CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

A Member of the Law Professor Blogs Network

Monday, February 3, 2014

Plaxton on Nussbaum on Sexual Instrumentalization

Michael Plaxton (University of Saskatchewan - College of Law) has posted Nussbaum on Sexual Instrumentalization (Criminal Law and Philosophy, 2014, Forthcoming) on SSRN. Here is the abstract:

In “The Wrongness of Rape,” Gardner and Shute argued that the English offence of rape primarily targets the wrong of objectification. As they put it: “That a rapist objectifies his victim by treating her as a mere repository of use-value is, in our view, what is basically wrong with rape.” Gardner and Shute tie objectification closely to instrumentalization – to the “conversion of subjects into instruments or tools.” In doing so, they explicitly purport to follow Martha Nussbaum’s understanding of what is morally problematic about objectification. Nussbaum observes that one may objectify another in one of several ways. But it is instrumentalization – understood narrowly as the mere use of another person – that she regards as the most inherently troubling. 



Gardner and Shute’s claim that the offence of rape primarily addresses the wrong of objectification risks proving too much. Objectification is rife in our culture. Why focus on rape, rather than objectification in its many other forms? Gardner and Shute recognized this problem, and purported to explain how penetration sets rape apart as an especially brutal, humiliating form of objectification. But what leaps out from Gardner and Shute’s analysis is not the idea that rape is an especially problematic form of objectification. What is striking is that Gardner and Shute engage in little explicit discussion of what does not count as instrumentalizing sexual touching. For our purposes, it is significant that Nussbaum herself does not regard the kinds of objectification that occur in the sexual context as necessarily instrumentalizing and, therefore, as morally problematic. Indeed, she is prepared to conclude that objectification “might be a wonderful part of sexual life.” 

In this paper, I want to explore more closely just what Nussbaum understands by instrumentalization, focusing in particular upon the meaning and role of mutuality in her analysis. Doing so, I argue, gives us insight into why sexual touching in three broad contexts may not be considered instances of instrumentalization: spontaneous sexual touching in a romantic context; non-spontaneous sexual touching in the context of intimate relationships; and prostitution. The last point may be most controversial given Gardner and Shute’s own stated view that prostitution involves instrumentalization. Even when we look to sexual touching in intimate relationships, however, Nussbaum seems to introduce ideas of implied consent that appear nowhere in Gardner and Shute’s paper.

http://lawprofessors.typepad.com/crimprof_blog/2014/02/plaxton-on-nussbaum-on-sexual-instrumentalization.html

| Permalink

Comments

Post a comment