Living well and sexual self-determination: Expanding human rights discourse about sex and sexuality

Law, Culture and the Humanities

Volumn 7, Issue 1, 2011, Pages 101-120

  Weinman, Michael ^a  

^a ST JOHN S COLLEGE   (United States)

Author keywords

Aristotle; capability approach; gay rights; human rights; human sexuality; reproductive rights

Indexed keywords

EID: 78751636004     PISSN: 17438721     EISSN: 17439752     Source Type: Journal    
DOI: 10.1177/1743872109355577     Document Type: Article

References (73)

1. Amartya Sen. Development as Freedom (New York: Anchor Books, 1999).
2. This "decision" is thought to be the necessary outcome of both the manner in which Roberts Supreme Court differs from the last years of the Rehnquist Court (primarily with the replacement of Justice O'Connor with Justice Alito), and the way in which the equilibrium of this Court (so centered on the "swing vote" of Justice Kennedy) will be disturbed by the two or three appointments it is presumed President Obama will get to make - indeed, his first nominee, Sonia Santomayor, has already been confirmed. Among other things, there has been widespread speculation about this Court overturning the precedent regarding a right to privacy, possibly even the decision in Roe v. Wade itself.
3. Given that a, if not the, central goal of my analysis here is to investigate how taking moral psychology, and especially Aristotle's moral psychology, seriously can help us to rethink the normative foundations of a positive freedom approach to human rights, the absence of any discussion of the political context of Aristotle's ethical views might seem illicit. All the more so as we are directly concerned with the political outcomes of the ethical framework one adopts. Much has been said about these matters, of course. I would direct an interested reader especially to analyses of how Aristotle's own account of the soul (as found, most definitively, in De Anima) conflicts with his express views in Politics, Book I, especially the articles collected
4. Bat-Ami Bar-On, ed. Engendering Origins: Critical Feminist Readings in Plato and Aristotle (Albany, NY: SUNY Press, 1994)
5. Cynthia A. Freeland, ed. Feminist Interpretations of Aristotle (University Park, PA: Pennsylvania State University Press, 1998).
6. For a reader interested in the fundamentals of Aristotle's politics, with reference to psychology and questions of exclusion and inclusion
7. Josiah Ober, Political Dissent in Democratic Athens (Princeton, NJ: Princeton University Press, 1998), pp. 11-12.
8. Bernard Yack, The Problems of a Political Animal: Community, Justice, and Conflict in Aristotelian Political Thought (Berkeley, CA: University of California Press, 1993)
9. Aristotle's Politics, and for one who would wish to take his views on the ethical and political seriously today, in his chapter on justice (pp. 128-74).
10. I have in mind here Judith N. Shklar's articulation - in Political Thought and Political Thinkers (Chicago, IL: University of Chicago Press, 1998), pp. 3-19.
11. Bernard Yack - in "introducing" Shklar's thought in Liberalism without Illusions (Chicago, IL: University of Chicago Press, 1996), pp. 1-13.
12. Aristotle's Politics, and its relevance for our time, in The Problems of a Political Animal - offers both an endorsement and a counterweight to what might be called Shklar's pessimism with respect to humans' ability to learn to live together better. (I am thankful to an anonymous reader for reminding me that taking cruelty and contestation seriously, as Shklar demands and Yack argues through Aristotle's Politics, is necessary if we are to try to articulate an account of positive freedom, and expose ourselves to the vicissitudes of the political community in making rights claims.)
13. Bernard Yack, The Problems of a Political Animal, pp. 3-4.
14. Whatever Yack might believe with respect to my attempt to reformulate something like the capability approach along the lines of this human work, it is my conviction that my formulation has precisely the advantage over Nussbaum's that it does not set out to express the content of the work, and (thus) does not present human capability as universally consistent with social justice.
15. I have in mind the following works: Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (New York: Belknap Press, 2006)
16. Martha Nussbaum, Women and Human Development (Cambridge: Cambridge University Press, 1999)
17. Martha Nussbaum, Sex and Social Justice (New York: Oxford University Press, 1995).
18. Amartya Sen, Choice, Welfare and Management (Cambridge, MA: Harvard University Press, 1997 [1982])
19. Amartya Sen, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992)
20. Amartya Sen, The Standard of Living (Cambridge: Cambridge University Press, 1987).
21. Lastly, their work together in: Nussbaum, C Martha and Amartya Sen, The Quality of Life (Oxford: Clarendon Press, 1993).
22. Nussbaum, of course - especially in Sex and Social Justice (New York and Oxford: Oxford University Press, 1999)
23. For these reasons, it might seem more reasonable, or necessary, to draw on that text, or others of hers, to explicate the capabilities approach, as an anonymous reviewer has insisted. Still, I work with Sen here, and use this "economic development" example in pointing to the value of the capability approach in reformulating human rights discourse, insofar as it seems to me to show us the benefit of this approach, without explicitly introducing the tensions between this approach and liberalism, and without introducing Nussbaum's (e.g., Sex and Social Justice, p. 43) express discomfort with the metaphysical character of the "functioning" I am recasting here, with Aristotle, as the human work. We will, though, have occasion to see an example of Nussbaum's more closely connected to the rights under discussion in this work, later on.
24. Amartya Sen, Development as Freedom, p. 10.
25. Amartya Sen, Development as Freedom, p. 18.
26. Amartya Sen, Development as Freedom, p. 75.
27. Amartya Sen, Development as Freedom, pp. 21-4.
28. I thank an anonymous reviewer for insisting on the seemingly contradictory nature of my saying that the capability approach is not consequentialist and then giving this example. If the concern remains that speaking of trying to measure the actual quality of life at all isconsequentialist, then we would just have to radically change what we mean by the term away from the utilitarian framework to the ergon framework provided later. Such a change, for reasons we will see, seems to me so great as to say we have to call this something else.
29. Martha Nussbaum, Sex and Social Justice, p. 49.
30. Martha Nussbaum, Sex and Social Justice, pp. 46-7.
31. Amartya Sen, Development as Freedom, p. 213.
32. Amartya Sen, Development as Freedom, pp. 227-34.
33. Amartya Sen, Development as Freedom, p. 298.
34. Joanna Lipsy's "Pro-choice or Anti-choice, Pro-life or Anti-life: Understanding the issues of abortion," Ethics Honors Paper, Ramapo College, Fall 2005. 19.
35. I have in mind Mary Anne Warren, "On the Moral and Legal Status of Abortion," Monist 57.1 (1973)
36. "The Personhood Argument in Favor of Abortion," in Louis Pojman, ed., Moral Philosophy: A Reader (3rd ed.) (Indianapolis, IN: Hackett Publishing Company, 2003).
37. Judith Jarvis Thompson, "A Defense of Abortion," Philosophy and Public Affairs 1.1 (1971), pp. 47-66.
38. But it is not only in the American context that this link between classically conceived human rights and the practice of protecting reproductive rights coincide. As M. L. McConnell shows in "Abortion and Human Rights: An Important Canadian Decision," International and Comparative Law Quarterly 38.4 (1989), pp. 905-13
39. This brings up the "rights of the woman vs. rights of the fetus" argument
40. which serves the opposing view well - for example: Don Marquis, "Why Abortion is Immoral," Journal of Philosophy 86.4 (1989), pp. 183-202.
41. John T. Noonon, "Abortion is Morally Wrong," in Louis Pojman, ed., Moral Philosophy: A Reader (3rd ed.) (Indianapolis, IN: Hackett Publishing Company, 2003).
42. Mary Anne Warren, "The Personhood Argument in Favor of Abortion," pp. 358-60.
43. Mary Anne Warren, "The Personhood Argument in Favor of Abortion," p. 359.
44. Mary Anne Warren, "The Personhood Argument in Favor of Abortion," p. 361.
45. This is the thought experiment in which we are to imagine the moral demand that someone who is somehow providing life support for a violinist who would otherwise die must consent to be physically connected to that violinist in order to preserve their life perpetually: Judith Jarvis Thompson, "A Defense of Abortion," pp. 48-51.
46. Judith Jarvis Thompson, "A Defense of Abortion," pp. 61-5.
47. John Finnis, "The Rights and Wrongs of Abortion: A Reply to Judith Thompson," Philosophy and Public Affairs 2.2 (1973), pp. 117-45.
48. John Finnis, "The Rights and Wrongs of Abortion: A Reply to Judith Thompson," p. 145.
49. For a fuller discussion of this complex relation see Michael Weinman, Pleasure in Aristotle's Ethics (New York and London: Continuum Books, 2007), especially pp. 8-11
50. Norman C. Gillespie, "Abortion and Human Rights," Ethics 87.3 (1977), pp. 237-43.
51. Philip Alston, "The Unborn Child and Abortion under the Draft Convention on the Rights of the Child," Human Rights Quarterly 12.1 (1990), pp. 156-78.
52. Rosalind Hursthouse, "Virtue Theory and Abortion," Philosophy and Public Affairs 20.3 (1991), pp. 223-46.
53. I especially hope that this is borne out by the specific reformulation of Aristotle's definition of the ergon in terms of the setting to work of the whole soul, and not (merely) some kind of rational exercise, as it is often translated and interpreted - even by practitioners of capability approach to whom I am indebted.
54. In speaking this way, I have in mind not only the academic discussion of human rights discourse - here I am thinking of the works cited just below, Kaplan chief among them, but also the practice of human rights watchdogs and advocates. Both the success of Human Rights Campaign, as introducing itself as a mainstream actor in human rights practice, and the manner in which "mainline" human rights groups, like Amnesty International, have adopted sex, gender, and sexuality, as integral to their mission - see, for example, that "[the rights of] lesbian, gay, bisexual and transgender people" is listed in the "Index of Selected Topics" (Amnesty International Report 2009: The State of the World's Human Rights, p. 404), and that gay rights are discussed as a particular human rights concern with respect to 21 nations, spanning Europe, Africa, Central Asia, and the Americas - make this point clear. 33.
55. The literature on the necessary connection between taking alternative sexuality seriously and a re-conceptualization of subjectivity, in its psychological, social, political, and normative respects, is both large and diffuse. To my estimation, a strain more or less arising from Michel Foucault, The History of Sexuality, tr. Robert Hurley (New York: Vintage, 1979)
56. Judith Butler, Gender Trouble (New York and London: Routledge, 1990)
57. Ladelle McWhorter, Bodies and Pleasures: Foucault and the Politics of Sexual Normalization (Bloomington, IN: Indiana University Press, 1999).
58. Morris Kaplan, Sexual Justice: Democratic Citizenship and the Politics of Desire (New York and London: Routledge, 1997).
59. Morris Kaplan, Sexual Justice, p. 14.
60. Martin Dupuis, Same-sex Marriage, Legal Mobilization and the Politics of Rights (New York: Peter Lang, 2002)
61. William Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights (New York: Routledge, 2002)
62. Michael Mello, Legalizing Gay Marriage (Philadelphia, PA: Temple University Press, 2004).
63. Hereafter cited in the text as NE. All translations are my responsibility, though I consulted the translation of Joe Sachs, Aristotle: Nicomachean Ethics (Newburyport, MA: Focus Publishing, 2002).
64. For the Greek: I. Bywater, Aristotelis Ethica Nicomachea: Oxford Classical Texts (Oxford: Oxford University Press, 1894).
65. John M. Cooper, Reason and Human Good in Aristotle (Indianapolis, IN: Hackett Publishing Company, 1986 [1975]).
66. Interestingly, Cooper later revised his thinking, in Reason and Emotion: Essays on Ancient Moral Psychology and Ethical Theory (Princeton, NJ: Princeton University Press, 1999)
67. For a detailed and textually grounded account, see Michael Weinman, Pleasure in Aristotle's Ethics, 1-7 and 100-10.
68. Rosalind Hursthouse, "Virtue Theory and Abortion."
69. One might, and an anonymous reviewer to whom I am grateful did, be concerned about just what this might practically mean. Might this, for example, include the kind of mandatory ultrasounds that are currently de rigeur in the United States? To be sure, this is not remotely the kind of thing I believe one should be thinking of as developing a person's full understanding, but it is also true that there is no place for adjudicating this other than within the (quite divided) community of interest. So, if some parties bring legal or other forms of coercion to bear in this manner, the only thing that can be done in response, on the capability approach, is not to defend the woman's right to non-interference, but to actually question practitioners and the practice on the grounds of its own justification. There is no guarantee, but I suspect we might thus find that the defenders of the practice would have to acknowledge that they are not really trying to do anything for the woman, but to "save the life of the fetus." This would show, I argue, that at bottom a true concern for the well-being of the woman would exclude anything that attempts to coerce her to do anything at all, without prejudice to the ultimate decision regarding carrying the pregnancy to term.
70. Mary Poovey, "The Abortion Question and the Death of Man," in Judith Butler and Joan Scott, eds. Feminists Theorize the Political (New York and London: Routledge, 1994
71. For a profound, beautiful, and daring articulation of this tendency and its pitfalls, see Judith Butler, Antigone's Claim (New York: Columbia University Press, 2000), especially, Ch. 3 "Promiscuous Obedience," and more especially pp. 69-73.
72. This concern could also surely be expressed with respect to reproductive rights. And indeed, in the current political climate, especially in the United States, it is far more likely to lead to disappointment and frustration for persons with values like mine in this respect than with respect to the expression of alternative sexualities or gender identities. This, though a serious worry, seems to me not so much about the capabilities approach as refined through the ergon conception developed here, as about the nature of deliberative democracy. I am thus not sure that there is any theoretical solution to this problem, which will only truly be addressed through public deliberation. I would also like to express my thanks to an anonymous reviewer for insisting on the importance of this criticism, which sits with me very much, and seems to me endemic to any attempt to make a capabilities approach work, or indeed any conception of positive rights, but still seems like less a vice to my estimation than the problems exposed above with respect to negative rights.
73. In the United States context, Massachusetts and an ever-growing series of New England states, as well as (interestingly) Iowa, excepted. California recently became the first state to move from legalized gay marriage back to a ban on gay marriage, after a popular referendum on the issue.