The University of Chicago Law School Faculty Blog

Conference: "Torture, Law, and War"

On February 29 and March 1, the Law School hosted an extraordinary conference devoted to the topic “Torture, Law, and War: What are the moral and legal boundaries on the use of coercion in interrogation?” The conference, which was sponsored by the Law and Philosophy Workshop with assistance from the Center for Comparative Constitutionalism, showcased the interdisciplinarity for which a Chicago law education is renowned. Participants looked at the central question from the perspective of a wide range of fields, from law and public policy to psychology and history. Speakers included scholars from a dozen universities as well as the Law School's own Adam Samaha, Susan Bandes, Richard McAdams, Martha Nussbaum, Geoffrey Stone, Scott Anderson, and Eric Posner.

The conference keynote speaker was Justice Albie Sachs of the Constitutional Court of South Africa (pictured above). His talk, “Four tales of terrorism,” gave a first-hand account of his own torture by South African security forces and his brush with death when they attempted to assassinate him with a car bomb. It also described the principles behind the rejection of torture and capital punishment by the ANC, both before and after coming to power in South Africa. His talk discussed at some length four instances of terrorism, and the responses that courts and political leaders in South Africa made to them. Through these, he argued for the importance of adhering to the rule of law, including a refusal to resort to capital punishment, and also for the possibility of reconciliation with those who have previously used torture and terrorism against oneself and one’s own side in political struggles.

Audio and video of the keynote address, along with the  other panels of the conference, are now available on the conference web page.

Is Sex Special? Martha Nussbaum Replies to Todd Henderson, James Joseph, Valentina Urbanek, Scott Anderson – and William Landes

I am grateful to the many readers who commented on my Spitzer piece. I cannot answer all the points they raise. I shall briefly respond to a group of points about Spitzer, and then turn to the important arguments of Valentina Urbanek and Scott Anderson about the specialness of sex.

Todd Henderson is right to ask me what I think about the financial laws that Spitzer is suspected of having broken. Do I think that if the suspect financial transactions occurred in connection with activities that should never have been illegal, those ancillary transactions themselves should not be deemed legally or morally problematic? I do not hold this view. I think that if there is solid evidence that Spitzer actually broke laws involving the use of campaign money, mail and wire fraud, etc., then he should be held accountable for these violations. However, all the evidence so far (including a comprehensive Associated Press inquiry whose results were published on March 21) suggests that he did not violate these laws. Let's wait and see.

"America's Puritan Streak" - Nussbaum Responds

[Professor Nussbaum submitted the following post by email:]

I am grateful to all those who posted comments on my piece on Eliot Spitzer.  I intend to reply.  Technical difficulties have prevented me from accessing our faculty blog from India, where I currently am (running a conference on Affirmative Action in Higher Education co-sponsored by our law school).  I have now received them by e-mail, and will reply in a few days.  Meanwhile, however, I would like to reflect today on the fascinating comments on my op ed -- over 100 of them -- from readers of the Atlanta Journal-Constitution, where it was originally published.

The Atlanta comments are a fascinating confirmation of my claims in the Spitzer piece about American puritanism and its misogynistic violence.  A central theme is denunciation of Europe as a godless anti-Christian society that has lost its moral fiber because it tolerates too much female sexual freedom, a "decadent and dying culture."  For this reason, opine the Atlantans, Europe will soon fall to the Muslim invaders.

Martha Nussbaum:"Trading on America's Puritanical Streak"

[This post also appears in today's Atlanta Journal-Constitution and is posted here at the request of the author. Prof. Nussbaum's arguments about prostitution made here are developed at greater length in an article entitled "'Whether from Reason or Prejudice'": Taking Money for Bodily Services," 2 Journal of Legal Studies 27 (1998).]

Eliot Spitzer, one of the nation's most gifted and dedicated politicians, was hounded into resignation by a Puritanism and mean-spiritedness that are quintessentially American.   My European colleagues (I write from an academic conference in Belgium) have a hard time understanding what happened, but they know that it is one of those things that could only happen in America, where the topic of sex drives otherwise reasonable people insane.  In Germany and the Netherlands, prostitution is legal and regulated by public health authorities.  A man who did what Spitzer did would have a lot to discuss with his wife and family, but he would have broken no laws, and it would be laughable to accuse him of a betrayal of the public trust.  This is as it should be.  If Spitzer broke any laws, they were bad laws, laws that should never have existed. 

Martha Nussbaum Talks with Akbar Ganji

Chicago Public Radio has partnered with the University of Chicago (among other organizations) in a project called Chicago Amplified. From their website: "Chicago Amplified is a Web-based audio archive filled with diverse lectures, conversations, panel discussions, forums and other educational events sponsored by community organizations and institutions throughout the Chicago region and presented here for audio streaming or download. The goal of this project is to make some of the most interesting and informative public programs taking place throughout our community widely available. Chicago Amplified allows you to listen to these events again, or discover them for the first time."

Among the University's first entries in Chicago Amplified is a conversation with Akbar Ganji and our own Martha Nussbaum. Gangi is Iran's most prominent political dissident and writer of A Republican Manifesto, laying out the basis for a full-fledged democracy in Iran. You can listen here to their conversation, and also visit the site for the University of Chicago's contributions to Chicago Amplified.

Women’s Bodies: Violence, Security, Capabilities - Part VI

Note: This is the sixth and final post in a series, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Strategies for women’s empowerment

How can we make progress against violence of all the kinds I have described? This is a vast topic, and yet I feel that it can be illuminated by the theoretical approach I have defended. In addition to the obvious strategies of legal reform and better law enforcement, the capabilities approach urges us to think about how we might mobilize one capability to help another. If the analysis of the second section shows that the bad things all hang together, it is also true that supporting one capability helps support others, and sometimes, in an area as culturally contested as this one, the indirect approach through a different capability may be the best. Good women’s organizations typically do not march into a village saying ‘We are here to change gender roles and stop men from beating their wives’. Even when violence is a big part of their agenda, they typically pursue more indirect strategies, giving women greater bargaining power and exit options through economic empowerment.

Note: This is the sixth and final post in a series, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Strategies for women’s empowerment

How can we make progress against violence of all the kinds I have described? This is a vast topic, and yet I feel that it can be illuminated by the theoretical approach I have defended. In addition to the obvious strategies of legal reform and better law enforcement, the capabilities approach urges us to think about how we might mobilize one capability to help another. If the analysis of the second section shows that the bad things all hang together, it is also true that supporting one capability helps support others, and sometimes, in an area as culturally contested as this one, the indirect approach through a different capability may be the best. Good women’s organizations typically do not march into a village saying ‘We are here to change gender roles and stop men from beating their wives’. Even when violence is a big part of their agenda, they typically pursue more indirect strategies, giving women greater bargaining power and exit options through economic empowerment.

Women’s Bodies: Violence, Security, Capabilities - Part V

Note: This is the fifth in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Refining the capabilities approach

Conceptually, then, the capabilities approach is well placed to diagnose, analyze, and address the problems of violence against women. That is of course no accident, since in both Sen’s formulation and in my own the approach was developed with women’s capabilities prominently in view and with women’s equality a central goal. Now, however, I would like to argue that there are some further philosophical developments and refinements that the approach requires if it is to address these issues in a perspicuous and helpful way. I see three such developments.

Women’s Bodies: Violence, Security, Capabilities - Part IV

Note: This is the fourth in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Why capabilities?

One might grant all these facts and their importance without being persuaded that there is any need for a capability-based approach in order to analyze them and make recommendations for progress. So, why capabilities? If we compare the capability approach to previously dominant approaches to development, the answer seems obvious. Thinking of development as the increase in Gross National Product per capita not only does not reach these problems, it positively distracts attention from them (see Nussbaum, 2003b). Approaches that conceive of development’s goal as the satisfaction of existing preferences do considerably better, since violence and the fear of violence inflict enormous pain and suffering. But they, too, fall short, for five reasons. First, because they aggregate the diverse elements of a person’s good, they are unable to give separate salience to the issue of violence; nor can they draw sufficient attention to the way in which it affects many diverse and heterogeneous components of a woman’s life. Second, because such approaches also aggregate across persons, they typically do not give enough salience to the special vulnerabilities certain groups and people face because of who they are; the problem of violence against women becomes simply a part of the whole calculus of satisfaction and dissatisfaction. Third, without importing some independent moral factors, preference-based approaches have no way of excluding from the social calculus the very considerable pleasure and profit men have always derived from using women in these ways. The pain suffered by men at the introduction of laws against marital rape, sexual harassment, and date rape is very intense, as debates in many nation show. A true Utilitarian will have to count it (see Nussbaum, 2000, ch. 2). (John Stuart Mill’s [1869] failure even to mention this factor in The Subjection of Women is the clearest sign of his apostasy from Benthamite Utilitarianism, although one rarely mentioned by interpreters.) Fourth, as John Stuart Mill and Amartya Sen have both pointed out, women often exhibit ‘adaptive preferences’, preferences that adjust to their second-class status (Mill, 1869; Sen, 1995; and many other publications). Thus, even if they experience some pain at physical violence, they may not experience the additional pain of thinking that their rights have been violated; and some kinds of violence, sexual harassment for example, may not feel like violence at all to someone who has been thoroughly taught that this is women’s lot. Finally, an approach that takes the goal of development to be satisfaction shortchanges the element of agency that is so crucial in thinking about what violence takes away from women. What is wrong with rape is not just the pain and suffering it inflicts, it is the way in which it puts the whole capacity of practical reason and choice in disarray, requiring, as philosopher Susan Brison has memorably written in her book Aftermath, about her own rape and its consequence, the “remaking of a self” (Brison, 2002).

Women’s Bodies: Violence, Security, Capabilities - Part III

Note: This is the third in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Violence and women’s capabilities
Let us now consider the impact of these varied forms of violence, and the threat of them, on women’s capabilities. Since I have defended a particular list of capabilities as the basis for an account of fundamental human entitlements or rights that should, I argue, be adopted in the constitutions of all nations (Nussbaum, 2000, pp. 78–80), let us look at what violence does to the items on the list. Life is easy enough: many women are murdered in the course of sexual violence. In wartime and communal conflict this happens in large numbers. It has been estimated, for example, that about one-half of the 2000 Muslims murdered in Gujarat, India, were women who were raped and tortured, then set on fire (Nussbaum, 2004a). Similar things have happened recently on a large scale in many nations, including Bosnia, Sierra Leone, Rwanda, and Columbia. Women also lose their lives through violence at the hands of spouses or partners: in the United States in 2000, 1247 women were killed by an intimate partner (Bureau of Justice Statistics, 1993–2001). The transmission of HIV during intercourse with a partner, often without full disclosure and consent, is another form of lethal violence, extremely widespread in Africa. Trafficking and forced prostitution frequently lead to death, often through HIV/AIDS. And of course, sex-selective abortion and infanticide, together with the undernutrition of girls, are major causes of female death around the world. Honor killings and killings in connection with dowry are also still in some places a depressing reality.

Women’s Bodies: Violence, Security, Capabilities - Part II

Note: This is the second in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Violence against women: the data

One thing we know for sure about any data on violence against women is that they are inaccurate, since one of the most notorious effects of such violence is to produce a reluctance on the part of women to report such crimes, and in many cases even to perceive what has occurred as crime, rather than as woman’s unpleasant fate. With that starting point held firmly in mind, we can mention a very small number of the data that have by now been gathered. The Human Development Report 2000 finds that between 10% and 47% of women (in nine countries studied) report being physically assaulted by an intimate partner (United Nations Development Programme, 2000, p. 36). A total 500 000 women a year are trafficked out of Eastern and Central Europe; in Asia around 250 000 people, mostly women and children, are trafficked every year. Between 85 and 115 million girls and women have undergone some form of female genital mutilation, and approximately two million more young girls undergo it. In Pakistan alone, the Human Rights Commission reported more than 1000 honor killings of women in a single year. Data on rape in the Human Development Report 2000 are obviously inadequate: most nations do not report any figures, and the figures that are reported are so low, and so capriciously varying, as to make them altogether unbelievable. (It thus seems highly unlikely that there are almost three times as many rapes in Canada as in the United States; that rape is four times more common in Estonia than in the United States; that Canada has 90 times more rapes per unit of population than Japan and 80 times as many as Italy; that Estonia has the highest rape ratio in the world by a factor of almost two to one over the runner-up, Canada; and so forth.)