Posted by: L | June 7, 2007

Lucifer’s Defense: Martha Nussbaum fibs under oath

My question: how can you trust the facts of a scholar who isn’t above twisting words to suit her purposes under oath?

Here’s the case, as described by Gerald Bradley, “In the Case of Martha Nussbaum,” in First Things in 1994.
Mind you, I sympathize with Nussbaum’s goal, but at least according to this account (which I tend to believe going by other things I’ve read of hers), her methods are wrong.

The Bradley piece is interesting because it makes a broader argument — that a lot of scholarship in the humanities today is actually advocacy and more like a lawyer’s brief than scholarship. And that’s tainted everything else in academics.

Bradley’s first example, omitted here, is the erroneous use of historical evidence in court to make it seem as if most nineteenth-century feminists did not support laws restricting access to abortion, whereas – says Bradley, referencing author James Mohr, cited by Professor Sylvia Law in the 1989 Webster case – they did.

Now here’s the excerpt, which deals with Colorado’s Amendment 2, which would have prohibited laws making gays a protected minority.

Note, this does not mean that gays would have been declared non-persons, as some said at the time. But it would have allowed, say, a private landlord who objected to homosexuality to not rent to gay couples. The question before the court was whether a law like that affirmed a mere prejudice or whether it was rooted in non-religious philosophical principles as well. That’s the “rational basis” test in law. Classical texts were brought in to court to figure out if pre-Christian Greeks like Plato and Aristotle (that is, pagans) had objections to homosexuality. (I can’t assess the argument myself, so I am going by Bradley’s assessment).

For the amendment, John Finnis, an Oxford moral philosopher, said the pagans did object. Against it, Nussbaum tried to argue that it was only the Christians who did.

For the amendment to be struck down (and minority classification supported), a simple disgreement with Finnis was not enough. The amendment (opposing minority classification) would stand still stand, for it now had a “rational basis,” i.e., it wasn’t mere prejudice at work. The issue was debatable.

But it was just this diversity of rational opinion that Nussbaum needed to eliminate to overturn the amendment:

“Nussbaum tried to destroy Finnis’ contentions by saying that his moral argument was a sectarian Catholic view without foundation in the secular and rational “natural law” views of Plato, Aristotle, and the Stoics. She rejected Finnis’ appeal to Plato on the ground that it relied on English translations which falsified Plato’s texts. In reality, she maintained, neither Socrates nor Plato nor Aristotle had moral objections to homosexual conduct that did not involve coercion, prostitution, or the seduction of students. She repeatedly drew attention to her mastery of the classical languages and intimate familiarity with the classical texts, implying (falsely) that Finnis has access to classical writers only in translation. She went on: “I have to say that Finnis is no classicist. He’s a distinguished philosopher and religious authority, but he has no training in classics, and he has access to the ancient texts only through translations. He’s made a pretty cursory examination even of those. . . .”

Robert George of Princeton then gave evidence contending that the translations which Finnis had quoted were confirmed by translations of the same passages given by classicists accepted by Nussbaum as highly authoritative. Such classicists include Sir Kenneth Dover, the author of the leading book on Greek homosexuality and, according to Nussbaum herself, a “giant” in the field. Moreover, George argued that Nussbaum had misrepresented both Dover and Finnis. The decisive engagement was joined.

On the last day of the trial, Nussbaum filed an affidavit in which twenty-four single-spaced pages are devoted to these issues. On the same day, Finnis filled an affidavit of twenty-four double-spaced pages in rebuttal of Nussbaum’s oral testimony. George filed a short affidavit rebutting points made against his testimony in the first twelve paragraphs of Nussbaum’s affidavit. She had sent him those (but only those) paragraphs the previous day, together with a letter demanding that he retract his claims that she had misrepresented Finnis and Dover.

Nussbaum made some rather remarkable statements in court…….

“Nussbaum went on to claim that “in the thousands of occasions of its occurrence in the language,” “the word” does not once convey any nuance of wrongdoing. By “the word,” she meant tolmao in its various forms (for she had just referred to “Plato’s use of the word” in “many passages,” and the form tolmema itself occurs but once in Plato). She failed to inform the court that the very dictionary that she was citing (like its authoritative successor) indicates that tolmao‘s primary meanings include: “to have the courage, hardihood, effrontery, cruelty, or the grace, patience to do a thing in spite of any natural feeling.” (Emphasis added.)Nussbaum asserted the non-pejorative (“morally neutral”) character of all the “thousands of occasions of its [tolmao’s] occurrence in the language,” and appealed to the “many passages” where “Plato’s use strongly connotes approval.” What she withheld from the court is the elementary information that, in Plato’s Laws alone, about two- thirds of the uses of tolmao are manifestly pejorative, and many spectacularly so. For instance, the term signifies for Plato the depraved and abandoned shamelessness exemplified in such enormities as slaughtering one’s own mother, father, or brother, or robbing temples (all of which, according to Plato, deserve the gravest penalties, including death), as well as (just a few pages after Laws 636) the more generic shamelessness involved in saying, permitting, or doing what is shameful (aischron) (Laws 649d).

These matters were not belabored by the witnesses as some fascinating but arcane academic dispute, as Jeffrey Rosen’s account of the trial in The New Republic implied. This is no more a haggle about a word than the question of whether Tonya Harding knew about the Kerrigan assault “before” or “after” it took place is a trivial matter of what time it happened to be. It is noteworthy that neither Nussbaum nor the other participants knew then that Judge Bayless would not in the end rule on the “rational basis” question. (It may even be that his reticence to do so owed something to the dispute I am describing.) Whether Nussbaum could show that Finnis’ classical scholarship was distorted by his Catholic commitments was likely to be a critical part of the anticipated decision.

The Amendment 2 episode raises, as did the historians’ brief in Webster, the important question of ethical standards for academic participation in public policy debates. The question has yet to receive the attention from academics that it deserves. Nussbaum seems to have backed off her early demand for a retraction from Robert George. After Finnis devastatingly exposed her claims, she began to paint the whole affair as a good faith dispute among scholars.

But the Amendment 2 trial was not a scholarly disagreement. It was a matter of what it means to be and to hold oneself out as a scholar. More particularly, when one holds oneself out to public authority as a scholarly expert, does one forswear dissembling and distortion however deeply one desires to advance a cause? The link between behavior of the sort engaged in by Mohr and Nussbaum and the phenomenon of “political correctness” in the academic world is well worth considering. One can only imagine the fate of a historian who did what Mohr did as part of an effort not to support “abortion rights” but to protect fetal rights, or the fate of a philosopher who did what Nussbaum did not to advance the cause of the homosexual movement but to oppose it. Something in the academy has gone radically wrong.”

Gerard V. Bradley is a professor at the University of Notre Dame Law School.

My Comment:

As evidence that this isn’t an isolated incident in Nussbaum’s career, here’s a piece by the always funny Camille Paglia on the subject of Nussbaum’s ability to get onto the career-track side of any argument – over-praising queer theorists when needed and beating them up (verbally, I mean) when the fickle winds of academe shift.

(Full disclosure: In general, I support whatever it is that gay rights advocates want for themselves — civil unions, church weddings, the whole catastrophe of modern marriage…they’re welcome to it. I just don’t want them to add the category of “homophobia” to the growing list of thought crimes awaiting, first, the censor and then, I suppose, involuntary drug therapy if not actual electroshock…)

My point in all this is that some scholars (like Nussbaum), seem to feel qualified to tell people what constitutes a “good” for them, with the “police powers” of the U.S. state to back them up. (Well – maybe I should qualify this, because she’s rightly questioned the use of economic sanctions against countries which violate human rights. Still, she’s also played a role in the World Bank and from there to the Euston Manifesto might be only a step…)

In their minds they’re always on the side of the angels, so they feel justified in distorting history, whether in their books – as in this new one on India – or in the courtroom, as here.
I might sympathize with the substance of her positions, but her manner of proceding simply doesn’t meet the test of scholarship, or in this case, even of ordinary ethics.


I should clarify that as a libertarian who thinks that trading is the best route to peace, I am on principle opposed to economic blockades and sanctions against any country (that includes China, Cuba, South Africa, Israel, Iraq). I think too many innocent people would suffer for their governments’ bad actions. On the other hand, I do support targeted boycotts or censure of companies (since their employees can always work elsewhere and have some say in the matter), individual universities, politicians and journalists (who have a special responsibility to be truthful and speak out about abuses).

Here, I am trying to use libertarian principles in making the distinction. It’s not easy to renounce your citizenship and become a citizen elsewhere. It is relatively easy (although still hard, I admit) to change jobs. Besides, when countries suffer economic blockades, critics of the government also suffer and find it harder to organize resistance. The government itself begins to enjoy the support of its citizens when it’s attacked with trade sanctions – as was the case with Iraq. Saddam just got more popular. Very often the most reactionary elements end up being strengthened, as also happened in Iraq. In general, trade sanctions tend to move people closer to war.


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