In the text “The Challenge of Gender Justice”, Martha C. Nussbaum discusses the need for reform in traditional liberal theory and provides a step-by-step plan for refining it. Nussbaum explores the works of a few renowned political philosophers like John Stuart Mill, John Rawls and Catharine Mackinnon to arrive at what she considers the best conclusion. Her overall purpose in writing this paper seems to be to draw attention to the shortcomings of the existing liberal theory, especially in the area of gender equality, and to address the urgent issues that arise because of them.
In the introductory paragraphs, Nussbaum cites some disheartening data about the increasing amount of crimes against women- “52 percent of surveyed women were physically assaulted either as children or adults” (94)- and the growing inequality gap between men and women: “in forty-three countries, male literacy rates are fifteen or more percentage points higher than the female rate” (94). She uses these statistics to call for a reform in the prevailing theories of liberalism and suggests that “this rethinking has taken place in four stages”, with the last stage just beginning (95). She goes on to criticize the ambiguous definition of “Nature” and what is considered “natural”, and calling out this ambiguity is the basis of many of her arguments against the “dubious theoretical propositions” (96) prevalent in liberal theory. Concluding the text, Nussbaum offers a solution of her own: she suggests a theory which would incorporate both Amartya Sen’s “capabilities approach” (108) and Thomas Scanlon’s view of good principles being such that “no individual could reasonably refuse them” (108).
However, the main problem that arises for me regarding Nussbaum’s solution is that it fails to mention the specific constraints within which an “overlapping consensus” (a term coined by John Rawls in “Political Liberalism”) of a few “basic entitlements or opportunities” (108) can exist; how can a pluralistic society agree on one set of “universal” laws when each community has different conceptions of what is right and wrong, and which laws to consider fundamental. Even if an agreement of a few basic laws is concurred with everyone, will it be stable in the long run? Answering this question about the practical application of Nussbaum’s solution to improve liberal theory is the main focus of my text.
Step one of reforming liberal theory as given by Nussbaum is “criticizing the private-public distinction” (97). The private realm is where laws exist and all the citizens are considered equal whereas the public realm is that of the family, where there might be “a natural hierarchy between parents and children” and where equality is not of particular importance (97). Nussbaum urges the law to delve into the public sphere thereby removing (or at least reducing) the gap between the private and the public spheres (110). This is where she first puts forward her idea of “precise types of human conduct and association” being protected from the law. An example in the text “Is Martha Nussbaum Really Political Liberal” by Francesco Biondo poses a challenge to this line of thinking: if the members of a religious organization decide that a position of power can only be held by a man, should the law interfere to stop this discriminatory practice, or would that count as disrespecting the choices of members of a private institution (Biondo). Moreover, how someone defines a private or a public institution may depend on factors like his or her education, place of birth and upbringing; so there might be some dispute over what belongs in which realm. Even though in her book “Sex and Social Justice”, Nussbaum maintains that a judge would hold final authority in such a matter since gender equality is a constitutional right, another political liberal might just as easily argue that religious matters “do not infringe any constitutional principle (sic)” (Biondo). This goes to show how two components of a society might differ in what they consider “right”.
To think about the concept of overlapping consensus, one must look at its source; this term was founded by John Rawls in his text “Political Liberalism”. Rawls attempted to solve the problem of different communities having varied notions of right and wrong by “distinguishing two levels of moral argumentation”: one involves the “comprehensive” issues regarding how one should lead his life and the other involves “political” issues regarding what one owes his fellow citizens. According to him, people can disagree with what makes a “good life” and yet agree upon a set of political principles. This is best illustrated by a example given in Nussbaum’s “Women and Human Development”; one group of people may believe that men and women are equal because “they share the same faculties that are morally relevant” while another may believe they are equal because God created them as such. The idea is that whatever the starting-point may be, different people arrive at the same concept of equality.
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