M. Nussbaum의 자연법사상 ― 감성(emotions)과 능력(capabilities)을 중심으로

Abstract

On this paper, I am trying to reveal the aspect of natural law through capability approach and emotions, in particular, compassion, in Martha Nussbaum’s philosophy. Her thought about natural law introduces multiculturalism in the ethical and legal universalism. In particular, her interest in emotions provides a new thought for liberal justice theories according to Aristotelian tradition. Nussbaum deals with the substantial idea of justice. She frames a minimum threshold of ten capabilities which contain the items of the list like life, bodily health, bodily integrity, senses (imagination, and thought), emotions, practical reason, affiliation, other species, play, control over one’s environment, in order for all citizens to have real opportunity and liberty, with reference to constitutional law. Ten functional capabilities imply an adequate measure of ‘the quality of life’, to get a life of human dignity as a principle of each person’s capability. The first aspect is that the terms of functional capabilities are to be the proper answer to represent the meaning of ‘nature’, one of ‘non-animal human being’. Because Nussbaum argues that ten capabilites have universal values. The capabilities approach is regarded as “like a long list of opportunities for functioning”. Nussbaum claims that there are three types of capabilities, basic capabilities, internal capabilities, and combined capabilities. Nussbaum says that “the absence of a function is really a sign that the capability itself has been surrendered”. But the introduced emotions by Nussbaum, play in the role to support and make upon real humanity in legal system. Emotions such as compassion, and shame and disgust takes positive and negative influences as a basis of legal judgment. Nussbaum’s book in the field of law and literature, Poetic Justice focuses on an equity of a judge in doing legal judgement as a legal method. Also the judge like a poet reduces the world into a decision such as a short poem. Not only emotion but also reason is important to get to justice. I argued and called Nussbaum’s thought, which focuses on ten functional capabilities including emotions adding to universal value, a kind of ‘Natural Law’ theory.