Martha Nussbaum, Essentialism, and Human Sexuality

Ball, Carlos A., Columbia Journal of Gender and Law

It is an honor to participate in this program recognizing the work of Professor Martha Nussbaum. A few years ago, after being fortunate enough to have been awarded tenure, the university library at the institution where I worked at the time asked me to choose a book I valued for an exhibit of books chosen by recently tenured professors. I chose Nussbaum's Women and Human Development, a book that has had a deep intellectual influence on me. (1) One of the chapters in that book is titled "In Defense of Universal Values," a topic that is relevant to this Article.

Critiques of essentialism are a common theme in the writings of many contemporary academics. Indeed, queer theorists, critical race theorists, post-structuralists, post-colonialists, and many feminists consistently take issue with the notion that there are attributes or traits that are intrinsically constitutive of categories such as men and women, heterosexuals and homosexuals, disabled and non-disabled, and so on. (2) The emphases and nuances of the anti-essentialist critiques differ depending on membership in particular academic camps and disciplines. However, the critiques uniformly reject moral, philosophical, and political understandings that are explicitly or implicitly grounded in the notion that identities--and for some critics, even the very idea of a "human being"--are static and fixed, that is, immune or separate from forces of social construction. Anti-essentialist critiques hold instead that much (or all) of what constitutes us as individuals is socially constructed and therefore fluid and contestable.

From an anti-essentialist perspective, Martha Nussbaum's liberal humanism is intrinsically suspect. Nussbaum, after all, grounds her moral and political philosophy in a particular understanding of what it means to be human, one that is driven by certain capabilities that she argues are necessary to lead a fully human life. Although Nussbaum does not usually refer to herself as an essentialist (3)--few do, since the term is largely used only in a pejorative sense--her capabilities approach to justice is explicitly universalist; (4) it is grounded in commonalities and found across time and place, allowing us to recognize each other as human. (5)

It is important to note that Nussbaum's universalism is of a very different order than that usually associated with liberal political theory because it refuses to locate the source of human dignity, which serves as the foundation of her moral and political philosophy, solely in man's capacity to reason. Instead, Nussbaum contends that the capability to affiliate with others also plays an architectonic role in our lives because we exercise most of our important capabilities with and through others. As she explains, "[t]o plan for one's own life without being able to do so in complex forms of discourse, concern, and reciprocity with other human beings is ... to behave in an incompletely human way." (6)

In addition, Nussbaum's conception of what it means to be human is decidedly non-metaphysical. It is derived not from philosophical principles gleaned through the application of abstract reasoning, but from the interpretation of human practices and experiences, including the stories we tell each other about our lives and aspirations. It is also not dependent on "facts of human nature," whether physiological or psychological, that are separate from our ethical evaluations of what is necessary to lead a full human life. For Nussbaum, in other words, the value of central human capabilities is determined through ethical interpretations and evaluations of human experiences, rather than through the discovery of so-called natural principles or facts that are independent of those evaluations. (7) There was a time early on in Nussbaum's elaboration of the capabilities approach when she criticized John Rawls for deploying an unduly restrictive understanding of the good in determining what is necessary to promote human flourishing. (8) However, a few years later, at around the time that Rawls published his book Political Liberalism, (9) Nussbaum started describing the capabilities approach in terms of a Rawlsian overlapping consensus that can be reached by individuals with different conceptions of the good. (10) Nussbaum now argued that the capabilities view, like Rawls's political conception of justice, "is not grounded in any theory of the human being that goes beneath politics." (11)

As I have noted elsewhere, it is not clear that Nussbaum's conception of what it means to be human and to lead a full human life is indeed as thin as that of Rawls. (12) I do not, however, explore that issue further in this Article. Instead, I focus on Nussbaum's understanding of sex and sexuality to try to determine which of their aspects she deems to be universal and which she thinks are constituted through forces of social construction. I do this because I believe it is important to make it clear that Nussbaum's human liberalism is consistent with the prevailing view in queer and gay/lesbian studies that sexual orientation identities are the result of social constructivist forces. It would be a mistake for those who are interested in promoting pluralism and diversity in matters of sexuality to be skeptical of Nussbaum's human liberalism because of its universalist (or essentialist) underpinnings. In fact, that liberalism, for reasons I will explain, has much to offer lesbian, gay, bisexual, and transgender ("LGBT") people.

Part I begins by providing a brief history of the debate within sexuality studies between essentialists and social constructionists. Part II discusses Nussbaum's writings on sexuality and assesses the extent to which they are consistent with a social constructionist understanding of sexual orientation. Finally, Part III explains why Nussbaum's liberal humanism, which encourages us to recognize the humanity of those who seem least like us, is a compelling form of argumentation on behalf of sexual minorities.

I. THE ESSENTIALIST VS. SOCIAL CONSTRUCTIONIST DEBATE ON SEXUAL IDENTITY CATEGORIES

As far as we can tell from the historical record, "erotic and sexual interactions between persons of the same sex are attested in almost all cultures known to us across time and across the globe." (13) Some scholars have looked at this consistency through time and place and concluded that "gay people," that is, individuals who have a distinct identity based on their same-sex erotic preferences, have always existed. These writers, in other words, believe that there are "objective, intrinsic, culture-independent facts about what a person's sexual orientation is." (14)

This so-called essentialist position in matters of sexuality is usually associated with the late historian John Boswell. As he made clear in the title of his 1980 book, Christianity, Social Tolerance and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century, Boswell believed that "gay people," as a distinct category of individuals, have existed in all Western societies. (15) Although Boswell, like almost everyone else, eschewed the label of "essentialist," he believed that there have always been people whose "erotic inclination toward their own gender [is] a distinguishing characteristic." (16)

Boswell's position, of course, was inconsistent with that of Michel Foucault as set forth in his highly influential book The History of Sexuality, Volume I. (17) In that book, Foucault famously contended that there is nothing intrinsic or fixed about human sexuality; instead, what we think of as sexuality is a byproduct of the work of systems of knowledge and power as represented, most specifically, by scientific, medical, and psychiatric disciplines. According to Foucault, one of the defining characteristics of the modern era is the extent to which these disciplines have grabbed hold of sexuality by studying, analyzing, and schematizing it through an endless discussion and cataloging of sexual desires, tendencies, and acts. (18) It is from these discursive processes that what had before been viewed simply as the sexual act of sodomy became the basis for a social identity. As Foucault quipped, "It]he sodomite …

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Publication information: Article title: Martha Nussbaum, Essentialism, and Human Sexuality. Contributors: Ball, Carlos A. - Author. Journal title: Columbia Journal of Gender and Law. Volume: 19. Issue: 1 Publication date: Winter 2010. Page number: 3+. © 2008 Columbia Journal of Gender and Law. COPYRIGHT 2010 Gale Group.

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