning and other virtues, which are to be respected (utilized, protected against, lauded, feared) in their own ways.[9] This remains the predominant view in most societies worldwide. Accordingly, insofar as Nussbaum identifies “equality” with something closer to “identity,” her criteria seems to be grounded in problematic or controversial conceptual frameworks which much of the (illiberal) world would outright reject.
In fact, while Nussbaum frequently rails against the “new religious intolerance,” regarding for instance, the hijab bans in France (Nussbaum 2013), she nonetheless blatantly rejects traditional gender roles, and would support the coercive enforcement, if needed, of Western-liberal parity between the sexes (Nussbaum 2000)–regardless of whether or not most of the women in a given context supported such a measure, or found the ideologies (and especially their external imposition) to be profoundly disrespectful to their people and their sex (Abu-Ludhod 2013), or even if many of those affected would subjectively evaluate themselves to be worse off (more vulnerable, less valued as women or even human beings, etc.) after such a transition, which is often the case historically through the present (Kucera 2013).
As a second example, Prioritarian Perfectionists such as Nagel (1991) and Hurka (1996) hold that it is more important to develop the more capable, and to support and endorse “higher” achievements, in order to maximize the development of society (or even humanity) as a whole, even if such policies aggravate rather than moderate inequalities. Unlike Plato or Nietzsche,[10] neither Hurka nor Nagel would hold that the more capable are morally or otherwise metaphysically superior to the less capable (and the determination of what achievements are “higher” or “lower” would be almost entirely technocratic on their account)—nonetheless their socio-legal prioritization of the aristos, their CDs, and their LPs would likely violate Nussbaum’s view of equal respect—in practice, if not in theory.
Finally, in formulating his Entitlement Theory, Nozick (2013) demonstrates how morally justified inequalities can arise—not only in relation to wealth, but even regarding socio-legal rights, privileges, and duties. Disparities arise organically as a result of the labor and resource investments of various agents (or lack thereof), developed skills, abilities and expertise, as well as subsequent good-faith contracts, coalitions and associations with others, etc. (both historical and contemporary). While Nozick’s account would not sanction privilege or discrimination based solely on race, gender, religion, etc., it does hold that that as an accident of history any particular arbitrarily selected (ethnic, sexual, religious, etc.) group may fare substantially better or worse relative to the average, or to any other group—and this need not denote any sort of wrongdoing which needs to be redressed. According to Entitlement Theory, even profound inequalities are not necessarily incompatible with fairness, and may not be indicative of disrespect—in fact, they may represent the fulfillment of these ideals. And so, while Nozick endorses Kantian equality, his interpretation of what this entails may prove “ethically unreasonable” on Nussbaum’s account.
Yet it seems strange that apparently benign Western, secular, analytic-political-philosophical positions like Entitlement Theory or Prioritarian Perfectionism could be construed as “ethically unreasonable” and be therefore disqualified from the public sphere. These are certainly not the sort of views Nussbaum seemed to have in mind with her proviso. But even some of the views she was actively trying to restrict, such as illiberal religious or otherwise traditional systems of social arrangement, do not seem quite so unreasonable upon a more careful examination. In many cases, calling these societies “hierarchical” may even be somewhat misleading and/or reductive—it may be more accurate to say they utilize notions of equality, respect, justice, etc. which are incompatible with those Nussbaum is relying upon.
In this light, the Kantian notions of “equality” and “respect” (and especially their conjunction, “equal respect”) seem like extremely controversial premises to serve as the foundation for political liberalism. Ultimately, Nussbaum’s vision may be more parochial than that of Rawls: beyond excluding many traditional social arrangements preferred by overwhelming majorities across much of the world, even the apparently innocuous views of her liberal colleagues could be construed as ethically unreasonable. Accordingly, Nussbaum’s model fails to meet its own criteria of success: achieving greater inclusivity via a more finessed application of the method of avoidance. That said, it may be possible to salvage her project of reforming Rawlsian political liberalism by turning to, of all people, Rawls.