Feminism as Liberalism: A Tribute to the Work of Martha Nussbaum

Abstract

It is a great pleasure for mc to participate in this symposium organized to honor work of Professor Martha Nussbaum. In her scholarship, Professor Nussbaum has accomplished over and over again something that is altogether too rare in academy; she manages simultaneously to take seriously both theory and material conditions of people's lives, producing work that is both rigorous and relevant. Her scholarship has long informed my own both in feminist legal theory and in human rights advocacy, helping me to bridge gap between theory and practice. For this reason, I am especially grateful for opportunity to participate in this symposium. In this essay, I revisit and expand an argument I have made with respect to limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities approach in this setting, I speculate as to types of regulatory schemes that would be either demanded or tolerated by her approach. In final part of essay, I suggest that capabilities approach offers a powerful means of specifying preconditions for women's exercise of autonomy within liberal state but that it proves somewhat less useful as a guide to policy choices under conditions that fall far short of this ideal. I. FEMINISM AND LIBERALISM A. Feminist Critiques Liberalism's core idea is a simultaneous commitment to equal citizenship in public realm and accommodation of competing conceptions of good in private realm. Liberals surely disagree about precisely where boundary between public and private should be drawn and about how robust our conceptions of freedom and equality be in public realm. But for a theory to be recognizable as liberal, I suggest, this basic idea has got to be there. For example, John Rawls, in introduction to Political Liberalism, states that the problem of political liberalism is: How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines? (1) Similarly, for Martha Nussbaum liberalism must respect and promote liberty of choice, and it respect and promote equal worth of persons as choosers. (2) Feminist legal theorists, responding to liberalism, ask a different question: Can liberalism sustain a concept of equality that is sufficiently robust to eliminate women's subordination in both public and private domains? Of course, feminists disagree on answer. (3) Yet even feminist fans of liberalism concede that feminists have elaborated at least two key ideas that, at a minimum, call into question usefulness of liberalism to feminist objectives. (4) First, feminists have argued repeatedly and, to my mind, persuasively that private power is at least as significant a threat to women's freedom as is state power. Here, consider power as it is wielded within patriarchal nuclear family or within broader community structures such as religious institutions. Second, feminists have argued that centrality of choice to liberal conceptions of freedom is problematic in view of implications of gender subordination to women's exercise of choice. (5) I shall describe each of these ideas briefly and then explore their implications for Nussbaum's conception of human capabilities as a means of articulating core political commitments. First, with respect to public/private distinction, feminists have argued that exercise of private power threatens women's liberty and equality, regardless of whether it mimics exercise of power by state. …