Sunday, July 18, 2010


Well, here We go – the fifth in the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.

As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.

The Stoic approach to life basically withdrew the human person into her/her own interior self, ‘retreating’ from the world in the ancient classic military sense of compacting your force in order to concentrate it and intensify its power.

The Stoic approach is not a bad way to conceive of conducting a life: there has to be an interior concentration of your powers; they need to be Mastered and then put to good use, constructive and helpful use out in the world. For anybody looking to conduct a life free from sexually offending, this Project is one of the most important to undertake.

It was the human’s interior (they wouldn’t quite say ‘spiritual’ the way We would understand it today) powers that were a) free from the decay of the outside, this-worldly forces of chaos, imperfection, and corruption; b) the truly defining powers that made a human being a human being with human dignity; c) the one area of life in this world where a human being could demonstrate sufficient independence (if s/he wished to exercise it) so as to achieve the best and the most genuine state of being possible to a human.

Your interior powers are you only true powers. They are the expression of the Self. And they Shape the Self by the manner in which they are deployed. Imagine the Self as being Master and Commander and the powers as being the crew. The ship won’t work without both being at the top of their form, working together.

There is a place for the sexual urge – but really it’s just a member of the crew, and can’t be allowed to order the Master and Commander around. If it’s unruly, then the Master’s job is to make it into a working part of the entire crew.

Nussbaum rejects the Stoic vision. For two reasons.

First, she says, those powers “are more dependent on the world than the Stoics maintained. The capacities of thought, ethical selection, and will are undermined by malnutrition, humiliation, and lack of education”. (8-11)

It’s a shrewd and accurate insight, I would say. Humans are indeed deeply intertwined with the ‘world’ around them in which they live, move and have their being. You needn’t posit a God to imagine human beings deeply and dynamically related to the bio-sphere or eco-sphere (not in the ‘Green’ sense but in the broader philosophical sense). Humans are so marvelously intertwined with the rest of the life-world that some would see a marvelousness that strongly suggests a God, but let’s not digress.

But I’d still have to say that there is also something that sets humans apart: We are not simply marvelously intertwined with the rest of the life-world like pine trees or like other mammals. There is more to it because there is more to Us: humans have self-consciousness and will power and all the other amazing things that come with the highly-complex human brain.

And humans also are capable of failing to achieve their potential – although here you get into the huge question of where such failure comes from: within the human or outside the human. And that leads to stuff like assessing responsibility for such failure and figuring out how to ‘change’ that in a human (or leave the individual as-is). And to distinguishing between failure-to-develop and committing-a-crime; and failing to respect others ... or oneself.

Theorists can spend a great deal of time figuring whether a failure of Mastery comes from – or more from – the world around a person or the person him/herself. Just as ship designers and yard-experts can debate about this or that way of fixing a ship. But when it comes right down to it, it’s the Master and Commander who has the responsibility to make the ship work right: vessel, crew, and he himself.

Did the building yard fail somehow? Did something go wrong or work out wrong somewhere along the line? Be that as it may. Now is now and you’re out on the deep and you have to fix the problem as best you can manage. And you strengthen your own capability and authority as Master and Commander by doing so. Your authority over your own self – which is the most valuable and rare authority. And this is not a bad point to begin any self-repair and rework: you’re the Master & Commander; it’s your life and your ‘ship’ and your Mission; and any fixing you can do on your own will increase your Mastery.

So in emphasizing the connection between humans and the world, downplaying the independence of their interiority, Nussbaum is heading into difficult territory. The human is simultaneously extended into the material world but also comprised of some irreducible interior dynamism; erecting a plan, especially one that you want legislated as a national Plan, that somehow ignores or inadequately deals with that interiority … is not in advisable way to proceed.

And for an SO this is an important point to remember: there is a vital life and self principle deep within; it needs to be identified: feel within your many moods and gears and interior sounds and threads – listen to your own internal noises like a sonar operator listening to the ‘deep’ or a radio operator scanning frequencies and listening for something worthwhile (intel types used to call it the ‘alpha stream’) – until you can isolate that deep and Best gear or stream. Then choose purposely only to function in that gear or stream. Then start trying to do that and see what rises from within to distract you from that, what rises from within to wrench you off your ‘best’ gear and out of your ‘best’ self. Then get to work untangling those wires and connections. Just a handy how-to for self-repair.

Her second objection to the Stoics is that “things outside a person’s rational and ethical faculties also matter: health, bodily integrity, the chance to have relationships with friends, family, and children, the conditions of political action, the freedom to worship in one’s own way, and the ability to live on terms of respect and equality with others”. (8-11)

Again, nicely said. But she’s expanding the view of the essential or core human capabilities – the mind and (We might say) the soul, the rational and the ethical or moral – to include a whole bunch of those other things that are certainly nice to have but aren’t traditionally established as defining the core of the human being.

The Stoics wanted to withdraw the human into the fortress or protective and impregnable castle of the self (although not Dark-Age or Medieval in their quality, the ancients had such protective fortresses and walled cities). They did that in order to protect the essence of the human – which seemed somehow to them to be immaterial – from the hurly-burly of the material world, which included many human beings who didn’t seem able or willing to live on the level of their less-material and higher capabilities.

What I’m proposing to SOs is not the plain Stoic approach: it could become too defensive and too static. I’m proposing an active focus on the interior in order to ‘hear’ it, select the ‘best’ self, and then actively concentrate on making that ‘best’ self your interior ‘default’ or ‘primary’ position that you never want to fall out of. You want to get to the point where, like the Chief Engineer of a Starship, you can report that the ship is operating at ’99 percent efficiency’ (or a 110 percent – why not thing big?).

Nussbaum, of course, is not about to admit into her vision any ‘higher’ and immaterial capabilities … they would sound too much like a ‘soul’ or an ‘essence’, and Correct dogma allows neither.

The AA folks talk about a Higher Power. They don’t follow along with that to a Higher Dimension but it’s included in the good thought. An SO can’t afford to live in a ‘flat’, two-dimensional world. After all, his own internal workings need a lot of work and he will need a lot of inspiration and support to do that. Especially if he has to do the rework sort of ‘alone’ (he’s in confinement and there are too few opportunities, or there is the danger of his therapy being ‘recorded and reported’; he can’t afford a civilian therapist even though he is in the world; or there aren’t any competent civilian therapists around … or any of a dozen other difficulties).

And she’s not going to let herself judge whether a person failing to live up to potential is somehow contributing to that failure through a lack of proper will power and intention.

Rather, she will call for the government to guarantee to each individual the possibility of exercising the powers; whether the individual will do his/her share, whether the individual will deliberately choose to not-develop – that’s not Nussbaum’s or the government’s right to judge.

And she’s gone and expanded the range of ‘pre-conditions’ that she considers so essential to the enjoyment of a full human life that they must be considered ‘rights’.

And she will sort of slide away from the Stoic sense of having a responsibility for ‘mastering’ one’s human powers, and slide toward a postmodern (and soooo American) sense of ‘enjoying’ one’s powers.

This is a serious problem in modern American society now: so many folks, many SOs included, seek to ‘enjoy’ themselves rather than to Master&Command themselves. (If you can get a DVD of the film ‘Master & Commander’ I’d recommend it.) But more than many Americans, SOs realize – thanks to all the ‘attention’ and all the dangers – just how difficult and yet necessary it is to Master&Command oneself. Funny how the night moves in these things: your greatest ‘shortcoming’ can become your greatest ‘advantage’. IF you use it well.

With the government thus not responsible for simply keeping a clear and level field for individual humans committed to working their way toward maturity, but rather responsible for providing a large laundry list of pre-conditions and assorted ‘rights’ so that everybody will ‘enjoy’ their powers.

You see the differences starting to develop here. Even as she is trying to build-on the Stoics, she’s taking things in a direction the Stoics no doubt considered, but chose to avoid. Which may be ‘progress’. But also may be making a mistake now that somebody already figured out how to avoid a couple of thousand years ago.

She quickly works in that one of the core human powers is ‘choice’ – the ability to ‘choose’. (8-11)

Well, yes. You have to decide, you have to choose, you have to judge.

But the power to ‘choose’ – which indeed is a power that is tied up with human dignity – relies on the deep and mastered deployment of the core human abilities to reason things out, which is a job of work for any individual.

And reasoning things out is itself dependent on the First Principles that define your world and your own self. It’s like a Starship in ‘Star Trek’: when it’s constructed each ship is programmed with a set of Primary Coordinates – I think they were the coordinates of Earth – upon which, for all of its service life, wherever it goes, that ship will calculate its position. You can’t just go out into deep space and the trackless universe and figure you can ‘choose’ to go in this direction for a while and then in another direction. Such a power to ‘choose’, ungrounded by any Primary Coordinates, is going to get you lost – lost in your own mind’s inability to keep the Big Picture and lost in actual fact: you won’t know where you really are … at least not in relation to your Mission or your Base or your Purpose.

Because where you ‘are’ is itself relative to your Base, as it were. Starships weren’t simply launched and sent out into space never expected to be seen again. If they were going to keep a constructive relationship with their Base, with their mission and purpose, then they had to have those Primary Coordinates. Even when they were exploring, they were doing it for a large purpose: sending the information and knowledge back to Starfleet Command and all that, where the rest of humanity would have a chance to study what you’d found out.

But of course, Nussbaum, true to her ideological First Principles (such as they are) cannot and does not admit that any human has a Purpose or Nature beyond that which – for as long as s/he cares to – s/he chooses to ‘valorize’. And anything so ‘valorized’ would not have a Capital-letter: one can Correctly embrace a purpose but one can never allow any purpose to become a Purpose because that could create a commitment (which would constrict further ‘choice’ that might be made down the road). One commits to responsibility if one wants to, when one wants to, on the terms one wants to , and for only as long as one wants to. And if not, not.

In this regard, any SO who can incorporate that Higher Dimension and Higher Power into his daily vision of how life – certainly his own life – works, is going to be head and shoulders above a lot of ‘normal’ folks who have been insufficiently prepared for life because they have only learned the flat, two-dimensional world of post-modernism.

And if you have a ‘best’ self – as I said above – and that ‘best self’ also corresponds to a Plan for your life that is supported from that Higher Dimension and by that Higher Power … then you are going to feel a lot more motivated about your life’s best possibilities – especially those interior ones. Because now you are in sync with the Universe on a profound level (even though you may have that SO tendency to work through and rework).

And to imagine that one had a Nature is doubly un-Correct. First, because one cannot surrender one’s ‘total autonomy’ to anything that would limit ‘choice’. Second, because if one had a Nature then that Nature might be imagined to be a common Nature – and for humans to have such a thing would constrict autonomy even more.

Radical-feminist identity politics requires that one’s ‘gender’ be the most important aspect of oneself. And if your ‘nature’ or ‘Nature’ somehow defines or shapes your ‘gender’, then you are being oppressed because you ‘total autonomy’ is being circumscribed. Any common ‘human nature’ or ‘human Nature’ is simply a ploy of patriarchal oppression.

In this sense being an SO is also a bit of ‘identity politics’: you are reduced to your psychological or cultural classification (and perhaps your conviction classification): as if you had no deeper or more important Identity. But you are b) a Citizen and a) a Human Being – and no Identity Politics can take that away from you. Those two Identities (add a third: you are yourself) of yours are “inalienable” in just the sense that the Framers meant.

So Nussbaum – as is the whole radical-feminist agenda – is cutting loose from any of the ‘relationships’ upon which humans are so vitally dependent: that relationship to Capital Letter words that represent the non-material high-concepts that will supply Meaning and Purpose to a human life.

In order to keep ‘choice’ as their primary focus, and a ‘choice’ that is unobstructed by anything or anybody else, then they are going to raise up ‘choice’ to Choice, or to ‘total autonomy’ … to do whatever you want.

So long as you don’t hurt anybody else, of course. But I can’t see how a bunch of ships out in space with no Prime Coordinates and no Prime Directive can avoid hurting other ships: and how can a bunch of humans retain their cohesion as a group or community if there is nothing to hold them together except the idea that they can each do whatever they want, whenever they want.

And what does ‘hurt’ mean then? It’s a much deeper concept than simply committing a legally-defined crime – even a violent one – against other humans. ‘Hurt’ is a much deeper and more complex concept (and reality) because humans are: humans are so complex and intertwined that you can ‘hurt’ them without breaking any legal laws or committing what is construed as a crime (especially of violence).

By limiting ‘hurt’ to the types of activity that serve their own agenda, certain Advocates actually wind up thinning out the huge complexity and subtlety of ‘hurt’: the entire common weal and all its members can be ‘hurt’ by the introduction of institutionalized and legalized scapegoating and all the frakkery that goes along with keeping such things going in a society and a culture.

So these envisioned choice-droids that radical-feminist theory wants to turn everybody into … don’t strike me as fully human. Nor will any they have any chance of putting together and holding together a common-weal or a polity whose sinews and bonds will hold it together under pressure and challenge.

But she wants to use the Stoic idea of ‘human dignity’ but then adds to it the idea of ‘human vulnerability’ (8-11): humans have great dignity, but their potentials to fully actualize or achieve that dignity are vulnerable to so many pre-conditioning conditions.

But those pre-conditioning conditions are outside the human; there is no interior struggle in this vision. Rather, in her vision the government is tasked with actively going ahead of all its human citizens like an ice-breaker and keeping the ice out of their way. Or the government is responsible for Shaping and Controlling the national life-world so that all those pre-conditions are and remain favorable to each person/citizen so that each will have “access to a life worthy of human dignity”. (8-11)

It’s an intriguing vision, and not an evil one at all. But it’s going to require a whole lotta government. And the SO comminity realizes just how much government – and not government at its ‘best’ – that this whole scheme requires.

And for a long time, this huge and deep job had been assigned to … God. Not the Greek gods, who really couldn’t have cared less as a rule what happened to humans. But the Judeo-Christian God who was a person (3, perhaps) and cared a very great deal, like a parent for children.

Of course, Nussbaum is doing philosophy here, and not theology. And she is working on a political philosophy that will translate somehow – she hopes – into actual government policy and law.

But in matters human I think that – just like with Starships – you need a set of Prime Coordinates … and if you don’t want to allow them in another dimension (God, say) then you will have to assign something in this dimension to do the job.

Nussbaum wants to assign the task to ‘government’. But that is going to wreak all hell with the Founding idea of a ‘limited government’. But she and the entire radical-feminist Revolution have cast their lot with the Beltway; it is their ‘god’ for all practical (that is to say, political) purposes.

In a way they make an ‘idol’ of government the same way that the Fundamentalists of the Right do: claiming that the government speaks for God and has God’s authority and nobody can ever doubt that.

Idolatry, at this stage of Western civilization, doesn’t strike me as ‘progress’; exactly the opposite.

But you can see why they want to get rid of any rival ‘religion’ and any ‘rival’ god – like, say, God.

And Nussbaum admits it: Her Capabilities Approach “ascribes an important role to government in human life: government is charged with securing for citizens a comprehensive set of necessary conditions for a life worthy of human dignity”. (8-11)

She’s got that right. An organization exercising the role formerly ascribed to God has an ‘important’ set of Shoes to fill indeed.

Whether any earthly entity can – especially if its nature is supposed to be limited … well that’s another question entirely.

She puts her finger on an actual lack in human affairs: humans’ most important abilities – indeed their entire hope for any success and enjoyment in this world – are dependent on forces and dynamics beyond their control.

But Nussbaum wants – decently enough, certainly – to fill this lack by assuming that what an individual cannot do, a government can successfully do for him/her.

I’m not sure she’s thought this thing through.

Because while those powers are somewhat dependent upon the external world, they most surely and indispensably must be developed and wielded by the person, in that interior world. And yet it's precisely here that Nussbaum's vision wants to keep government out of people's lives: they shouldn't have to be 'judged' on what they do with their 'autonomy'. OK, but even people who want to drive motor vehicles or fly aircraft have to submit their achieved skills to 'judgment'.

And while I don't want any government Office of Self-Development Evaluation, still it has to be said that if individuals don't undertake the long hard road to Self-Mastery then nothing at all is going to wind up working. As the songster saith: "You got to walk that lonesome valley; you got to walk it by yourself".

She asserts that these human ‘capabilities’ she discerns, so vulnerable to the world, “need support from the political world”. (8-11) But she has to face it: the “political world” is the US government, the Beltway, an earthly government composed of humans, and probably not Deputized by God to exercise his full authority. And currently running verrrry short of cash, which will be needed to fund the knowledge-and-service society (which will never be able to pay for itself), and now the Capability society as well.

But, she continues, “the political goal” can only be “capability, not functioning”. (9-12) That is to say: the government can only make the conditions ready for individuals to achieve or realize or master or enjoy their Capabilities.

“At that point, the decision whether to take up a given opportunity must be their own. Respect for a person requires not dragooning that person into a particular mode of activity, however desirable it might seem”. (9-12)

But all this government expense and intrusion – assuming that it all doesn’t either wreck the polity or bankrupt the government or both – are thus expended simply so folks can ‘choose’ … what? Not to actualize their Capabilities? To actualize them in ways that will harm others or deprive others of the benefits of mutual contribution and cooperation?

And surely, the government and all of Us are being ‘dragooned’ into supporting this incomprehensibly broad and kind of fuzzy Plan.

But as has been the case for 40 years now, ‘choice’ – broadly and vaguely defined and carried to the ultimate extreme – is the only thing that has to be preserved. Nothing else really matters.
And no human being is simply a choice-bot. It is a grossly inadequate vision of human beings.

And a life with nothing but ‘choice’ is not a life as humans know it or could live in it. And ‘choice’ without any Shaping at all … is kudzu without a trellis: all you’re going to wind up with is a flat but dense jungle, and not a garden.

Which brings things back to the question as to whether any such ‘secular’ society as is being proposed to be imposed upon the country has any possibility of serving as a livable and survivable vessel for Americans or for any humans.

Or whether this whole past 40 years has been as wrackulous an adventure as Vietnam: a Plan insufficiently conceived by elites who figured that they were too big to fail because they were Americans and they were on top of the world. And that American power and brains could never fail, and that American money would never fail.

And here We are.

And so SOs – whether ‘identified’, ‘registered’, incarcerated or under supervision or not – can actually use this whole dangerous situation to advantage by using it as a motivator to do their own ‘self-work’, their own repair-and-rework. That is a ‘choice’ that they can make: to become a Master&Commander by taking responsibility for their lives and the workings of their ‘ship’. And this can be done, as a profoundly necessary beginning, in the privacy of your own ‘self’, on your own ‘quarterdeck’ you might say.

And for the SO community who are not themselves SOs but want to help make this situation better, much can be done; because while I don’t think that much of Nussbaum’s stereotypical ‘progressive’ position (though I don’t think there’s not much ‘progressive’ about it, and a lot that’s ‘regressive’ about it) is going to make it onto Beltway desks, there’s still so much of it that has already been enacted into law and policy, and so much of it that Beltway types and government types on the State level – along with generations of law school grads who are now judges, prosecutors, and pols – have accepted as being ‘just some reform’ or else ‘the best cutting-edge new thinking’.

I imagine the SO community as being something like Anthony Hopkins’ character of Zorro, faced with the character (played by Antonio Banderas) of the young man, still sunk in his own mess, whom he must prepare for great things: “This”, says the older man resignedly, “is going to take a lot of work”.

So much remains to be done.

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