Lara Grace O’Donoghue

#1866701
PHIL 407. 03/17/2020
Final Paper

Analyzing Martha Nussbaum’s ‘Women and the Law of Peoples’:

utilizing Rawls and Nussbaum to create a more successful framework for transnational
intervention techniques

In this paper I will argue that the implementation of John Rawls’ theories on

international justice into Martha Nussbaum’s would create a more successful framework for

transnational intervention techniques than her arguments would independently. I aim to do

this by illustrating how Nussbaum can be problematic for the very women she wants to help,

how the intent behind any decision not to intervene in human rights violations is not as

important as the outcome, and why the application of combined ideas is relevant for women’s

rights. For the purposes of this paper, I determine success in this regard to be measured in

terms of the degree to which women’s rights have been considered.

The bulk of Nussbaum’s argument stems from her criticism that if we implement Rawls’

theory to navigate the justification of inaction on a transnational basis, an asymmetry is created

which furthers the inequality of human beings across the globe. This asymmetry arises as a

result of two separate groups of people being treated differently under the same circumstances

i.e. despite undertaking the same action, two entities are given a different reaction. Nussbaum

argues that Rawls does not provide a convincing argument as to why we should not expect

more of certain nations, although, she does agree that, in practice, intervention techniques

should only be implemented under extreme circumstances. (N283)

 Nussbaum’s concerns for the treatment of women are entirely legitimate. She notes

that women all over the world are not protected with regards to the inviolability that Rawls

says is “founded on justice that even the welfare of society as a whole cannot override.”

(Theory of Justice p.3) This is a criticism of the utilitarian approach that allows some individuals

to be stripped of their rights in favor of furthering the wellbeing of others. Women, however,

endure inequality across a myriad of mediums, whether it be abuse, illiteracy, employment etc.

Women suffer time and time again for the benefit of the patriarchy; she points out that even on

the level of life expectancy, women come up short. Biologically, it should be the case that there

is a higher proportion of women to men, but it isn’t; this striking fact alone should be more

than enough to illustrate the vast gender gap that exists in the world. (N284) The simple truth,

Nussbaum argues, is that even though Rawls recognized that women require special

consideration in his framework as a result of these inequalities, his theory itself neglects them.

(N285)

My first question for Nussbaum is that pertaining to what she would consider to be an

extreme circumstance. Aptly incorporated into her paper is a series of short passages describing

the hardships that women endure in areas across India and Bangladesh. One passage explicitly

states that one can be left with “a sub-human life — without dignity and personal liberty.” In

my opinion, any circumstances that genuinely humiliate and oppress a woman to the extent

described after the instance of divorce should be considered extreme. If not, I would urge

Nussbaum to clarify exactly what would qualify, without doing so she risks making moral claims

about the values of the lives of women in other nations that may further dehumanize them.
 She goes on to explain that the core of her focus is that she does not agree with Rawls’

argument that we should tolerate hierarchical societies so long as they essentially do the bare

minimum when it comes to not violating the rights of any given individuals. Nussbaum takes

great issue with the fact that in determining how we should therefore tolerate these societies,

Rawls adapts his theory around them as groups instead of dealing with each person on an

individual basis. (N286) I would argue, though, that as people we group ourselves all the time in

an act of practicing our autonomy which Nussbaum argues in favor of. Groups based on shared

values, religions and ideas surrounding morality that form into a nation must be accounted for

and respected much as any smaller group in our own society would be, which is an integral

theme throughout Rawls’ argument. If Nussbaum is willing to agree that sovereignty should be

respected, which she does, then taking issue with assessing people as a group defined by the

borders they exist within is equally an arbitrary distinction she creates for herself.

I am equally not convinced by Nussbaum’s belief that worries surrounding the topic of

colonialism and paternalism do not have footing when it comes to justification. (N287) As a

woman writing on Women’s Rights, I would expect her to be concerned with the effects that

imposing your views on others can have. For any group or individual to demand that the other

adopt their views, practices and beliefs would be wrong for both respect for basic human rights

pertaining to freedom of thought and would such violate their autonomy. Further, colonialism

and paternalism directly contradict treating all people as equal, because the acts themselves

are oppressive, so they violate any justification that would be used in determining appropriate

relationships between people and nations. I do agree with Nussbaum that there is a proper way
to influence states whilst respecting their sovereignty, but I consider the avoidance of

colonialist attitudes to be entrenched in those discussions. (N287)

Nussbaum moves on to address how Rawls’ arguments rely on an understanding that

political liberalism is a response to ‘Western History’. This history, for Rawls, is from which

justifications for principles of political liberalism are derived. Her issue with this is that when

Rawls writes using the terms ‘liberal’ societies and ‘non-liberal’ societies, he is actually using

them as a thinly veiled way of creating a divide between ‘Western’ and ‘non-Western’. This

divide, in turn, excludes countries such as India, Bangladesh and South Africa, who also have

liberal constitutions. I completely agree with her concerns here. (N287) Historically, when

talking about ‘the West’, it has been a way to describe how it’s seen as the “birthplace of

democracy” or the “mother of reason” despite the fact that “modern democracy looks

absolutely nothing like the Athenian system, or that Indian scholars began developing multiple

systems of formal logic several hundred years before Aristotle was born.” Furthermore, origins

of the distinction are linked heavily to the crusades and as such have nasty roots in anti-Arab

racism. Ultimately, what is meant by ‘Western’ is really referencing any countries that have

been formed as a result of European colonization e.g. America, Canada, Australia and New

Zealand. (DtW)

Now that I have clarified this distinction, what does this mean for Rawls’ argument?

Nussbaum points out that the modern Western practices that we see today are based on the

borrowing of ideas from across the world, therefore we do not have any right to declare them

as our own. She uses the example of how “The West got all of its (usable) mathematics from

the Arab world, and the Enlightenment could not have taken place without that borrowing.”
Aside from this, she makes it clear that ideas surrounding human dignity can be thought up by

any person in any area of the world. For example, there were doctrines pertaining to religious

toleration in India long before they existed in the United States. Nussbaum is diligent to explain

that equality is ingrained in Indian culture, as evidenced by Indian legal writings. (N289) To

illustrate this point further, she notes the fact that we are all descendants of people from other

nations, (N288) so surely, considering these facts, we should be able to apply Rawls’ definition

of a liberal society to those societies otherwise ascribed to be ‘non-Western’. She concludes

this train of thought by stating that Rawls is mistaken in saying that liberal ideals are more

easily justified for ‘Westerners’ than ‘non-Westerners’, rather the contrary. (N289)

Nussbaum argues that people in other societies different from ours may very well desire

a framework for a political system that may be seen as more ‘traditionally western’ but due to

illiteracy and inequalities already in place with regard to social/economic classes or women in

general, there is no historical record of this being the case. So, respecting the traditions of other

countries may very well be burdening such people to a life of suffering at the hands of people in

power who write the scripts that, in particular, women must follow. (N288) I would argue,

however, that the contrary could also be true, after all, there is no historical evidence for the

claim that the attitudes of the illiterate members of any given society wouldn’t be in favor of

the way their nation is ruled. To claim that the voices of the oppressed would have proclaimed

a desire for an overhaul of their government is dangerously close to arguing that our way,

democracy, is the ‘right way’. Furthermore, when you ascribe oppression to individuals without

evidence of their point of view, you run the risk of falsely claiming a genuine violation against

their rights due to not wanting that way of life for yourself. Ultimately, I associate this form of
argument to when a white woman in America pities the ‘oppressed’ Muslim women who are

‘forced’ to remain ‘modest’, without stopping and asking them if it is a choice they made for

their own expression of feminism.

Another component of Nussbaum’s paper is her focus on Rawls’ toleration argument.

This argument states that in the same way that tolerance of the ‘comprehensive religious,

philosophical, and moral doctrines’ of others in their liberal society, they must also respect

those of others in non-liberal societies as long as they ‘adhere to a reasonable law of peoples.’

(N289-290) To me, this seems perfectly reasonable. In my own experience as a member of the

LGBTQ+ community, I personally take no issue with other people holding internally

homophobic views. I respect and defend their right to an opinion, regardless of whether I agree

with it or not. Of course, I would rather live in a world where everyone truly doesn’t care what

your sexual orientation is, but toleration of ideas is the next best, and realistic, scenario. That

being said, as Nussbaum also infers, this leads to condoning behavior that is barely in

accordance with treating people with respect and dignity, especially women, essentially

meeting the bare minimum of decency.

To further analyze Nussbaum’s criticisms of Rawls, and where I believe she takes a

wrong turn, it is important to delve deeper into the effects of Rawls’ argument. Nussbaum

highlights how Rawls’ toleration argument includes no ‘military, economic, or diplomatic

sanctions against people’ and stressing that a demand for all societies to be liberal is in itself

not in accordance with liberalism. Rawls is averse to the idea that any given nation should be

judged based on the liberal standard of ‘treating all citizens who possess all the powers of

reason, intellect, and moral feeling as truly free and equal’. So, religions, for example, that
previously did not account for equality between genders, must act in accordance with ‘the

principles of justice that shape the basic structure of society’. This means that religions in any

liberal society must now reflect such standards as are upheld within that society in their

teachings. In practice, in liberal societies religion cannot allow for disparities between men and

women, in the family model or otherwise. (N290)

Although this is the way that Rawls’ framework functions on a domestic level,

internationally, things are different. For Rawls ‘a people may win respect in the community of

peoples even if property rights, voting rights, and religious freedom are unequally assigned to

different actors within the society’. An example that Nussbaum draws for other societies

meeting the ‘bare minimum’ is that instead of demanding that all peoples be granted free

speech, they merely must be allowed to ‘express dissent’ and [have their views taken seriously].

Nussbaum applies this to the Catholic Church in Kerala. In keeping with Rawls, the church

should only be able to teach that men and women differ only in a metaphysical sense, but not

in any way that contradicts political equality. For example, the Church should not be able to

discriminate against women attempting to exit abusive marriages, or similarly, unequal

inheritance rights. (N291)

Bearing this in mind, Nussbaum asks us now to consider a thought experiment where

Kerala became a separate nation instead of being made a part of India during independence in

1947. In this case, it would become a Roman Catholic nation and would be permitted to treat its

women unequally in accordance with inequalities that arise within certain Catholic teachings:

They have unequal property rights, as “giving equal property rights to women would ‘destroy

the traditional harmony and goodwill that exists in Christian families’” and they do not vote but
they are required to be listened to and taken seriously by the men, there are also no non-

discrimination laws or employment protections in place for them. Abuse in marriages alone is

not grounds for divorce and marriage-based rape is not against the law in Kerala. (N292) The

outcome for women living in the Independent Nation of Kerala (INK) as opposed to those living

in Kerala, India, are staggeringly different. It is this asymmetry that I recall being at the heart of

Nussbaum’s rejection of Rawls’ theory of justice.

Seeing as this argument indicates that women do not get to be considered ‘full persons’

in the INK, Nussbaum wants the toleration argument to extend to the transnational level: “we

will respect the Roman Catholics of the state of Kerala, or the Roman Catholics of the

independent nation of Kerala, provided that they respect certain stringent norms of political

justice and graft them onto their comprehensive doctrine.” She argues that Rawls moves from a

person-centered perspective to a group centered perspective once it moves to the international

level, giving groups power on one level but not another. She says this is a contradiction that

Rawls makes given that, as I previously mentioned, he doesn’t believe Utilitarianism to be

sufficiently person-centered. (N293)

I do not think that Nussbaum is correct in thinking that her new formulation of the

toleration argument would be better for maintaining the rights of women. In order for her

framework of toleration to stand, it would have to demand that all nations be liberal societies.

That, as Rawls stated, is against liberalism and, I believe, runs the risk of entering the mindset

that the ‘Western way’ is the only way. It seems that Nussbaum has to choose between the

assertion that political governments should all be set up in the way that ‘we prefer’ and run the

risk of imposing imperialist views on others or accept that some states can operate in a way
that she would personally deem to be less fair or favorable. Similarly, it is not, in my view, a

mistake or flaw in his argument that Rawls moves from the person to the group on an

international level., Typically, if all people sharing common values and interests form together,

they identify as a group, why then does this only become an issue when the group does not

exemplify values that you hold? ‘Group desire’ only becomes group desire once a collection of

individuals agree on what they want. These people should be free to come together and set up

a state that honors the traditions that they see fit. Nussbaum does recognize this exercising of

autonomy when addressing the implementation of intervention, but I feel as though it is

important to mention here as it directly relates to group desire.

Make no mistake, I am not saying that I agree with the discrimination of anybody under

circumstances such as those in the INK but thinking back to my stance on toleration of

homophobes, I also demand the right to shut down and be free from any person who attempts

to act on such views. Nussbaum states that there’s no exit options in the basic structure so on

the transnational level there is no means for women to move countries, for example, if they are

in the INK. (N294) I do not agree with Nussbaum here. The prospect of making it a requirement

of all countries, regardless of whether they are liberal societies or not, to allow citizens of such

nations to be able to leave is not in violation of the toleration argument, seeing as by that point

the non-liberal society is not adhering to a reasonable law of peoples. To illustrate what I mean

by this, consider asylum. I do not believe that Asylum violates Rawlsian international justice

because those people who are oppressed and in danger within a country as a result of their

relationship with the political views that their country holds are granted entry into an

alternative situation free from such oppression. That being said, what I do believe is in violation
though is any inadequate reception of asylum seekers and refugees in their country of arrival,

since they are then treated unequally, but the debate about fair asylum is one I shall save for

another day.

There are two other claims that Nussbaum makes that lead me to question whether her

approach to international justice alone is sufficient in the protection of women’s rights. The first

is that Nussbaum states that in the INK, women would not be able to leave their oppressive

state and, if anything, we should be more focused on preventing inequalities ‘when they are

dominant in an independent nation and determine the shape of its constitution.’ (295) To me,

this assertion feels an awful lot like she is insisting on a ‘big brother’ approach to transnational

intervention i.e. it feels a lot like attitudes that say, “This state is not a liberal state, so we must

keep an extra special eye on it to make sure that they aren’t being discriminatory.” This, again,

assumes there is some kind of superiority when it comes to the way of life that we in ‘the West’

are used to.

Secondly, Nussbaum also quotes an Indian feminist activist who said the following: “If by

making separate laws for Muslim women, you are trying to say that we are not citizens of this

country, then why don’t you tell us clearly and unequivocally that we should establish another

country — not Hindustan or Pakistan but Auratstan (women’s land)?” She says that this land

can never exist because Rawls doesn’t allow for the possibility that a group can form a nation

based on being women, they need to meet other criteria such as geographical location. (N295) I

am not convinced by this argument either. Rawls talks heavily about the West which, if we take

the US as an example, illustrates exactly this scenario. Members who wanted to maintain their

religious freedom sought out a new land and to form a new nation and eventually succeeded.
Although I agree that it is harder for groups of women to achieve anything, based on the

current discrimination practices we see even on a domestic level in Western countries, I do not

agree that Rawls’ framework is incompatible with the idea that a group can form a nation based

on being women.

Thinking back to my argument regarding how Rawls can be applied to effectively

maintain people’s freedom to move from an oppressed state to a nation free from such

oppressions, I would further argue that Nussbaum may not be as averse to his theory upon

viewing him from a new perspective. She writes ‘It would not, however, be right to intervene,

either militarily or through economic and political sanctions, simply in order to implement

better human rights protections in the areas of sex equality that I have touched on’. She agrees

that imposing sanctions on countries that do not meet a stricter standard for human rights

protections is not the way forward, but rather a discussion between political leaders is more

suitable. Something I believe is in direct agreement with Rawls. (N298) She also touches upon

the issue of hypocrisy when it comes to criticizing the political practices of others before

recognizing your own failures as a nation. This I completely agree with, but I believe so too

would Rawls. Employing advocacy for fair and equal treatment against human right’s violations,

especially in the case of women, can successfully be done so respectfully if in conjunction with

displaying those same values. The intervention solutions she suggests include aid for the

purpose of education, healthcare and empowerment as to avoid the aggressive intervention

tactics that Rawls is likewise opposed to. (N299)

Nussbaum insists she is not conceding to Rawls’ idea that we shouldn’t intervene out of

respect of a people and its traditions, but out of moral significance for human choice and
autonomy. I believe they are one in the same, as she somewhat admits. These people who form

nations are choosing to ‘live under laws they give to themselves’ based on such shared

traditions. According to Nussbaum, Rawls requires us to relax “the moral judgements we make

about the wrongness of actions in another nation” but rather she asks us to consider the

logistics of implementation, not justification. Ultimately, the intent behind the justification and

the intent behind the implementation are not as polarized as one would first believe upon

reading Nussbaum’s paper. (N300)

So, I believe that in this case the intent behind any decision not to intervene in human

rights violations is not as important as the outcome. This is because, I have illustrated,

Nussbaum agrees that Rawls’ conditions of respecting hierarchical/ non-liberal societies and

their traditions engulfs a moral obligation to protect human choice and autonomy. What

matters is that in extreme circumstances, women as well as other oppressed people, are able to

be protected by external nations without having their voices misrepresented by the very people

who seek to protect them. But why should we care about implementing both theories to create

a new system for international intervention? It is already clear from Nussbaum’s analysis of

Rawls that there are glaring issues that neglect women’s rights if we solely use his framework.

Likewise, I have demonstrated how if we choose to ignore Rawls completely, then using

Nussbaum’s ideal setup, we too run the risk of isolating the voices of women, further alienating

and dehumanizing them, and getting no closer to a world in which both domestic and

international human rights are being adequately upheld.

In conclusion, by illustrating how Nussbaum can be problematic for the very women she

wants to help, how the intent behind any decision not to intervene in human rights violations is
not as important as the outcome, and why the application of combined ideas is relevant for

women’s rights, I have shown that the implementation of John Rawls’ theories on international

justice into Martha Nussbaum’s would create a more successful framework for transnational

intervention techniques than her arguments would independently. By using Rawls’ theory of

justice, we create a system by which we respect the sovereignty of other nations and their

freedom to be non-liberal societies if they so choose and we can thus maintain the protection

of autonomy and beliefs that Nussbaum cares deeply about without intervening in unnecessary

circumstances that may otherwise produce more turmoil for women and other oppressed

members of society.

Sources:

Martha Nussbaum, "Women and the Law of Peoples," 1 Politics, Philosophy and Economics 283
(2002). Denoted by: ‘N’

Daniel Walden, “Dismantling the West”, Current Affairs Magazine of Politics & Culture (June 28
2018). Denoted by: ‘DtW”