Academic

Stein on Nussbaum on Human Capabilities & Equality

By Lawrence Solum

Mark S. Stein (Harvard Law School, Petrie-Flom Center) has posted Nussbaum: A Utilitarian Critique (Boston College Law Review, Vol. 50, No. 2, pp. 489-531, 2009) on SSRN. Here is the abstract:

In this essay, I offer a utilitarian perspective on Martha Nussbaum?s theory of justice. Nussbaum believes that society should guarantee to every individual a threshold level of central human capabilities. Nussbaum?s approach has considerable appeal. However, it is implausible and unappealing when it diverges greatly from utilitarianism. Nussbaum?s theory requires that enormous sums be devoted to people who receive very little benefit from efforts to raise them toward a capability threshold. Moreover, Nussbaum refuses to take a principled position on how conflicts among below-threshold interests should be resolved, even when one alternative would produce enormously more good than another alternative. Nussbaum mitigates these problems through an implicit incorporation of utilitarianism to address conflicts among below-threshold interests, but this partial adoption of utilitarianism cannot completely cure her theory. In addition to critiquing Nussbaum?s theory, I respond to some of Nussbaum?s criticisms of utilitarianism. I reject Nussbaum?s claim that utilitarianism is wrong to give weight to adaptive preferences. I also demonstrate that Nussbaum misstates the relationship between her theory and the doctrine of incommensurability: features of her theory that she attributes to a denial of commensurability actually reflect a commitment to commensurability across the capability threshold.

And from the paper:

An informed-preference utilitarian might argue that adaptive pref- erences are not fully informed, and that utilitarianism should therefore not give effect to them. I would not make this move, however, as I believe it is right to respect adaptive preferences; adaptation to oppression does indeed make it less morally urgent to alleviate oppression. Suppose there are two societies in which women are oppressed in familiar ways: They cannot vote, they are excluded from desirable professions, they lose legal personhood when they marry, and they suffer discrimination in divorce law, inheritance law, and so on. There is, however, a large difference between the two sexist societies in the extent to which women have adapted to oppression. In one society, there is a great deal of subjective misery among women. This misery is evidenced by past protests that were violently suppressed and are unlikely to recur.208 It is further evidenced by strenuous attempts to emigrate (suppose both societies are closed to emigration), and by social science surveys taken by outsiders. In the other sexist society, women have adapted to a much greater extent. There is far less opposition to oppression and far less discontent.

Suppose now that the international community can force only one of these societies to eliminate its sexist laws, or can exert pressure on only one society at a time. Should the international community help the truly miserable, unadapted group first, as utilitarianism recom- mends? Or should the international community help the group that is largely adapted to its situation?

Nussbaum?s principles do not tell us to help first the unadapted group that is suffering more. As the women of both societies are below the capabilities thresholds, Nussbaum?s theory does not straightforwardly give priority to one group or another. Indeed, if faced with a de- cision between helping the two groups, someone applying Nussbaum?s theory might decide that it is morally more urgent to help the group that is suffering less rather than the group that is suffering more. The more-adapted and less-suffering group has a kind of ?false conscious- ness,? which ranks it lower on some capabilities than the group that is suffering more. For example, one element in the capability ?Emotions? is to be able to experience ?justified anger.?209

But while Nussbaum?s theory does not tell us to help first the group that is less adapted and thus more miserable, it is clear to me (and, I hope, to the reader) that we should indeed help that group first.210 It is morally more urgent to help a group that is suffering, that is groaning under the yoke of oppression, than to help a group that is relatively content. Utilitarianism, then, is not morally deficient in giving weight to adaptive preferences. On the contrary, the moral deficiency lies with theories that refuse to take adaptive preferences into account. We should help first the people who are suffering the most, and a theory that does not tell us to do so is wrong.211

I thoroughly enjoyed this very interesting paper, which is highly recommended.  If I might comment very briefly on Stein's hypothetical.  Stein's description of the adaptive-preferences society is thin: he offers no explanation of the causal mechanisms by which society one (oppression plus subjective misery) has produced women who are struggling against oppression; nor does he offer an account of the causal mechanisms which have produced society two (in which women have adaptive preferences & hence are relatively content).  But it is implausible to think that this difference could exist without a cause.  Neither systematic adaptive preferences nor systematic struggle can plausibly be understood as a random uncaused phenomenon.  There must be some difference in the social conditions that has produced this difference.  Of course, we can think of a variety of explanations.  The women-are-struggling society may be at a more advanced stage of cultural development--such that women in that society have greater capacities for reflection on their own conditions.  Or the adaptive-preferences society may be more repressive, systematically discouraging women from the development of their intellectual capacities.  Or something else. 

In any event, the hypothetical as posed is underdescribed in a way that is almost surely relevant to evaluation of it--unless one has a prior commitment to a particular evaluative theory (such as hedonistic utilitarianism, informed-preferences utilitarianism, etc.).  But the point of the thought experiment is to test our theories of evaluation--so the underdescription directly undermines the validity of the thought experiment. 

Reacting to the thought experiment as stated, I do not have an evaluation--because I assume that Stein wants to hold everything constant, except the suffering, leading me to the conclusion that this thought experiment compares possible worlds that are very distant from our own in some unspecified respect.  Until the distance is explained, I have no reason to trust the intuitions that the thought experiment pumps--for reasons eloquently explained by Daniel Dennett in "Elbow Room."

With that preliminary point made, I will simply observe that it is far from obvious to me that we should prioritize aid to the group that is suffering in an adequate version of the thought experiment.  Assuming that we must choose to help one group or the other, and depending on the full description of the causal forces and hence relevant social conditions that have produced the difference in suffering, our intuitions could easily go the other way.  Indeed, if the cause of the suffering-difference is greater oppression (with equal legal disabilities) in the adaptive preferences society, my intuition is that we should choose to help women in that society first, because they are "worse off" and also because their well-being would improve more. (Of course, given the underdescribed version we would be unable to make judgments about the effects of our efforts on the relative capacities of women--and hence the underdescribed version is rigged against a capacities-for-valuable function view.)

My understanding of human well-being is not purely subjectivist, so it is not unsurprising that I have this reaction.  To me, the women in the adaptive preferences society are both worse off and suffering from greater injustice than the women in the struggling society.  Of course, I am not arguing for that conclusion here.  By reporting my evaluation of the thought experiment, I am merely providing a piece of data: at least one person (someone who I hope is reasonable, reflective, and capable of critical reflection on his own evaluative attitudes) believes that the thought experiment does not generate considered judgments that undermine Nussbaum's position.  If you have the same reaction that I do, then there may be two such data points.  Assuming that the thought experiment generates conflicting intuitions among the theoretically informed, then its value is limited.  Unless, of course, the full described thought experiment were to generate a strong consensus among those who are not theoretically informed, across a wide range of social groups--that would be very interesting!

Read Stein!

Full post as published by Legal Theory Blog on June 03, 2009 (boomark / email).