New Zealand Law Society - The philosophy of life without retribution according to Professor Martha C. Nussbaum

The philosophy of life without retribution according to Professor Martha C. Nussbaum

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Martha Nussbaum
Martha Nussbaum

Professor Martha C. Nussbaum has quite a collection of honorary degrees from universities throughout the world – 60, in fact.

The professor of law and philosophy at the University of Chicago visited Victoria University of Wellington’s Law School as the 2018 Borrin Fellow in June, delivering a lecture entitled ‘Anger, Powerlessness and the Politics of Blame’.

She is the Ernst Freund Distinguished Service Professor of Law and Ethics, appointed in the Law School and Philosophy Department. She is an Associate in the Classics Department, the Divinity School, and the Political Science Department, a member of the Committee on Southern Asian Studies, and a board member of the Human Rights Programme.

During her visit, she spoke to LawTalk about aspects of her lecture, political figures she admires, Donald Trump, teaching in her 70s and sexual harassment in the New Zealand law profession.

The American President

While she didn’t berate US President Donald Trump, there was certainly no admiration for him in her lecture.

Professor Nussbaum says ‘Anger, Powerlessness and the Politics of Blame’ are regular themes in the United States psyche, particularly since Mr Trump was elected as leader.

“He gets people to deflect their genuine anxiety about economic issues such as automation and outsourcing on to blame and he does it in every domain, such as immigration and trade with punitive tariffs. It does great harm, yet in the short term it makes people feel strong, less powerless. It’s quick muscle-flexing of power without offering any real solution to problems,” she says.

The Monarchy of Fear: A Philosopher Looks at Our Political Crisis (2018) is Professor Nussbaum’s reaction to the political controversy engulfing supposedly the world’s leading democracy, the United States.

The three people she admires most

Much of the professor’s lecture related to her respect for three major political figures; Martin Luther King Jr, Mahatma Gandhi and Nelson Mandela, and how they dealt with anger, powerlessness and blame.

Her fascination with Martin Luther King Jr, was drawn from the absence of any call for retribution by him when it came to settling civil rights for black Americans.

She pointed to aspects of his ‘I have a dream’ speech of August, 1963.

“I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of ‘interposition’ and ‘nullification’ – one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers…

“We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force…”

“King was not just a politician. He was a very sophisticated philosophical thinker. He thought that when people were despairing of their future, sometimes anger of an ordinary kind including a search for retribution was useful for a short time to bring people out of their homes and into the movement,” Professor Nussbaum says.

But she says because problems are not solved by retribution, but are solved by constructive work and hope, the anger, as King put it, had to be purified and channelled.

“In other words it required taking out the retributive part of it but keeping the part that consists of a strong protest against injustice so that people could have protest without payback.”

She told the audience that King had an ability to turn people towards the future, which she calls transitional anger or an outrage that is aimed at solving the problem not feeding it.

A book that she contributed to, To Shape a New World: Essays on the Political Philosophy of Martin Luther King, Jr, was released in February this year and the Professor says that delves deeply into King’s philosophy.

Does the world actually follow the King philosophy?

No, if you consider the ongoing conflicts occurring in the world such as civil style wars in Yemen, Syria, Libya, Somalia and Afghanistan to name a handful, there is no sign of Martin Luther King Jr’s philosophy in these corners of the world at all.

Professor Nussbaum says there’s an obvious but practical explanation for that.

“Because war gives you an illusion of being in control. Grabbing on to retribution is all too easy because you can inflict pain on the opposition and population yet it almost never solves a problem.”

Professor Nussbaum, who is a liberal, has an educated theory on most things.

She points to capital punishment in her country as a failed retributive solution in the US legal system.

“So many parents of murdered people think that a conviction which ends in capital punishment is just payback but it doesn’t bring back a murdered child to life, therefore it doesn’t solve any social problem. Realising that retribution does not solve a problem is the first step in figuring out what would actually solve a problem,” she says.

The first black President of South Africa, Nelson Mandela is a 20th century figure that Nussbaum believes rejected retribution.

She says while they weren’t close friends, Mandela even made peace with former apartheid-era President FW de Klerk.

“There was such generosity in that man, Nelson Mandela, given what he experienced. He would go up to people who had been leaders in the apartheid regime and try to enlist their friendship,” she says.

While Professor Nussbaum also admired Indian activist Mahatma Gandhi, she didn’t agree with his total pacifism stance.

So, three great philosophers in the eyes of Martha Nussbaum, yet only one of these men died a natural death, aged 95 in his home.

King and Gandhi died violent deaths having both been assassinated by gunfire.

The influence of Greek philosophy

Professor Nussbaum draws and borrows from Greek philosophy in her lecture. She is dramatic, moody and confrontational. She moves theatrically about the lecture theatre – it is her stage, and she enjoys and works an audience.

She is the author of some 23 books with titles such as Aristotle’s De Motu Animalium, and The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy.

And what does Professor Nussbaum make of those 60 honorary degrees she has received from colleges and universities around the world, including from Greece, Germany, Scotland, Canada and South Africa.

Are they valuable to her or just academia wall decorations? It’s an uncomfortable question – to answer which she does with paused modesty.

“I think a lot of the time they want to honour a woman, a humanist. One of the degrees I’m particularly proud of is the Weizmann Institute of Science in Israel degree which I’ll be receiving next year. They create great science education for Arab/Israeli people.”

She points out the honorary degrees are a win for the education institutes because she will talk about them and that will inspire more interest in what they offer at their respective facilities.

Teaching in your 70s

At University of Chicago Law School she teaches animal rights, constitutional law, ethics, law and philosophy, public service and public interest law.

But with more education achievements than many people could fit into 10 lifetimes, and aged in her early 70s, what continues to inspire the professor?

“I’m very lucky in that I don’t have to teach the same thing every year. I’m also writing a book about animal rights. My daughter is an animal rights lawyer,” she says.

Professor Nussbaum says despite having written many books about a wide range of human issues that she has analysed and stamped her point of view on, she is still willing to change her mind.

“Anyone who digs their heels in and just thinks now I’m going to defend my view against all comers, that person might as well retire. If your opinions are any good, other people will defend them for you. To keep moving forward and to keep taking on the criticisms that are good and building from that, to me, that is really great and I encourage my students to challenge me in the classroom and they do,” she says.

Lively debates with law students are normal and sometimes she co-teaches with legal economist Saul Levmore, who co-authored the book, Aging Thoughtfully: Conversations about Retirement, Romance, Wrinkles, and Regret.

“He differs with me on practically everything. We want to model for the students’ respectful, civil disagreement which America really needs at this point. People are so polarised in their views. A lot of students won’t speak to others that voted for Trump. But we need these students to talk to each other. Some students wouldn’t take a class from me, because I’m the left-wing professor so co-teaching has been the solution for these issues,” she says.

While Martha Nussbaum is a Professor of Law, she does not hold a law degree. In the United States a law degree is a postgraduate qualification. So she has never practised law.

The accidental academic

An academic career wasn’t the first job choice for Martha Nussbaum. When she was young, she was driven towards more Hollywood-tinted glasses.

“I wanted to be an actress because I felt confined by growing up in a very elite part of Philadelphia. My idea of how to get out of that environment was to become a professional actress which I did for a while, but eventually I realised it was more a change of friends and social scene that I was looking for,” she says.

She drifted into academia, studying classics and philosophy, but the interest in stage and performance continued and is still part of her life.

“I put on plays with my colleagues. I’m a keen amateur singer. Arts helps me expand my understanding of the things I write about. So if I’m writing about emotions like retributive anger, it helps if I sing arias of characters who are in the grips of these emotions. I’m a dramatic soprano so I tend to be cast in those retributive roles,” she says.

Surprise that sexual harassment is such a big issue

During her career, Professor Nussbaum says she has been sexually harassed many times. It’s also been the subject of much of her writing and some of her teaching over many years.

LawTalk asked her opinion on the current sexual harassment crisis that has rocked the law profession this year.

“I’m puzzled by this being the big issue it is in New Zealand because Catharine MacKinnon’s Sexual Harassment of Working Women came out in 1979.

“Even conservative judges such as Judge Richard Posner said this is the most influential book ever written by an academic in law, because it created the Tort of Sexual Harassment,” she says.

She says title seven of the Civil Rights Act is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, colour, national origin and religion.

But then it’s not a given that MacKinnon’s influence in the United States would have the same effect in New Zealand.

Ms Nussbaum is an ardent feminist and has explored and written related books including Sex and Social Justice, Women and Human Development.

Sexual harassment is discrimination

Professor Nussbaum points out that sexual harassment is actually discrimination if a woman is targeted because she is a woman, which creates an obvious power imbalance.

“People had never thought that sexual harassment was a practise of sex discrimination. They had thought it related to sexual activity, but it’s not. Most workplaces in the United States, certainly every university and law firm that I know, have a clear and explicit policy that says when there is a supervisory relationship, and a gender asymmetry of power, no sexual relationship, even with full consent, is permitted because consent is not real in those circumstances.”

She says sexual harassment is an extortionate use of power, particularly if the woman is promised career progression.

“If a senior lawyer said ‘give me this amount of money and your career will go in this direction’, that would be extortion so how is it any different?”

Professor Nussbaum says there are still violations of what is considered the norm in the United States law profession but there are also procedures in place to deal with that, and they’re strictly followed.

She says New Zealand has obviously been slow to address sexual harassment in the workplace, and that it clearly has not been talked about enough, which has enabled this behaviour to occur for a long time.

“Most of this behaviour is deterrable because men don’t usually want to run afoul over a social norm.

“If they know what the norm is and they’re in a workplace that has clear rules, they’re going to conform or they’ll be gone. Some countries are too polite to talk about it. England, for example, has been slow to get clear rules in place for sexual harassment, but talk is the prelude to clarity and clarity is the prelude to deterrence.”

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