10-7-2002

 

MARTHA C. NUSSBAUM

Articles

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The Professor of Parody
by Martha Nussbaum

Post date 11.28.00

Issue Date 02.22.99


Excitable Speech:
A Politics of the Performative

by Judith Butler
Routledge, 185 pp.

The Psychic Life of Power:
Theories in Subjection

by Judith Butler
Stanford University Press, 218 pp.

Bodies that Matter:
On the Discursive Limits of "Sex"

by Judith Butler
Routledge, 288 pp.

Gender Trouble:
Feminism and the Subversion of Identity

by Judith Butler
Routledge, 172 pp.
 


I.

For a long time, academic feminism in America has been closely allied to the practical struggle to achieve justice and equality for women. Feminist theory has been understood by theorists as not just fancy words on paper; theory is connected to proposals for social change. Thus feminist scholars have engaged in many concrete projects: the reform of rape law; winning attention and legal redress for the problems of domestic violence and sexual harassment; improving women's economic opportunities, working conditions, and education; winning pregnancy benefits for female workers; campaigning against the trafficking of women and girls in prostitution; working for the social and political equality of lesbians and gay men.

Indeed, some theorists have left the academy altogether, feeling more comfortable in the world of practical politics, where they can address these urgent problems directly. Those who remain in the academy have frequently made it a point of honor to be academics of a committed practical sort, eyes always on the material conditions of real women, writing always in a way that acknowledges those real bodies and those real struggles. One cannot read a page of Catharine MacKinnon, for example, without being engaged with a real issue of legal and institutional change. If one disagrees with her proposals--and many feminists disagree with them--the challenge posed by her writing is to find some other way of solving the problem that has been vividly delineated.

Feminists have differed in some cases about what is bad, and about what is needed to make things better; but all have agreed that the circumstances of women are often unjust and that law and political action can make them more nearly just. MacKinnon, who portrays hierarchy and subordination as endemic to our entire culture, is also committed to, and cautiously optimistic about, change through law--the domestic law of rape and sexual harassment and international human rights law. Even Nancy Chodorow, who, in The Reproduction of Mothering, offered a depressing account of the replication of oppressive gender categories in child-rearing, argued that this situation could change. Men and women could decide, understanding the unhappy consequences of these habits, that they will henceforth do things differently; and changes in laws and institutions can assist in such decisions.

Feminist theory still looks like this in many parts of the world. In India, for example, academic feminists have thrown themselves into practical struggles, and feminist theorizing is closely tethered to practical commitments such as female literacy, the reform of unequal land laws, changes in rape law (which, in India today, has most of the flaws that the first generation of American feminists targeted), the effort to get social recognition for problems of sexual harassment and domestic violence. These feminists know that they live in the middle of a fiercely unjust reality; they cannot live with themselves without addressing it more or less daily, in their theoretical writing and in their activities outside the seminar room.

In the United States, however, things have been changing. One observes a new, disquieting trend. It is not only that feminist theory pays relatively little attention to the struggles of women outside the United States. (This was always a dispiriting feature even of much of the best work of the earlier period.) Something more insidious than provincialism has come to prominence in the American academy. It is the virtually complete turning from the material side of life, toward a type of verbal and symbolic politics that makes only the flimsiest of connections with the real situation of real women.

Feminist thinkers of the new symbolic type would appear to believe that the way to do feminist politics is to use words in a subversive way, in academic publications of lofty obscurity and disdainful abstractness. These symbolic gestures, it is believed, are themselves a form of political resistance; and so one need not engage with messy things such as legislatures and movements in order to act daringly. The new feminism, moreover, instructs its members that there is little room for large-scale social change, and maybe no room at all. We are all, more or less, prisoners of the structures of power that have defined our identity as women; we can never change those structures in a large-scale way, and we can never escape from them. All that we can hope to do is to find spaces within the structures of power in which to parody them, to poke fun at them, to transgress them in speech. And so symbolic verbal politics, in addition to being offered as a type of real politics, is held to be the only politics that is really possible.

These developments owe much to the recent prominence of French postmodernist thought. Many young feminists, whatever their concrete affiliations with this or that French thinker, have been influenced by the extremely French idea that the intellectual does politics by speaking seditiously, and that this is a significant type of political action. Many have also derived from the writings of Michel Foucault (rightly or wrongly) the fatalistic idea that we are prisoners of an all-enveloping structure of power, and that real-life reform movements usually end up serving power in new and insidious ways. Such feminists therefore find comfort in the idea that the subversive use of words is still available to feminist intellectuals. Deprived of the hope of larger or more lasting changes, we can still perform our resistance by the reworking of verbal categories, and thus, at the margins, of the selves who are constituted by them.

One American feminist has shaped these developments more than any other. Judith Butler seems to many young scholars to define what feminism is now. Trained as a philosopher, she is frequently seen (more by people in literature than by philosophers) as a major thinker about gender, power, and the body. As we wonder what has become of old-style feminist politics and the material realities to which it was committed, it seems necessary to reckon with Butler's work and influence, and to scrutinize the arguments that have led so many to adopt a stance that looks very much like quietism and retreat.


II.

It is difficult to come to grips with Butler's ideas, because it is difficult to figure out what they are. Butler is a very smart person. In public discussions, she proves that she can speak clearly and has a quick grasp of what is said to her. Her written style, however, is ponderous and obscure. It is dense with allusions to other theorists, drawn from a wide range of different theoretical traditions. In addition to Foucault, and to a more recent focus on Freud, Butler's work relies heavily on the thought of Louis Althusser, the French lesbian theorist Monique Wittig, the American anthropologist Gayle Rubin, Jacques Lacan, J.L. Austin, and the American philosopher of language Saul Kripke. These figures do not all agree with one another, to say the least; so an initial problem in reading Butler is that one is bewildered to find her arguments buttressed by appeal to so many contradictory concepts and doctrines, usually without any account of how the apparent contradictions will be resolved.

A further problem lies in Butler's casual mode of allusion. The ideas of these thinkers are never described in enough detail to include the uninitiated (if you are not familiar with the Althusserian concept of "interpellation," you are lost for chapters) or to explain to the initiated how, precisely, the difficult ideas are being understood. Of course, much academic writing is allusive in some way: it presupposes prior knowledge of certain doctrines and positions. But in both the continental and the Anglo-American philosophical traditions, academic writers for a specialist audience standardly acknowledge that the figures they mention are complicated, and the object of many different interpretations. They therefore typically assume the responsibility of advancing a definite interpretation among the contested ones, and of showing by argument why they have interpreted the figure as they have, and why their own interpretation is better than others.

We find none of this in Butler. Divergent interpretations are simply not considered--even where, as in the cases of Foucault and Freud, she is advancing highly contestable interpretations that would not be accepted by many scholars. Thus one is led to the conclusion that the allusiveness of the writing cannot be explained in the usual way, by positing an audience of specialists eager to debate the details of an esoteric academic position. The writing is simply too thin to satisfy any such audience. It is also obvious that Butler's work is not directed at a non-academic audience eager to grapple with actual injustices. Such an audience would simply be baffled by the thick soup of Butler's prose, by its air of in-group knowingness, by its extremely high ratio of names to explanations.

To whom, then, is Butler speaking? It would seem that she is addressing a group of young feminist theorists in the academy who are neither students of philosophy, caring about what Althusser and Freud and Kripke really said, nor outsiders, needing to be informed about the nature of their projects and persuaded of their worth. This implied audience is imagined as remarkably docile. Subservient to the oracular voice of Butler's text, and dazzled by its patina of high-concept abstractness, the imagined reader poses few questions, requests no arguments and no clear definitions of terms.

Still more strangely, the implied reader is expected not to care greatly about Butler's own final view on many matters. For a large proportion of the sentences in any book by Butler--especially sentences near the end of chapters--are questions. Sometimes the answer that the question expects is evident. But often things are much more indeterminate. Among the non-interrogative sentences, many begin with "Consider..." or "One could suggest..."--in such a way that Butler never quite tells the reader whether she approves of the view described. Mystification as well as hierarchy are the tools of her practice, a mystification that eludes criticism because it makes few definite claims.

Take two representative examples:

What does it mean for the agency of a subject to presuppose its own subordination? Is the act of presupposing the same as the act of reinstating, or is there a discontinuity between the power presupposed and the power reinstated? Consider that in the very act by which the subject reproduces the conditions of its own subordination, the subject exemplifies a temporally based vulnerability that belongs to those conditions, specifically, to the exigencies of their renewal.

And:

Such questions cannot be answered here, but they indicate a direction for thinking that is perhaps prior to the question of conscience, namely, the question that preoccupied Spinoza, Nietzsche, and most recently, Giorgio Agamben: How are we to understand the desire to be as a constitutive desire? Resituating conscience and interpellation within such an account, we might then add to this question another: How is such a desire exploited not only by a law in the singular, but by laws of various kinds such that we yield to subordination in order to maintain some sense of social "being"?

Why does Butler prefer to write in this teasing, exasperating way? The style is certainly not unprecedented. Some precincts of the continental philosophical tradition, though surely not all of them, have an unfortunate tendency to regard the philosopher as a star who fascinates, and frequently by obscurity, rather than as an arguer among equals. When ideas are stated clearly, after all, they may be detached from their author: one can take them away and pursue them on one's own. When they remain mysterious (indeed, when they are not quite asserted), one remains dependent on the originating authority. The thinker is heeded only for his or her turgid charisma. One hangs in suspense, eager for the next move. When Butler does follow that "direction for thinking," what will she say? What does it mean, tell us please, for the agency of a subject to presuppose its own subordination? (No clear answer to this question, so far as I can see, is forthcoming.) One is given the impression of a mind so profoundly cogitative that it will not pronounce on anything lightly: so one waits, in awe of its depth, for it finally to do so.

In this way obscurity creates an aura of importance. It also serves another related purpose. It bullies the reader into granting that, since one cannot figure out what is going on, there must be something significant going on, some complexity of thought, where in reality there are often familiar or even shopworn notions, addressed too simply and too casually to add any new dimension of understanding. When the bullied readers of Butler's books muster the daring to think thus, they will see that the ideas in these books are thin. When Butler's notions are stated clearly and succinctly, one sees that, without a lot more distinctions and arguments, they don't go far, and they are not especially new. Thus obscurity fills the void left by an absence of a real complexity of thought and argument.

Last year Butler won the first prize in the annual Bad Writing Contest sponsored by the journal Philosophy and Literature, for the following sentence:

The move from a structuralist account in which capital is understood to structure social relations in relatively homologous ways to a view of hegemony in which power relations are subject to repetition, convergence, and rearticulation brought the question of temporality into the thinking of structure, and marked a shift from a form of Althusserian theory that takes structural totalities as theoretical objects to one in which the insights into the contingent possibility of structure inaugurate a renewed conception of hegemony as bound up with the contingent sites and strategies of the rearticulation of power.

Now, Butler might have written: "Marxist accounts, focusing on capital as the central force structuring social relations, depicted the operations of that force as everywhere uniform. By contrast, Althusserian accounts, focusing on power, see the operations of that force as variegated and as shifting over time." Instead, she prefers a verbosity that causes the reader to expend so much effort in deciphering her prose that little energy is left for assessing the truth of the claims. Announcing the award, the journal's editor remarked that "it's possibly the anxiety-inducing obscurity of such writing that has led Professor Warren Hedges of Southern Oregon University to praise Judith Butler as `probably one of the ten smartest people on the planet.'" (Such bad writing, incidentally, is by no means ubiquitous in the "queer theory" group of theorists with which Butler is associated. David Halperin, for example, writes about the relationship between Foucault and Kant, and about Greek homosexuality, with philosophical clarity and historical precision.)

Butler gains prestige in the literary world by being a philosopher; many admirers associate her manner of writing with philosophical profundity. But one should ask whether it belongs to the philosophical tradition at all, rather than to the closely related but adversarial traditions of sophistry and rhetoric. Ever since Socrates distinguished philosophy from what the sophists and the rhetoricians were doing, it has been a discourse of equals who trade arguments and counter-arguments without any obscurantist sleight-of-hand. In that way, he claimed, philosophy showed respect for the soul, while the others' manipulative methods showed only disrespect. One afternoon, fatigued by Butler on a long plane trip, I turned to a draft of a student's dissertation on Hume's views of personal identity. I quickly felt my spirits reviving. Doesn't she write clearly, I thought with pleasure, and a tiny bit of pride. And Hume, what a fine, what a gracious spirit: how kindly he respects the reader's intelligence, even at the cost of exposing his own uncertainty.


III.

Butler's main idea, first introduced in Gender Trouble in 1989 and repeated throughout her books, is that gender is a social artifice. Our ideas of what women and men are reflect nothing that exists eternally in nature. Instead they derive from customs that embed social relations of power.

This notion, of course, is nothing new. The denaturalizing of gender was present already in Plato, and it received a great boost from John Stuart Mill, who claimed in The Subjection of Women that "what is now called the nature of women is an eminently artificial thing." Mill saw that claims about "women's nature" derive from, and shore up, hierarchies of power: womanliness is made to be whatever would serve the cause of keeping women in subjection, or, as he put it, "enslav[ing] their minds." With the family as with feudalism, the rhetoric of nature itself serves the cause of slavery. "The subjection of women to men being a universal custom, any departure from it quite naturally appears unnatural.... But was there ever any domination which did not appear natural to those who possessed it?"

Mill was hardly the first social-constructionist. Similar ideas about anger, greed, envy, and other prominent features of our lives had been commonplace in the history of philosophy since ancient Greece. And Mill's application of familiar notions of social-construction to gender needed, and still needs, much fuller development; his suggestive remarks did not yet amount to a theory of gender. Long before Butler came on the scene, many feminists contributed to the articulation of such an account.

In work published in the 1970s and 1980s, Catharine MacKinnon and Andrea Dworkin argued that the conventional understanding of gender roles is a way of ensuring continued male domination in sexual relations, as well as in the public sphere. They took the core of Mill's insight into a sphere of life concerning which the Victorian philosopher had said little. (Not nothing, though: in 1869 Mill already understood that the failure to criminalize rape within marriage defined woman as a tool for male use and negated her human dignity.) Before Butler, MacKinnon and Dworkin addressed the feminist fantasy of an idyllic natural sexuality of women that only needed to be "liberated"; and argued that social forces go so deep that we should not suppose we have access to such a notion of "nature." Before Butler, they stressed the ways in which male-dominated power structures marginalize and subordinate not only women, but also people who would like to choose a same-sex relationship. They understood that discrimination against gays and lesbians is a way of enforcing the familiar hierarchically ordered gender roles; and so they saw discrimination against gays and lesbians as a form of sex discrimination.

Before Butler, the psychologist Nancy Chodorow gave a detailed and compelling account of how gender differences replicate themselves across the generations: she argued that the ubiquity of these mechanisms of replication enables us to understand how what is artificial can nonetheless be nearly ubiquitous. Before Butler, the biologist Anne Fausto Sterling, through her painstaking criticism of experimental work allegedly supporting the naturalness of conventional gender distinctions, showed how deeply social power-relations had compromised the objectivity of scientists: Myths of Gender (1985) was an apt title for what she found in the biology of the time. (Other biologists and primatologists also contributed to this enterprise.) Before Butler, the political theorist Susan Moller Okin explored the role of law and political thought in constructing a gendered destiny for women in the family; and this project, too, was pursued further by a number of feminists in law and political philosophy. Before Butler, Gayle Rubin's important anthropological account of subordination, The Traffic in Women (1975), provided a valuable analysis of the relationship between the social organization of gender and the asymmetries of power.

So what does Butler's work add to this copious body of writing? Gender Trouble and Bodies that Matter contain no detailed argument against biological claims of "natural" difference, no account of mechanisms of gender replication, and no account of the legal shaping of the family; nor do they contain any detailed focus on possibilities for legal change. What, then, does Butler offer that we might not find more fully done in earlier feminist writings? One relatively original claim is that when we recognize the artificiality of gender distinctions, and refrain from thinking of them as expressing an independent natural reality, we will also understand that there is no compelling reason why the gender types should have been two (correlated with the two biological sexes), rather than three or five or indefinitely many. "When the constructed status of gender is theorized as radically independent of sex, gender itself becomes a free-floating artifice," she writes.

From this claim it does not follow, for Butler, that we can freely reinvent the genders as we like: she holds, indeed, that there are severe limits to our freedom. She insists that we should not naively imagine that there is a pristine self that stands behind society, ready to emerge all pure and liberated: "There is no self that is prior to the convergence or who maintains `integrity' prior to its entrance into this conflicted cultural field. There is only a taking up of the tools where they lie, where the very `taking up' is enabled by the tool lying there." Butler does claim, though, that we can create categories that are in some sense new ones, by means of the artful parody of the old ones. Thus her best known idea, her conception of politics as a parodic performance, is born out of the sense of a (strictly limited) freedom that comes from the recognition that one's ideas of gender have been shaped by forces that are social rather than biological. We are doomed to repetition of the power structures into which we are born, but we can at least make fun of them; and some ways of making fun are subversive assaults on the original norms.

The idea of gender as performance is Butler's most famous idea, and so it is worth pausing to scrutinize it more closely. She introduced the notion intuitively, in Gender Trouble, without invoking theoretical precedent. Later she denied that she was referring to quasi-theatrical performance, and associated her notion instead with Austin's account of speech acts in How to Do Things with Words. Austin's linguistic category of "performatives" is a category of linguistic utterances that function, in and of themselves, as actions rather than as assertions. When (in appropriate social circumstances) I say "I bet ten dollars," or "I'm sorry," or "I do" (in a marriage ceremony), or "I name this ship...," I am not reporting on a bet or an apology or a marriage or a naming ceremony, I am conducting one.

Butler's analogous claim about gender is not obvious, since the "performances" in question involve gesture, dress, movement, and action, as well as language. Austin's thesis, which is restricted to a rather technical analysis of a certain class of sentences, is in fact not especially helpful to Butler in developing her ideas. Indeed, though she vehemently repudiates readings of her work that associate her view with theater, thinking about the Living Theater's subversive work with gender seems to illuminate her ideas far more than thinking about Austin.

Nor is Butler's treatment of Austin very plausible. She makes the bizarre claim that the fact that the marriage ceremony is one of dozens of examples of performatives in Austin's text suggests "that the heterosexualization of the social bond is the paradigmatic form for those speech acts which bring about what they name." Hardly. Marriage is no more paradigmatic for Austin than betting or ship-naming or promising or apologizing. He is interested in a formal feature of certain utterances, and we are given no reason to suppose that their content has any significance for his argument. It is usually a mistake to read earth-shaking significance into a philosopher's pedestrian choice of examples. Should we say that Aristotle's use of a low-fat diet to illustrate the practical syllogism suggests that chicken is at the heart of Aristotelian virtue? Or that Rawls's use of travel plans to illustrate practical reasoning shows that A Theory of Justice aims at giving us all a vacation?

Leaving these oddities to one side, Butler's point is presumably this: when we act and speak in a gendered way, we are not simply reporting on something that is already fixed in the world, we are actively constituting it, replicating it, and reinforcing it. By behaving as if there were male and female "natures," we co-create the social fiction that these natures exist. They are never there apart from our deeds; we are always making them be there. At the same time, by carrying out these performances in a slightly different manner, a parodic manner, we can perhaps unmake them just a little.

Thus the one place for agency in a world constrained by hierarchy is in the small opportunities we have to oppose gender roles every time they take shape. When I find myself doing femaleness, I can turn it around, poke fun at it, do it a little bit differently. Such reactive and parodic performances, in Butler's view, never destabilize the larger system. She doesn't envisage mass movements of resistance or campaigns for political reform; only personal acts carried out by a small number of knowing actors. Just as actors with a bad script can subvert it by delivering the bad lines oddly, so too with gender: the script remains bad, but the actors have a tiny bit of freedom. Thus we have the basis for what, in Excitable Speech, Butler calls "an ironic hopefulness."

Up to this point, Butler's contentions, though relatively familiar, are plausible and even interesting, though one is already unsettled by her narrow vision of the possibilities for change. Yet Butler adds to these plausible claims about gender two other claims that are stronger and more contentious. The first is that there is no agent behind or prior to the social forces that produce the self. If this means only that babies are born into a gendered world that begins to replicate males and females almost immediately, the claim is plausible, but not surprising: experiments have for some time demonstrated that the way babies are held and talked to, the way their emotions are described, are profoundly shaped by the sex the adults in question believe the child to have. (The same baby will be bounced if the adults think it is a boy, cuddled if they think it is a girl; its crying will be labeled as fear if the adults think it is a girl, as anger if they think it is a boy.) Butler shows no interest in these empirical facts, but they do support her contention.

If she means, however, that babies enter the world completely inert, with no tendencies and no abilities that are in some sense prior to their experience in a gendered society, this is far less plausible, and difficult to support empirically. Butler offers no such support, preferring to remain on the high plane of metaphysical abstraction. (Indeed, her recent Freudian work may even repudiate this idea: it suggests, with Freud, that there are at least some presocial impulses and tendencies, although, typically, this line is not clearly developed.) Moreover, such an exaggerated denial of pre-cultural agency takes away some of the resources that Chodorow and others use when they try to account for cultural change in the direction of the better.

Butler does in the end want to say that we have a kind of agency, an ability to undertake change and resistance. But where does this ability come from, if there is no structure in the personality that is not thoroughly power's creation? It is not impossible for Butler to answer this question, but she certainly has not answered it yet, in a way that would convince those who believe that human beings have at least some pre-cultural desires--for food, for comfort, for cognitive mastery, for survival--and that this structure in the personality is crucial in the explanation of our development as moral and political agents. One would like to see her engage with the strongest forms of such a view, and to say, clearly and without jargon, exactly why and where she rejects them. One would also like to hear her speak about real infants, who do appear to manifest a structure of striving that influences from the start their reception of cultural forms.

Butler's second strong claim is that the body itself, and especially the distinction between the two sexes, is also a social construction. She means not only that the body is shaped in many ways by social norms of how men and women should be; she means also that the fact that a binary division of sexes is taken as fundamental, as a key to arranging society, is itself a social idea that is not given in bodily reality. What exactly does this claim mean, and how plausible is it?

Butler's brief exploration of Foucault on hermaphrodites does show us society's anxious insistence to classify every human being in one box or another, whether or not the individual fits a box; but of course it does not show that there are many such indeterminate cases. She is right to insist that we might have made many different classifications of body types, not necessarily focusing on the binary division as the most salient; and she is also right to insist that, to a large extent, claims of bodily sex difference allegedly based upon scientific research have been projections of cultural prejudice--though Butler offers nothing here that is nearly as compelling as Fausto Sterling's painstaking biological analysis.

And yet it is much too simple to say that power is all that the body is. We might have had the bodies of birds or dinosaurs or lions, but we do not; and this reality shapes our choices. Culture can shape and reshape some aspects of our bodily existence, but it does not shape all the aspects of it. "In the man burdened by hunger and thirst," as Sextus Empiricus observed long ago, "it is impossible to produce by argument the conviction that he is not so burdened." This is an important fact also for feminism, since women's nutritional needs (and their special needs when pregnant or lactating) are an important feminist topic. Even where sex difference is concerned, it is surely too simple to write it all off as culture; nor should feminists be eager to make such a sweeping gesture. Women who run or play basketball, for example, were right to welcome the demolition of myths about women's athletic performance that were the product of male-dominated assumptions; but they were also right to demand the specialized research on women's bodies that has fostered a better understanding of women's training needs and women's injuries. In short: what feminism needs, and sometimes gets, is a subtle study of the interplay of bodily difference and cultural construction. And Butler's abstract pronouncements, floating high above all matter, give us none of what we need.


IV.

Suppose we grant Butler her most interesting claims up to this point: that the social structure of gender is ubiquitous, but we can resist it by subversive and parodic acts. Two significant questions remain. What should be resisted, and on what basis? What would the acts of resistance be like, and what would we expect them to accomplish?

Butler uses several words for what she takes to be bad and therefore worthy of resistance: the "repressive," the "subordinating," the "oppressive." But she provides no empirical discussion of resistance of the sort that we find, say, in Barry Adam's fascinating sociological study The Survival of Domination (1978), which studies the subordination of blacks, Jews, women, and gays and lesbians, and their ways of wrestling with the forms of social power that have oppressed them. Nor does Butler provide any account of the concepts of resistance and oppression that would help us, were we really in doubt about what we ought to be resisting.

Butler departs in this regard from earlier social-constructionist feminists, all of whom used ideas such as non-hierarchy, equality, dignity, autonomy, and treating as an end rather than a means, to indicate a direction for actual politics. Still less is she willing to elaborate any positive normative notion. Indeed, it is clear that Butler, like Foucault, is adamantly opposed to normative notions such as human dignity, or treating humanity as an end, on the grounds that they are inherently dictatorial. In her view, we ought to wait to see what the political struggle itself throws up, rather than prescribe in advance to its participants. Universal normative notions, she says, "colonize under the sign of the same."

This idea of waiting to see what we get--in a word, this moral passivity--seems plausible in Butler because she tacitly assumes an audience of like-minded readers who agree (sort of) about what the bad things are--discrimination against gays and lesbians, the unequal and hierarchical treatment of women--and who even agree (sort of) about why they are bad (they subordinate some people to others, they deny people freedoms that they ought to have). But take that assumption away, and the absence of a normative dimension becomes a severe problem.

Try teaching Foucault at a contemporary law school, as I have, and you will quickly find that subversion takes many forms, not all of them congenial to Butler and her allies. As a perceptive libertarian student said to me, Why can't I use these ideas to resist the tax structure, or the antidiscrimination laws, or perhaps even to join the militias? Others, less fond of liberty, might engage in the subversive performances of making fun of feminist remarks in class, or ripping down the posters of the lesbian and gay law students' association. These things happen. They are parodic and subversive. Why, then, aren't they daring and good?

Well, there are good answers to those questions, but you won't find them in Foucault, or in Butler. Answering them requires discussing which liberties and opportunities human beings ought to have, and what it is for social institutions to treat human beings as ends rather than as means--in short, a normative theory of social justice and human dignity. It is one thing to say that we should be humble about our universal norms, and willing to learn from the experience of oppressed people. It is quite another thing to say that we don't need any norms at all. Foucault, unlike Butler, at least showed signs in his late work of grappling with this problem; and all his writing is animated by a fierce sense of the texture of social oppression and the harm that it does.

Come to think of it, justice, understood as a personal virtue, has exactly the structure of gender in the Butlerian analysis: it is not innate or "natural," it is produced by repeated performances (or as Aristotle said, we learn it by doing it), it shapes our inclinations and forces the repression of some of them. These ritual performances, and their associated repressions, are enforced by arrangements of social power, as children who won't share on the playground quickly discover. Moreover, the parodic subversion of justice is ubiquitous in politics, as in personal life. But there is an important difference. Generally we dislike these subversive performances, and we think that young people should be strongly discouraged from seeing norms of justice in such a cynical light. Butler cannot explain in any purely structural or procedural way why the subversion of gender norms is a social good while the subversion of justice norms is a social bad. Foucault, we should remember, cheered for the Ayatollah, and why not? That, too, was resistance, and there was indeed nothing in the text to tell us that that struggle was less worthy than a struggle for civil rights and civil liberties.

There is a void, then, at the heart of Butler's notion of politics. This void can look liberating, because the reader fills it implicitly with a normative theory of human equality or dignity. But let there be no mistake: for Butler, as for Foucault, subversion is subversion, and it can in principle go in any direction. Indeed, Butler's naively empty politics is especially dangerous for the very causes she holds dear. For every friend of Butler, eager to engage in subversive performances that proclaim the repressiveness of heterosexual gender norms, there are dozens who would like to engage in subversive performances that flout the norms of tax compliance, of non-discrimination, of decent treatment of one's fellow students. To such people we should say, you cannot simply resist as you please, for there are norms of fairness, decency, and dignity that entail that this is bad behavior. But then we have to articulate those norms--and this Butler refuses to do.


V.

What precisely does Butler offer when she counsels subversion? She tells us to engage in parodic performances, but she warns us that the dream of escaping altogether from the oppressive structures is just a dream: it is within the oppressive structures that we must find little spaces for resistance, and this resistance cannot hope to change the overall situation. And here lies a dangerous quietism.

If Butler means only to warn us against the dangers of fantasizing an idyllic world in which sex raises no serious problems, she is wise to do so. Yet frequently she goes much further. She suggests that the institutional structures that ensure the marginalization of lesbians and gay men in our society, and the continued inequality of women, will never be changed in a deep way; and so our best hope is to thumb our noses at them, and to find pockets of personal freedom within them. "Called by an injurious name, I come into social being, and because I have a certain inevitable attachment to my existence, because a certain narcissism takes hold of any term that confers existence, I am led to embrace the terms that injure me because they constitute me socially." In other words: I cannot escape the humiliating structures without ceasing to be, so the best I can do is mock, and use the language of subordination stingingly. In Butler, resistance is always imagined as personal, more or less private, involving no unironic, organized public action for legal or institutional change.

Isn't this like saying to a slave that the institution of slavery will never change, but you can find ways of mocking it and subverting it, finding your personal freedom within those acts of carefully limited defiance? Yet it is a fact that the institution of slavery can be changed, and was changed--but not by people who took a Butler-like view of the possibilities. It was changed because people did not rest content with parodic performance: they demanded, and to some extent they got, social upheaval. It is also a fact that the institutional structures that shape women's lives have changed. The law of rape, still defective, has at least improved; the law of sexual harassment exists, where it did not exist before; marriage is no longer regarded as giving men monarchical control over women's bodies. These things were changed by feminists who would not take parodic performance as their answer, who thought that power, where bad, should, and would, yield before justice.

Butler not only eschews such a hope, she takes pleasure in its impossibility. She finds it exciting to contemplate the alleged immovability of power, and to envisage the ritual subversions of the slave who is convinced that she must remain such. She tells us--this is the central thesis of The Psychic Life of Power--that we all eroticize the power structures that oppress us, and can thus find sexual pleasure only within their confines. It seems to be for that reason that she prefers the sexy acts of parodic subversion to any lasting material or institutional change. Real change would so uproot our psyches that it would make sexual satisfaction impossible. Our libidos are the creation of the bad enslaving forces, and thus necessarily sadomasochistic in structure.

Well, parodic performance is not so bad when you are a powerful tenured academic in a liberal university. But here is where Butler's focus on the symbolic, her proud neglect of the material side of life, becomes a fatal blindness. For women who are hungry, illiterate, disenfranchised, beaten, raped, it is not sexy or liberating to reenact, however parodically, the conditions of hunger, illiteracy, disenfranchisement, beating, and rape. Such women prefer food, schools, votes, and the integrity of their bodies. I see no reason to believe that they long sadomasochistically for a return to the bad state. If some individuals cannot live without the sexiness of domination, that seems sad, but it is not really our business. But when a major theorist tells women in desperate conditions that life offers them only bondage, she purveys a cruel lie, and a lie that flatters evil by giving it much more power than it actually has.

Excitable Speech, Butler's most recent book, which provides her analysis of legal controversies involving pornography and hate speech, shows us exactly how far her quietism extends. For she is now willing to say that even where legal change is possible, even where it has already happened, we should wish it away, so as to preserve the space within which the oppressed may enact their sadomasochistic rituals of parody.

As a work on the law of free speech, Excitable Speech is an unconscionably bad book. Butler shows no awareness of the major theoretical accounts of the First Amendment, and no awareness of the wide range of cases such a theory will need to take into consideration. She makes absurd legal claims: for example, she says that the only type of speech that has been held to be unprotected is speech that has been previously defined as conduct rather than speech. (In fact, there are many types of speech, from false or misleading advertising to libelous statements to obscenity as currently defined, which have never been claimed to be action rather than speech, and which are nonetheless denied First Amendment protection.) Butler even claims, mistakenly, that obscenity has been judged to be the equivalent of "fighting words." It is not that Butler has an argument to back up her novel readings of the wide range of cases of unprotected speech that an account of the First Amendment would need to cover. She just has not noticed that there is this wide range of cases, or that her view is not a widely accepted legal view. Nobody interested in law can take her argument seriously.

But let us extract from Butler's thin discussion of hate speech and pornography the core of her position. It is this: legal prohibitions of hate speech and pornography are problematic (though in the end she does not clearly oppose them) because they close the space within which the parties injured by that speech can perform their resistance. By this Butler appears to mean that if the offense is dealt with through the legal system, there will be fewer occasions for informal protest; and also, perhaps, that if the offense becomes rarer because of its illegality we will have fewer opportunities to protest its presence.

Well, yes. Law does close those spaces. Hate speech and pornography are extremely complicated subjects on which feminists may reasonably differ. (Still, one should state the contending views precisely: Butler's account of MacKinnon is less than careful, stating that MacKinnon supports "ordinances against pornography" and suggesting that, despite MacKinnon's explicit denial, they involve a form of censorship. Nowhere does Butler mention that what MacKinnon actually supports is a civil damage action in which particular women harmed through pornography can sue its makers and its distributors.)

But Butler's argument has implications well beyond the cases of hate speech and pornography. It would appear to support not just quietism in these areas, but a much more general legal quietism--or, indeed, a radical libertarianism. It goes like this: let us do away with everything from building codes to non-discrimination laws to rape laws, because they close the space within which the injured tenants, the victims of discrimination, the raped women, can perform their resistance. Now, this is not the same argument radical libertarians use to oppose building codes and anti-discrimination laws; even they draw the line at rape. But the conclusions converge.

If Butler should reply that her argument pertains only to speech (and there is no reason given in the text for such a limitation, given the assimilation of harmful speech to conduct), then we can reply in the domain of speech. Let us get rid of laws against false advertising and unlicensed medical advice, for they close the space within which poisoned consumers and mutilated patients can perform their resistance! Again, if Butler does not approve of these extensions, she needs to make an argument that divides her cases from these cases, and it is not clear that her position permits her to make such a distinction.

For Butler, the act of subversion is so riveting, so sexy, that it is a bad dream to think that the world will actually get better. What a bore equality is! No bondage, no delight. In this way, her pessimistic erotic anthropology offers support to an amoral anarchist politics.


VI.

When we consider the quietism inherent in Butler's writing, we have some keys to understanding Butler's influential fascination with drag and cross-dressing as paradigms of feminist resistance. Butler's followers understand her account of drag to imply that such performances are ways for women to be daring and subversive. I am unaware of any attempt by Butler to repudiate such readings.

But what is going on here? The woman dressed mannishly is hardly a new figure. Indeed, even when she was relatively new, in the nineteenth century, she was in another way quite old, for she simply replicated in the lesbian world the existing stereotypes and hierarchies of male-female society. What, we may well ask, is parodic subversion in this area, and what a kind of prosperous middle-class acceptance? Isn't hierarchy in drag still hierarchy? And is it really true (as The Psychic Life of Power would seem to conclude) that domination and subordination are the roles that women must play in every sphere, and if not subordination, then mannish domination?

In short, cross-dressing for women is a tired old script--as Butler herself informs us. Yet she would have us see the script as subverted, made new, by the cross-dresser's knowing symbolic sartorial gestures; but again we must wonder about the newness, and even the subversiveness. Consider Andrea Dworkin's parody (in her novel Mercy) of a Butlerish parodic feminist, who announces from her posture of secure academic comfort:

The notion that bad things happen is both propagandistic and inadequate.... To understand a woman's life requires that we affirm the hidden or obscure dimensions of pleasure, often in pain, and choice, often under duress. One must develop an eye for secret signs--the clothes that are more than clothes or decoration in the contemporary dialogue, for instance, or the rebellion hidden behind apparent conformity. There is no victim. There is perhaps an insufficiency of signs, an obdurate appearance of conformity that simply masks the deeper level on which choice occurs.

In prose quite unlike Butler's, this passage captures the ambivalence of the implied author of some of Butler's writings, who delights in her violative practice while turning her theoretical eye resolutely away from the material suffering of women who are hungry, illiterate, violated, beaten. There is no victim. There is only an insufficiency of signs.

Butler suggests to her readers that this sly send-up of the status quo is the only script for resistance that life offers. Well, no. Besides offering many other ways to be human in one's personal life, beyond traditional norms of domination and subservience, life also offers many scripts for resistance that do not focus narcissistically on personal self-presentation. Such scripts involve feminists (and others, of course) in building laws and institutions, without much concern for how a woman displays her own body and its gendered nature: in short, they involve working for others who are suffering.

The great tragedy in the new feminist theory in America is the loss of a sense of public commitment. In this sense, Butler's self-involved feminism is extremely American, and it is not surprising that it has caught on here, where successful middle-class people prefer to focus on cultivating the self rather than thinking in a way that helps the material condition of others. Even in America, however, it is possible for theorists to be dedicated to the public good and to achieve something through that effort.

Many feminists in America are still theorizing in a way that supports material change and responds to the situation of the most oppressed. Increasingly, however, the academic and cultural trend is toward the pessimistic flirtatiousness represented by the theorizing of Butler and her followers. Butlerian feminism is in many ways easier than the old feminism. It tells scores of talented young women that they need not work on changing the law, or feeding the hungry, or assailing power through theory harnessed to material politics. They can do politics in safety of their campuses, remaining on the symbolic level, making subversive gestures at power through speech and gesture. This, the theory says, is pretty much all that is available to us anyway, by way of political action, and isn't it exciting and sexy?

In its small way, of course, this is a hopeful politics. It instructs people that they can, right now, without compromising their security, do something bold. But the boldness is entirely gestural, and insofar as Butler's ideal suggests that these symbolic gestures really are political change, it offers only a false hope. Hungry women are not fed by this, battered women are not sheltered by it, raped women do not find justice in it, gays and lesbians do not achieve legal protections through it.

Finally there is despair at the heart of the cheerful Butlerian enterprise. The big hope, the hope for a world of real justice, where laws and institutions protect the equality and the dignity of all citizens, has been banished, even perhaps mocked as sexually tedious. Judith Butler's hip quietism is a comprehensible response to the difficulty of realizing justice in America. But it is a bad response. It collaborates with evil. Feminism demands more and women deserve better.


MARTHA C. NUSSBAUM
's new book, Sex and Social Justice, has recently been published by Oxford University Press.

 

Martha C. Nussbaum and Her Critics: An Exchange

Issue date: 04.19.99

Post date: 12.16.99



TO THE EDITORS:
In a recent issue ("The Professor of Parody," February 22), as an example of gullibility in the face of obscure prose, Martha C. Nussbaum trots out a secondhand quotation where I reputedly opine that Judith Butler is "probably one of the ten smartest people on the planet."

Had Nussbaum verified the quotation instead of citing a citation, she would have found a literary theory website introducing "The Grand PoohBahs: Often Named Jacques, but also Helene, Luce, Michel, and occasionally Fred" (which also features Michel Foucault's head pasted atop a Pez dispenser). The original quote: "Judith Butler's ideas are sophisticated enough that people usually simplify them in cartoonish ways. Engaging her in a profound way necessitates an understanding of an intimidating list of difficult thinkers.... Probably one of the ten smartest people on the planet, and damn her--he said admiringly--she's only 34." It's called irony. Discerning readers are welcome to join me.

Without doubt, theory-minded academics often dismiss objections with unwarranted impatience. But when self-appointed defenders of clarity are unwilling to do the basic research we would require of any first-year composition student, perhaps that impatience is warranted. For the original, campy discussion of Butler (and now, Nussbaum) visit: www.sou.edu/English/IDTC/Swirl/swirl.htm.

WARREN HEDGES
Assistant Professor of English
Southern
Oregon University
Ashland, Oregon



TO THE EDITORS:
In her recent review of Judith Butler's work, Martha C. Nussbaum complains that feminists like Butler "find comfort in the idea that the subversive use of words is still available to feminist intellectuals." Her own essay is a better example of this confidence than anything written by Judith Butler.

Nussbaum believes that social-construction theories are the same as the analysis of gender as performative. And she will not allow Butler the freedom of expanding the Austinian performative into a more than verbal category. Since she so berates Butler for being impractical, she should have reckoned that social construction of gender theories being around since Plato is not quite the same thing as an intellectual pointing out that we all make gender come into being by doing it. Butler's performative theory is not the same as Austin's and not the same as social construction theories. She is addressing conventions in use, social contract-effects, collective "institutions" of elusive materiality, the ground of the political. No legal or political reform stands a chance of survival without tangling with conventions.

As an Indian feminist theorist and activist resident in the United States and honored by the friendship of such subcontinental feminist activists as Flavia Agnes, Farida Akhter, Mahasweta Devi, Madhu Kishwar, Rajeswari Sunder Rajan, Romila Thapar, Susie Tharu, and many others, I refuse the implicit matronizing reference to "rape law in India today, [which] has most of the flaws that the first generation of American feminists targeted" with which Nussbaum opens her subplot of Indian feminists as an example of what Butler is not. (How are we to treat Anupama Rao's serious consideration of Butler in "Understanding Sirsgaon: Notes Toward Conceptualising the Role of Law, Caste and Gender in a Case of `Atrocity,'" for example? Instances of the use of Butler by Indian feminist theorists can be multiplied.)

This flag-waving championship of needy women leads Nussbaum finally to assert that "women who are hungry, illiterate, disenfranchised, beaten, raped ... prefer food, schools, votes, and the integrity of their bodies." Sounds good, from a powerful tenured academic in a liberal university. But how does she know? This may be her idea of what they should want. In that conviction she may want to train them to want this. That is called a "civilizing mission." But if she ever engages in unmediated grassroots activism in the global South, rather than championing activist theorists, she will find that the gender practice of the rural poor is quite often in the performative mode, carving out power within a more general scene of pleasure in subjection. If she wants to deny this generality of gender culture and make the women over in her own image, she will have to enter their protocol, and learn much greater patience and understanding than is shown by this vicious review.

"Butler's hip quietism ... collaborates with evil," Nussbaum concludes. Any involvement with counter-globalization would show how her unexamined, and equally hip, U.S. benevolence toward "other women" collaborates with exploitation. The solution, if there is any, is not to engage in abusive reviews in the pages of national journals.

GAYATRI CHAKRAVORTY SPIVAK
Avalon Foundation Professor in the
Humanities
Columbia University
New York, New York



TO THE EDITORS:
We were disturbed by Martha C. Nussbaum's attack on Judith Butler in the February 22 issue of The New Republic.

One element we found particularly objectionable was Nussbaum's repeated attempts to dismiss Butler as a philosopher. At one point Nussbaum claims that Butler is seen as a major thinker "more by people in literature than by philosophers." She asks whether Butler's manner of writing "belongs to the philosophical tradition at all." As one who has contributed much to bringing literature and philosophy closer together, Nussbaum's questioning of Butler's attempts are disingenuous. Furthermore, Nussbaum's move is reminiscent of those who have tried to keep feminist concerns out of philosophy on grounds "that this is just not philosophy."

While Nussbaum raises some worthwhile questions, the element of vituperativeness in the essay is disturbing. Butler's contributions are not only described as "unconscionably bad" but the quietism Nussbaum claims to follow from them is said "to collaborate with evil." This rhetoric of overkill stands in striking contrast to the unquestioning adulation Nussbaum gives to Catharine MacKinnon and Andrea Dworkin. Given the authoritarian strains in the politics of MacKinnon and Dworkin, Butler's strong antiauthoritarianism is a useful antidote.

SEYLA BENHABIB
Professor of Government
Harvard University
Cambridge, Massachusetts


NANCY FRASER
Professor of Political Science and Philosophy
The New School for Social Research
New York, New York


LINDA NICHOLSON
The State University of New York, Albany
Albany, New York



TO THE EDITORS:
Martha C. Nussbaum's review of Judith Butler takes as its premise the belief that the test of a theory's goodness is its positive political outcome. Yet we are offered no empirical evidence for this claim. Instead, we are presented with a manichean scheme which defines "good" theory as that which "is closely tethered to practical commitments," to "real" issues, to "the real situation of real women," to "real politics" and "real justice." It is irrelevant to Nussbaum's polemic that Judith Butler is on record in word and deed as a politically concerned person with "practical commitments" to "real politics," and that her writings have influenced what even Nussbaum would take to be "good" politics among Queer activists, feminist psychoanalysts, and lawyers working on women's rights. According to the logic of the argument, since Butler does not share Nussbaum's "normative theory of social justice and human dignity," Butler can only "collaborate with evil." In the guise of a serious book review, Nussbaum has constructed a self-serving morality tale in which she (along with Catharine MacKinnon and Andrea Dworkin) represents historically authentic and politically efficacious feminism, while Judith Butler (and the young, Francophile, sado-masochist minions who are said to follow her) indulge in "amoral anarchist politics" or "hip quietism" and so betray feminist goals.

Nussbaum conveniently omits all discussion of instances of "real" politics in her article, perhaps because the evidence is so damning to her argument. To deduce politics from theory, as Nussbaum does, is to misunderstand the operations of both. The job of theory is to open new avenues of understanding, to trouble conventional wisdom with difficult questions. The job of politics (in democratic societies, at least) is to secure some end in a contested, conflictual field. Politics and theory may inform one another at certain moments with successful or unsuccessful results--the outcomes are not predictable. Historically, though, one thing is sure: when the gap between theory and politics is closed in the name of virtue, when Robespierre or the Ayatollahs or Ken Starr seek to impose their vision of the "good" on the rest of society, reigns of terror follow and democratic politics are undermined. These are situations in which, to reverse Martha Nussbaum's reasoning, too much "good" ends up as "evil," and feminism, along with all other emancipatory movements, loses its public voice.

Sadly, Nussbaum's good versus evil scheme substitutes moralist fundamentalism for genuine philosophical and political debate among feminists--and there is much to be debated these days: Are all "women" the same? Who can speak for the needs and interests of "women"? How can political action address deeply rooted conventions about gender? Judith Butler has engaged these questions with great honesty and skill. Those of us looking for ways of reflecting on the situation of feminism today understandably prefer the provocative, open theories of Judith Butler to the closed moralizing of Martha Nussbaum.

JOAN W. SCOTT
Professor of Social Science
Institute for Advanced Study
Princeton, New Jersey



TO THE EDITORS:
Are feminist theorists now divisible into two distinct groups, the activists and the "hip defeatists"? While Martha C. Nussbaum raises some serious issues about the relation between feminist theory and the day-to-day struggles of women around the world to achieve recognition of their dignity, her dichotomy between those feminists who are "materialists" and those of a "new symbolic type" who "believe that the way to do feminist politics is to use words in a subversive way, in academic publications of lofty obscurity and disdainful abstraction" is not only simplistic but obscures the crucial focus of second-wave feminism on the role of representations in shaping our reality.

We don't think that any feminist, Judith Butler included, believes that feminist political goals can be achieved in the ways attributed by Nussbaum to this "new symbolic type." But feminists of all stripes-- as well as many other groups in the second half of this century--have long seen that questions of how we represent ourselves and are represented by others are central to the quest for justice. In her article, Nussbaum contrasts Catharine MacKinnon as the exemplar "good" activist feminist to Judith Butler, her epitome of the "bad" language-oriented feminist. Yet for both MacKinnon and Butler, feminist work is grounded in an insistence upon the material force of representations, linguistic as well as visual. Catharine MacKinnon and other antiporn feminists have taught us that pornographic images and words brutalize us as women and that resisting repression means finding ways out of these representations.

Judith Butler's work, including her rightfully famous insight into the performative aspect of identity, likewise focuses on the ways in which representations have constitutive force, the way in which who we are is deeply connected with how we are represented. But whereas MacKinnon's focus on the materiality of representation has turned toward legal reform, including the creation of an innovative civil rights ordinance written with Andrea Dworkin, Butler has argued that the struggle over representations should be fought out in politics.

This is a real difference between them and needs to be addressed. Feminist theorists, including one of the authors, have sought for years now to address this question of the parameters of legal reform and the possibilities of change through politics. Part of this involves a problem that has historically plagued analytic jurisprudence: How do we reconcile freedom and equality in a concept of right?

Given the stakes and seriousness of the work of these two theorists as well as the complexity that their work--and that of many, many others--seeks to address, Nussbaum's facile division of theorists into two camps is not only inaccurate, it is less than productive. Reading her essay, actually not much more than an ad feminam attack on Butler, one is indeed reminded--if ironically, if paradoxically--of David Hume, whom Nussbaum accurately characterizes as "a fine ... a gracious spirit: how kindly he respects the reader's intelligence, even at the cost of exposing his own uncertainty." Would that Martha Nussbaum had honored Hume's philosophical spirit in her own review of Judith Butler's work.

DRUCILLA CORNELL
Professor of Law, Political Science, and Women's Studies
Rutgers University
New Brunswick, New Jersey


SARA MURPHY
Lecturer
Gallatin School, New York University
New York, New York



MARTHA C. NUSSBAUM REPLIES:

Hedges's letter shows that I quoted him correctly. The larger context of his remark suggests that it may be hyperbolic; there is no sign that it is ironic. Perhaps Hedges confuses these two concepts.

Spivak is wrong to say that I equate social-construction theories with the thesis that gender is performative. I said that the latter, though built on the former, was Butler's one interesting new contribution. Butler can of course expand on Austin as she likes, but my claim was that Austin's views, which in any case she misrepresents, do not help her much with the project that she is pursuing.

I admire Spivak's work with tribal women: indeed I was thinking of it when I wrote that feminists in India, whatever their intellectual orientation, remain close to practical problems. But she should inquire about what I do before she makes assumptions. I have spent a lot of time during the past few years with activists and women's development projects in India. I have visited projects of many different types in different regions. I have never yet met a poor woman who told me she took pleasure in subjection, though there may be some who do. I have met countless women who struggle for access to credit, education, employment opportunities, political representation, and shelter from domestic violence.

My claims about rape law in India are correct: a victim's sexual history, for example, is still relevant evidence. I believe that there is nothing "matronizing" about making American readers aware of the fine work being done in this area by activists such as Indira Jaising, for whose advice and illumination I am grateful. In my forthcoming book, Women and Human Development, my claims about women in India are amply documented, as was not possible in a brief review.

Benhabib, Fraser, and Nicholson say that my claim that Butler is more sophist than philosopher is "disingenuous" because I have written that philosophy can derive insight from literature. This odd non sequitur might be valid if one supplied the tacit premise that sophistry is literature, or that Butler is a figure comparable to Proust and Henry James. But I see no reason to accept either of those assumptions. What I called "unconscionably bad" was not Butler's work in general, but her use of First Amendment legal materials in Excitable Speech. In that context, the phrase is appropriate. Finally, anyone who reads what I have written about MacKinnon and Dworkin will know that my attitude to them is not one of "unquestioning adulation," but rather of deeply respectful criticism.

Scott misses an important distinction. I was talking not about practical activities pursued by theorists, but about theorizing in a way that gives direction to practical political efforts. Butler may well have admirable practical commitments, but this does not change the fact that what she writes as a theorist offers no helpful direction for practice. I discussed many examples of theorizing that does provide such a direction, including writings about the reform of rape law, sexual harassment law, and the concept of sex equality more generally. Nor do I see how the scare-names of the Ayatollah and Robespierre undermine the value of the work of feminists who have helped make progress in legal reform.

Cornell and Murphy write an interesting letter that goes to the substance of what I actually argued. They are correct in noting that MacKinnon's thought has a significant symbolic dimension. The differences between MacKinnon and Foucault deserve a subtle investigation. I hope they will write such a study. Far from dividing thinkers into two camps, I made it clear that I respect some work in the Foucauldian-Symbolic tradition, including the work of Foucault himself. Butler doesn't seem to me a thinker of the same caliber.

 

 

Dear Professor Paglia:

Denis Dutton, the teacher at the University of Canterbury in New Zealand who founded the annual "Bad Writing Contest" a few years ago, recently announced the winner of this year's contest as Professor Judith Butler of the University of California at Berkeley. Her "winning" sentence comes from an article she wrote for the journal "Diacritics":

"The move from a structuralist account in which capital is understood to structure social relations in relatively homologous ways to a view of hegemony in which power relations are subject to repetition, convergence, and rearticulation brought the questions of temporality into the thinking of structure, and marked a shift from a form of Althusserian theory that takes structural tonalities as theoretical objects to one in which the insights into the contingent possibility of structure inaugurate a renewed conception of hegemony as bound up with the contingent sites and strategies of the rearticulation of power."

Now, I don't think I'm a stupid person, and I think I have a pretty good grasp of the English language, but I haven't a clue as to what Professor Butler is trying to say. And she's a professor, yet! Apparently someone, like, read her work and thought she should be paid big bucks to do more. I don't get it. There are crazy people ranting on the streets who make more sense (Berkeley could save a wad of cash by hiring a dozen of them to take Butler's place). But I recall that in one of your books you said she was a student of yours once. Did you teach her to write like this?

Joseph Molden
Santa Cruz, Calif.

Dear Mr. Molden,

"A hard rain's a-gonna fall!" prophesied Bob Dylan in 1963. The academic sun that once brought high rank and riches to PC queens like Judith Butler has begun to fade in the gathering storm.

May the Muses bless New Zealand's Professor Dutton for his witty championing of basic standards of logic and style! Unfortunately, Butler is only one of a flock of poststructuralist seagulls whose empty squawks have been hailed as divine wisdom by gullible professors and imposed on hapless students in required reading lists.

That the chill winds of change are abroad is obvious in the New Republic's Feb. 22 cover line, "America's Emptiest Feminist," the teaser for Martha Nussbaum's trashing of Butler within. When one PC diva turns on another, you can bet the academic establishment is coming apart at the seams. Let the cat fights begin!

Yes, dear readers, the University of Chicago's Madame Nussbaum (once a classicist but now oddly a professor of law, among her other ever-accruing titles), whose revolting overpraise in her Times Literary Supplement review of two shoddy, theory-contorted books by gay classicists partly inspired my 1991 Arion manifesto, "Junk Bonds and Corporate Raiders," is now doing a Paglia on Butler -- motivated, it appears, by Nussbaum's irritation at Butler being mistaken for a major philosopher by philosophically naive literature teachers.

Nussbaum's exposť is long overdue. Of course, if she had real courage or disinterested motivation, she would have written it seven or eight years ago -- just as she would have publicly allied with me in the campaign for academic reform instead of doing the opposite (as when she denounced the editor of Arion, Herbert Golder, for publishing my essay). Nussbaum isn't squeamish about borrowing my ideas without acknowledgment, however, as in her proposal in her most recent book to put world religions at the center of 21st century multicultural education. (Cooking dinner one night, I laughed out loud when David Gergen, interviewing Nussbaum on PBS's "Newshour With Jim Lehrer," gushily singled out that idea in her book, as she smiled winsomely and flashed some more leg.)

Though I agree with her about Butler's philosophical mediocrity, Nussbaum's endless, numbingly verbose New Republic piece stumbles on the gender theory question. Yes, Butler is ludicrously lionized for commonplaces that are decades old, but Nussbaum, herself a creature of PC coteries, wildly overestimates the work on gender of her former Brown University colleague, Anne Fausto-Sterling, and other feminazis. Nussbaum's preparation or instinct for sex analysis is dubious at best. But whatever her failings (she's worked to the bone her graduate-school mentor's expertise in Aristotle, and she made a much-derided poor showing in parsing Greek at a Colorado gay rights trial), Nussbaum is a genuine scholar who operates on a vastly higher intellectual level than Butler, a Foucault fanatic whose limited assumptions and muddled writing I have been attacking for years -- even when I lectured in 1993 at her own former institution, Johns Hopkins University.

Please do not blame me for Butler's lousy writing! She was never officially enrolled in my classes in the mid-1970s at Bennington College -- although her circle of close friends were repeat students of mine. I was then in my most militant lesbian-feminist mode (which led to me getting fired after a fist fight at a college dance half a decade later). My influence was everywhere on that small, seethingly insular campus. For example, I helped organize a feminist film festival, for which I chose the films and wrote the program notes. I gave illustrated public lectures on sexual personae and "performance" (a Swinging '60s London and Warhol New York principle that stupid people think Butler or Foucault invented). In an essay for the alumni journal, I celebrated Bennington's transvestite production of Jean Genet's "The Maids," starring a charismatic theater major, Mitchell Lichtenstein, as the maid Clare.

The sad truth is that Judith Butler -- at that time wry and smart but timorous, mundane and as nervously anxious as early Woody Allen (I used to call her "the little brown mole") -- fled Bennington at the height of David Bowie's flamboyant, gender-bending period (Bowie was our god) to enroll as a transfer student at Yale University, where she eventually got her B.A. Yale was then the first landing point, via Johns Hopkins, of French poststructualism, a ponderously labyrinthine style of false abstraction that killed the American-born Warholite pop revolution dead in its tracks, when acolytes like myself were trying to use it to revolutionize academic discourse.

Judith Butler is no radical: She is one of the smoothest careerists and veteran conference hoppers in the entire American academic system. She shrewdly adapted herself to the prevailing chic orthodoxy at Yale and became a major player in the ruthless academic marketplace, with its platinum perks and golden parachutes. The well-publicized jockeying and bidding wars that have gone on for Butler's services -- among Hopkins, Berkeley, Stanford, Harvard, New York University, et al. -- have driven her salary into the stratosphere, while the aboriginal Warholites remain ostracized. You're quite right to focus on the blatant inequities here: The star system, which accelerated in the 1980s, has warped the academic budget and helped keep graduate-student teaching assistants and adjunct instructors at slave wages.

I have repeatedly suggested in my lectures and elsewhere that Butler, on the basis of her published writings, has evidently not undertaken the kind of broad research into science, art, literature, popular culture, history, political science and economics that would give texture and credibility to her theorizing about gender and society. But at this point I can't get too exercised that foolish teachers are wasting their students' precious college time with Butler's turgid, derivative work, since it should be obvious to everyone that she has played no part whatever in the great public debates of the 1990s that have transformed feminism. Judith Butler is very small potatoes -- for which American universities have paid a very high price.

Postscript: In an op-ed piece for the Feb. 22 Wall Street Journal, I condemned the intrusion of gay propaganda about famous artists (and poor Eleanor Roosevelt!) into a Newton, Mass., middle school, as reported in the Feb. 11 Boston Globe.
SALON | Feb. 24, 1999

 

Rescuing the feminist book - - - - -
MARTHA NUSSBAUM REIMAGINES THE WOMEN'S MOVEMENT --
FROM GLOBAL POVERTY TO THE RIGHT TO BE HOT.

Sex and Social Justice | By Martha Nussbaum
Oxford University Press, 528 pages | Nonfiction

By Maria Russo

April 19, 1999 | "Sex and Social Justice" has no author photo. What are the people at Oxford University Press thinking? Martha Nussbaum is an attractive woman. And this is a book about women. Why the aged Indian peasant on the cover? Where is Elizabeth Wurtzel's boob?

Nussbaum is the polished University of Chicago professor of law and ethics who surfaced in the mainstream media during an odd moment in the 1996 trial over Colorado's anti-gay rights amendment. She was asked to rebut the testimony of one of the state's expert witnesses, who claimed that even the ancient Greeks found homosexuality morally repellant. Lately, she's turned her attention to feminist matters. Last month she attacked Judith Butler in the New Republic for her "hip quietism," which Nussbaum characterized as infuriatingly coy, apolitical and pessimistic about the feminist quest for justice. The diatribe provoked a flurry of responses from big-name academic feminists who defended Butler's political usefulness. Nussbaum responded by dismissing the substance of each letter with the same lucid if slightly impatient tone she'd used on Butler.

As Nussbaum squares off with her fellow academic feminists, her hefty new collection of essays, "Sex and Social Justice," sets its sights beyond the academy to a public forum awash in books about women's issues. In some ways Nussbaum's timing couldn't have been better. As often as not these days, books about women are written by young, mediagenic women who have noticed a pattern in how they and their friends feel about being women. From Naomi Wolf's paean to bad girls, "Promiscuities," to Wendy Shalit's plea for good girls, "A Return to Modesty," the genre has poster babes from every part of the political spectrum. If she's at all cute, her photo lodges in the public imagination as surely as her ideas do. The ever-unsubtle Wurtzel hammered home this reality with that topless cover shot on last year's "Bitch." Her naked left breast, along with an uplifted fuck-you finger, helpfully literalized the link between her own body and her argument that women with bitchy, erratic personalities should be more socially accepted. If no one read the book, well, she still gets her message across.

As Time's "Is Feminism Dead?" cover story last year pointed out, the bar is set pretty low if you want to write a book about being privileged, young and female in America today. This may not mean the end of feminism, but it does represent a shift in the media's production of feminist faces.

Can an academic like Nussbaum -- trained to do actual research, careful in her arguments and evidently champing at the bit for a chance at cultural influence -- rescue the genre of the feminist book? Nussbaum scores a partial victory: She shows brilliantly how sex is used to deny some people -- i.e., women and gay men -- social justice. But she doesn't convince us that theories of social justice are the best intellectual tool for constructing a sexual philosophy.

The essays in the first part of the book set out to restore some international perspective to American feminist discourse. That starkly anti-glamour cover photo is not incidental: Many of the essays were written while Nussbaum was working on a multinational project on quality of life in developing nations, and she wants to correct the myopic focus of much American feminism. Her premise is that any attention to the unequal treatment of women should begin (not end) with the unequal nutrition, health care and access to employment faced by a vast portion of women around the world. Several essays discuss the proper response of Westerners to the condition of a woman like Metha Bai, a young Indian widow with four children who can't leave the house due to the traditions of her caste; her choices are slow starvation or beatings if she tries to work.

Nussbaum argues that unjust social systems, such as the one that has trapped Metha Bai, and cruel practices such as female genital mutilation deserve our condemnation. Her starting point is simple: She wants a world in which "a life of fully human functioning, or a kind of basic human flourishing, will be available" to everyone. The chance event of being born into a particular culture, Nussbaum writes, carries far too much weight in determining the quality of life available to every human being, but it's especially so for women. In Afghanistan, the female literacy rate is 29 percent that of males; in Iran, a woman who breaks the dress code gets a punishment ranging from 37 lashes to having her feet placed in a gunny sack full of mice and cockroaches.

It's an inspired move to start a feminist book with these startling injustices. Not since Mary Daly's tract on global brutality against women, "Gyn/Ecology," has a prominent feminist philosopher made the world of female inequality her subject matter for a popular book. In post-Title IX, post-Roe vs. Wade America, feminist attention has turned toward questions of "representation" -- how women are depicted, how gender is depicted -- and away from concrete problems of inequalities in institutions and legal structures.

This is in part because there are fewer institutionalized inequalities in the United States now. A rape victim's sexual history can no longer be used as evidence of her willingness; schools must now allot equal resources to boys' and girls' athletic activities. But reading a book like Nussbaum's is a reminder that feminist analysis is still most convincing when it starts with questions of legal and political inequalities. (Linda Kerber's ingenious "No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship" (Farrar Straus) -- which suggests that in order to live as equals, women may have to forgo some privileges of their gender, such as being exempted from the draft -- also contributes to this uncompromising new trend in feminism.) While it's true that, as Judith Butler's defenders argue, representations can have deep implications for the kind of world we create, it's still a wake-up call of a whole different order to think about a nation where it's legal for a 4-year-old girl to be held down as her clitoris is sliced off.

But it is in the book's second half, called "Sex," that Nussbaum's brilliant reasoning falls short. Her central question -- how can we have just and loving but still sexy relationships in a world where our very sexual desires are formed by an unjust world? -- is essentially a search for a sexual philosophy for the contemporary heterosexual. The most successful essays apply her ideas about human dignity to thorny legal issues. There's a nice argument for legalizing prostitution, which methodically shows that it's a bodily service like any other. When it comes to other American-style sexual topics, however, Nussbaum is much less confident, and her high-minded, scholarly modus operandi doesn't help.

Instead of writing about real people and their sexuality, Nussbaum looks to literature to offer her examples of human feeling and behavior. After analyzing a range of sexual writing, from a Playboy caption to "Ulysses" to hardcore porn, she argues that D.H. Lawrence's lusty, working-class male characters are models of humane sexual hunger. Unlike many men who use sex as a means of bettering their social status, they simply revel in animal desire. And while Lawrence's female characters do surrender a degree of autonomy in the sex act, they do so in ways that make them "whole and full" as people.

But Nussbaum's reading of literature is somehow a little naive; these fictional characters -- no matter how well-drawn -- cannot simply stand in as people, as the last half-century of literary criticism has labored to make clear. Her conclusions about the viability of a Lawrencian sexual philosophy are laughable abstractions of the author's earthy world view. "Emotional penetration of boundaries seems potentially a very valuable part of sexual life," she writes, "and some forms of physical boundary penetration also, although it is less clear which ones these are." Um, OK, but couldn't we just have read "Women in Love" instead?

Unfortunately for Nussbaum, eros resides in art and life, not analysis. In avoiding depictions of actual sexual experience, Nussbaum constructs her sexual philosophy with a tight hold on her own imagination, offering us only tentative glimpses into the contours of her own sexual landscape. In one strange essay, she pays homage to one of her mentors, the classicist Sir Kenneth Dover, while simultaneously reeling from his decision to publish a sexually graphic autobiography. She's honest about the mix of "anxiety, embarrassment, gratitude and affection" Sir Kenneth's revelations caused her. She even dedicates "Sex and Social Justice" to him. But she's not following in his footsteps. Ironically, this reflexive aversion to any kind of sexual revelation is her book's biggest limitation. We may applaud her unwillingness to indulge in her own first-person confessional, but for a book about sex, it's got precious little about real people having real sex. It's telling that her final essay, on Virginia Woolf's "To the Lighthouse," doesn't have to do with sex even in a literary sense, but instead upholds the Ramsays' devoted marriage as an example of two minds truly open to one another.

If Nussbaum doesn't make much of a dent in the current conversation on sexual ethics, it won't be because she skipped the topless cover shot or refused to chronicle her orgasm rate. Without giving us the sense that there's a living, breathing sexual being behind her orderly sentences, she seems to be hiding behind her academic status rather than using her formidable intellect to delve into the moral and emotional tangle of sex.
salon.com | April 19, 1999

 - - - - - - - - - - - -

About the writer
Maria Russo is a writer living in New York

Experiments in Living

By MARTHA C. NUSSBAUM
Issue date: 01.03.00
Post date: 12.27.00

The Trouble With Normal
Sex, Politics, and the Ethics of Queer Life

by Michael Warner
The Free Press, 227 pp.

I.

On the cover of Michael Warner's new book stands a row of male dolls. Half of them are hypermuscular and dressed in leather: gay men, it seems. They are dressed identically; they stand in identical stances. Alternating with them stands another set of male dolls, also identical to one another, also posed in identical stances. These dolls, dressed in white dinner jackets, hold out their arms as if to escort a partner: grooms in a wedding, it seems. And it appears that the leather dolls are all set to march down the aisle with the dinner-jacketed dolls, in a same-sex wedding that is also a wedding of outsider status with conformity, the "pathological" with the "normal."

In this way, Warner's book wittily announces its theme: the tyranny of public conformity and the irrational desire for sameness, even among people who, as social outsiders, ought to know the damage that this kind of tyranny can inflict on others. Thus Warner pointedly suggests from the outset that even the intense desire of many gays and lesbians for same-sex marriage may itself be an example of this tyranny. To the aspiration to conformity and the domination of the "normal," Warner opposes a moral argument based upon an ideal of autonomy and liberty, and upon the idea that a democratic culture needs to encourage, not to stifle, innovations and deviations in living, in order to discover the most fruitful ways to realize its ideal of human dignity.

Thus, although this book is the work of a leading queer activist and a defense of a radical subculture, it is also a descendant of Mill's On Liberty, which similarly inveighed against the tyranny of public opinion in the name of liberty and of "experiments in living." And it has another surprising, and more recent, antecedent: Richard Posner's Sex and Reason, which argued, appealing to Mill, that our public policy in the area of sex should reject the politics of moralism and should protect all consensual adult relations from state interference. But Warner acknowledges the complexity and the messiness of sex far more effectively than the economistic Posner or the somewhat squeamish Mill. His case for autonomy is stronger for being written as if the author knows something personally about the subject.

Warner is known to the nonacademic world as the founder of Sex Panic!, a group of gay activists united to protest various policies of New York Mayor Rudolph Giuliani in the areas of sex-related zoning and public sex. But he is also a professor of American literature at Rutgers University, and the author of a fine book about print culture and the public sphere in colonial America, and the editor of the Library of America's anthology of American sermons. Nor is his relation to religion merely scholarly. A remarkable article that he wrote in 1993 began with the sentence, "I was a teenage Pentacostalist," and went on to describe his upbringing in that community and his education at Oral Roberts University.

Although it seems natural to think of the two parts of Warner's life as radically discontinuous--natural even to him, as he admits--he cannot deny that there are deep links between them. Both communities in which he has lived are marginal "outsider" communities, alienated from the dominant culture and spurred in no small part by anger against it. (Warner tells us of a mother who, abandoned by her husband, spoke in tongues while she vacuumed the shag rugs.) So Warner knows well what it is like not to be normal, and to be pilloried by the normal; he also knows what it is to take a profound pleasure in marginality, and to regard it as the source of a deep seriousness. There are dangers in such a romanticization, and Warner's book does not altogether escape them; but on the whole Warner is a deft and thoughtful writer who turns his own experience of the margins into a source of genuine understanding about America and its sexual politics.

Warner's target is what he calls the "politics of sexual shame." By this he means a politics in which people's general unease about the fact of sex gets translated into a comforting set of hierarchies that brand some people as good and healthy, and other people as bad and deviant, and then uses the force of public opinion and law to curtail the consensual activities of those who have been stigmatized. Such a politics of shame, Warner contends, is behind sodomy laws and many other rules through which a majority seeks to define its own sexual activities as superior. We might also call this a politics of disgust, in the spirit of Lord Devlin's famous defense of sodomy laws as legitimate expressions of a society's disgust for some of its members' practices.

Warner argues--like Posner in Sex and Reason, and like critics of Devlin such as H.L.A. Hart and Ronald Dworkin--that public policy should never be based on a moralistic desire to tyrannize over the consensual sexual activities of others. Instead, the goal of public policy in this area should be to protect people's "sexual autonomy" from the tyranny of an interventionist moralism. In effect, he advocates making Mill's "harm principle" into a legal standard: if an activity does no harm to non-consenting others, it should not be legitimate to regulate it by law. Unlike Posner, however, Warner does not pretend that his proposal is value-free. He insists (correctly, in my view) that his argument against the politics of shame and his defense of sexual autonomy is itself a moral argument.

What is the shame all about? Warner says little here, but he makes it clear that he thinks we are all ashamed of our sexuality because sex represents a messiness, a lack of control, in human lives that anxiously strive for control and harmony. We could add, with Walt Whitman, that sex reminds us of the fact that we will decay and become part of the grass and the earth around us. Most of the time, of course, we would rather think that this will not happen, that we are pure spirits bound for eternity; and for this reason, too, the discomfort with a mortal and animal body elicits shame, a painful recognition that one has not reached a condition of invulnerability that one would very much like to attain.

Having a lot of shame about our own bodies--and disgust, too, a shrinking from contamination that derives from a deep ambivalence about our own animality and the animal secretions that are such a prominent part of sexual experience--we seek to render our bodies less disturbing; and this frequently involves projecting our own emotions outward, onto vulnerable people and groups who come to embody a shamefulness and a disgustingness that we then conveniently deny in our own person. This happens very young; children make "cootie catchers" and pretend to find disgusting bugs on the bodies of children who are a little bit different. But it is sex that most keenly provokes this troublesome dynamic.

Every society has its chosen "shameful" and "disgusting" sexual minorities who come to represent properties--stickiness, fluidity, sheer corporeality--that the dominant group would like to forget that it, too, possesses. Women play this role in more or less all cultures. But Warner is surely right in suggesting that this powerful emotional reaction to one's own perceived incompleteness is behind the virulence of much American homophobia, particularly when directed against gay men.

Warner does not expect that this shame and disgust will ever go away. (In this regard, the rhapsodic Whitman was too unrealistic: his paean to "the body electric" made the body so clean and unthreatening that it hardly seemed to be a body at all.) Warner asks only that we not make public policy in response to it, that we realize our own irrationality in these matters and decide to protect vulnerable others from its damages.

Warner makes two arguments, both of them Millean, one based on liberty and the other based on social advantage. Personal liberty (what Warner calls "sexual autonomy") is extremely valuable, and should not be curtailed where no harm to non-consenting others is at issue. This does not mean that we must refrain from making moral criticisms of them; it means simply that we not dragoon people into "normality" by legal restrictions. When we allow different groups more liberty to construct their own modes of sexual life, moreover, we are all likely to learn from these "experiments in living."

Warner's idea of sexual autonomy is underspecified. He makes it clear that sexual coercion should continue to be regulated by law; but he gives no hint of how he would resolve difficult cases. In his valuable book, Unwanted Sex, Stephen Schulhofer recently argued, for example, that the protection of sexual autonomy requires major changes in the law of rape. We need to protect people not only against physical force, but also against intercourse accomplished by threat or intimidation, and by the abuse of positions of authority. Schulhofer notes that a high school principal who said to a student "Pay me $500 or you will not graduate" would surely be convicted of a crime; but a principal who said "Sleep with me or you will not graduate" was acquitted of rape because the woman did not say "no." Extortionate offers should be criminal, Schulhofer argues, in sex as in other realms of life, whether we call such cases rape or criminal assault. And Schulhofer extends his analysis to a defense of sexual harassment laws in the workplace, and of professional bans on intercourse between doctors and patients, lawyers and clients.

Warner never wrestles with these difficult cases. Had he spent more time confronting a wide range of feminist writings, he would have had to face the fact that law does not just compromise sexual autonomy, it also protects it. A simple "get the state off our backs" position may look attractive when we are thinking about the sex lives of middle-class men, but it is clearly inadequate to deal with the situation of women and other vulnerable groups. There is no consent where there is pervasive intimidation and hierarchy.

When radical feminists say that rape and "normal" intercourse cannot so easily be distinguished, they mean that a pervasive asymmetry of power makes it difficult for consent to be genuine. Just how this idea should be recognized by law is the difficult matter; but surely we should recognize that many instances in which there is no "no" are not instances of genuine consent; and we should recognize, too, that certain laws that interfere with some allegedly consensual sexual relationships (sexual harassment laws in the workplace, for example) have enhanced sexual autonomy, and not compromised it. I wish I knew what Warner would say about these questions; he will have a viable proposal for public action only when he has sorted them out.

Another issue that will need to be faced in the working-out of these notions of freedom is the issue of material inequality. Any attractive norm of sexual autonomy ought to contrast autonomous choice not only with choice coerced by a criminal act, but also with choice coerced by economic necessity. Warner tends to group "sex workers" with middle-class queer men, and to think of both as people whose sexual autonomy would be enhanced by getting the state out of their lives. Well, maybe for some sex workers. But many of them "choose" a risky and unappealing way of life because they have no good economic alternatives. We should question whether "choice" in those circumstances is really choice.

It is surely true that our society's unease about sex work is a result of the politics of shame; we do not extend the same anxious policing to boxing, or to risky types of factory work, or to any other dangerous and low-paid occupations to which working-class people with few skills tend to gravitate. But any politics of sexual autonomy will surely need to do more than to say "no shame here." It must ask also what material conditions are compatible with any meaningful type of human autonomy, and then seek to promote those conditions for everyone.


II.

Warner is preoccupied with the tyranny exerted over people's liberty by public opinion and its insistent demand for conformity. In America, he argues, this demand takes a particular form. We tell ourselves, and others, that what is best is "normal." Ever since data about sex began to be gathered, we have been anxious to reassure ourselves that in sex, as elsewhere, we are right in the statistical middle, and in no way strange or eccentric. Of course, this hunger for the mean is not confined to sex: but in the realm of sex it exercises a particularly tyrannical power over minority ways of desiring and acting.

Why, asks Warner, would anyone want to be normal? If normal means the middle of a statistical range, there is nothing so good about that: it is normal to have back pain, or bad breath. Yet we persuade ourselves, somehow, that "normal" in that statistical sense is the same thing as "normative," or the way things ought to be: being normal seems already evaluative, as if it gives those in the majority a license to look down on the minority, who are definitionally abnormal. (Mill made the same point about the slippery use of the term "nature," which somehow slides from "the way things usually are" to "the way things rightly should be.")

Warner thinks that people have simply confused the idea of the normal with the idea of the normative. Yet intellectual confusion is not the whole story here. Warner's analysis of shame suggests a deeper story. People want to be like others, especially in sex, because then they can feel that they are less naked, less shamefully exposed. There is indeed safety in numbers. Somehow the numbers--like a fig leaf--hide the disorder of our bodies from us, and make us feel almost as if we had no bodies. It is this denial of the corporeal that finds expression, I think, in the convention that everyone wear a dark suit in the workplace. In suits, men are robbed of their physicality by their conformity. And so, when women came into a previously all-male workplace, with their alarming legs and flowing hair and brightly colored dresses, they represented sex. By standing out, they reminded everyone else that they, too, are sexual beings, and so an anxiety, or even a panic, was likely to ensue, and frequently did ensue.

Much the same, Warner suggests, is true of the American public response to gay men, especially when they will not oblige by hiding their sexuality. They remind everyone, but especially heterosexual males, of this common but scandalous aspect of human life, of the unreason that we are all in together. And so they have to be scorned and downgraded by an appeal to the normativity of the normal.

But of course gay men are not themselves immune to this logic. They are no more daring, no more reconciled to their mortality and their physicality, than anyone else. (Remember those identical male dolls.) So it is not surprising that they, too, should yearn for a kind of normality--and Warner is at his most incisive when he documents the recent trend in gay journalism toward the pretense that sex is not really the issue, that being gay has nothing to do with sex. In a way, there is nothing wrong with the gay dream of ordinariness. There is dignity also in the ordinary. But the gay movement was once about social criticism and social change, about the rights and the benefits of genuine and irreducible otherness. And it is worse than disappointing when those who have opted for the safety of the normal turn around and throw shame on others who have not. Sadly, "[i]t does not seem to be possible to think of oneself as normal without thinking that some other kind of person is pathological."

In the remnants of defiant queer culture, by contrast, Warner finds a norm of dignity that makes a distinctive and worthy contribution to democracy. This is the Whitmanesque idea that human beings have dignity precisely in their mortality, in the disorder of their vitality. "If sex is a kind of indignity, then we're all in it together. And the paradoxical result is that only when this indignity of sex is spread around the room, leaving no one out, and in fact binding people together, that it begins to resemble the dignity of the human." Gay friendships, he argues, are based on a public acknowledgment that we have bodies that we do not altogether understand or control, and that this is a fundamental source of our equality and our characteristically human form of dignity. And these friendships need, for their flourishing, a public space within which to create their own public culture.


III.

All this is appealing, as far as it goes. The queer community is indeed conducting a Millean experiment in living, and it is precisely such experiments that a democracy committed to liberty and dignity should protect, hoping that it will learn something from them. Here again, though, I wish that Warner had engaged more with the predicament of women, for it would complicate his romantic picture of the scorned aspects of queer life.

Think, for example, about pornography. In Warner's argument, the availability of sexually explicit materials is simply one of the freedoms that the experimenters want to have, and should have, as a part of their rebellion against the tyranny of the normal. Indeed, Warner pays pornography the compliment of portraying it as the opposite of the normal, as a kind of bad outsider other, in danger of being suppressed. But think about it from the viewpoint of many women, and things get terribly complicated. For the depiction of women in most pornography made for men is just an aspect--and a very powerful aspect--of the tyranny of the normal.

There is nothing rebellious or experimental about this sort of pornography. It is just the old message of male domination, made powerful by being packaged as a masturbatory aid. Men learn that women are objects for men's use and men's control; and many women, in the pornographic view of the world, even love abuse, and cry out ecstatically when they are beaten up. In short, pornography normalizes a very old way men have of viewing women: no subversive outsider, but the most inside of the inside, the sweat-stained leather armchair in the old boys' club.

If, then, you are a feminist interested in rebellion against the tyranny of the normal, it is by no means obvious that you will want to go along with Warner and seek the easy availability of sexually explicit materials, making no distinctions. You will first want to make, morally, a number of distinctions within the category of the sexually explicit; and you may even feel that here, again, legal interference with liberty might support sexual autonomy rather than undermining it. At any rate, the argument will have to be joined.

Even in the world of gay male pornography, Warner needs to argue that something like this is not the case. Male norms of objectification and domination are very powerful; it would be surprising if queer culture had simply thrown them off. After all, adult queer men are, almost all of them, brought up to be heterosexual men; it would be startling indeed if they had not internalized the norms of "straight" culture regarding women and the use of people as things. But then these norms might work their way into gay pornography in ways that would call for analysis and criticism, at least moral criticism.

It is wrong to congratulate oneself on the happenstance of statistical conformity, and still more wrong when that self-congratulation demeans and diminishes others. But the sheer rebelliousness of queer culture hardly guarantees that it does not contain pieces that tyrannically re-enact the normal. What makes Warner think that the queer community has been successful in liberating itself from the all-too-familiar patterns of domination and subordination that characterize the normal? So what we need is a more complicated argument. We need an argument for which autonomy is not just a matter of freedom from restriction--at least if it is to be connected, as Warner wishes, with equality and dignity.


IV.

Warner draws from his general analysis a number of implications for public policy. One of his primary targets is the zoning policies of Mayor Giuliani. By restricting the places where sexually explicit materials may be sold, he argues, Giuliani has fractured a fertile and highly democratic gay public culture that focused on the street scene of the West Village. Now rich gays frequent expensive private clubs, while poorer gays go to the dangerous areas around the docks where these materials remain publicly available.

Thus, in Warner's account, the democracy of gay male culture has been undermined in the name of public disgust and shame. These are plausible examples of the divisive and cramping effects of a politics of shame, although, once again, Warner's arguments about pornographic materials lack complexity. But Warner's longest chapter, and the one that will surely bring him the most criticism from within the gay community, is his attack on the idea of same-sex marriage. Since there is likely to be a very heated debate about his position, it is important to be precise about what his argument is.

Warner's basic claim is that it is a mistake for the lesbian and gay movement to devote so much of its energy to seeking marriage rights for same-sex couples. Several distinct arguments support this conclusion. First, he argues, working for marriage rights is a deflection of valuable resources and energy away from causes that are both urgent and possible: AIDS prevention and education, and general non-discrimination in housing and employment. Indeed, there is no reason to think that the marriage struggle is winnable any time soon, so it may well be that a lot of money and time is being wasted.

But Warner also makes two deeper and more controversial arguments, closely connected. The first is that pushing for marriage rights unthinkingly validates the social status quo, when we should really be thinking hard about what living arrangements we want to support with what forms of state action. The second is that the status of marriage, as it exists in American society, is inherently discriminatory and hierarchical, defining some couples as worthy and thus defining other couples as less worthy. The two arguments are closely linked because Warner believes that a more reflective and experimental approach to the bundle of political privileges currently associated with marriage would be likely to disaggregate them, and that disaggregation would produce a less hierarchical state of affairs.

Marriage, as it currently exists in America, is not just a sentimental matter. It is also a large bundle of privileges and statuses, in areas including taxes, inheritance privileges, child custody, spousal support, courtroom testimony, hospital visitation, medical decision-making, immigration, and burial. To seek marriage as a right is not just to seek a public space within which to say "I love you." It is to seek that entire group of privileges, and thus to support the normative way of bundling them together.

Of course it seems wrong for opposite-sex couples to have the opportunity to get this bundle when same-sex couples do not. But Warner argues that what all of us should really seek is the regrouping of the entire set of privileges. There is no good reason why they should all be bundled together. Numerous European nations have been disaggregating them in various ways, with success. The Scandinavian countries have created registered domestic partnerships that have many of the privileges of traditional marriage. France has recently given legal recognition, in areas of property, inheritance, and care, to a wider range of living arrangements, not all of them based upon a sexual bond. (And India, I can add, gives government support to women's collectives, which promote women's employment opportunities, emotional solidarity, and shared child-rearing.)

Warner plausibly holds--here agreeing with Posner--that we should stop and think, learning what we can from these experiments, rather than jumping on the marriage bandwagon and cheering for an institution that does not, after all, have such a good record when we consider issues of sex equality (and, we might add, of child sexual abuse). Warner is aware of the argument that gay marriage itself is a radical experiment that may well revolutionize all marriage; but he is skeptical about such an outcome, holding that it is at least as likely that non-conforming styles of life will be dragooned by the institution of marriage into conformity with previous norms. Warner also plausibly holds that we should in any case prefer a disaggregated solution to the problem of marriage, because the traditional bundling of privileges tends to stigmatize people who, for whatever reason, do not want to enter, or cannot enter, the preferred kingdom. I think that these are excellent arguments, though I am not optimistic about our nation's willingness to deliberate seriously about the alternatives that other nations have embraced.

But isn't love an argument for marriage? Here Warner is tough with those who romanticize traditional marriage. Love, he points out, has been regarded, in large parts of the Western tradition, as a profoundly antinomian emotion, and not very comfortably at home with a settled arrangement such as marriage. What people who romanticize marriage are really after, Warner suspects, is something more like safety and insulation.

Insofar as a long romantic tradition does see marriage as a natural fulfillment of love, there is a peculiar paradox involved: marriage consecrates a love that represents itself as pure spontaneity, and offers a way for lovers to ally themselves with the dominant social order while still having the satisfaction of seeing themselves as daring protesters against all laws. There is nothing wrong with this very human tendency to want to have it both ways--but one's all-too-human insecurity is rarely a good source of law.

Warner is himself a peculiarly American kind of romantic. Just as he suggests that authentic love is radically antinomian, and that religions are at their most interesting when they set themselves against the dominant norms of society, so he sometimes suggests that all selves are authentic only if they are continually being remade. He ended his Pentacostalist article with this statement about minority religions: "They tell you to be somebody else. I say: believe them." In this spirit, earlier in the article, he admitted to a lack of sympathy with anyone who does not want to engage in ongoing experiments in living:

I have never been able to understand people with consistent lives--people who, for example, grow up in a liberal Catholic household and stay that way; or who in junior high school are already laying down a record on which to run for president one day. Imagine having no discarded personalities, no vestigial selves, no visible ruptures with yourself, no gulf of self-forgetfulness, nothing that requires explanation, no alien version of yourself that requires humor and accommodation. What kind of life is that?

This same impatience with the absence of experimentation occasionally mars his book. There is sometimes a tone of disdain and superiority toward those who want to live routine lives, even when they do not try to impose their ways on others--as if those men who are at home "cooking for their boyfriends" are somehow less worthy of respect than those who make the rules up as they go along. Although Warner's most powerful position is an attack on all kinds of repressive "normalizing," at times he seems to "normalize" experimentation and to look down on conformity.

But most people need routines and even conformity, most of the time; and every person needs, at the least, a lot of parts of life that are not being called into question at every moment. In this sense, we all have to be married--to a job, a workout schedule, a daily routine of eating and washing, a breakfast cereal, a world of stable physical objects. Habit dulls perception and hobbles thought, but we need a lot of habit in order to live. Otherwise we would die from the pain of seeing.

If there are some people who find improvisational lives more tolerable than others, they should not look down on those others who cannot stand so much uncertainty. And really, isn't the queer life itself a kind of habit? Aren't people married to that life, as others are married to their domesticity? A little more gentleness toward humanity on Warner's part would not be amiss.

Still, to dismiss Warner's challenge on this account would be a mistake. For what Warner's book finally demands of us is not the chimera of romantic or existentialist self-invention. What it demands is genuine reflection. If we cannot dissociate ourselves from our patterns of desire and approval, including our desire to conform--and Warner knows that for the most part we cannot--we can at least think, and we can at least criticize, rather than just falling mindlessly back on the old ways and scorning those who are different.

This, in most good philosophical accounts of autonomy, is what autonomy means: taking an occasional step back from oneself, so that one can at least pose the question whether this is what one wishes to endorse, for oneself and for others. Warner, with Mill, is dead right when he says that the politics of sex has been ugly and mean-spirited in large part because we shrink from this kind of serious deliberation, and from being the kind of selves, and citizens, who engage in it. We call shame and disgust to our aid when we want to avoid looking seriously into our own sexual lives; and so the politics of shame is also the refusal of serious self-scrutiny. This invitation to thought, to the examined life, is the most attractive proposal, and the most challenging, indecent proposal, that queer culture makes to American democracy. They say to you, be someone else. I say: believe them.


MARTHA NUSSBAUM's new book, Women and Human Development: The Capabilities Approach, will be published in February by Cambridge University Press.

 

 

Brave Good World
by Martha C. Nussbaum

Issue Date: 12.04.00
Post Date: 11.28.00

From Chance to Choice: Genetics and Justice
by Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler
(Cambridge University Press, 398 pp., $29.95)

I.

Katherine and Bill apply for the same management position in a large firm. Katherine's application contains a genetic enhancement certificate from Opti-Gene, stating that the bearer has purchased a package of genetic services that improve memory and boost the immune system. Bill, who could not afford genetic enhancement, protests that hiring on the basis of genetic enhancement is a violation of equal opportunity. He insists that the job should be assigned on the basis of merit. Katherine replies that merit means that the position goes to the best candidate, and she is the best candidate, so what is the problem?

Our growing knowledge of the human genome will pose complex ethical conundrums. Some of them are extensions of familiar perplexities. Looked at in one way, the dispute between Katherine and Bill is not unlike problems of equal opportunity that we have debated for a long time. Had Katherine been healthy and mentally sharp owing to a middle-class upbringing, and had Bill been less so owing to poverty and unkind circumstances, each would have had defenders, in the familiar debate over the meaning of equal opportunity in a context of social inequality. Had it been clear that Katherine inherited her good qualities from her parents' genes and Bill his defects from his parents' genes, most Americans would have said, well, that's who they are. But some determined egalitarians would have insisted that they do not deserve to reap any advantage from traits that they got by the luck of birth. They would have insisted that the job should probably still go to Katherine, but society's general scheme of rewards and opportunities must be adjusted to give Bill extra support. Katherine's talents are social resources that must be fairly used for the benefit of all.

But the moral terrain revealed by this case is not entirely familiar. The dispute between Katherine and Bill also poses some questions that are not covered by existing ethical theories. All existing theories make some sort of distinction between the realm of nature or chance and the realm of justice. Although it may be unclear where that line falls in any particular case, it looks as if our whole sense of life relies on there being such a distinction. Some things that go wrong for people are just tragedies, beyond human control; other bad outcomes might have been averted or controlled by better social arrangements, and so they belong in the general realm of social justice. Nature does not seem to be going away just yet, and a bad end still awaits us all. But the tale of Katherine and Bill does show us that we are living in a time characterized (to use the phrase of the fine philosophers who have produced From Chance to Choice) by "the colonization of the natural by the just." Many things that looked like unchanging accident now look like things that people can change, and may even have an obligation to change.

Thinking about justice, moreover, will now have to take a subtly new form. We are accustomed to thinking about justice in terms of distributing things to people, where the people remain who they are and are imagined as sharing a common set of human needs and abilities. When we are able to alter people in fundamental ways, however, we shall have to consider that justice may require some remaking of people: for Katherine's good health and quick memory are not just superficial properties, like a new haircut. And once we begin to travel this road, we will surely notice that it is quite unclear what we are promoting, because the idea of a constant human nature begins to slip through our fingers. And notions such as "human flourishing," or the "primary goods" that all human beings supposedly need in order to live, seem on the verge of slipping away with it.

In this eloquent and impressive book, Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler help us to sort our way through these perplexities. (Each takes primary responsibility for particular chapters, and there remain some subtle differences among them, which they debate; but the book as a whole is a joint production.) To put it crudely and briefly, they argue that we should use our new genetic knowledge to treat impairments against a baseline of some core human functions and abilities, but not necessarily (in most cases) to offer enhancements of human abilities above that baseline; that we should zealously protect reproductive freedom, and oppose most (though not all) attempts to persuade parents or to require parents to have a particular sort of child; that genetic counseling and certain types of genetic services should be offered in all health-insurance packages; that society must evolve toward greater respect for and inclusion of the disabled, but this concern should not make us shrink from treating serious genetic impairments to the extent that we can do so. But the authors of this book are not policy professionals, they are philosophers; and where philosophy is concerned, conclusions count for little without the arguments that lead to them. The most admirable contribution of From Chance to Choice lies in the density and the cogency of its arguments.

II.

Why should we care about what philosophical argument has to say to us in an era of scientific change? The authors' answer is that without it we are in danger of thinking badly. As we confront the bewildering new possibilities opened up by the Human Genome Project, three obstacles to good thought await us. First, we come immediately upon our fear of change. It is very easy to shrink back in horror from the whole idea of genetic treatment and enhancement, simply because we do not quite know what to say about it. The very prospect threatens notions that have been our moral bedrock for centuries. Instead of thinking coolly and analytically, therefore, we often warn darkly about the dangers of "playing God" or departing from "nature."

And yet, as the authors sternly tell us, that sort of phrase-making is no substitute for serious systematic reflection. We already "play God" in countless ways: we give innoculations, we treat diseases, we find new educational strategies to address learning disabilities. In so many areas of our lives, we are not passive before nature. And "nature" is hardly a moral norm for any sane person. (As Mill observed, "Killing, the most criminal act recognized by human laws, Nature does once to every being that lives.") So what is needed is not panic or piety, but a sober and thoroughgoing evaluation of the new possibilities for improvement opened up by our new genetic knowledge.

The second obstacle to proper deliberation in this era of genetic research is a kind of gene-fetishism that has always had its appeal, and that has become much more common of late. People like to say "it's all in the genes," meaning that the environment really has nothing to do with the outcome, and so we have no obligation to promote good environments. In such a view, the proper response to biology is resignation, and inequalities are all the result of fate. The authors spend a good deal of time tangling with misunderstandings of genetic causation, with the aid of an excellent scientific appendix by the philosopher of science Elliott Sober.

Sober gives a detailed account of the complex interrelationships between genes and environment, arguing that the right question to pose is always what the relative importances of genetic factors and environmental factors are in any outcome, since both factors are always causally involved. "A condition has a significant genetic or environmental component only relative to a range of genes and a range of environments." Moreover, genes often influence an outcome indirectly, by changing the individual's environment: a physical difference may cause others to treat a person differently, for example, thus producing behavioral differences. Sober is particularly critical of the claim that a complex human and psychological phenomenon such as homosexual desire can be plausibly traced to a single gene.

And no less important is the authors' assault on the ideological function of genetic determinism. "If there were an all-powerful and all-knowing being," they write,

who was resolutely committed to shielding the existing social and political order from critical scrutiny, it is unlikely that it could hit upon a better strategy than implanting genetic determinist thinking in peoples' heads. There is, of course, no such evil demon. There are, however, scientists who sometimes foster gene-mania by a combination of excessive enthusiasm for their own projects and breathless public relations rhetoric aimed at securing social and financial support. And there are biotechnology firms poised to unleash sophisticated marketing techniques that will no doubt encourage unrealistic hopes for genetic solutions to all sorts of problems.

Indeed, the authors show that the new genetic possibilities should make it harder for people to hide behind the gene as a rationale for quietism. If we can alter genes, after all, then they become a part of the social environment like anything else, and we have to think seriously about environmental change and its relationship to justice, whether we are so inclined or not.

The third obstacle to good thinking in this new era is by far the greatest. It is the half-heartedness, the sloppiness, and the lack of systematic effort that characterizes most human thinking about most topics in most times and places. The authors' methodology in this book is basically Socratic: they assume that most people have many sound ethical intuitions pertinent to the resolution of such dilemmas, but they believe that without sustained examination, the testing of alternative theories and principles, and the building of complex accounts that integrate particular judgments into a coherent whole, we will not face the future well. If that is so in areas where the facts and concepts are familiar, it is all the more so, they believe, in areas where new scientific possibilities require us to refashion some of our most basic principles.

Here, as they see it, is where philosophy comes in. The authors are among the most eminent philosophers in the United States who focus on medical ethics, but they are not simply "medical ethicists." They are also wide-ranging thinkers about social justice and individual happiness. They carefully distinguish their project from an approach that is too often found in the field of medical ethics, in which people simply parade out a small number of familiar principles, unlinked to any overall theory, and mechanically plug them into the cases. Such an approach hardly deserves to be called philosophy, as they scornfully suggest. (If you want to see an example of bad work prominently endorsed--this is my example, not that of the tactful authors--consult the section called "Philosophy" in the National Commission on Bioethics report on Cloning, a disgraceful farrago of half-digested ideas thrown about as a screen for the fear of the new.)

Instead the authors believe, with Socrates, Aristotle, Sidgwick, and Rawls, that good philosophical work must be difficult, complex, and systematic. It must consider both people's judgments and the most prominent theories that organize those judgments. When considering genetic decisions, the serious thinker must integrate this discussion into an overall consideration of just social institutions and equal opportunity. Although inevitably such an inquiry must begin somewhere--and the authors begin with a familiar type of liberal theory of justice, close to that of Rawls--they show throughout the book a readiness to consider a range of alternative accounts and to test theories by the judgments they yield as well as testing judgments by their relation to the theories.

This holistic manner of argument, they insist, is even more important in this area than in other areas of political philosophy, because in this area it is especially likely that no current theory has fully adequate concepts. Thinking about how existing accounts of equal opportunity apply to the dilemma of Katherine and Bill is important; but equally important is understanding why our existing accounts are not adequate, and how they need to be improved. Thus this book, though clearly written and vividly illustrated with striking examples, is still very difficult, as serious thought about its subject ought to be. It should not be read by anyone hoping for quick solutions, because the work of analysis is far more significant, in these matters, than the "bottom line." But it should be read by anyone who wants to think well as a citizen about choices that we must increasingly make about our future and the future of our descendants. If we need a further argument to get us going, we should consider that if citizens do not establish what they want and articulate good reasons for their goals, the insurance companies will make most of these decisions for us.

The authors discuss genetic counseling and decisions about conception in one chapter; but this topic, because of its familiarity, occupies them less than do a number of topics on which little has as yet been written, most dealing with possibilities of genetic surgery or alteration. Thus: What genetic treatments should be offered, and should these be required parts of basic health care? Can we meaningfully distinguish between treatments and genetic enhancements, and, if so, should enhancements be subsidized as well, or left to individual choice? Should groups with a particular vision of the good human life be permitted to pursue genetic projects that aim at perpetuating the characteristics valued by the group, and cutting it off increasingly from the society that surrounds it? Should screening for widespread genetic defects be required as a public health measure? Should parents be held negligent if they fail to take advantage of possibilities for improving the lot of their children? How can we defend meaningful reproductive liberty in an era when we know so much about the child who will be born? And what are the implications of new genetic possibilities for the social standing of the disabled? Do they have a legitimate claim that ameliorative genetic programs be avoided, on the grounds that such shifts in the population will increasingly isolate and stigmatize them?

Our fear of genetic intervention is not motivated simply by irrational anxiety. It also has historical roots: for we recall the excesses and the indignities of the eugenics movement of the early twentieth century, with its forced sterilizations of the "unfit," the objectification and the vilification of disabled people, the disdainful class-based and race-based attitudes that masqueraded as science. The natural culmination of this movement, as most people see it, was the horror of Nazi eugenics. So the first step in the authors' argument is to perform what they call an "ethical autopsy" on the eugenics movement, asking what its moral failings were, and whether they must be endemic to any movement that pursues genetic treatment and enhancement.

After a complicated and revealing analysis that reminds us, among other things, that modern eugenics was popular in progressive social-democratic circles as well as on the reactionary right, the authors conclude that we can to some extent separate the idea of genetic improvement of people from the hideously flawed ideals of the old eugenics. First of all, those eugenicists had no respect for people's reproductive freedom; but any modern movement must start from a position of respect. At the same time, the old eugenics had no way of intervening in the reproductive process except by controlling who had children with whom. Modern eugenics will have a lot more space for improvement mediated by individual choice: for genetic surgeries and gene replacement therapies can be offered to parents in the way that other medical treatments are now offered, and governed by similar norms of informed consent. Such treatments will still raise questions in the area of liberty--for example, we will have to ask whether parents should be required to perform genetic surgery on a child in utero; but these issues will be similar to others that we have long faced in our debates about what medical treatments parents may be required to get for their children, on pain of being charged with abuse and neglect.

The question of prejudice against certain types of people is much more difficult, and the authors insist that any just society must be highly respectful of different views of what a good person is, and what a worthwhile life is. They are also very alert to the subtle interplay between person and environment: an impairment, they insist, becomes a disability only against the background of a particular social environment, and it is generally possible to design an environment in which any given impairment will be at least much less disabling. (Wheelchair ramps, wheelchair access on buses, and other such measures make impairments to mobility far less disabling for those in wheelchairs.) Thus the choice of a social environment always embodies choices in favor of some people and against others.

Still, these facts do not mean that all genetic treatment and enhancement are inherently in league with baneful forms of prejudice and contempt. Even in a pluralistic liberal society, we still need to agree on a list of basic "primary goods" that are generally agreed to be valuable prerequisites for carrying out most plans of life. In the area under question, the authors are optimistic that we can come up with a list of basic human capabilities to which all citizens are entitled as prerequisite of meaningful choice and functioning. Not to care about such basic capabilities is itself illiberal, for it undermines people's real chance to choose the life they want. (I wish the authors had spent more time pondering the "capabilities approach" to questions of basic social justice, which insists that well-being should be measured not by looking at Rawlsian resources, but rather by asking what people are actually able to do and to be. The logic of their concerns leads them to use the language of capabilities, and yet they do not ponder the implications of this other theoretical approach.)

III.

Using their account of central human capabilities as a "baseline," the authors approach the difficult question of how to protect equality of opportunity in a time when the rich may be able to purchase not just commodities, but also better selves. Equality of opportunity is a puzzling concept at the best of times, but it becomes more puzzling when we have the power to alter the person. The authors of From Chance to Choice consider two familiar conceptions of equality of opportunity.

One conception, associated with the Kantian ethical tradition, draws a line between person and world. It insists that equality of opportunity has been served when all the social and political aspects of the environment have been adjusted to be fair to the dignity of all persons. This conception might still require some redistribution of wealth and income from more talented to less talented people, as Rawls's view surely does; but the talents are permitted to remain part of the person, so to speak, and there is no push to redistribute those valuable abilities themselves, since all persons are taken to be fundamentally equal in dignity anyway, in virtue of their basic moral capacities.

But there is another, more radical conception of equality of opportunity. It asserts that talents themselves are simply resources: people have no right to them, any more than they do to the advantages of wealth or class. In our current world, all we can do about this is redistribute wealth and income, since we cannot really equalize talents. But suppose we become able to equalize talents: would equality of opportunity itself require massive genetic engineering to produce a nation of equally abled people?

The authors reflect in a fascinating way on this issue, and on its implications for the theories of equality themselves. They conclude that we are lucky. We do not really have to choose between these two theories, because another ethical concern intervenes at this point to make the two theories generate very similar conclusions. For we must confront the radical theory with the fact of value pluralism: people hold different views of the ultimate goals of human existence, and thus different accounts of what an ideally "able" person would be. And if we respect the different religious and other conceptions of the good that our fellow citizens hold, we cannot engineer people in ways that run roughshod over those differences. Thus we are back to the menu of basic human capabilities that figure in all plans of life: it is only those capabilities that the radical theory is justified in pursuing, and only up to a basic threshold level. But then it is quite similar to the Kantian theory after all, since the Kantian theory, too, focuses on a list of basic abilities as "primary goods" that enable all citizens to pursue their different plans of life.

What does this mean for what governments should give people? The authors consider, next, the problematic distinction between the treatment of genetic impairments and the enhancement of normal genetic equipment. They are not very happy with this distinction, because it is easy to think of cases that call it into question. Person A is short because of a genetically caused brain tumor that impedes pituitary functioning. Person B is short because his parents were short. It looks as if A has an impairment, and that the correction of it would be a treatment; but B has no impairment, and the treatment of his shortness would be an "enhancement." And yet both conditions are genetically caused, and both may be the source of misery and discrimination.

Problematic though the distinction is in some cases, the authors believe that we are justified in relying on it to map out an account of what a fair health care scheme would give all citizens: treatment for all genetic impairments that bring them significantly below the level of normal species functioning, as specified in the account of central capabilities. They believe that health insurance should offer such treatments, whether for genetic surgery in utero or for treatments after birth. It is far more problematic, they argue, to offer enhancements, and they believe that some enhancements, such as the purchase of extra intelligence or musical talent for one's own children, should actually be illegal, inasmuch as they will be ways through which the privileged create children who are better than other people's children, thus violating the spirit of equal opportunity.

The authors' approach to equal opportunity, like virtually all previous philosophical approaches, relies on a notion of common humanity. Yet they are acutely aware that the new genetics may eventually call that basis into question. What would the world be like, they ask, if ethnic or religious groups proved able to engineer their descendants and to develop traits prized by the group, until eventually separate kinds of humans were produced, and we ceased to have a notion of common abilities and needs as an ethical resource? They think, with good reason, that such an eventuality would threaten the very basis of morality. In this respect, we have good reason to fear the future, though it is not altogether clear what we should do to ward it off.

IV.

Reproductive freedom is, throughout From Chance to Choice, at the heart of the authors' concern to distance their enterprise from the old and ugly eugenics. They spend a good deal of time working out what a suitably expansive conception of reproductive freedom would cover: the choice of whether to procreate, with whom, and by what means; the choice of when to procreate; the choice of how many children to have; the choice whether to have biologically related children, and of what sort. People should be offered extensive genetic counseling, they believe, as a part of any reasonable health care package; but in the end, in most cases, parents must be left free to decide what sorts of children they will bring into the world.

To be sure, parental neglect may be involved whenever parents fail to treat a serious genetic ailment, as it now is when parents fail to get medical treatment for an ailing child. But it is only in the very small number of cases in which we might argue that an individual's life is worse than no life at all that we should even consider prohibiting parents from having the child that they choose to have. In such cases--say, a child with Tay-Sachs or other extremely limiting and painful conditions has been born through either medical or parental neglect--the authors are sympathetic to the idea that a lawsuit for "wrongful life" might be brought against the negligent person. This does not mean that they defend mandatory abortion; on the contrary, they are deeply opposed to that idea, on the grounds that the freedom to have the biological child of one's choice is extremely important. But they point out that good genetic counseling about Tay-Sachs is already offered by at least one prominent Orthodox Jewish organization: parents and counselors can deliberate well before conceiving a child.

It is difficult to articulate the considerations underlying a "wrongful life" action using only our current notions of harm. Here is another area in which the authors discover a challenge to philosophy in the new genetic science. Usually we think that for something to harm person P we have to be able to compare P's unharmed state with P's harmed state: P has to be there both before and after the harm. But when a child is conceived with Tay-Sachs and is born, there is no other way that particular child could have lived. Had the parents used artificial insemination, or adopted, or had they simply had no children at all, the Tay-Sachs child would not have existed. So who is the person P who is worse off than he might have been? They suggest that we need a comparative notion of harm that could, for example, compare the state of the existing impaired child to the state of some other child who might have been conceived (or adopted) with wiser counseling.

 

Inevitably, discussions of parental choice with respect to genetically impaired children are very threatening to the impaired themselves. Even if these choices do not involve aborting already existing impaired children--even if, as in the authors' primary scenario, they mainly involve fixing disabilities in the womb, or after birth--there is still something alarming, at least for the near future, about the idea that Down's syndrome, deafness, and blindness may gradually cease to exist. People with those conditions not only fear increasing stigmatization and lack of social support; they also maintain vigorously (especially in the case of the deaf) that they have a valuable culture that will be obliterated if a single norm of basic human capabilities is applied across the board.

The authors give a sensitive exposition of these arguments, but finally they reject them. They can find no reason to extenuate impairments that seriously affect the central human abilities in their baseline account. Discrimination and stigmatization must be combated, of course; and yet they doubt that this should be done by dooming future children to a life of deafness or blindness when we will have learned to cure those infirmities. We do not refuse to inoculate our children or to provide them with needed medical treatment on the grounds that our actions might stigmatize the ill or the diseaseridden.

Neither should we hesitate if we can make a child see or hear who otherwise might not. There are many conditions about which we can argue, because they involve controversial values; but there is a core of basic human abilities, and not to have any one of them is to be at a disadvantage in any world remotely like our own. Society can make many changes that open up opportunities to the impaired, but it is not possible to make deafness and blindness no disability at all. Moreover, such changes as we might make would be terribly expensive, so we must ask why we should all be asked to foot the bill merely because some parents value the special culture that a particular disability would promote.

This is the most delicate and difficult set of issues raised by the book, and it is here, I think, that the authors' admirably hardheaded account leaves the reader with the greatest perplexity. For human life always has been a struggle against the limits of nature, and any real human being is the result of such a struggle. Moreover, we know that many of the most creative and valuable human lives are the result of particularly difficult struggles that forced people out of the mainstream and made them the targets of contempt and abuse. Anyone who has ever been bad in sports, or the wrong body type for some sexual stereotype, knows that genuine suffering is involved in these "impairments"--and so a caring parent might well demand genetic alterations to prevent them, thus producing a nation of large-busted women and muscle-bound men. But shouldn't culture be changed rather than nature? And where, in the culturally unreconstructed and genetically engineered world of gender stereotypes, will the artists and the intellectuals come from? If all children can be made into whatever the dominant norms of their society want them to be, won't human life be the poorer for it?

My daughter was born with a perceptual and motor impairment (not clearly genetic, but let us suppose that it was) that clearly puts her below the authors' base line for "normal species functioning." It is an impairment severe enough that any decent mother would have opted, ex ante, for a genetic "fix." (She learned to read when she was two, and to tie her shoelaces when she was eight.) Although she is both gifted and beautiful, she has had to contend with abuse and teasing all her life. Her idiosyncratic, lively, humorous, and utterly independent personality is inseparable from those struggles. Not only do I not wish that I had had some other different child, I do not even wish that she herself had been "fixed." Maternal love aside (if ever it is), I simply like this unusual contrarian person so much more than I would have liked (or so I believe) the cheerleading captain whom I might have produced. And I certainly do not desire a world in which parents will all "fix" all their children so that nobody is an outlier, even though we all know that the lives of outliers are not easy.

But hang on, say the hardheaded authors of From Chance to Choice. You know, too, that many forms of injustice produce depth and insight in the personality. Forster was right, in Maurice, when he depicted his protagonist as a man who would have been a boring middle-class stockbroker but for his homosexuality and the prejudice against it. Adversity and difference led Maurice to introspection, understanding, and genuine individuality. And surely you do not want to keep homophobia around just so that boring stockbrokers may be improved by suffering.

No, I do not. And I think it is a very good thing that our society has decided (if it has so decided) that homosexuality is not a disease to be treated, but a condition against which irrational prejudice has been directed--that it has decided to fight prejudice rather than to eradicate homosexuality. In another time and another place, obviously, it might have been otherwise. (Indeed, some eugenicists had such a hope, and many gays and lesbians still fear that genetic knowledge might someday be used to eradicate them.) The problem is that I do not trust society to deal this way with prejudice against the short, the uncoordinated, the small-breasted, and the athletically impaired. It is likely that good parents will feel obliged not to work against the social prejudices that make the lives of such children difficult, but instead to "fix" those conditions before birth if they can.

Our world, already diminished by the tyranny of conformity, would be the poorer for such a change. What would Mill have said could he have contemplated a world in which middle-class conformism could affect not only the happiness of unusual people, but their very existence in future generations? What challenges to dominant social norms, what "experiments in living," would we have in such a world? "They wish I had never been born," said my daughter, when I told her the authors of this book favored genetic treatment of defects that depart from "normal human functioning." Well, yes: in a very real sense they do. But who, given the choice to spare one's future child suffering, could confidently disagree with them? It is just that the very fact of having such a choice seems threatening and in some ways tragic.

I have no good counterproposal to the authors' sensible recommendations. I believe that they are right to use as the baseline for genetic medicine a small core of common human abilities, and to protect pluralism in ways of life above that baseline. But we should remember that parents are likely to be poor judges of what lies within the core of the humanly normal; and also that they may also be far too zealous for the normal, at the cost of many good things in human life.

We are only just beginning to create a society in which children with Down's syndrome are respected as individuals, in which the deaf are seen to have a culture. We must support these developments, against the predictable tide of demand for normalizing genetic treatment. While not forbidding genetic surgeries of the sort that the authors recommend, we should also foster a public culture in which a wide range of putative disabilities are respected, understood, and seen with imagination, as valuable forms of human life--so that parents eager to have the "normal" will think again. The authors of this important book are right not to romanticize difference when it comes with huge suffering and gross impairment. But those people who were formed, and strengthened, and provoked to achievement, by their own difference--who became thinkers, say, because they could not be cheerleaders--should ponder their complicated but happy fate, and try to preserve a world where it may still befall others.

MARTHA C. NUSSBAUM is author, most recently, of Women and Human Development: The Capabilities Approach (Cambridge University Press).

 

Rules for the World Stage

By Martha Nussbaum
Newsday (New York)
April 20, 2003

There once was a noble vision of what the world of international relations can be. In recent weeks this vision, once nearly realized, has receded from view, so much so that we might forget that human beings ever had such a dream. The idea I have in mind is Hugo Grotius' concept of "international society": the notion that all human beings form part of a single moral community, regulated by binding ethical norms that constrain the actions of nations in pursuit of their own advantage.

Grotius (or Hugo de Groot), the founding father of international law, lived between 1583 and 1645. A child prodigy, he played a leading role in Dutch trade negotiations at the age of 15, and published books from that time onward. But he was also a man who stuck his neck out. Prevailing religious doctrine in the Netherlands held that human beings were not free to alter the course of their salvation by their own choices. Closely linked to this idea was a political belief that people had no right to give themselves laws, deciding how to conduct their own affairs.

Grotius was a great believer in choice and human freedom, and in the freedom of each state to make its own laws. For both of these beliefs, he was convicted of heresy and sent to prison in a gloomy castle. But he was permitted to receive books, which his wife would deliver and cart away in a large trunk. One day the outgoing trunk had an extra occupant: Grotius himself. He managed to get on a boat to France, where he spent the next five years in exile and wrote his great work, "On the Law of War and Peace."

The book has been hugely influential for many reasons: for its insistence that war is just only if it responds to a conspicuous and serious act of aggression; for its insistence that even then, the party in the wrong must be treated in accordance with strict moral laws; for its insistence that killing of innocent civilians is morally wrong, even though the formal international law of that time did permit it; for its insistence that a stable and moral peace should be the long-term goal of international relations.

But the work's greatest contribution lies in its conception of relations among states. For Grotius, each state has sovereignty: the right to give itself laws and control its destiny. This is not just a fact, but a moral norm that expresses something deep about human freedom, something for which Grotius himself was prepared to risk imprisonment and worse.

Second, however, the world contains interactions between nations, which are mediated not just by concerns for expediency and safety but by moral considerations. Moral laws bind all nations in their dealings with one another, whether these laws have been turned into enforceable international law or not. Why should this be? Because, third, the world contains, most fundamentally, individual human beings, who are needy and trying to flourish. The moral duties to support human well-being bind us all into what Grotius calls "international society."

The norms of this society begin with the idea of humans as creatures who are both rational and social, and who need to find a way to live together. Certain ways of behaving support that conception (for example, abiding by treaties that one has made), and others do not (killing civilians in wartime).

According to Grotius, then, when international law limits America in some of its plans, Americans are not wrong to feel constrained. But Grotius would insist that the more fundamental identity we have is as members of a moral world of human beings.

National sovereignty also is limited internally by morality. If a nation commits certain very bad acts against its own population, such as torture and mass murder, another nation may intervene - what we now call "humanitarian intervention" - to help the people. National sovereignty's importance derives from its value to people and their freedom; it cannot be invoked to justify genocide and torture.

Grotius was also a radical in his thought about material need. He saw that a lasting peace among nations requires thinking about how all citizens of the world can get the things they need to live. He held that when any person anywhere is in extreme need, that person has a right to food and other necessities of life (he explicitly mentions medical care). He even says that the needy person owns the surplus that the rich are squandering, if he needs it and they don't.

Grotius' vision was not the way the world was seen in his own day. But by insisting on the power of this vision he created a climate of opinion in which that vision increasingly became real. Although his contemporary Thomas Hobbes influentially developed the pre-Grotian idea that the realm between nations is one of force and interest only, Immanuel Kant in the 18th century sided with Grotius, envisaging a world that achieved lasting peace through a federation of nations. Such ideas eventually led to the United Nations and Universal Declaration of Human Rights. Although the UN treats nations as the major actors in international affairs, the human rights movement moves us closer to Grotius' picture of a world in which national boundaries are porous, and international agreements have at least some power to constrain nations.

Are these ideas still alive? The Bush administration treats such moralized visions with utter scorn, casting the United States as the Hobbesian sovereign needed to bring order to an amoral realm. This stance is deeply alien to America's founding traditions: Thomas Paine and other founders were steeped in the continental human rights tradition that had grown out of Grotius' ideas.

In the Grotian/Kantian vision, alliances among republican nations are crucial to lasting peace. In our current foreign policy, by contrast, even once-stable alliances are treated with contempt. The duty of wealthy nations to ensure that all humans have urgent needs met does not rank high on the agenda of any major politician or political party.

We shall see how effectively humanitarian aid is given in Iraq; the example of Afghanistan gives reason for skepticism. But the more important issue is that the United States has long lagged behind wealthy nations in the proportion of gross domestic product it designates for foreign aid, giving, for example, about one-tenth of Norway's share. The Grotian vision entails support for all urgent needs, not just those of a nation one has invaded.

For me, the events of the past weeks engender a powerful grief, grief for a hope that is dying. And yet, moral norms are not docile, submissive things. They do not quit the scene when people treat them with contempt. Instead, they call us to outrage and protest. Just as the leaders of the Civil Rights movement did not abandon their vision of human equality in the face of the contempt and scorn of white society, so those of us who care about the vision of international society that Grotius bequeathed to us should insist on that vision.

People in power may say that we are dealing with "rogue states" and must shape our thinking accordingly. Grotius had seen a side of human conduct that he called "bestial." He argued that in such a world it is all the more important to proclaim and abide by principles of which a decent society can be proud and to work tirelessly to produce a world in which such principles increasingly hold sway. He warned people in power that if they imitate wild beasts they may forget to be human.

Grotius' own life also takes its stand against the course of despairing detachment, a great temptation in this time as in his own. He conspicuously does not say, "These times are bestial, so we right-thinking people had better check out." Instead, living in exile, he created a norm of cooperation and moral order that continues to inspire, and to determine the course of some world events, even if not all.

Those of us who feel a deep moral sadness about the current conduct of the United States, as our leadership shows contempt for this vision of a multilateral world, could do worse than to follow Grotius' example. Moral norms do not cease to exist because current leaders do not believe in them. We may refine them and further develop them, in the hope that once again, sooner or later, their day will dawn.


Martha Nussbaum is professor of law and ethics at the University of Chicago Law School and author, most recently, of "Upheavals of Thought: The Intelligence of Emotions" and "For Love of Country?"