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