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Is Martha Nussbaum really political liberal?

Author(s): Francesco Biondo


Source: ARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law
and Social Philosophy, Vol. 94, No. 3 (2008), pp. 311-324
Published by: Franz Steiner Verlag
Stable URL: http://www.jstor.org/stable/23680879
Accessed: 30-12-2017 17:30 UTC

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Francesco Biondo, Palermo

Is Martha Nussbaum really political liberal?"

Abstract: This paper puts under scrutiny Martha Nussbaum's turn to political liberalism. In
this paper, I intend to shed light on two problems that Nussbaum must face when she try to
follow Rawls' ¡dea of political liberalism. First of all, I would like to show the limits of applica
tion of the technique of "overlapping consensus". I try to argue that Nussbaum fails to prove
that we can attain a universal list of political values (such as a list of primary goods) through
an "overlapping consensus". By contrast she cannot avoid Rawls' limitation of "overlapping
consensus" to communities already ruled by liberal institutions. Secondly, I question Nuss
baum's "political liberal attitude" when she faces difficult issues such as non-discrimination
inside religious institutions. I try to show that in this case Nussbaum's arguments are weak
because they are based on a clear-cut distinction between public and private realms. Yet,
such a clear-cut distinction is practically impossible in liberal political communities. We can
not but argue about the boundaries between public spheres and private domains.

For many years Martha Nussbaum has tried to elabórate a form of Aristotelian political
philosophy compatible with liberalism. According to her, the idea of human flourishing
as development of people's powers to choose a conception of the good is consistent
with J. Rawls' theory. In particular, both théories reject formai accounts of liberties
that limit governmental actions to the guarantee of property rights and other claims to
non-interference. Both her form of Aristotelianism and Rawlsian Justice as Faimess
dwell on economic and social circumstances that can "prevent people from availing
themselves of liberties and opportunities that are formally open to them".1 As it is well
known, Nussbaum has provided a particular interprétation of the capabilities approach
depicted by A. Sen to issues of distributive justice. According to her, it is possible to
elabórate a universal list of basic capabilities by individuating some constituent features
of human beings.2 By taking account of human needs and powers, we can formúlate
a vague conception of the good that could be universally accepted. Moreover, this
conception is also consistent with a liberal theory of justice.
In 1998, she clarifies that her account of justice is neither comprehensive nor
metaphysical, but simply "political liberal".
"I now understand the list of central human capabilities as the core of a specifically politi
cal form of liberalism, in the Rawlsian sense. (...) It is neither an exhaustive account of the
good nor a metaphysically grounded account. Each citizen will interpret its metaphysics
differently, in the manner of a Rawlsian «overlapping consensus», understanding the core
values in terms of the rest of her comprehensive conception."3

I am ¡ndebted to Martha Nussbaum and Francesco Belvisi for their helpfu! and encouraging com
ments.
Martha Nussbaum, The Good as Discipline, the Good as Freedom, in: Ethics of Consumption. The
Good Life Justice and Global Stewardship, eds. D. Crocker, T. Linden, Boston, Rowman and Lit
tlefield Publ., 1998, 324. See also Nussbaum, Nature, Function and Capability, Aristotle on Political
Distribution, in: Oxford Studies in Ancient Philosophy, 1988,145-184; Nussbaum, Aristotelian Social
Democracy, in: Liberalism and the Good, eds. R.B. Douglass, G. R. Mara, H.S. Richardson, London,
Routledge, 1990, 203-252.
Nussbaum, Human Functionings and Social Justice. In Defense of Aristotelian Essentialism, in: Polit
ical Theory, vol. 20, n. 2,1992,202-246; Nussbaum, Non Relative Virtues, an Aristotelian Approach,
in: The Quaiity of Life, eds. M. Nussbaum, A. K. Sen, Oxford, Clarendon Press 1993, 242-269
Nussbaum, Political Animais: Luck, Love, and Dignity, in: Metaphilosophy, vol. 29, 4,1998, 284

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312 Francesco Biondo

In this paper, I inte


she tries to follow R
First of all, I would
lapping consensus".
universal list of poli
consensus". By cont
to communities alre
Secondly, I question
issues such as non-di
case Nussbaum's ar
tion between public
impossible in libera
between public sphe

Stability and over

One of the most im


contemporary socie
ent communities co
choose their concept
doctrines. The prob
communities with d
understand why peo
and distributive jus
conducts (e.g., non
put as follows: whe
Willing to cooperate
institutions falling a
Rawls in his pivotai
distinguishing two l
issues (how should I
other fellow Citizen
tions of the good lif
set of political prin
order to achieve dif
ing conceptions of t
disagree on many m
According to this i
sive conception of t
and responsible indi
only for themselve
rights necessary fo
and equal member o
Rawls, that

"Since we start within


and equal persons. Th

On this issue see, amon


874-915.

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Is Martha Nussbaum really political liberal? 313

a sense of justice and for a conception of the good) and


ment, thought, and inference connected with these power
these powers to the requisite minimum degree to be fully
makes persons equal."5

Liberal governments, then, assume as relevant a politic


and an account of a "well-ordered society", a society "r
conception of justice".6 Both are the resuit of a constant
communities within démocratie political institutions. H
about these points among différent comprehensive doc
sible through an "overlapping consensus": we start from
we arrive to the same "free standing" conception of th
member of society. Diverse moral communities overlap
order to agree on a set of rights that should be implem
In her latest works, Nussbaum has attempted to deal
do différent moral cultures agree on a set of capabilit
According to her, we can follow Rawls' theory in order
ways of settling disputes on différent objects of value t
cation of political institutions. We could conceive peop
overlapping their moral and metaphysical conceptio
start with différent assumptions on political issues. Th
différent metaphysical beliefs these people use in thei
people may think that men and women have equal righ
faculties that are morally relevant. Others may think t
créâtes them as equal human beings. Further différent
important point is that people may arrive at the same c
through différent paths, by assuming as relevant a plur
liefs. This consensus on matters of individual liberties constitutes what Nussbaum calis
a "freestanding moral core of a political conception". This moral core is "freestanding"
because it has been attained "without accepting any particular metaphysical view of
the world, any particular comprehensive ethical or religious view, or even any particular
view of human beings or of human nature".8
As it is well-known, the concept of "overlapping consensus" has raised a series of
questions.
How can différent and even competing communities agree on a set of rights (what
Rawls calis "the basic structure of society")? If this consensus is possible, is it also
justified? Is it a modus vivendi or is it a procédure in which différent positions are tested
and some of them are rejected? If it is a de iure consensus, which reasons must be
considered pertinent in the moral debate?
Nussbaum's acceptance of the concept of "overlapping consensus", then, must
face these questions - questions that have been treated in many passages of Rawls'
Political Liberalism.

John Rawls, PoHtical Liberalism, New York, Columbia University Press 1993, (Hereinafter PL)
18-19
Rawls PL, 35
To see how a well-ordered society can be unified and stable, we introduce another basic idea of p
litical liberalism to go with the idea of political conception of justice, namely the idea of an overlappi
consensus of reasonable comprehensive doctrines. In such a consensus, the reasonable doctrin
endorse the political conception, each from its own point of view". Rawls PL, 134
Martha Nussbaum, Women and Human Development. The Capabilities Approach, Cambridge, Cam
bridge University Press, 2000, (Hereinafter, WHD) 76.

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314 Francesco Biondo

Overlapping consen

Political liberáis try


distinguishing two le
good life, which are
which we decide issu
allocation of rights a
his inquiry only to t
pie to become fully c
every effort to free
comprehensive assum
impossible for our m
sumptions about the
receiver of feelings,
and inescapable need
and in many countr
Nevertheless, the fa
religious or compreh
assumptions may ov
men and women). Ov
consensus but a mora
agree that what they
merely a modus viven
political, economic, o
distinguishes the con
comprehensive doctr
despite différent ass
Let us take the famo
faiths because our co
coerce anybody to wo
because we know tha
doctrine on the majo
time, than the secon
is possible to get an
This point clearly sh
agreement. That is, o
in the political debat
to Rawls, these must
equal member of the
agreement, because t
take other members
the fact that fair ag
interact within a fr

This point deserves a dee


like to clarify that meta
with other elements (co
rium".
Rawls PL, 146-149
Rawls PL, 36-37
Rawls PL, 140-144, 163

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Is Martha Nussbaum really political liberal? 315

just form of govemment. Then, it is possible to consid


consensus" as something more than a mere modus
admissible moral positions and it provides a more stab
as in the case of tolérance.
Nussbaum manifestly accepts this conception of "overlapping consensus". Indeed,
she maintains that what she has in mind is no more than "what John Rawls means".13
However, this position is difficult to sustain. According to Rawls, "overlapping con
sensus" works only within already free institutions. The doctrines, which provide the
content of an overlapping consensus, are the resuit of the exercise of freedom of con
science and other basic rights within institutions of a constitutional démocratie regime.14
In other words, "overlapping consensus", and not a mere modus vivendi, occurs in
already liberal political communities only. With this in mind, we can then ask ourselves
if Nussbaum's and Rawls' aims are the same (as it seemed when she professed that
she followed his line of thought).
I believe they are not. Indeed, Nussbaum criticizes Rawls for having restricted his
theory of justice to Western political communities. In fact, according to Nussbaum,
concepts like "primary goods" (resources necessary to realize whatsoever plan of life)
or "moral powers" (the capacity to form and revise the conception of good) are not
specific to our moral culture only, but are relevant to other moral communities as well:
"Rawls's model seems to provide an excellent basis for further thought about quality
of life in the international arena".15 These values are "universal" insofar as they can be,
and are actually, accepted by différent moral cultures.16 Therefore, Nussbaum strives
for an agreement that is wider in breadth than the Rawls' one. She rejects Rawls' idea
that concepts such as moral powers belong to western cultures. On the contrary, ac
cording to Nussbaum we can get an agreement on a set of political principies with
other cultures, as these concepts are shared by these cultures as well.
In this light, the appeal for an "overlapping consensus" seems to me conflicting
by both two authors. For Rawls "overlapping consensus" works and provides a stable
agreement only insofar as it is the resuit of diverse comprehensive doctrines that are
produced within societies governed by démocratie constitutions. Reasonable compre
hensive doctrines provide a reasonable agreement on political principies. However,
in this case we do not reach an agreement on universal values, like the ones encom
passed by the concept of primary goods, but, as Nussbaum points out, we have "a
consensus only within a particular Western tradition of political philosophy".17 On the
contrary, Nussbaum, as we have already seen, argues that the concepts of "primary
goods" and "moral powers" are universal. Thus, she seems to aim at a consensus that
could be extended even to moral communities that do not have political cultures that
require démocratie constitutions and the guarantee of basic rights.
In this respect, Nussbaum's argument can be criticised as follows.
She seems to have a restricted idea of "what John Rawls meansl', revealed by
the fact that she criticises Rawls for restricting his theory to Western political tradition.

13 Nussbaum WHD, 76
14 "Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible
comprehensive doctrines is the normal result of the exercise of human reason within the framework
of the free institutions of a constitutional démocratie regime." Rawls PL, XVIII
15 Nussbaum WHD, 67. She refers to Rawls PL, 4-11.
16 "People don't need Western philosophers to teil them that they don't like to be pushed around by
the world or to live in a condition of helplessness"; Nussbaum WHD, 68, 104. See also Nussbaum,
Women and the Law of Peopies, in: Politics, Philosophy and Economies, vol. 1, 3, 2002, 283-306.
17 Nussbaum WHD, 67

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316 Francesco Biondo

However, she does n


be used fruitfully ev
munities without any
plan and to execute
she fails to recognise
political communitie
whether to consider
ate the link between
comprehensive doctri
seems to me yes, at l
role in his doctrine,
ties to recognise the
binding.19 In this re
one in which there i
the same time, she o
political theory. Her
portrait of Political L
a "pre-existent" agre
férent institutions an
this consensus is doo
agreeable on the basis
do not have political
In such a situation, w
we know that we are
for "overlapping con
link between overlap
in my opinion, clear
comprehensive doctr
the second deals wi
consensus): and final
step, we must attain
morally justified "ov
based on "démocratie
that Nussbaum belie
fulfilling a constitut
It is clear that I off
sensus" is possible on
constitutional govern
"overlapping consens
seems clear when she affirms

Loe. cit.
"When [Citizens] believe that institutions and social practises are just, or fair (as these conceptions
specify), they are ready and Willing to do their part in those arrangements, provided they have reason
able assurance that others will do their part; if other persons with evident intention strive to do their
part in just or fair arrangements, Citizens tend to develop trust and confidence in them; this trust and
confidence becomes stronger and more complete as the success of coopérative arrangements is
sustained over a long time; the same is true as the basic institutions framed to secure our fundamental
interests (the basic rights and liberties) are more firmly and willingly recognised"; Rawls PL, 86.
Rawls PL, 158-168

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Is Martha Nussbaum really political liberal? 317

'Transnational structures... are insufficiently accountable t


sentative of them.Thus the primary role forthe capabilities
political principies that can underlie national constitutio
implementation must remain to a large extent the job of C

The legitimacy of international distributive intervent


of récipients' Citizens. This implies the existence of dém
it might be argued that the main différence between h
démocratie institutions only to those nations that suf
and religious groups that emigrated in north America).
a too stringent condition. It is not a historical continge
for the establishment of a constitutional demoeraey.22
arise even in non-western countries.
This is a relevant remark, but it seems to me it runs the risk of trivialising Rawls'
position.
What is at stake is not the dependency of constitutional demoeraey on certain
historical facts. Political liberalism does not dépend on a particular historical héritage,
such as religious wars. It is possible to implement "political liberal" institutions even in
countries that did not suffer this event. What we should investígate is whether a procé
dure such as "overlapping consensus" works only after having set up particular political
authorities (in particular démocratie assemblies and independent courts).This is exactly
what Nussbaum does not make clear. Is "overlapping consensus" possible only if a
constitutional consensus has been attained, or is a constitutional consensus the result
of an "overlapping consensus"? She seems to overlook that disagreement on matters
of justice does not dépend on historical contingency, it is a constituent featuré^of politi
cal discourse. Let us consider the Rawlsian conception of primary goods. According
to Nussbaum the term refers to resources necessary for anybody, no matter what is
his or her conception of the good. This is exactly Rawls' position in A theory of justice.
Primary goods are worthwhile independently of individual ethical convictions. This
position has faced many criticisms, and one is pertinent to my argumentation: it is not
true that everybody could agree on the list of primary goods, in fact this list epitomizes
a particular idea of just society and, thus, it dépends on historically contingent con
ceptions of good and justice.23 According to some commentators, Rawls tacitly aeeept
this criticism, since he shapes the concept of primary goods in Political liberalism as a
political value for particular communities: those governed by démocratie institutions.24
We can use the concept of primary goods in the political debate fruitfully when we
disagree on issues of lesser generality. The concept of primary goods is, then, not an
abstract assumption in moral argumentation, but an instance of a previous consensus
reached by particular political communities.25 The use of the term is the resuit of an

NussbaumWHD, 105
Nussbaum (note 16), 287-289
Micheal Walzer, Spheres of Justice. A Defense of Pluralism and Equality, New York, Basic Books,
1983, 311-316. This point becomes clear when we try to identify the notion of "social bases of self
respect". In this case, Rawls himseif refers to the "public political culture". Rawls PL, 181.
Stephen Mulhall, Adam Swift, Rawls and Communitarianism, in: The Cambridge Companion to
Rawls, ed. S. Freeman, Cambridge, Cambridge University Press, 2003, 470
Rawls PL, 44-46. The fact that a contingent agreement on meaning, scope, significance of the notion
of primary goods is necessary in order to reduce disputes on political debate may be considered, to
some extent, a partial reply to Waldron's thesis of the irrelevance in Rawls's theory of disagreement
in matters of justice. Jeremy Waldron, Law and Disagreement, Oxford, Oxford University Press, 1999,
151-154.

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318 Francesco Biondo

agreement that ¡s hi
institutions. These in
as autonomy, individ
conflicts among righ
Nussbaum thinks tha
such as primary good
This is possible; but
on how to attain "un
Nussbaum tries to pr
universal values, sin
accept diverse metap
are presupposed in d
and in which politica
weak, however, becau
point is clear when N
capabilities.28 What w
in order to find possi
the contrary, is mor
relativism in moral th
believes that it is pos
of justice, but he thin
political Community,
This agreement is a r
this seems exactly w
One can argue that I
since I confuse his "kantian constructivism" for a form of conventionalism. I consider
Rawls' theory a weak form of conventionalism insofar as his constructivism relies on
a series of ideas (the conception of the person and of society) that can be accepted
by diverse comprehensive doctrines, doctrines that can be all reasonable but not all
true. The acceptance of these ideas is then a matter of reasonableness, not of truth;
it is a matter of a correct inference from a particular conception of person as free and
equal member of society that is conventionally accepted.29 An "overlapping consen
sus", then, provides a stable agreement because diverse ethical doctrines accept the
same conception of the person and the same ¡dea of the society for différent reasons.
Moreover, this agreement explains why people tend to trust political institutions that
make this consensus stable over time.These doctrines, however, are deeply influenced
by the working of démocratie political institutions. We overlap our political ideas through
a debate within what Rawls calis "free institutions".
This dependency of "overlapping consensus" on démocratie institutions doesn't
seem to be part of Nussbaum's theory. In her account of morality, these intuitions that
should overlap seem not to be the resuit of an intersection of diverse comprehensive
doctrines through the working of political institutions. In fact, these intuitions are, ac
cording to Nussbaum, objective, presupposed in our argumentations, even though they

It is not a case that Rawls affirms, 'The suprême court is the branch of government that serves as
the exemplar of public reason". Rawls PL, 231
This point seems clear to me when Nussbaum argues that there is already a cross-cultural consen
sus on many capabilities. Nussbaum WHD, 104. See also Nussbaum (note 16), 288.
Nussbaum WHD, 77, 105
The distinction between reasonableness and truth is provided by Rawls, PL pp. 126-129.

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Is Martha Nussbaum really political liberal? 319

are part of geographically and historically distant moral


overlap with each other.30
The point I would like to stress is not only exegetical,
baum limits her search of universal values to the id
in a way that does not take into account the issue of c
misses a big part of the picture. The relationship betw
and the production of "reasonable comprehensive doct
constitutional démocratie institutions is of paramount i
according to my interprétation of Rawls' theory, why
over time. Comprehensive doctrines that give the cont
sus" are formed in communities that flourish in a certain constitutional environment.
These communities aeeept the idea that they cannot impose their values on other com
munities since there are institutions - above all independent courts - that forbid the
pursuit of this sort of political agenda. According to my interprétation of Nussbaum's
work, by contrast, this "overlapping consensus" on a certain list of values seems to
be reached simply because we already find an agreement on certain issues (such as
gender equality) among différent metaphysical accounts of human beings and diverse
moral comprehensive doctrines no matter in which type of political constitution these
doctrines have developed. The agreement about the list of basic capabilities appears
to be less the resuit of an "overlapping consensus", as part of a constructivist moral
theory, than an instance of a "realistic" outlook of moral debates, in which our intuitions
are similar to those of many other communities.31 Nussbaum's outlook, however, faces
the theoretical difficulties I mentioned above in explaining how we can reach stable
agreements among comprehensive doctrines. It may be the case that Nussbaum
epitomises a différent conception of stability: the sheer fact that différent communities
share a set of values.
However, even in this case the issue of stability, the fact that certain communities
strive to impose their convictions about political issues on others, might arise. First of ail,
we should decide on the weight to assign to différent values. Secondly, even if we could
reduce disagreement on relative weights, we must converge on the same interpréta
tion of these values. Some would like to affirm a certain interprétation of a particular
shared value, e.g. individual dignity, at the expense of différent interprétations of the
same value. The issue of institutional design necessary to enforce the content of an
overlapping consensus - by solving these "interprétative conflicts" through authoritative
décisions - remains unavoidable.
Thus, political liberalism needs not only a "common political tradition", it néc
sitâtes a shared account of legitímate authorities. It seems to me that Nussbaum

It may be argued that Nussbaum tries to follow Rawls' line of thought while maintaining her A
telian roots; therefore she is elaborating a particular version of political liberalism. This versio
for an universal list of basic rights on the basis of a "objectively true" conception of the person. R
himself The Idea of Public Reason revisited, in: idem, The Law of Peoples, Cambridge, Mass.,
vard University Press, 1999,143-144 présents three features of the "family of liberal conceptio
might be the case that Nussbaum's is one of those conceptions. The question whether an "obje
account" of political liberalism is acceptable is extremely interesting, but it won't be tackled here.
I must make clear that I am not taking part for Nussbaum's or for Rawls' general theory of politi
tification. I try only to show that their metaethical outlooks, their "third ways" between objectivis
conventionalism, are différent and, sometimes, conflictive. Therefore, it is possible, as an anonym
referee wrote to me, 'lo give a generous interprétation of her project". In other words, even th
their conceptions of "overlapping consensus" are différent, their théories can agree on the same "t
theory of the good", or on the same "political virtues".

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320 Francesco Biondo

to recognise the do
comprehensive doc

Nussbaum's polit

From what I show


with the issue of s
into account that t
We saw at the out
prehensive theory
should distinguish
deal only with the
the second try to f
help us to distingu
process of overlapp
pluralism", that is
good that are reaso
Community. These
guarantee that eac
any interférence f
whole society, man
ism, in other word
of the good life th
only indicates way
by free and equal
Nussbaum puts th
feminism: one is p
other one is a polit
the issue of non-di
as a dilemma. Liber
communities with
forms the first cor
impose any particu
of exemptions from
various forms of d
between freedom o
intervene in order
the dérogations fr
According to secu
religion plays no r
paramount importa
of our rational cap
law to religious no
acceptance of discr
Nussbaum does no
prehensive and me
experience on the

32 Nussbaum WHD, 174-181

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Is Martha Nussbaum really political liberal? 321

pragmatically dangerous, since it refuses any possible co


tions to the issue of feminism. In order to show why se
she mentions the role played by religious associations in
of slavery and racial discrimination. Moreover, this posi
because it states "that religions be feminist or liberal i
imposes a particular way of conceiving the participation
Either forbidding some religions or imposing equalitie
is, then, according to Nussbaum, a violation of the prin
contrast, a position that does not impose on the adhérent
is their good and how they should conceive their mem
one that can be justified by political liberalism. Accord
is more useful than secular feminism when we deal wi
tion, since it does not refuse the contributions from re
this approach guarantees more stability because it reco
everyday life without coercing anybody to adhere to a par
Political liberalism, therefore, solves the dilemma I prese
the principies of personal autonomy and non-discrimina
However, the issue of exceptions from non-discrimina
tions that Nussbaum tackles - in a previous point - in
liberalism undistinguishable from a form of comprehen
feminism). One of the examples presented by Nussbaum
religious communities and associations from non-discrim
of a professional position. Some Roman Catholic univer
be a member of a particular order of priests. Is this a v
laws? If it is, should we exempt this association from
position is clearly expressed in the following:
"One can argue that the priesthood lies within the core of w
on that account; the presidency of a university seems ha
cially when it has been granted that female faculty and adm
the institution."34

According to Nussbaum, this exception, then, is not to


ism, even though it is not clear if this type of university
tions.35 What is piain is that this exception from non-disc
since it seems not necessary to the "normal opération of
Problem remains. Who decides what is and what is not
prise? We may wonder if it is the majority of the mem
and wisest of them, or a judge.
If some members, or the majority of the members,
such as presidency, must be assigned only to men, disc
munities could still persist. If judges decide, we may n
are associated in this non-egalitarian Community. This

Nussbaum WHD, 179


Nussbaum, Sex and Social Justice, Oxford, Oxford University P
On this issue, secular-comprehensive and political liberal position
prohibition of those institutions, by negating the status of public
aside the question of the legal status of those institutions, but requ
by compensation.
This is a proviso about lawful discrimination in hiring employée
this proviso is considered too broad by Nussbaum (note 34), 110

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322 Francesco Biondo

gives judges the du


at least in her book
these communities a
laws.37 This seems t
on this particular iss
justified, therefore c
The distinction betw
seemed at least on th
by courts confirms,
discrimination shoul
judges remains of pa
of basic rights, and w
the intervention of a
différence between
Conversely, it may
tion. He or she could
to tackle the issue (w
member of a religio
could assign particular
a particular religion.
nated in the assignm
respect those people
private life and to liv
to share Nussbaum's
between private and p
and the case above is
are not exempt from
these institutions are
By contrast, it seems
clash between différ
to promote a politica
share the same politic
is possible to have re
what political liberal
The fact that we ma
for Nussbaum's argu

"A promising approach w


or sexual orientation sh
compelling State interest
in some cases that the p
as the law in question is
narrow tailoring should i
other activities that hap
However, Nussbaum is n
between gender discrim
such matters, and in gen
a legitímate Claim of fr
understand the fact tha
necessary as well.
This point is expressed c
bridge, Cambridge Uni

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Is Martha Nussbaum really political liberal? 323

public life, we may have différent conceptions of the basi


these conceptions may be influenced by secular or reli
ties for a secular person is part of an experience that
at least is more public than what a member of a religi
College may think. Indeed, the latter can argue that h
because he or she accepts a doctrine that requires that
must hold some particular positions. This person, then
ance of that institution to be a private choice.This choic
or due to an unjust, biased form of éducation, but ¡t i
that must be tolerated by government.
Against my line of reasoning it might be replied th
cipie of moral constraint", which says: "the public pol
stand on disputed issues of the good outside the core of
However, I think that the dispute between people who a
university to be run only by priests and people who c
tory would arise even if both parties accepted that pr
we are dealing with an issue that lays "inside the core o
(e.g. non-discrimination). The other would deny precisel
the issue deals with religious matters that do not infrin
Therefore, if she affirmed that she is facing a question
of constitutional principies, Nussbaum would neglect th
assume that her conception of private domain is the on
really a liberal political attitude?

Concluding Remarks

In this paper I attempted to point out some difficulté


political liberalism as part of her moral theory, especi
liberal communities. I argued that her concept of "ove
for achieving stable political communities is différent
one presented by Rawls, since their aims are diverse. N
a political theory that can be shared by différent mora
political institutions they flourish, and which political d
the contrary, aims at producing a theory that can dev
munities, communities with démocratie constitutions.
order to explain how political institutions gain stability
férent and competing comprehensive doctrines as thei
overlooks this point with the result that she has prob
attain a stable overlapping consensus. Moreover, she se
the deep disagreement on certain issues of justice (such
between private and public sphere). This predicament b
since the author accepts some forms of State interven
munities and their institutions.
These problems are peculiar to Nussbaum's reading of political liberalism as she
tries to combine elements that are often conflictive: on the one hand objectivity as the
universal validity of some moral principies, such as equality of opportunity, and, on

40 Nussbaum WHD, 193

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324 Francesco Biondo

the other hand, rest


attempt to enrich p
all moral cultures, i
two reasons. First,
stable over time. Sec
secular liberalism when she deals with debatable issues such as non-discrimination in
catholic universities. If my arguments are correct, she asks to political liberalism more
than this doctrine can provide: an universal "overlapping consensus", no matter in which
political environment this consensus occurs, and a clear answer to cases of conflicts
between the principie of non discrimination and the principie of freedom of religion.
What should Nussbaum do in order to avoid these criticisms?
In my opinion, two roads are open to Nussbaum. She can follow Ralws' line of rea
soning as a whole. In this case she cannot but accept restriction of political liberalism
to communities already governed by démocratie constitutions, and the fuzzy boundary
between public sphere and private domains.
Otherwise, she can départ from Rawlsian's path by assuming an "overlapping
consensus" on a global scale and by affirming a clear-cut distinction between private
choices and public commitments. In case of disagreement on matters of justice she
can make her version of political liberalism "thicker" by showing how we can indícate
precise distinctions between public domains and private spheres. This process of
"thickening" of political liberalism, however, faces a series of debatable moral issues:
the concept of individual autonomy and the condition of its exercise, the idea of the
person, the relevance of merit in distributive justice, the distinction between private
and public domain or even the existence of free-will. I wonder if after having agreed
on certain conclusions we can still consider such a theory "political" and not merely
"metaphysical", "particularist" or "comprehensive".

Author's adress: Dr. Francesco Biondo, University of Palermo, Dipartimento Studi su Politica, Diritto e
Società, Piazza Boiogni 8, 90134 Palermo, Italy, biondo@unipa.it

41 This conflict is epitomised by James S. Fishkin, Justice, Equal opportunity, and the family, Yale Uni
versity Press, New Häven-London, 1983.

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