Notes on Margaret Jane Radin One

Margaret Jane RadinThe Colin Ruagh Thomas O'Fallon Memorial Lecture on Reconsidering Personhood74 Or. L. Rev. 423 1993

“Seeing the world as a property teacher started me thinking about personhood, because my students and I thought that a personality theory about property was latent in property doctrines and decisions, but never explicitly expounded.”

“It seems a good opportunity to recapitulate where I've arrived in my thinking about personhood, and say something about where I think personhood theory might go next. In doing so I want to explore important work by Martha Nussbaum.” (423)

Her work starts from the point of view of political philosophy and cross-cultural social justice, whereas mine starts from the point of view of law and the Anglo-American culture of property. Yet as you will see, I think there are interesting ways that our different perspectives on personhood mesh with one another (423-24) Perspectives on Personhood There are many different ways to think about personhood. Moral philosophers think about personhood when they construct and deploy their views of human choice and moral agency.

For Kantians, personhood is about free will and reason.

From the point of view of Kantian moral personality, all of us are identical as persons.

Philosophers of mind think about personhood when they try to figure out what constitutes personal identity.

For many of these philosophers, personal identity means having a continuous life story that incorporates a past and a future for oneself.

From the point of view of personal identity, all of us are different, unique, as persons.

Psychoanalysts think about personhood when they relate the constants of human life and development to broad personality structures.

From the psychoanalytic point of view, each of us manifests the same dynamic personality structures, yet no two of us do so in exactly the same way; we are all the same and also all different.

Welfare rights activists and human rights activists think about personhood: what is the minimum of necessary resources for a fully human life?

Medical ethicists think about personhood: at what point does life cease to be a human life worth living?

Political theorists think about personhood: what are the basics of individuality that the state should recognize or underwrite?

Parents think about personhood: what part do I play in making possible the fullest kind of human-ness for my children? In general, the context that provokes thought about personhood has a lot to do with what those thoughts turn out to be.

Because it is property that brought me to personhood, I have focused mainly on the connection between the self and things in the world outside the self.

Moreover, because property is a legal relation, I have focused on this connection as it may be manifested with things that are legally recognized as property; that is, as it may be expressed in ownership.

I have focused on the connection between the person and things owned by the person (424)

This type of inquiry about personhood is related to the role of a certain kind of contextuality in self-constitution, namely the contextuality that involves situation of the person in a world of things (424-25)

At one point I thought the main aspects of personhood could be summarized under the (overlapping) rubrics of freedom, identity, and contextuality.

It seems clear to me now that this was a way of linking up my concerns about property with the two main traditional kinds of ideal philosophical theory about personhood.

The aspect of freedom corresponded to the point of view of the Kantian moralist; the aspect of identity corresponded to the point of view of the philosophical theorist of personal identity; and the aspect of contextuality corresponded to the property relations that captured my interest.

I now think my characterization of the main aspects of personhood as freedom, identity and contextuality owed too much to past ideal theories about personhood. As a pragmatist, I believe nonideal theory is also necessary.

To be a bit more precise, I believe our visions about the nature of human beings and the nature of the good life for human beings cannot be too far divorced from the circumstances that give rise to those visions, from what gives them their bite, their urgency. These circumstances include an understanding that our life at present falls short of the good life for human beings, as well as what we understand to be the specifics of its deficiencies. So I believe theories of personhood should not be divorced from the realities of needs, capacities and circumstances that shape personal development in practice, in the world. That means that for personhood theory to be useful to us, it should pay attention to resources, distributional principles, institutional structures and the facts of personality development that make a good human life

possible. Thus, I believe it is important for those of us who think about personhood to draw together insights from various disciplines - moral philosophy, philosophy of mind and identity, psychoanalytic theory, political theory, the science of public health and others. And in doing this we should pay attention to nonideal theory, relating personhood to cultures, institutions and other circumstances in the real world. For me the contemporary thinker whose work most cogently [*426] does both of these things is Martha Nussbaum. Nussbaum has implicitly brought together facets of many contexts of thought about personhood to make a theory of human nature and the good life, a theory that she calls Aristotelian essentialism. n3 In subsequent portions of this essay I will summarize Nussbaum's theory and explore how her Aristotelian essentialism might confront and complement the pragmatic approach to property and personhood that I have pursued. It may be helpful to first summarize where I've arrived in my inquiries. The main themes are: (1) Property can be involved with a certain kind of contextuality that plays a role in self-constitution; and (2) Property may be involved with a certain kind of stability in the dynamic dialectic that also plays a role in self-constitution over time.II Contextuality: Persons and Things In human life as we know it, self-constitution can include connectedness with things in the world; with a home, for example. Not everything we might be thus connected with in the world can be property, but some such things can be property. When an item of property is involved with self-constitution in this way, it is no longer wholly "outside" the self, in the world separate from the person; but neither is it wholly "inside" the self, indistinguishable from the attributes of the person. Thus certain categories of property can bridge the gap, or blur the boundary, between the self and the world, between what is inside and what is outside, between what is subject and what is object. Lots of things that people own have little to do with self-constitution, however. People hold money not for its special relationship to who they are but for what it can buy in the way of other things. Many things that people own, such as items of property held only for investment, are just like money in this respect. Property items of this kind are understood as outside the self, and they do not serve to blur the boundaries of the self or subject. I use the term personal property to refer to categories of property that we understand to be bound up with the self in a way that we understand as morally justifiable. I use the term fungible property to refer to categories of property that we do not under [*427] stand to be justifiably bound up with the self, but rather understand to be separate from the self in the sense that they are not implicated in self-constitution. My terms fungible and personal do not mark out a rigid binary dichotomy but rather mark the end points of a continuum. Nevertheless, the terms are useful. We understand certain categories as corresponding to the continuum's end points, or close to it - we understand some categories of property items as being completely interchangeable with others of their kind without loss of value to the person (fungible), and some categories as being bound up with the person so as to be of unique and nonmonetizable value to the person (personal). These categories of understanding are not transcendent but rather relate to cultural commitments. Not all cultures understand the home as the locus of personal grounding the way we do. (And who is "we" here? Maybe just "our" dominant culture). Indeed, it may be peculiar to post-Industrial Revolution western culture to enmesh the understanding of personal grounding with the conception of capitalist private property the way ourdominant culture does. These categories of understanding - of social construction - are connected to a number of other categories that relate to our culture of

ownership and exchange: alienability versus inalienability, commensurability versus incommensurability, commodification versus noncommodification. Fungible property connects with alienability, which means separability from the holder. Since fungible property is not connected with the self in a constitutive way, but is only held instrumentally, nothing is problematic in disconnecting it from the person, from the self. Nothing is problematic in trading it off for some other item that the person would rather have. Moreover, when alienability is understood expansively, so as to include some of the person's endowments and attributes (reproductive capacity, for example), then it presupposes a thin theory of the self. That is, if endowments and attributes are considered readily detachable, and suitable for trade like fungible property, then the self is not defined thickly in terms of these endowments and attributes, but rather thinly in terms of whatever remains after they are detached. n4 [*428] Fungible property is related to commensurability. Commensurability is a contested concept, n5 but, as I am using it, commensurability refers to an understanding of value that is unitary (as opposed to pluralist). Those who understand value in this unitary way believe that all things people value can be reduced to some common metric like money, a form of simple reductionism, or at least that all things people value can be arrayed in order on one continuous curve from less valuable to more valuable. In the first understanding of commensurability, simple reductionism, values can be unproblematically traded off against each other; six of one really is just as good as half a dozen of the other. In the second understanding, values are at least commensurable in the sense that we can always unproblematically tell whether one thing is more or less valuable than another. When items are fungible, they are interchangeable with like items and with money. That is, they can be replaced with other items of their kind or with money, which can be used to acquire other items of their kind without any significance for self-constitution. This may not be exactly the same thing as simple reductionism, but if not, it is close. Fungible items are valued in the same way as money, even if their value for the holder is not identical with money value. Moreover, given our market culture and social structure, these characteristics of fungibility - interchangeability and money value - mean that fungible items are socially constructed as commodities. (The word I use for this is commodification). They are understood instrumentally, as means to satisfy the owner's needs and desires. They are valued in market terms, in terms of exchange. Personal property expresses the alternatives to alienability, commensurability and commodification. Personal property connects with inalienability, which means inseparability from the holder. Since personal property is connected with the self in a morally justifiable and constitutive way, to disconnect it from the person (from the self) harms or destroys the self. The more something takes on the indicia of an attribute or characteristic of the self, the more it seems problematic to alienate it, and the stronger the inclination toward some form of inalienability. Moreover, when the self is understood expansively, so as to in [*429] clude not merely undifferentiated Kantian moral agency, but also the person's particular endowments and attributes; and not merely those particular endowments and attributes, either, but also the specific things needed for the contextuality aspect of personhood, then this understanding is a thick theory of the self. A thick theory of the self correlates with an expansive role for inalienability because things that are understood as inside the self, or bridging the boundary between inside and outside, cannot simultaneously be understood as readily detachable from the self they constitute. Personal property is also related to incommensurability. Incommensurability, as I am using the term, refers to an understanding of value that is pluralist; that is, there are different kinds of value that cannot be reduced to one kind (expressed in terms of one common metric), nor arrayed linearly

on one scale. When items are personal, they are not interchangeable with like items or with money. They cannot be replaced with a like item or with money without affecting self-constitution. Personal items are not understood instrumentally, as means to satisfy the owner's needs and desires. Their significance, at least, is not wholly captured by this kind of understanding. They are not valued, or not only valued, in market terms of exchange. Thus, they are noncommodified, or incompletely commodified.A. The Dialectic of Contextuality The aspect of personal contextuality that interests me relates to a certain stability of one's environment. When things are too chaotic around the person, the person cannot develop adequately and self-constitution is hindered. That is why parents are advised to establish unvarying routines for their children. Moreover, if things are too chaotic around a well-developed person, maintenance of her personhood will be threatened. At the extreme, if everything around me were in flux all of the time, so that nothing I could think or do would have predictable results in the world, itwould be hard to say there was a "me" at all. Continuity of context is important both for self-development and self-maintenance. At the same time, flexibility of context is just as important for personhood as stability of context. The ability to change oneself, to grow and to make choices that affect oneself, is a mark of personhood as we understand it. That is why parents are advised to [*430] enable their children to make choices and experience the consequences. We would find it hard to consider a being with no potential to change its character as a person. If I cannot change my environment, it is more difficult to change myself. At the extreme, if everything around me is rigid and nothing can be changed in response to my thoughts and actions, then it is hard to say that I have the potential for change that is a requisite for personhood. There is a paradox here; or a dialectic. Let us call it the dialect of contextuality. For appropriate self-constitution, both strong attachment to context and strong possibilities for detachment from context are needed. Because these requirements seem to oppose each other, they exist in tension. This tension causes problems for theory and contradictory tendencies in practice. For example, for certain inalienability rules in property doctrine I can muster a complex of arguments having to do with the need for context stability in self-constitution, and my libertarian opponent can muster a complex of arguments having to do with the need for context flexibility in self-constitution. n6 These arguments are undecidable in the abstract. They have to be weighed in practice, with respect to specifics. We have to think whether legal recognition (as opposed to foreclosure) of context flexibility or context stability is more important under the circumstances. I have argued that residential rent control can be justified in some contexts, for example, because without it a certain kind of context stability is foreclosed. n7 Does our society on the whole provide too many opportunities for stability of context (through property doctrines, among other things) and not enough opportunities for flexibility and change? Some people on the right, like Robert Ellickson and some people on the left, like Roberto Unger, think the answer is yes. n8 I have not yet addressed this question, and I am going to continue to put it aside. I believe, though, that any useful answer to this [*431] question of social vision should be developed out of examining and evaluating the many ways both the need for context embeddedness and context transcendence are treated in practice. It is important for theory not to be constructed in such a way as to hamper this kind of pragmatic inquiry. I believe, then, that it is important for a theory of personhood somehow to make primary both the need for context embeddedness and the need for context transcendence, in spite of the fact

that they are contradictory. Otherwise, the theory's picture of the self becomes distorted and it will not be useful for understanding and evaluating the contradictory strands of our practice. If we attempt to implement such a distorted theory in practice, it may be harmful to personhood. If a theory distorts the contradictory complexity of self-constitution by making the need for context transcendence primary, it leads to what I called a thin theory of the person. In the thinnest theory, nothing is intrinsic to personhood but bare undifferentiated free will. Everything else, like capacities, relationships and attributes of character, is conceived of as alienable objects, outside the self and part of the severable context. This thin theory of the person appears to facilitate assimilating aspects of personhood to the realm of commodities, which in turn threatens to make personhood as we know it disappear. On the other hand, if a theory makes the need for context embeddedness primary, it leads to what I called a thick theory of the person. In the thickest theory, much of the person's material and social context is postulated as inside the self, inseparable from the person. This thick theory appears to facilitate social construction of fixed status hierarchies, severely undermining freedom of choice and association. It also threatens to make personhood as we know it disappear. In my work on property and personhood so far, I have focused on one aspect of the dialectic of contextuality: the need for context stability. I have largely ignored the other aspect of the dialectic of contextuality, the need for context flexibility. I thus have run the risk of being understood as promoting a too-thick theory of personhood. You can say I have stressed connectedness, at the expense of the possibility of disconnection. My stress on connectedness between persons and things calls to mind the feminist stress on connectedness between persons and other persons. Feminists characteristically ask us to take personal contextuality [*432] seriously, and recognition of personal property is one way of doing that. n9 Like feminists who feel it is worthwhile to run the risk of undue stress on personal contextuality at the expense of personal autonomy, I felt it was worthwhile to run the risk of being misunderstood as promoting a too-thick theory of personhood, in order to provide an antidote to a too-thin theory of personhood that is dominant in traditional liberalism. Traditional liberal theory leans too far toward alienability, commensurability and commodification. True, traditional liberal theory locates in ownership (property ideology) the aspect of connectedness, of context stability. The other part of the dialectic, the aspect of detachability, of context flexibility, is located in free trade (contract ideology). But traditional property ideology makes freedom of alienation through contract an essential characteristic of property. Alienability is often thought to be inherent in the meaning of the word property. The common law, remember, views restraint on alienation to be repugnant to the very nature of a fee simple. Because traditional property ideology makes alienability by contract, that is, market alienability, essential to property, the whole traditional ideological system - private property plus free contract - tends toward commodification. Maybe the antidote is no longer needed, or no longer worth the risk (if ever it was). I hope that future work on property and personhood will be less one-sided. It should try to achieve a better understanding of the nature of the paradoxical coexistence of the two aspects of contextuality in self-constitution, both in theory and in practice. One of the things that draws me to the work of Nussbaum is that while she has made a fruitful start on this kind of theory, more needs to be done, as I will now explain.III Human Flourishing and the Role of the Polity; NonrelativeTheory

Nussbaum begins by saying that the aim of political planning is to provide people with "the conditions in which a good human life can be chosen and lived." n10 Her approach, unlike some other [*433] liberal approaches, "aims not simply at the allotment of commodities, but at making people able to function in certain human ways." n11 This approach starts from the premise that people have certain characteristics and capabilities for development that make it possible for them to develop into fully functioning human beings. It is the task of the polity to provide the conditions under which this fully human functioning is possible. Thus, in order to theorize about political justice, we must look at personhood from two levels. We must delineate in detail both the human characteristics and capabilities in their undeveloped state, and the human functioning in its developed state. In other words, we need an account of human flourishing, Aristotelian eudemonia. As Nussbaum says, the task of the polity "cannot be understood apart from a rather substantial account of the human good and what it is to function humanly." n12 Nussbaum sets about providing the needed two-level analysis: the list of human characteristics and capabilities that can generate the needed list of developed human functionings, and then the list of developed functionings (or, the list of developed capabilities for functionings, for it is up to each human being, not the polity, to complete his or her own development once the background-enabling conditions are in place). Nussbaum calls her theory Aristotelian "essentialism" because she means her list to delineate human nature and the good human life in a way that is nonrelative, in the sense of being acceptable cross-culturally. Yet this is not old-fashioned a priori transcendent essentialism, but rather "internal" essentialism. n13 Nussbaum allies herself to Hilary Putnam's "internal realism" - which Putnam also called "pragmatic realism" n14 - and thus it is not surprising that there are substantial affinities between Aristotelian essentialism and Deweyan pragmatism. n15 Nussbaum's approach aims for a list of functions that is both nondetached and objective. The list must be nondetached: [*434]

It should not be discovered by looking at human lives and actions from a totally alien point of view, outside of the conditions and experience of those lives - as if we were discovering some sort of value-neutral scientific fact about ourselves... Getting the list of functionings that are constitutive of good living is a matter of asking ourselves what is most important, what is an essential part of any life that is going to be rich enough to count as truly human. A being totally detached from human experience and choice could not, I think, make such a judgement. n16

The list must also be objective, again not in a transcendent or foundationalist sense, but rather so as to support the possibility of criticizing cultures that are oppressive, while still leaving room for "a certain sort of sensitivity to cultural relativity." n17 We philosophizers about social justice do not want simply to take each culture's or group's word for it when they tell us what human flourishing is for them because people can be socialized to accept their own oppression. We don't want necessarily to accept suttee or clitoridectomy merely because these are practices accepted (if they are) by the culture in which they are practiced. At the same time, we do not want to be cultural imperialists. We don't want to be in the position of outsiders telling other cultures what is good for them. That is unjust, and also not useful; it prevents us from becoming involved in cross-cultural dialogue about improving the conditions of human life worldwide. Thus, the list Nussbaum is aiming at must occupy a middle ground: it must be nonrelative, yet also

nondetached; it must grow out of human experience, yet not be too tied to any particular form of human experience. Moreover, it must occupy an additional middle ground in the sense that it must dissolve the dichotomy of fact and value. Finding out about the essentials of ourselves and what is a good life for us is simultaneously an empirical and normative inquiry. We make ethical judgments about what it is to be one of us, a human being, and about what it is to lead a truly human life, as opposed to a life that is alien or merely animal. Certain empirical circumstances are necessary to support such a life; among other things, we cannot have life at all without food. But how much food? Are we prevented from leading a truly human life if we must spend all of our time trying to fend [*435] off starvation? The answer to this kind of question blends into ethical judgment.A. Specifying Human Capabilities for Development Nussbaum calls her two-level, mixed empirical and ethical, nondetached yet essentialist theory of human nature the "thick vague theory of the good." n18 It is "thick" because it is nondetached; it grows out of our experience of being human and thinking about what it is to be human, rather than out of a transcendent or a priori starting point. It is "vague" because it is nonrelative; it leaves room for different cultures and communities to have specific and perhaps conflicting embodiments of its requirements. What does this "thick vague theory of the good" look like? In the stylized version necessary for exposition, it has two levels, although actually they blend into a continuum. Level 1, the characteristics and innate capabilities that mark us as human beings with the potential to become capable of leading the good life, is the shape of the human form of life. n19 Level 2, the developed capabilities for functioning that humans need in order to be capable of the good life, and hence the starting point for the obligations of socially just polity, is a list of "basic human functional capabilities." n20 The Level 1 list includes both limits and capabilities that define our human-ness. Nussbaum lists 10 items: n21

1. Mortality: the fact of death "shapes more or less every other element of human life" n22;2. The human body: at minimum, we all need food, drink, and shelter; we all experience sexual desire and the need [*436] to move about n23;3. Pleasure and pain: aversion to bodily pain is "surely primitive and universal, rather than learned and optional" n24;4. Cognitive capability: sense perception, imagination, reasoning and thinking n25;5. Practical reason: "all human beings participate (or try to) in the planning and managing of their own lives" n26;6. Early infant development: "all human beings begin as hungry babies, aware of their own helplessness, experiencing their alternating closeness to and distance from that, and those, on whom they depend" n27;7. Affiliation: we are social animals and feel some sense of affiliation and concern for other human beings n28;8. Relatedness to other species and to nature: "human beings recognize ... that they are animals living alongside other animals, and also alongside plants, in a universe that, as a complex interlocking order, both supports and limits them" n29;9. Humor and play: no aspect of human life is more culturally varied, yet laughter seems common to all cultures n30;

10. Separateness: however absent individualism is in some societies, nevertheless, "when we count the number of human beings in a room, we have no difficulty figuring out where one begins and the other ends." n31

The Level 2 list sets forth, with respect to each of these items, [*437] the circumstances necessary in order to be able to live a good human life. The circumstances are both external (things that must pertain in the social and physical environment) and internal (things that must pertain with respect to one's own development). Level 2 is a list of capabilities for good human functioning. Each of the ten capabilities Nussbaum formulates correlates with one of the basic human characteristics of Level 1, as follows:

1. [Mortality:] Being able to live to the end of a complete human life, as far as is possible; not dying prematurely, or before one's life is so reduced as to be not worth living.2. [The human body:] Being able to have good health; to be adequately nourished; to have adequate shelter; having opportunities for sexual satisfaction; being able to move from place to place.3. [Pleasure and pain:] Being able to avoid unnecessary and nonbeneficial pain and to have pleasurable experiences.4. [Cognitive capability:] Being able to use the five senses; being able to imagine, to think, and to reason.5. [Early infant development:] Being able to have attachments to things and persons outside ourselves; to love those who love and care for us, to grieve at their absence, in general, to love, grieve, to feel longing and gratitude.6. [Practical reason:] Being able to form a conception of the good and to engage in critical reflection about the planning of one's own life.7. [Affiliation:] Being able to live for and with others, to recognize and show concern for other human beings, to engage in various forms of familial and social interaction.8. [Relatedness to other species and to nature:] Being able to live with concern for and in relation to animals, plants, and the world of nature.9. [Humor and play:] Being able to laugh, to play, to enjoy recreational activities.10. [Separateness:] Being able to live one's own life and nobody else's; being able to live one's own life in one's very own surroundings and context. n32

IV Evaluating The Thick Vague Theory of the Good The thick vague theory of the good is complex and detailed, compared with something thin and simple, like "Man is a self-interested profit-maximizer, and the task of the polity is to en [*438] able him to maximize the excess of benefits over costs." Its complexity, its thickness, is what makes it potentially useful for thinking about the situation of human beings in the world. But this very complexity makes it more difficult to talk about it in the general and abstract way that is all one can accomplish in the space of an essay. In this section I will take particular notice of certain features of this theory that connect with my concerns, but bear in mind that I am only scratching the surface.

A. Open-Endedness The thick vague theory of the good is intended as provisional (revisable) in a number of ways. In this Nussbaum's methodology is like the open-endedness of pragmatism. What conception or cultural working-out of any item on the list is the "right" one - the best alternative in its context, the best alternative available now - is properly the subject of cross-cultural debate. The list is merely intended to command enough consensus to get the dialogue started. n33 Moreover, because the two levels are a way of marking out a continuum, dialogue should proceed along the lines of what or how much is needed, given the particular conceptions of human functionings prevalent in a culture, to bring people from the bedrock of basic human-ness to the minimal threshold of the capabilities they need for the good life. n34 Further, although it is intended as nonrelative, this particular list is itself culturally situated, growing out of the Aristotelian strand in our own tradition of political thought. When we truly engage in dialogue with other cultures, we may want to add or subtract items from the list. As Nussbaum says, "We want to allow the possibility that we will learn from our encounters with other human societies to recognize things about ourselves that we had not seen before, or even to change in certain ways, according more importance to something we had considered more peripheral." n35 Perhaps (for example) we will learn from other societies that our relations with animals and plants are more important than we thought, or that our commitment to private property is less important than we thought. In claiming that the list is useful - in fact urgently needed - for evaluating development around the world, Nussbaum claims simply that "in life as it [*439] is lived, we do find a family of experiences, clustering around certain foci, which can provide reasonable starting points for cross-cultural reflection." n36B. The Role of Political Affiliation Even those of us who haven't studied Aristotle know he said that man is a political animal. If Nussbaum's theory of human nature is "Aristotelian" essentialism, what is the role of political affiliation in human-ness? Affiliation is listed in the thick vague theory, but politics is not mentioned. About the requirement of affiliation, Nussbaum comments: "Here, I would really wish, along with Aristotle, to spell things out further. We define ourselves in terms of at least two sorts of affiliation: intimate family and/or personal relations and social or civic relations." n37 The need for "social or civic relations" apparently includes, at least, "relationships of a political kind, the function that is constituted by playing one's role as a citizen alongside other citizens." n38 So Nussbaum comments that the Aristotelian conception is one in which all citizens share in ruling. Since "planning the conception of the good that shapes a citizen's life is a job that goes on, in part, in the political sphere ... good functioning in accordance with practical reason requires that every citizen should have the opportunity to make choices concerning this plan." n39 In light of this it seems a little puzzling that the thick vague theory of the good does not directly include political affiliation as part of our human nature. Why does not Level 2 include something like "being able to engage in meaningful political participation with one's fellows"? True to her roots in Aristotelian thought, Nussbaum does ask us to understand both practical reason and affiliation (sociability) as special to human nature, and as playing an architectonic role in human life. "These two functions are not simply two among others. They are the two that hold the whole enterprise together and make it human." n40 It is unclear to me whether Nussbaum intends sociability in this formulation to be coextensive with political affiliation; in other words, whether she intends a very [*440] broad understanding of the political. At least we can say the whole

enterprise of ethical debate which generates her list is political, since its aim is to discover the minimal obligations of the polity; and anyone who participates in these debates affirms the importance both of political affiliation and practical reason. n41 In the work published so far Nussbaum does not set about elaborating how the other functions cannot be truly human unless arranged, organized and suffused by practical reason and sociability. Someone might say that practical reason and sociability come in only at Level 2, that is, that they are necessary for leading the good life, a well-developed human life, but not for the bare minimum of being human at all. However, Nussbaum does not say this. For her, practical reason and sociability are architectonic at Level 1 and not just at Level 2: the form of life described by her list cannot be characteristically human at all unless organized and arranged by these two architectonic capabilities. n42 Here some questions come to mind which Nussbaum's later work may well elaborate. Exactly how do the cross-cultural psychoanalytic insights related to early infant development, for example, depend for their human-ness on practical reason and social or political affiliation? Perhaps Nussbaum would want to say here just that without proper nurturing as infants we cannot become sociable beings, or beings with practical reason, so that we could never reach the Level 2 characteristics of being able to have attachments to persons outside ourselves and being able to engage in critical reflection about the planning of our own life. n43 But this seems to make practical reason and sociability derivative rather than architectonic. So perhaps she would want to say instead that adult humans organize their infant caretaking by means of their practical reason and in conjunction with other humans, and that this makes practical reason and sociability architectonic for human-ness in the sense she means, which is to say, that which distinguishes human infant development from infant development in other animals. Yet this doesn't make one's own practical reason and sociability the organizing principles in one's own development, but rather the organizing principles in how one's caretaker(s) relate to one. It seems to be one's own development (one's having [*441] been a helpless, hungry baby, and the way that fact shapes personality) that is relevant for the list. Maybe the answer to this will be that the very concept of practical reason must belong to a social group (consisting of babies and caretakers) which cannot be conceptualized as belonging only to one individual.C. Nurturing and Feminism Whatever the relationship between early infant development and the architectonic capabilities of practical reason and sociability, it is salient that Nussbaum places the constants of early infant development on the list of those things basic to the human form of life. Other theories of human nature that are put forth as underwriting a view of the function and obligations of the polity do not do this; they start from the full-grown human being. The Kantian considers moral agency without considering how our personalities come to embody it. The Benthamite doesn't ask how we developed the instrumental self-interested rationality of economic man. It is possible that as a student of Aristotle, Nussbaum is better situated to pay attention to what we might think of as a modern version of human teleology. Yet I am inclined to think something else is at work here as well. That something is a feminist receptiveness to connectedness, to the recognition that human life is impossible without nurturing from those who care for us when we are helpless and dependent. Nussbaum builds human connectedness into her theory at a more basic level than the need of independent grownups to affiliate socially or politically. Early connectedness to another - nurturing - is what makes the social and political possible for us. It is not just that we can be happier, or better

adjusted, or lead a better life if we experience the development from helpless dependence on our caretakers to independence from them; it is that without this experience we would not be human at all. Thus, theorizing about human nature in political theory cannot omit this salient human experience. In using abstract models of human nature that do not take this into account, both Kantians and Benthamites are missing something crucial.D. Beyond Traditional Liberalism In stressing the role for political theory of our personal developmental trajectory, Nussbaum's theory differs from traditional forms of liberalism that take off either from Kant or from Ben [*442] tham. There are a number of other important respects as well in which this theory differs from traditional liberalism. First, in this theory the role of the polity is to structure social life and the use of resources so that everyone can cross the threshold into capability to choose well. n44 This is not like Rawls's difference principle, in which more is always better even if it goes to those already wealthy, just so long as the worst off are made even a little better off, because those who are worst off may remain below the threshold. Still less does it resemble utilitarian liberalism, in which the goal is to maximize social wealth no matter how many are left out in the cold. Thus, if we want to evaluate how well a nation or culture is doing with respect to providing opportunities for the good life for its people, we will not ask merely about GNP, nor even about per capita income or assets. n45 Since policy analysts do predominantly evaluate societies this way, Nussbaum's theory has urgent results for what we should do in the real world of international development and international human rights. Second, this theory is primarily about how to structure institutions and not primarily about how to distribute goods:

The idea is that the entire structure of the polity will be designed with a view to these functions. Not only programs of allocation, but also the division of land, the arrangement for forms of ownership, the structure of labor relations, institutional support for forms of family and social affiliation, ecological policy and policy toward animals, institutions of political participation, recreational institutions - all these, as well as more concrete programs within these areas, will be chosen with a view to good human functioning. n46

The amount of money a polity has, and the quantity of commodities its citizens consume, may not tell us much about whether good human functioning is taking place. Third, this is nonideal theory. It asks us not to imagine the just polity in the abstract, but to consider what would make each particular polity more just, given its particular situation with respect to cultural heritage and material resources. It is not like liberal ideal theories that assume away almost all of the oppressive and unjust circumstances that need ameliorating. Fourth, this theory denies liberal neutrality. It does not sup [*443] pose that it is possible for the polity to be neutral among alternative conceptions of the good life. Quite the contrary, unless the polity structures institutions and resource use so as to bring as many people as possible across the threshold into capability for good human functioning (that is, unless it embraces a conception of the good for human beings), its citizens will not be enabled to choose their own conceptions of the good, and the good life for human beings cannot get off the ground.

Fifth, this theory, like that of the early Marx, clearly implies that "some forms of labor are incompatible with good human functioning." n47 The kind of labor that contradicts our humanity is impermissible no matter how lucrative it might be for a society. It is not enough for the polity to make sure people have enough money and commodities to provide food and shelter - although many workers do not have even that kind of minimal assurance. Some forms of labor simply are mindless and exhausting enough to make it impossible for the worker to lead a fully human life. (Marx said the worker himself becomes a commodity). Nussbaum's theory "calls for a searching examination of the forms of labor and the relations of production, and for the construction of fully human and sociable forms of labor for all citizens, with an eye to all the forms of human functioning." n48 This goes well beyond what is required by most forms of welfare rights liberalism. Sixth, unlike many kinds of traditional liberalism, education has a central role in this theory. As in John Dewey's theory of democracy and human nature, (which Nussbaum does not quote, although she well might have), if the polity is to support human flourishing a particular kind of education is a primary requirement. What is required of the polity is not just commitment of resources to education, either, but commitment to educational institutions concretely worked out so as to bring people to fully human functioning. n49 As Dewey elaborated the idea, the ideal of liberal democracy, which he sometimes called the liberal faith, is a regulative ideal of self-actualization in all aspects of social life. n50 In ideal democracy people will use the method of intelligent inquiry, and their [*444] ever-increasing accumulation of cooperatively acquired knowledge its use will gain them, to solve social problems by their own actions. This is a rich and contextualized understanding of the abstract commitment of liberalism that the polity must treat people as - must consist of - free and equal citizens, which the Aristotelian also embraces. n51 This kind of political participation and intelligent cooperative choice cannot come into being without a detailed commitment to education for democratic citizenship - a commitment which, in spite of Dewey's lifelong efforts, our own polity is farther than ever from making.V Pursuing Nonideal Theory By way of conclusion I will briefly consider some ways in which, as it seems to me, at least, Nussbaum's work relates to my own. I will then end by looking forward to where things can go from here.A. Internal Essentialism and Pragmatism I have already alluded to the similarities in methodology between internal essentialism and pragmatism. Both involve rejection of the fact/value dichotomy; evaluative and empirical judgments are blended together in human understanding and activity. Both accept neither foundationalism nor relativism; they are both, as Hilary Putnam said of pragmatism, fallibilist but not skeptical. n52 As pragmatic fallibilism recommends, Nussbaum's list is provisional, and so is my discussion of the categories that our particular culture of property understands as personal. Moreover, Nussbaum and I both aim at a species of nonideal theory. The question she asks is grounded in human experience with all its warts and vicissitudes: Given the situation in which we find ourselves (which can change in response to our attempts to implement our ideals of human flourishing and social justice), and given the ideals of human flourishing and visions of social

justice we now hold (which can also change in response to changes in the situation in which we find ourselves), how should we understand the good life for human beings, and how should we act to bring human beings and their institutions closer to it in [*445] practice? Likewise, the questions I ask about personal versus fungible property, or about commodification versus noncommodification, start from the midst of the American law and culture of property, not from any abstract premises removed from this practice. The use of thick theory as antidote can also be understood, perhaps, as a pragmatic response to the theoretical circumstances in which we find ourselves. It seems to me that Nussbaum and I have both wished to counter the too-thin theories of the person in traditional liberalism with a form of thick theory about self-constitution. In doing so, while not denying the importance of individual detachment and separateness, we have stressed the necessary role of connection in self-constitution. Property and personhood stress contextuality of persons in one way. Aristotelian essentialism does so in another, by making social affiliation an architectonic organizing principle of the characteristics basic to human life.B. Incommensurability Nussbaum's thick vague theory of the good implies a commitment to incommensurability, or pluralism in the nature of value, similar to the commitment I symbolized with the notion of personal property. The items on the list cannot be traded off against each other. For example, having more food than you need does not make up for having less nurturing than you need; otherwise, an eating disorder would not be a "disorder." Nussbaum finds "especially repellant" the reductionist notion of universal commodification, that "all this can be modeled by attaching a monetary value to the relevant human functionings." n53 To treat the elements of self-constitution as fungible does violence to the self - to ourselves. As Nussbaum puts this,

To treat the functions themselves as commodities that have a cash value is to treat them as fungible, as alienable from the self for a price; this implicitly denies what the Aristotelian asserts: that we define ourselves in terms of them and that there is no self without them. To treat deep parts of our identity as alienable commodities is to do violence to the conception of the self that we actually have and to the texture of the world of human practice and interaction revealed through this conception. n54 [*446]

C. The Role of Private Property What results does the thick vague theory of the good have for the role of private property? Nussbaum's theory has the considerable virtue of being more general than mine. Whereas I began from within the culture of modern western (capitalist) property relations, she took no particular culture of property for granted. Without taking a culture of property for granted, how does the thick vague theory of the good approach the question: Is private property required for human flourishing? It may be shown that certain functionings can be served by a form of private property; individual separateness, in particular, and the need to live one's life in one's very own context. But this form of justification of private property is "contingent and controversial," since it will collapse as a justification if someone shows, to the contrary, that the context of noninterference required for

human functioning does not include private property. n55 Moreover, it is certainly open to other cultures to see to this particular human functioning in other ways - or even to convince us, I would add, that living under a property system has distorted its importance for us. (Marx said that private property has made us so stupid and one-sided that we think a thing is only ours when we possess it - "when it exists for us as capital, or when it is directly possessed, eaten, drunk, worn, inhabited, etc. - in short, when it is used by us." n56 ).D. The Role of Contextuality Nussbaum's conception of human flourishing generates a basic requirement of "being able to live one's own life ... in one's very own surroundings and context." n57 This requirement follows from the basic understanding that human beings are separate individuals; the idea is that separation from other human beings, individuation, is accomplished in part by particularized connection with things. In other words, for Nussbaum, separation does not connote the idea of alienability of all of the self's attributes and possessions, but rather something like its opposite: it refers not to separation of the person from her environment, but rather to separation of one person from another person, with the premise [*447] being that for that kind of separation to be instantiated in the world, a certain kind of specific connection to one's environment may be needed. It seems to me that Nussbaum's Aristotelian, if placed within a culture of private property, might well pursue the strategy of disaggregation that I pursued - arguing that only certain categories of property, at best, express the need for contextuality that underwrites individuation, so that only those particular categories are justified by the need for contextuality in self-constitution, given our existent cultural commitments to property. Does the thick vague theory of the good deal with the dialectical nature of contextuality? Nussbaum's list does include in certain ways both the need for stability (which I called context embeddedness) and the need for change (which I called context flexibility or context transcendence) as part of our conception of human-ness. The need for stability is expressed in the ideas of "being able to have attachments to things and persons outside ourselves"; being able to "engage in various forms of familial and social interaction"; "being able to live ... in relation to animals, plants, and the world of nature"; and "being able to live one's own life in one's very own surroundings and context." n58 These requirements relate to the need for human situated-ness in a minimally stable context of relationships to other human beings and to the nonhuman environment. The need for change is expressed in "being able to move from place to place," and perhaps in the very notion of practical reason, "being able ... to engage in critical reflection about the planning of one's own life." n59 Having the capability for practical reason seems to imply having the capability to act to change things for oneself. Although elements of the dialectic of contextuality can be gleaned from Nussbaum's theory, like mine so far, and perhaps for the same reason (the need for an antidote to traditional liberalism), the thick vague theory of the good as she has formulated it submerges the role in human flourishing of the potential for self-alteration. Her recognition of the indispensable role of early infant development in the human form of life shows that she sees human life as a developing story. Yet I think (what seems to me to be) the human need to construct a narrative for ourselves should be highlighted. [*448] I think we should recognize that we seem to understand ourselves as dynamic beings, as beings whose life is a journey, and that this is no less central to our understanding of ourselves as human than is our understanding of the need for stable contexts. Human-ness is not just a static set of capabilities or even the results, considered on their own, of what we make of them. Although I am

not a student of Aristotle, I imagine this idea that our life is a dynamic narrative to be a fairly Aristotelian one, after all. It seems to me that the list that expresses the thick vague theory of the good does not really capture the salience of our experience of dynamism, the ever-present potential for change. The idea of potential for change has been overstressed in traditional liberalism, partly through the primacy of contract ideology and the notion that everything people value is nevertheless freely alienable, probably having its roots in the "masterless man" of the seventeenth century. If we continue to overstress context transcendence in trying to build a cross-cultural theory of human nature, that could be a form of modern western cultural imperialism. Perhaps indeed I am still overstressing this here. Ideologies other than western liberalism might stress it less. Yet I think context transcendence, no less than context embeddedness, has a place on the list of human characteristics. A changeless being, or rather a being without the potential for change, even if possessed of all the capabilities on Nussbaum's list, would not be considered fully human. We seem to be committed to the idea that the potential to change ourselves - our character, our context, our emotional and philosophical commitments - is part of our essential humanity. At the same time, we are committed to the necessity of stability of context. A being that changed itself all of the time, by changing all of its relationships all of the time, would not be considered fully human either. The next task for personhood theory, I believe, is to come to grips with this dialectic of contextuality.

Legal Topics:

For related research and practice materials, see the following legal topics:Family LawMarital Termination & Spousal SupportGeneral OverviewReal Property LawEstatesFuture InterestsInvalid Restraints & Rule Against PerpetuitiesReal Property LawLandlord & TenantRent RegulationGeneral Overview

FOOTNOTES:

n1. Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1904 (1987).

n2. The contextuality needed for self-constitution includes relationships with other people as well as with the nonhuman environment, but this was not my focus.

n3. See infra part III.

n4. Perhaps what remains could be thought of as mere undifferentiated Kantian moral agency. Thus in the thinnest theory of the self we have the power of conceiving the good and the power of choice, but nothing is "attached" to this that makes us concretely unique as individuals. See Margaret Jane Radin, Reinterpreting Property 25-26 (1993).

n5. See Margaret Jane Radin, Compensation and Commensurability, 43 Duke L.J. 56 (1993).

n6. Compare, for example, my views on residential rent control, Margaret Jane Radin, Residential Rent Control, in Reinterpreting Property 72 (1993), with those of Robert C. Ellickson, Rent Control: A Comment on Olsen, 67 Chi.-Kent L. Rev. 947 (1991), or Richard A. Epstein, Rent Control and the Theory of Regulation 54 Brook. L. Rev. 741 (1988).

n7. See Radin, supra note 6.

n8. See, e.g., Ellickson, supra note 6; Roberto M. Unger, Plasticity into Power: Variations on Themes of Politics - A Work in Constructive Social Theory (1987).

n9. The feminist aspect of my project was not in my conscious mind when I began it fifteen years ago, yet now I think a feminist reading would be accurate.

n10. Martha C. Nussbaum, Nature, Function, and Capability: Aristotle on Political Distribution, in Oxford Studies in Ancient Philosophy 145, 145 (Julia Annas & Robert H. Grimm eds., Supp. 1988) [hereinafter Nussbaum, Nature, Function, and Capability].

n11. Id. at 145-46.

n12. Id. at 146.

n13. Martha C. Nussbaum, Human Functioning and Social Justice - In Defense of Aristotelian Essentialism, 20 Pol. Theory 202, 205-07 (1992) [hereinafter Nussbaum, Human Functioning].

n14. Hilary Putnam, The Many Faces of Realism 17 (1987).

n15. See infra part V.A.

n16. Nussbaum, Nature, Function, and Capability, supra note 10, at 174-75.

n17. Id. at 176.

n18. See Martha C. Nussbaum, Aristotelian Social Democracy, in Liberalism and the Good 203, 217-26 (R. Bruce Douglass et al. eds., 1990) [hereinafter Nussbaum, Aristotelian Social Democracy].

n19. Nussbaum, Human Functioning, supra note 13, at 216; Nussbaum, Aristotelian Social Democracy, supra note 18, at 219.


n21. Nussbaum lists eight items in Martha C. Nussbaum, Non-Relative Virtues: An Aristotelian Approach in Midwest Studies in Philosophy Volume XIII - Ethical Theory: Character and Virtue 32, 48-49 (Peter A. French et al. eds., 1988) [hereinafter Nussbaum, Non-Relative Virtues]. As I discuss below, the list is intended to be provisional.

n22. Nussbaum, Human Functioning, supra note 13, at 216; Nussbaum, Aristotelian Social Democracy, supra note 18, at 219; see also Nussbaum, Non-Relative Virtues, supra note 21, at 48.

n23. Nussbaum, Human Functioning, supra note 13, at 217-18; Nussbaum, Aristotelian Social Democracy, supra note 18, at 220-21; see also Nussbaum, Non-Relative Virtues, supra note 21, at 48.

n24. Nussbaum, Non-Relative Virtues, supra note 21, at 48; see also Nussbaum, Human Functioning, supra note 13, at 218; Nussbaum, Aristotelian Social Democracy, supra note 18, at 221.

n25. See Nussbaum, Non-Relative Virtues, supra note 21, at 48; Nussbaum, Human Functioning, supra note 13, at 218; Nussbaum, Aristotelian Social Democracy, supra note 18, at 221.

n26. Nussbaum, Human Functioning, supra note 13, at 219; see also Nussbaum, Non-Relative Virtues, supra note 21, at 49; Nussbaum, Aristotelian Social Democracy, supra note 18, at 222.

n27. Nussbaum, Human Functioning, supra note 13, at 218; Nussbaum, Aristotelian Social Democracy, supra note 18, at 221; see also Nussbaum, Non-Relative Virtues, supra note 21, at 49.

n28. See Nussbaum, Human Functioning, supra note 13, at 219; Nussbaum, Non-Relative Virtues, supra note 21, at 49; Nussbaum, Aristotelian Social Democracy, supra note 18, at 222.

n29. Nussbaum, Aristotelian Social Democracy, supra note 18, at 222.

n30. Nussbaum, Human Functioning, supra note 13, at 219-20; Nussbaum, Aristotelian Social Democracy, supra note 18, at 223; see also Nussbaum, Non-Relative Virtues, supra note 21, at 49.


n32. Nussbaum, Human Functioning, supra note 13, at 222; see also Nussbaum, Aristotelian Social Democracy, supra note 18, at 225.

n33. Nussbaum, Human Functioning, supra note 13, at 223.

n34. See id. at 216.

n35. Id.

n36. Nussbaum, Non-Relative Virtues, supra note 21 at 49.



n39. Id.

n40. Id. at 226.

n41. Id. at 229.

n42. Id. at 226.

n43. See Nussbaum, Human Functioning, supra note 13, at 222.

n44. See Nussbaum, Aristotelian Social Democracy, supra note 18, at 229.

n45. See id. at 229-30.

n46. Id. at 230.

n47. Id.

n48. Id. at 231.

n49. Id. at 233-34.

n50. See Margaret Jane Radin, Contested Commodities chs. 12-14 (forthcoming 1996).


n52. Afterword, Symposium on the Renaissance of Pragmatism in American Legal Thought, 63 S. Cal. L. Rev. 1911, 1914 (1990).


n54. Id.


n56. Karl Marx, Private Property and Communism, in Economic and Philosophic Manuscripts of 1844, at 32 (Dirk J. Struik ed. & Martin Milligan trans., 1964).


n58. Id.

n59. Id.

Notes on Margaret Jane Radin One

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