"Shameless Acts" Revisited:

Some Questions for Martha Nussbaum

by Robert P. George
Robert P. George is associate professor of politics at Princeton University, Princeton, NJ
08544. The author wishes to thank the following scholars for their careful readings and
useful comments on earlier drafts of this article: Stefan Bauer-Mengelberg, Edward
Champlin, John Cooper, John Finnis, Kevin Flannery, Harry Frankfurt, Mary Lefkowitz,
Hugh Lloyd-Jones, Richard Martin, Alexander Nehamas, David Novak, David Potter,
and Ralph Rosen.
Author's Note: This article is dedicated to the late Barry Gross, whose devotion to the ideal of
scholarly integrity was exemplary, and who insisted that the matters discussed in this article not be
passed over in silence.
In Evans v. Romer, the Colorado Amendment 2 Case,[1] so called, Martha Nussbaum, then
University Professor and Professor of Philosophy, Classics, and Comparative Literature at Brown
University,[2] offered expert testimony in court and by affidavit purporting to show that moral
objections to homosexual conduct did not exist, or were, in any event, not significant, in preChristian Greek and Roman civilizations or in the major philosophical traditions associated with
them. According to her, such objections originated in the West with Christianity. Moral theories
that condemn homosexual conduct as contrary to natural law or the natural human good are, she
asserted, "inherently theological."[3]
I offered testimony to contradict these claims, as did John Finnis, Professor of Law and Legal
Philosophy at Oxford University. In a subsequent article,[4] Finnis argued that Professor
Nussbaum's testimony under oath in the Amendment 2 case amounted to a series of
misrepresentations, distortions, and deceptions. He accused her of falsifying the positions not only
of Plato and Aristotle but also of such modern commentators on Greek philosophy and public
morality as Sir Kenneth Dover, A.W. Price, and Gregory Vlastos. Indeed, he accused her of
misrepresenting her own published work. He alleged, moreover, that she had engaged in an act of
gross deception of the court by attempting to pass off as "the authoritative dictionary relied on by
all scholars in this area," viz. classics, a definitively superseded nineteenth-century edition of
Liddell and Scott's A Greek-English Lexicon. Finally, he accused her of dissembling about the
scholarly credentials of Professor David Cohen, whose work Finnis had introduced to show that the
public morality of classical Athens in fact condemned homosexual conduct.
Professor Nussbaum has now published a lengthy article of her own on the question of classics
scholarship in the Amendment 2 case. It appears in Virginia Law Review,[5] where it occupies one
hundred and thirty-seven pages, and contains four hundred and sixty-eight footnotes.[6] The article,
which is based on a lecture Professor Nussbaum presented at the University of Virginia Law
School, criticizes the testimony of various witnesses for the State of Colorado (including Professor
Finnis and me) and purports to answer some of Finnis's allegations against her. It includes an

appendix co-authored with Sir Kenneth Dover,[7] and cites as "on file with the Virginia Law
Review Association" letters from various classics scholars.
Readers of Virginia Law Review, particularly those who have not read Finnis's article in Academic
Questions, will likely not realize that Professor Nussbaum offers no reply at all to the great
majority of the very serious allegations of abuse of scholarship that Finnis made against her.[8]
And, even with respect to the small number of charges she does purport to answer, readers will
likely not know that her answersalbeit (apparently[9]) supported by such scholars as Dover and
Price (whose work Finnis had accused her of misrepresenting)do not exonerate her of the
misconduct alleged by Finnis. Let me give some particulars.[10]
Consider, first of all, Professor Nussbaum's treatment of the classics scholar David Cohen. In his
affidavit, Finnis had introduced Cohen's book Law, Sexuality, and Society: The Enforcement of
Morals in Classical Athens[11] to explain "what is questionable about the picture, in certain
respects sound and illuminating, drawn in works such as Dover's Greek Homosexuality (which is
foundational for contemporary pro---gay' classical scholarship)."[12] According to Cohen, classical
Athenian public morality was far from unambiguously accepting of homosexual conduct; and,
though such conduct was not punishable as a matter of criminal law, Athenian society imposed its
moral judgment against it in a variety of formal and informal ways. If Cohen is right about
Athenian public morality, then Professor Nussbaum's claim that Christianity introduced moral
objections to homosexual conduct in the West immediately collapses.
So, how did Professor Nussbaum deal with Cohen? She alleged that "Cohen...is not a classicist."
She claimed that he "has never been employed by a department of Classics". "He is," she stated, "a
Professor in a department of Rhetoric, with a degree in law." His "well-intentioned" book on
Athenian public morality, she declared, "falls sadly short in its coverage of the evidence." For
Cohen had not, she said, discussed the "dream book" of Artemidorus, "presumably because it was
not available in English translation at the time he wrote the book."[13]
The facts, however, are as follows: Professor Cohen is a classicist (and, in truth, a scholar of
considerable distinction in the field). He holds appointments in the departments of Rhetoric and
Classics at the University of California at Berkeley. He holds a Ph.D. in classics, from Cambridge
University. And, contrary to what Finnis termed Professor Nussbaum's "sly, defamatory
suggestion," he can (and does) read Greek at the high level of proficiency necessary to conduct
original scholarship in Greek history. Had he considered Artemidorus who lived four centuries after
the period Cohen was concerned with in his bookin any way relevant to understanding classical
Athenian law and public morality, he would not have required a translation of the "dream book."
Since Professor Nussbaum testified under oath, her misrepresentations, if she knew them to be
such, probably constituted perjury. Did she know that Cohen in fact possesses the scholarly
qualifications she told the Court he lacked? Finnis reports that "[a]ll these facts about Cohen
should, he told me, be well known to Professor Nussbaum, since he personally recounted them, in
answer to her questions, during a long conversation they had in Chicago in 1992."[14] Professor
Nussbaum testified in Colorado in October of 1993.
In her Virginia Law Review article, Professor Nussbaum, while retracting none of her

disparagements of Cohen's scholarly credentials, treats him more gently, and, by way of citation,
invites her readers to "see" his letter to her of 27 April 1994, "on file with the Virginia Law Review
Association." She reports that "Cohen holds that the proper way to use his book in the context of
these public issues is to argue that the state has no business trying to use the law to enforce
morality."[15] The suggestion, one supposes, is that Cohen shares Professor Nussbaum's moral and
political views about sodomy statutes and other morals laws (none of which were at issue in
Colorado) and, perhaps, her view as to which side had the better Constitutional argument in the
Amendment 2 litigation. But none of this is relevant to the question whether David Cohen teaches
in a classics department, holds a doctorate in classics (in addition to a degree in law), or reads
Greek. Either he does or he doesn't. And since he does, and had told Professor Nussbaum that he
does, she should explain why she, while under oath, stated or plainly implied that he doesn't.
Professor Nussbaum's use of the letter from Cohen turns out to be typical. Finnis argued that she
had misrepresented the published views of various scholars, many of whom hold moral and
political views like her own and unlike Finnis's and mine. She obtained letters from some of these
scholars, which she cites in a way so as to leave the impression that they support her position
generally in her dispute with Finnis and me. In some cases, perhaps, scholars have attempted to
support her even on questions of the integrity of the use of their work; this seems to be true, for
example, of Sir Kenneth Dover, the author of three letters that she cites and the co-author of the
aforementioned appendix to her article. These efforts, however, fail to get Professor Nussbaum off
the hook. In the end, they simply make clear what knowledgeable readers of Finnis's affidavit and
article have known all along, namely, that many of the late-twentieth century scholars he cites to
show that Greek civilization and Greek philosophers had moral objections to homosexual conduct
do not themselves have such objections.
The appendix co-authored by Professor Nussbaum and Sir Kenneth Dover says that "because
Professor Finnis' citation of Dover as if he supports Finnis' position has made public clarification of
Dover's position urgent, we jointly state our position below."[16] But for which of his positions did
Finnis cite Dover? Finnis manifestly did not cite Dover as someone who personally objected to
homosexuality or who holds that Athenian public morality was marked by substantial moral
objections to homosexual conduct. Indeed, Finnis noted that Dover's work on the latter point is
"foundational for contemporary pro-gay' classical scholarship," and he introduced Cohen's work
precisely to "explain what was questionable" in the picture of Athenian attitudes drawn by Dover.
So it comes as no surprise to find Dover opposing Finnis's views in this respect.
What is surprising is Dover's apparent willingness to offer some measure of support for Professor
Nussbaum's claims regarding his position on Socrates's (and Plato's) view of homosexual conduct.
This was one of the most egregious of her misrepresentations to the court in Colorado. The story is
worth telling in some detail.
On the witness stand, Professor Nussbaum was asked point-blank by the attorney for the State of
Colorado defending Amendment 2 whether Sir Kenneth Dover, author of Greek Homosexuality,
had reached the conclusion that Socrates, among others, "condemned homosexual conduct." Her
answer was unequivocal:
No, he didn't reach that conclusion. He reached the conclusion that they condemned

certain forms of conduct, in particular, that Socrates condemned the seduction of

students; the conclusion that in Plato's dialogues we find condemnation of sex where
bribery or prostitution is involved.[17]
Testifying as a rebuttal witness the next day, I simply read aloud to the court from Dover's book:
Xenophon's Socrates lacks the sensibility and urbanity of the Platonic Socrates, but there
is no doubt that both of them condemn homosexual copulation.[18]
Readers will note, as the judge no doubt did, that there is no suggestion in this unequivocal
statement that, in Dover's view, Socrates condemned homosexual conduct only in the particular
relationship of teacher and student. What is "condemned" is homosexual conduct ("copulation") as
such.[19]
When I returned from Colorado to Princeton, I found waiting for me a fax from Professor
Nussbaum demanding a retraction of my claim that she had misrepresented the position of Sir
Kenneth Dover, asserting that it was "(a) false, (b) produced with reckless disregard for the
truth...and (c) damaging to [her] reputation as a scholar."[20] Was she claiming that Dover had
abandoned the view he had expressed so unambiguously in Greek Homosexuality?
In a passage from an affidavit that she was then preparing, and which she attached to her letter to
me, Professor Nussbaum stated that "George, though making clear on the stand that he was reading
from the second edition of Dover's book, did not inform the court that it is the Postscript to the
second edition (pp. 168-70) in which Dover explains the changes in his views, among which is
Dover's express rejection of many of his earlier restrictive statements on anal and oral sex."[21]
This suggested to the court, as it was undoubtedly designed to do, that Dover had in fact rejected,
indeed expressly rejected in his Postscript, the views he had published in his first edition about
Socrates's position on homosexual acts. And this suggestion is utterly false. As I pointed out to the
court in a reply to Professor Nussbaum's affidavit, "Here Nussbaum impliesthough she is careful
not to statethat in his Postscript Dover retracts or modifies his view that Plato's Socrates, no less
than Xenophon's, condemns homosexual copulation. In fact, the Postscript does not even mention
Socrates, much less his views on homosexual acts."[22] Actually, Dover's short Postscript retracts
none of what he said about the moral conclusions drawn by any Greek philosopher regarding
homosexual conduct. Professor Nussbaum's sworn suggestion to the contrary was simply
outrageous.
In her letter to me and in her affidavit, Professor Nussbaum claimed that "when one reads the rest
of what Dover writes, the condemnation is in the nature of the pupil-teacher relationship."[23]
However, when one reads "the rest of what Dover writes," one finds nothing of the kind. Dover's
unambiguous conclusion regarding Socrates' condemnation of homosexual copulation is nowhere
in his writings retracted or even qualified. So, again, Professor Nussbaum's testimony was false.
Did she know it to be false when she gave it? I do not know. However, because I suspected that
Nussbaum might attempt to induce Sir Kenneth Dover (whose liberal sympathies regarding the
morality and the politics of homosexuality are well known) to provide some cover for the testimony
she gave regarding his views, I urged Finnis, with whom I was working on a reply to Professor
Nussbaum, to write to Sir Kenneth and ask about his views.

On 19 January 1994, Finnis wrote to him, asking, among other things,

--whether your statement on p. 160 of Greek Homosexuality that Socrates, as portrayed
by Plato and Xenophon, condemned homosexual copulation really says no more than that
Socrates condemned homosexual copulation within pupil-teacher relationships [as
Nussbaum had testified], or rather (as I think) conveys your judgment that Socrates, as so
portrayed, condemned such conduct (rightly or wrongly) without limiting the
condemnation either by type of copulation or type of context or relationship; [and]
--whether Greek Homosexuality (as I think) maintains that Plato (rightly or wrongly)
rejected all copulation between males, and not simply acts involving bribery or
prostitution [as Nussbaum had also testified was Dover's view].[24]
On 23 January 1994, Dover replied to Finnis:
Many thanks for your letter. I think I can give pretty definite answers to your questions.
1. It is certainly my opinion that the Socrates of Plato and Xenophon condemned
homosexual copulation as such, and did not confine the prohibition to any particular
relationships. I certainly meant to say that on pp. 159f. of my book. At the same time he
expected any normal male to experience homosexual desire, and he did not think that
occasional copulation --in an unguarded moment' completely vitiated a non-physical
relationship (p. 163). It is like a temptation to commit adultery or various forms of
dishonesty or violence; natural and normal to experience the temptation, but wrong to
yield to it.
2. Where one can distinguish Plato from his --Socrates,' i.e., in Laws, Plato condemns all
homosexual copulation (pp. 165-68 in my book).[25]
Dover's answers are indeed "pretty definite."
What, then, are we to make of Dover's willingness to sign on as co-author of an appendix to
Professor Nussbaum's Virginia Law Review article containing the following claim:[26]
In Greek Homosexuality, Dover stated that the Socrates of both Plato and Xenophon
"condemns" homosexual copulation. Moreover, in a letter to Finnis, Dover wrote: "It is
certainly my opinion that the Socrates of Plato and Xenophon condemned homosexual
copulation as such...."[27] First of all, however, Dover never claimed that Socrates
condemns this copulation as wicked, shameful, and depraving; he said quite clearly that it
was condemned as inferior to the pursuit of wisdom, on the grounds that one should not
pursue an inferior good when one might pursue a superior good.[28] "Inferior" does not
mean "wicked," nor does "condemns" mean "condemns as wicked and depraving."
Someone who says, "Polonius condemns borrowing," does not imply that Polonius
regards borrowing as wicked or depraved. Thus, Finnis' use of Dover's letter to support
Finnis' own position is inappropriate.[29]

This passage suggests that Dover, in Greek Homosexuality, says (indeed, says "quite clearly") that
Plato condemned homosexual conduct merely as an inferior "good" to the superior good of the
pursuing of wisdom. As readers of pages 153-170 (and especially pages 159-160) of Greek
Homosexuality will see, this is worse than an oversimplification; it distorts the account of Socrates's
views presented in that book. Nowhere in Greek Homosexuality (or, as far as I can tell, in any of his
other writings) does Dover present Socrates as describing or treating homosexual conduct as a good
of any kind. Rather, he consistently portrays Socrates as treating such conduct as bad, wrong,
dishonorable, and, as such, to be avoided. (Contrary to what the Nussbaum-Dover appendix here
and elsewhere insinuates, Finnis has never attributed to Dover the view that Socrates condemned
homosexual activity or other immoral sexual conduct in stronger terms, such as "wicked" and
"depraving.")
According to the account of Socrates's views Dover gives in Greek Homosexuality, homosexual
conduct is bad in a way that merits condemnation. One may accept or decline to accept Dover's
speculative explanation of Socrates's reasons for condemning such conduct, viz., that it is an
"inferior end" (not a "good") which vitiates the soul's capacity to pursue the higher (indeed highest)
end of wisdom. Either way, homosexual conduct differs radically from other non-wisdom-pursuing
activities which may nevertheless legitimately and honorably be pursued, and which Socrates never
suggests are (1) not honorable, (2) like pigs scratching against stones, or (3) like a poisonous
spider's bite, as the Socrates of Dover's Greek Homosexuality suggests homosexual acts are. This
explains why Dover, in his "pretty definite" answers to Finnis's questions about the accuracy of
Finnis's interpretation of his book (which, as the reader will recall, Dover had the opportunity to
consider in light of Professor Nussbaum's interpretation of it as expounded in her affidavit), likened
the temptation to engage in homosexual conduct to the temptation to engage in such manifest evils
as adultery, dishonesty, and violence. For Socrates, he says, succumbing to the temptation to
engage in homosexual conduct is wrong just as giving in to the temptation to deal dishonestly is
wrong. Surely Dover does not now mean to suggest that Socrates thought it "wrong to yield to" any
of these temptations merely because they are "inferior goods" to the pursuit of wisdom?[30]
An incautious reader of the passage I have quoted from the co-authored appendix might take away
the impression that Socrates's condemnation of homosexual acts, as presented in Dover's book, was
not a moral condemnation. Read carefully, however, the passage avoids denying what even a
casual reader of Greek Homosexuality knows, namely, that Socrates, according to Dover,
considered homosexual conduct to be (like adultery and dishonesty) morally wrong. Professor
Nussbaum's testimony was, however, by her own account, to show that "prior to the Christian
tradition, there is no evidence that natural law theories regarded same-sex erotic attachments as
immoral, --unnatural,' or improper."[31] (Theories that reach such judgments, she claimed, are
"inherently theological.") So, despite Dover's willingness to join Professor Nussbaum in declaring
that Finnis's "use" of his letter is somehow "inappropriate," nothing he is prepared to join her in
saying exonerates her of the precise allegation Finnis has cited that letter to support, namely, that
Nussbaum did not tell the truth when she testified that, according to Dover, Socrates did not
condemn homosexual conduct.
Indeed, the appendix would not have exonerated Professor Nussbaum of this charge even if Dover
had been willing to deny that Socrates's condemnation of homosexual conduct was a moral
condemnation. The lawyer for the State who cross-examined Professor Nussbaum asked her, not

whether Dover had concluded that Socrates (and Plato) condemned homosexual conduct "as
wicked or depraving," or even "as immoral," but rather, simply, whether Dover had concluded that
Socrates (and Plato) "condemned homosexual conduct." Her answer, under oath, was "no." And
that answer was false. Its falsity was clear from Dover's book and is confirmed by his letter to
Finnis. Nothing in what Dover joins Nussbaum in saying in the co-authored appendix alters that.
Another point on which Finnis, in his article in Academic Questions, accused Professor Nussbaum
of misconduct concerned statements she made, again under oath, in defense of her claim that Plato's
Laws, Book I, 636c, appears to contain a condemnation of homosexual conduct only because
translators, under the influence of Christianity, imported prejudices against homosexuality into
their translations. Although the dispute in the courtroom involved the question whether the relevant
passage in Laws, properly translated, in fact condemns homosexual conduct, the issue Finnis raised
in his article concerns Professor Nussbaum's honesty in defending her position.
For example, the passage in Laws 636c describes homosexual acts as para phusin, which all
translations that I have been able to discover render as "unnatural" or "contrary to nature."[32] Here
is Professor Nussbaum's sworn testimony in the face of these translations:
the terms tendentiously translated "according to nature" and "unnatural" or "contrary to
nature" actually refer (in my own expert opinion and the consensus of recent scholars
such as Price, whose study of the passage has been widely accepted) to "birth" and not
"nature" in any normative sense.[33]
By "Price" is meant the classicist A.W. Price; his study is contained in his book Love and
Friendship in Plato and Aristotle.[34] As the passage I just quoted from Professor Nussbaum's
affidavit makes clear, she invokes his work in a way that unmistakably suggested to the court that,
in line with "the consensus of recent scholars," he rejects the standard translations of para phusin in
Plato's Laws as "tendentious" and would render the term as something like "contrary to birth" (in
the sense of being inconsistent with a policy aimed at combating underpopulation). As Finnis
pointed out, however, when one actually looks at Price's study, one finds him unhesitatingly
employing the standard translation of para phusin as "unnatural," and translating the passage in
question as "homosexual intercourse, between males or females, seems to be an unnatural crime of
the first rank." (P. 230, emphasis supplied.)
Finnis further observed:
The conclusions of the book's long appendix "Plato's Sexual Morality" are squarely based
on Price's reasoned judgment that "unnatural" in these passages both conveyed and
entailed Plato's essential moral judgments on sexual conduct, yet Professor Nussbaum
swears that it supports her denial that the term had "any normative moral sense" and her
assertion that it signified for Plato no more than inconsistency with a temporary pronatalist colonial politics.[35]
Price's political and moral views regarding homosexual conduct, like those of Dover, resemble
Professor Nussbaum's rather than Finnis's or mine. Yet, what she describes as his widely accepted
study turns out to contain a devastating counterwitness to her claims that moral objections to

homosexual conduct were a Christian innovationa counterwitness whose existence she withheld
from view even as she implied to the court that Price's translation of para phusin in Laws 636c
eliminated the quality of moral condemnation of homosexual conduct conveyed by the
"tendentious" rendering of the phrase as "unnatural." Indeed, as Finnis put it, "Price's book in fact
argues, prominently and very explicitly, that Plato's main positions on the morality of sexual
conduct, as evidenced by the Republic and the Phaedrus as well as by the Laws, were (rather to
Price's regret) substantially the same as the positions maintained in the Catholic tradition."[36]
In giving testimony under oath, had Professor Nussbaum merely forgotten that Price, in perfect
harmony with other translators, had translated para phusin as "unnatural"? Did she not recall
Price's lament that Plato's main positions on sexual morality were essentially those of the Catholic
tradition, as reaffirmed by Pope Paul VI? Her Virginia Law Review article does not say, despite the
fact that she had a long memorandum from Finnis and me raising these issuesand containing many
more allegations of misrepresentation, distortion, and deceptionin plenty of time to include some
discussion of it in the article. The article does, however, cite two letters from Price ("on file with
the Virginia Law Review Association").[37] This gives the appearance that Price somehow
supports Nussbaum, and in one sensealbeit an utterly irrelevant onehe does.
In the portion of his first letter[38] quoted by Professor Nussbaum, Price makes two criticisms of
Finnis. First, he claims that Finnis and others on his side of the Colorado litigation "are well aware
that what motivated popular support for Amendment 2 was not respect for the natural law as they
interpret it, but attitudes of prejudice and antipathy[39] that contradict the heart of Christian
morality." Second, noting dissent among many Catholics regarding the Church's teaching on
contraception (teaching which Finnis and I, notoriously, support), he says that "to call Finnis's
argument sectarian would be to exaggerate its acceptability". Now, neither of these criticisms
provides Professor Nussbaum with any defense against Finnis's charge that she deceived the court
in suggesting that Price's book rejects, as "tendentious," the standard translation of "para phusin" as
"unnatural" and instead translates the phrase in some fashion that avoids negative moral
connotations. Nor do these criticisms excuse her withholding from the court the fact that Price's
book concludes that Plato, to the author's regret, held views regarding sexual morality remarkably
similar to those of the Catholic tradition (hundreds of years later).
The reader will recall that Price translated the noun "tolmema," as it appears in Plato's Laws 636c,
as "crime of the first rank." In Greek Homosexuality, Dover had translated "tolmema" as "crime"
and "crime of the first order." In rendering the term pejoratively, the translations of Dover and Price
were consistent with most other translations, including the one by Bury, which Finnis used (along
with Dover's) in his original affidavit introducing Laws 636c as an example of Plato's moral
disapprobation of homosexual conduct. In her testimony in court, Professor Nussbaum had
criticized Finnis's reliance on the Bury translation, which she cited as an example of a
mistranslation that imported a "personal opinion" against homosexual acts into the text of a
classical author. She claimed that Finnis himself "has access to the ancient texts only through
translations,"[40] and is "repeatedly tripped up by things that are not in the Greek."[41]
Professor Nussbaum asserted as her solitary evidence to support those claims that the correct
translation of "tolmema," indeed the only reasonable one, was a morally neutral one, such as
"venture" or "deed of daring." "Enormity," which had been Bury's translation, or any other

pejorative translation (e.g., Dover's "crime" and "crime of the first order"), she claimed, was not a
legitimate scholarly possibility. "There are some reasonable disagreements about meanings of
words," she declared in response to a cross-examiner's inquiry, "but the issues that I've raised with
Finnis arethey're not a disagreement. Those sentences [sic] just are not there in the Greek."[42]
Now, the question is not, and has never been, whether a nonpejorative translation of "tolmema" in
Laws 636c is reasonable; Finnis has remarked that "venture"
is indeed a quite possible translation, albeit a rather timid and unilluminating one. It
leaves entirely intact the condemnation of homosexual acts conveyed by the sentence as a
whole.[43]
The question was whether a pejorative translation, such as Bury's, was unreasonable, outside the
scope of scholarly possibility, so that, as Professor Nussbaum alleged, it falsified the sentence by
importing into it a condemnation not in the Greek text.
Her claim was doomed from the start because Finnis had cited not only Bury but, in the same line
of his affidavit, also Dover, whose Greek Homosexuality gives an even more condemnatory and
pejorative translation.[44] But, in any event, having chosen her line of attack, Professor Nussbaum
sought to establish her claim by introducing, inter alia, a definition of "tolmema" from a lexicon
that she identified in the version of her affidavit filed with the defendant State of Colorado on 22
October 1993, as
Liddle [sic], Scott, & Jones Lexicon of the Ancient Greek Language, the authoritative
dictionary relied on by all scholars in this area...
and, in the version filed with the court the same day, as
Liddle [sic], Scott, Lexicon of the Ancient Greek Language, the authoritative dictionary
relied on by all scholars in this area...
That Lexicon, she alleged in both versions, gives no pejorative translations for "tolmema"; it offers
only the neutral definitions "an adventure, enterprise, deed of daring." Her purpose in introducing
it, obviously, was to support her claim that "tolmema" in Laws 636c could not reasonably be
translated pejoratively, since the "authoritative dictionary relied on by all scholars in this area" did
not include a pejorative translation.
The shocking fact is that Liddell, Scott & Jones, A Greek- English Lexicon, the truly authoritative
dictionary relied on by all classicists (including, notably, Professor Nussbaum herself in her
published writings), includes, in addition to the meanings given for "tolmema" cited by her, the
manifestly pejorative "shameless act."[45] The whiting out of the ampersand and the word "Jones"
in the version of her affidavit served on the court enabled her to claim, ex post facto, that she was
actually citing an earlier edition of the Lexicon, one that does not include an explicitly pejorative
definition. The difficulty for Professor Nussbaum, however, is that the earlier edition is, in truth, a
long-superseded edition, which can in no way be considered "the authoritative dictionary relied on

by all scholars in this area."[46] So she has managed to trap herself: The version of her affidavit
served on the State is a falsification, because Liddell, Scott & Jones, A Greek-English Lexicon
contains precisely what she denies it contains, namely, a pejorative definition of "tolmema." The
version served on the court is equally a falsification, because the pre-Jones edition is not "the
authoritative dictionary..." Either way, what Professor Nussbaum told the court just isn't true.
In a letter to me dated 29 October 1993,[47] Professor Nussbaum claimed that the whiting out of
the ampersand and the name "Jones" in the version of her affidavit filed with the court was
attributable to the fact that the lawyers for her side
who filled up the footnotes and references, didn't realize that I use the edition without the
supplementation by Jones, since it is more reliable on authors of the classical period....I
don't even have the Jones [edition] around, so it would have been absurd to cite that.
As a lawyer myself, and having seen the form of her affidavit, I find it odd to imagine it falling to
the lawyers, rather than to Professor Nussbaum, to "fill up" references to classical texts and
lexicographical tools, but let that pass for now. The important thing is that she apparently cited the
pre-Jones edition of Liddell and Scott with full knowledge that the Jones edition includes the
pejorative definition of "tolmema." If so, this was no mere negligence, no innocent mistake. To
have revealed to the court the definition of "tolmema" given in the truly authoritative Jones edition,
far from advancing her case, would badly have damaged it.
As I pointed out in a letter responding to her,[48] the Jones edition is the one that she herself
regularly cites in her published scholarship, including her work on authors of the classical period
from Homer to Aristotle. For example, in her influential book The Fragility of Goodness,[49]
Professor Nussbaum refers to the Jones edition, not the nineteenth-century edition it superseded, for
the meaning of "biazesthai" and of "hubris" in Plato's Symposium, for the meaning of "orego" from
Homer to Plato, and for the meaning of "katharsis" in Plato and Aristotle.[50]
After a lecture[51] at Princeton, on 2 December 1993, Professor Nussbaum was asked by Barry
Gross, a philosopher at York College of The City University of New York, who had himself
submitted an affidavit for the State in the Amendment 2 case, about her citing the pre-Jones edition
of the Lexicon, and her failure to inform the court that the authoritative Jones edition actually
contained the pejorative definition whose reasonableness she denied. Here is her reply:
I considered it to be an absolutely useless entry, which supplies no guidance about the
meaning of any particular passage. I would never dream of submitting such a sloppy and
useless entry to a court.
She went on to say, falsely, that the procedure employed by Jones "as he described it, was not to
change Liddell's renderings for the authors that Liddell did study, but rather to add renderings for
authors that Liddell didn't study." As Finnis says "That was entirely untrue. Jones's description of
the revision says nothing of the sort."[52] The truth, which I invite the reader to confirm by simply
looking at Jones's own account of the matter in the Lexicon's Preface, is that he considered that "the
references to Plato and Aristotle [in the old edition] needed careful revision and some
amplification." (P. viii.) So this excuse for citing the pre-Jones edition as "the authoritative

dictionary relied on by all scholars in this area," and for hiding from the court the pejorative
definition contained in the Jones edition, does not get Professor Nussbaum off the hook either.
In the Virginia Law Review, Professor Nussbaum attempts to defend herself against Finnis's charge
of "reckless irresponsibility" in her use of the Lexicon:
[L]ater does not always mean better....A nineteenth- century scholar such as Liddell could
perfectly well be a better Platonist than a lexicographer of recent date....There is not
linear progress in scholarship in this field....
In short, if a lexicon is cited, it has no weight without an independent linguistic argument, though in
connection with such an argument it may have some corroborative value.[53]
A few pages later, she says that "Finnis points to the fact that the most recent edition of the Liddell
and Scott lexicon, as revised by Jones, includes --shameless act' as one possible meaning for the
noun tolmema."[54] Some readers may get the impression from this and other statements that
Finnis introduced Liddell and Scott's Lexicon into the litigation. He did not. Professor Nussbaum
herself introduced the Lexicon. She did so precisely to show that it did not identify a pejorative
translation of "tolmema" and thus supported her claim that such a translation was not a reasonable
possibility. Finnis pointed out that Professor Nussbaum was able to create the appearance of such
support only by citing as "authoritative" and "relied on by all scholars in this area" a dictionary long
supersededthe later editions, misleadingly now called by Professor Nussbaum "the most recent
edition" having in fact been around for more than fifty yearsand cited rarely, if at all, by
contemporary classicists, including Professor Nussbaum herself.
One can take any position one wishes on the proper or best translation of "tolmema," on the
question whether Plato's Laws contains a condemnation of homosexual conduct, on the issue of
whether moral objections to homosexual acts are a Christian innovation, on the morality of
homosexual acts, on the Constitutionality of Colorado's Amendment 2, or on any other substantive
question in the case and still feel the force of these questions: Why did Professor Nussbaum state,
under oath, that "Liddle, Scott, the authoritative dictionary relied on by all scholars in this area"as
she described it (giving no date or edition) in the version of her affidavit lodged with the
Courtcontains no pejorative definition of the term "tolmema"? Why did she fail to reveal to the
court that "Liddell, Scott, & Jones, the authoritative dictionary relied on by all scholars in this
area"as she (rightly!) described it in the version of her affidavit served on the Statecontained a
manifestly pejorative definition? The explanations she has given so far are too lame to credit.[55]
Professor Nussbaum reports in her Virginia Law Review article what Finnis had learned in
correspondence with Dover (and what he was careful to mention in n. 35 of "Shameless Acts in
Colorado,") namely, that Dover and Price have in correspondence with her withdrawn their
explicitly pejorative translations of "tolmema" in Laws 636c. Neither, so far as I can determine, has
stated a position on the question of whether Professor Nussbaum behaved responsibly in her
citation of the pre-Jones edition of the Lexicon as "authoritative" and "relied on by all scholars in
this area." In any event, the fact remains that Dover and Price, however their opinions have evolved
in the aftermath of the Amendment 2 trial, were firmly on record as translating the term
pejoratively at the point at which Professor Nussbaum testified. And even now Dover declines to

endorse her claim that a pejorative definition (such as "shameless act") is "unreasonable," though
such a translation "would not be my preferred translation; I would go for --audacious' rather than -shameless.'"[56] Of course, the question before us now is not what one might say for or against
Professor Nussbaum's translation or the one Finnis prefersit is, rather, whether Professor Nussbaum
observed the canons of scholarly honesty in defending her translation and her related claim that the
alternative translation was not a reasonable scholarly option. It is important not to conflate these
questions. Professor Nussbaumcould be correct in her assertions, and, at the same time, be guilty of
Finnis's charge of "(at best) reckless irresponsibility" in the means she employed to defend those
assertions.
Although, as I informed the court, I do not myself read Greek, I am confident from what Dover
says and what I have been told by other distinguished classicists that Professor Nussbaum is wrong
in claiming that a pejorative translation is not a reasonable option. As for the truth of Finnis's
charge of dishonesty, one needs no knowledge of Greek to form a sound judgment; as Barry Gross
said, "English will do nicely."

Note: This article appears on pages 24-42 of the Winter 1995-96 issue of Academic Questions, the
the journal of the National Association of Scholars. Please observe all protocols of copyright when
citing.
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Notes
1. In Evans, the plaintiffs "are seeking...to invalidate a State constitutional amendment passed by
referendum in 1992. It provided that no official body in Colorado may adopt any law or policy -whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall
constitute or otherwise be the basis of...a claim to minority status, quota preferences, protected
status or claim of discrimination.'" John Finnis, "--Shameless Acts' in Colorado: Abuse of
Scholarship in Constitutional Cases," Academic Questions, vol. 7, no. 4 (Fall 1994): 10-41, at 19.
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2. Professor Nussbaum has since left Brown for the University of Chicago, where she holds
appointments in the divinity and law schools.
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3. Anyone familiar with the Supreme Court's jurisprudence of religion will immediately recognize
the import of this claim. According to prevailing doctrine, laws or policies lacking a "secular
purpose" must be invalidated, as contrary to the Constitutional prohibition of laws respecting an
establishment of religion. Thus, Professor Nussbaum's testimony, if she could make her claim stick,
was likely to be extremely valuable to opponents of Amendment 2.
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4. Op. cit. n. 1.

5. "Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual
Controversies," 80 VIRGINIA LAW REVIEW (hereinafter "VLR") 1515-1651 (1994).
6. The length and level of detail of Professor Nussbaum's article creates a thick fog for readers
interested in the truth of Finnis's allegations against her of scholarly abuses. Such readers must
examine the article, and its numerous citations, with great care, always bearing in mind Finnis's
precise allegations, and noting instances in which Professor Nussbaum, in purporting to respond to
them, merely changes the subject.
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7. "Dover and Nussbaum Respond to Finnis," 80 VLR 1641-1651. Prior to its publication, a draft of
Professor Nussbaum's article was sent to me by a third party. Noting that it contained criticism of
my own testimony as well as criticism of Finnis and responses to some of Finnis's claims against
her, I got in touch with the Virginia Law Review to request space to reply. When this was denied, I
offered to draft a reply and submit it for consideration like any other uncommissioned piece. I
expressed the hope that the student editors would publish my response if, in their judgment, it met
the established standard for publication in Virginia Law Review. The student editor to whom I
spoke initially indicated that there was no reason why I could not make a submission "on spec,"
though he could not assure publication even if my work met the review's standard. A few days
later, however, I received a message from him on my voice mail informing me that there was no
point in my making a submission because, he had determined, the editorial board would not
consider publishing a reply to Professor Nussbaum's article.
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8. When she was writing her Virginia Law Review article, Professor Nussbaum probably did not
have a copy of the Finnis article. However, she did have a 6,500-word memorandum that Finnis
and I compiled, and which Finnis, as a courtesy, sent to her on 26 January 1994. It made
substantially all the allegations against her that were to appear in his article, as well as others that
considerations of space did not permit him to include. (The memorandum is on file with the Editor
of Academic Questions.) In reply to Finnis's cover letter inviting her to identify "any point on which
you think it is mistaken," she wrote:
I have looked at it, and I do indeed find numerous errors in it. Since I have received legal
advice not to correspond with you and Professor George about these issues beyond the
point represented by this letter, I regret that I am unable to point them out to you. My
associates and I will inform you of them on an appropriate occasion.
Letter from Martha C. Nussbaum to John Finnis dated 3 February 1993 (on file with the Editor of
Academic Questions).
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9. As this article goes to press, I have had no reply to a written request to the Editor-in-Chief of the
Virginia Law Review for copies of the letters cited by Professor Nussbaum in her article as "on file
with the Virginia Law Review Association." Obviously, this makes it exceedingly difficult to
assess the legitimacy of Professor Nussbaum's claims that these letters support the case she is trying
to make in her article. Since her honesty in the use of sources is precisely what is called into
question in Professor Finnis's article, her critics naturally wish to examine anything she cites.
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10. I am here concerned with the questions whether Professor Nussbaum was dishonest, or
otherwise behaved irresponsibly, in her sworn testimony as an expert in the Amendment 2 case. I
do not here respond to criticisms of my philosophical views (or Finnis's) by Professor Nussbaum or
others she cites. Nor do I respond to criticisms by her or others of interpretations of classical
thinkers or modern commentators except insofar as these touch upon allegations of misconduct by
Professor Nussbaum. It is true that I, like Finnis, hold what are today thought of as very
conservative moral views and that I, not entirely like Finnis, hold many conservative political
views. Many readers will prefer the quite different moral and political views held by Professor
Nussbaum, particularly as they pertain to the moral and Constitutional questions at stake in the
Amendment 2 case. However, the differences in moral and political viewpoint between Professor
Nussbaum, on the one side, and Finnis and me, on the other, are not my concern in the present
essay.
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11. New York: Cambridge University Press, 1991.

12. Op. cit. n. 1, p. 20 (footnote omitted).
13. Affidavit of Martha C. Nussbaum (in Evans v. Romer) sworn to on 21 October 1993
(hereinafter "Nussbaum Affidavit"), paragraph 30.
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14. Op. cit. n. 1, p. 34.

15. 80 VLR 1548, n. 120.
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16. 80 VLR 1641 (footnote omitted).

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17. Reporter's Transcript, Testimony of Martha Craven Nussbaum, Ph.D., 15 October 1993
(hereinafter "Nussbaum Transcript"), p. 23.
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18. K.J. Dover, Greek Homosexuality, updated and with a new postscript (Cambridge, Mass.:
Harvard University Press, 1989), p. 160.
19. Commenting on Socrates and Plato, Dover noted that "[c]ondemnation of homosexual acts as
contrary to nature was destined to have a profound effect on the history of morality." Greek
Homosexuality, p. 168. Indeed it was. How odd, therefore, to find Professor Nussbaum associating
Dover with the view that the general condemnation of homosexual acts was no part of the thinking
of pre-Christian philosophers such as Socrates and Plato. Incidentally, since Dover made clear in
the Preface to Greek Homosexuality that he personally does not share the general condemnation of
homosexual acts, his witness to the fact that Socrates (and Plato) did have moral objections to
homosexual conduct is all the more impressive.
20. Letter from Martha C. Nussbaum to Robert P. George dated 20 October 1993 (on file with the
Editor of Academic Questions).
21. Nussbaum Affidavit, paragraph 11.

22. Rebuttal Affidavit of Robert P. George, sworn to on 22 October 1993, paragraph 5.

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23. See n. 20.

24. Letter from John Finnis, FBA, to Sir Kenneth Dover dated 19 January 1994 (on file with the
Editor of Academic Questions).
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25. Letter from Sir Kenneth Dover to Professor John Finnis, FBA, dated 23 January 1994 (on file
with the Editor of Academic Questions). It is perhaps worth noting here that Finnis concluded his
letter to Dover of 19 January 1994, as follows:
I am writing to you, giving these indications of how I interpret Greek Homosexuality, in
the hope that if in any respect I am misinterpreting it, you will send me a line to say so. I
would not quote such a communication, or use either it or its absence to advance my case
by suggesting that you either tacitly or expressly have indicated your support of my
understanding on these points (or any others!). My wish is to correct, if you say it needs
correction, my understanding of your positions on these points.
In a postscript, Finnis said, "I enclose the relevant page of an affidavit of October 1993 by
Professor Nussbaum, to which I am preparing a response." On that page, Professor Nussbaum
repeats her testimony that Socrates, according to Dover, disapproved of homosexual acts only in a
pupil-teacher relationship.
In concluding his response of 23 January 1994, to Finnis, unequivocally confirming Finnis's view
that, according to Dover, Socrates (and Plato) condemn homosexual conduct as such, and not
merely (as Professor Nussbaum had alleged) in a pupil-teacher relationship, Dover invited Finnis to
"by all means quote any
part of this letter that you may wish to quote in any connection."
26. I have already remarked on the differences between Dover's moral views regarding homosexual
conduct and Finnis's (and my own). In her Virginia Law Review article, Professor Nussbaum, too,
calls attention to these differences: "In his forthcoming autobiography, Dover comments on [the
theme of the arousal of the soul by a visual response to bodily beauty] in a manner that makes
evident the wide difference between his own moral intuitions and those of Finnis. See Kenneth J.
Dover, Marginal Comment (forthcoming Nov. 1994)." 80 VLR 1572, n. 235. Dover's autobiography
has since appeared and it indeed "makes evident" the profound differences between Dover's moral
views and those of someone like Finnis in a number of areas. See, especially, chapter 26, "The
Aston Affair 1980-1985."
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27. Readers should note what is left out in the ellipsis: the words "and did not confine the
prohibition to any particular relationships." Remember, Professor Nussbaum's testimony was
precisely to assert that Socrates, according to Dover, condemned homosexual conduct only in the
particular relationship of pupil and teacher, and to deny that he condemned homosexual conduct
tout court.
28. Here no citation is given. I would direct readers to pp. 153-70 of Dover's book and, particularly,
to pp. 159-60, and ask them to judge whether Dover here "said quite clearly," or said at all, that

Socrates condemned homosexual copulation merely as an inferior "good" to the pursuit of wisdom.
29. 80 VLR 1645.
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30. Even if Dover now claims that his account of Socrates in Greek Homosexuality should be read
down in this way, he could not, and does not, make the same claim about his account of Plato in
that work, which begins its treatment of Plato as distinct from Socrates by portraying him as "no
longer in the mood for compromise or tolerance such as he shows for the [homosexual] pair who -lapse' in Phaedrus," and goes on to quote, precisely as summarizing Plato's views, the
condemnation of homosexual pleasuring as "a crime caused by failure to control the desire for
pleasure." Greek Homosexuality, p. 165.
31. Expert Witness Summary for Professor Martha Nussbaum, p. 1.
32. Here the reader will recall Professor Nussbaum's statement, in her Expert Witness Summary,
that "prior to Christian tradition, there is no evidence that natural law theories regarded same sex
erotic attachments [by which, the context makes clear, she means to include conduct] as immoral, -unnatural,' or improper" (emphasis supplied).
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33. Nussbaum Affidavit, paragraph 54.

34. New York: Oxford University Press, 1990.
35. Op. cit. n. 1, p. 29.
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36. Ibid..
37. She cites the first as an "Open Letter from Anthony Price, Lecturer in Philosophy, University of
York, to Martha Nussbaum (Dec. 12, 1993) (on file with the Virginia Law Review Association),"
80 VLR 1528, n. 37, though neither Finnis nor I have seen it or been told where it appeared.
38. Professor Nussbaum cites, but does not quote from, a second letter from Price, dated 12 May
1994 "(on file with the Virginia Law Review Association)," 80 VLR 1578, n. 271, which, as far as I
can tell, relates to a problem in the interpretation of Plato's Phaedrus not relevant to Finnis's
allegations of misconduct in her use of Price's work.
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39. Although it has no bearing whatever on the question whether Finnis's allegations of misconduct
against Professor Nussbaum are valid, I cannot help but remark that the charge Price is here quoted
as making against supporters of Colorado Amendment 2 seems itself to reflect "prejudice and
antipathy" against the many sincere Christians, Jews, and others whose moral and political views
regarding homosexual conduct and issues pertaining thereto deviate from his own. There is, no
doubt, an element of "prejudice and antipathy" in the motives of some people on both sides of this
moral and political debate. Having been to Colorado and spoken with many supporters of
Amendment 2, it strikes me as a smear to suggest in wholesale fashion that "popular support" for
the Amendment was motivated by such emotions. Reasonable people can and do disagree about
these issues.

40. Nussbaum Transcript, p. 10. Professor Nussbaum was here speaking from ignorance. Finnis in
fact is a skilled Latinist and possesses a sufficiently good understanding of Greek to confirm the
quality of the translations on which he relies, even if his Greek is not as good as, say, David
Cohen's. In her Virginia Law Review article, Professor Nussbaum acknowledges Finnis's claims in
this regard, and responds by (i) saying that the Greek texts of Plato used by Finnis (viz. the Loeb
editions) "are well known...to contain very poor editions...not supplied with the extensive critical
apparatus that a scholar requires for serious work on the text," and (ii) expressing doubt about
whether someone can assess a translation made by a translator whose knowledge of the language of
the text is generally superior to one's own. (See p. 1533, n. 54.) Her responses overlook the fact
that, as Finnis's affidavit indicated, Finnis had compared translations and only cited Loeb texts
where they were substantially in line with translations by other scholars, such as Dover. What an
expert witness in Finnis's position needs to do is quote translations that have sound scholarly
support and, where there is dispute, to be able to follow the argument between the translators and
their critics.
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Moreover, as Kevin Flannery has pointed out to me, Professor Nussbaum's talk of the Loeb
volume's "very poor" text and lack of "extensive critical apparatus" is a red herring. That volume's
text of Laws 636c1-7 (which Nussbaum chose to make central to her attack on Finnis) differs in
absolutely no relevant way from the texts to which she herself appeals. Her discussion of textual
matters in the Virginia Law Review article at pp. 1625-1634 seems tacitly to acknowledge as much.
(Readers who have followed this affair will not be surprised to discover further scholarly offenses
in her discussion of translation and text-critical issues on the pages just referenced in the Virginia
Law Review: see footnote 44 infra.)
41. Nussbaum Transcript, p. 11. The procedure adopted by Finnis (who did not hold himself out to
the court as a classicist)of cautiously comparing texts and translations in several languages, and
then quoting translations whose substance was fully confirmed by other versions acceptable to the
opposing witnessesproved eminently sound and serviceable compared with Professor Nussbaum's
confident reliance on her own translating skills. (In a letter to me of 29 October 1993, cited at n. 47,
infra, she asserted that her selection as assessor of the philosophical texts by the Loeb Library
indicated that she is "the living scholar in the Anglo-American community whose knowledge of the
Greek of the philosophical authors was judged to be the best." Having "steeped" herself in Plato
and Aristotle, she further claimed to "have a sense of the Greek that is somewhat like a native
speaker's sense after twenty-seven years, and probably as good a sense, where these authors are
concerned, as any living person has.") This reliance spectacularly tripped her up, leaving her to a
desperate defensive retreat that could be managed only by the falsifications of modern classical
scholarship (e.g., her alleged modern consensus around Price whom she imagines rejecting as
"tendentious" the standard translation of para phusin as "unnatural"), in which she was soon
detected by Finnis, and that has ended with her tacitly surrendering key linguistic claims she made
to the court.
42. Nussbaum Transcript, p. 22.
43. Op. cit. n. 1, p. 23. The rumor circulating in some quarters, that Finnis accused Nussbaum of

dishonesty because she disagreed with his translation of a Greek word, is preposterous. Finnis's
allegations against her pertaining to "tolmema" have to do, not with the reasonableness of her
preferred (neutral) translation, but rather with statements she made under oath (in English and
about English-speaking works of scholarship) in support of her claim that the competing
(pejorative) translations were unreasonable. It is to these statements that the present essay now
turns.
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44. The mass of scholarly opinion in favor of a translation which Professor Nussbaum had declared
to be outside the range of scholarly possibilities makes it difficult for her to defend her position
without further manipulations of the evidence. Thus, on p. 1627 of the Virginia Law Review, she
says that "all other translations known to me" (i.e., other than Dover's) take the two words
immediately following "tolmema" in the Greek ("ton proton") to mean "the first people who did it."
But on p. 1625 she has appealed to "the major philological commentary on the Laws," The Laws of
Plato, edited by E.B. England (1921). England, having stated that those two words seem at first
sight to have the meaning which Professor Nussbaum favors, argued carefully that they have
another meaning (which is neither the one she favors nor the one favored by Dover), and concluded
in favor of the following translation: "and that the audacity is in an especial degree due to unbridled
lust" (p. 231).
Again, the Virginia Law Review article extends her attack on Bury from the issue of translation to
that of the Greek text (see footnote 40 supra). This is a smokescreen. When she gets to textual
issues in relation to the passage which she made the focus of her attack, she is unable to point to
anything to fault, great or small, in the Bury text of the passage. To cover this embarrassing fact,
she diverts attention by launching a sweeping assault on the Oxford Classical Text (OCT) of Laws
(not Bury's Loeb text); and when she comes to identify the point at which the OCT differs from the
text she regards as sound in relation to Laws 636b1-d4, she gives a list of editors and translators
who favor the text she favors, and from that list carefully omits Bury.
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45. Thus, the definitive "Jones" edition of what classicists refer to as "Liddell and Scott" would
have been useless to Professor Nussbaum precisely because it contained the pejorative definition
she was alleging to be outside the realm of possibility for reasonable translators. That meaning was
introduced as one of a vast number of revisions, supplementations, and amplifications in the
twentieth-century revised edition of the original Liddell & Scott Lexicon, undertaken in 1911 and
completed in 1940 by a large team of scholars under the direction of Henry Stuart Jones, and since
supplemented. Please note that Liddell (not "Liddle") and Scott has always had the title "A GreekEnglish Lexicon" (not "A Lexicon of the Ancient Greek Language").
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46. If we allow that her citation "Liddle [sic], Scott & Jones" in the version of her affidavit served
on the State was in fact a mistake, then, as Finnis remarks, "Professor Nussbaum put a dictionary
before the court precisely as --the authoritative dictionary relied on by all scholars in this area,' but
the quotation that, she said, was from that dictionary is in fact from one that is not authoritative or
relied on by all scholars, or indeed any scholars." Op. cit. n. 1, pp. 25-26. Finnis goes on,
incidentally, to argue that Professor Nussbaum's claims about "tolmema" are "in substance a
falsification even of the 1897 edition's entry for tolmema." Loc. cit., p. 26.

47. Letter from Martha C. Nussbaum to Robert P. George, dated 29 October 1993 (on file with the
Editor of Academic Questions).
48. Letter from Robert P. George to Martha C. Nussbaum dated 17 November 1993 (on file with
the Editor of Academic Questions).
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49. Cambridge: Cambridge University Press, 1986.

50. Of course, it doesn't matter whether Professor Nussbaum owns a copy of the Jones edition or
"has it around." It is freely available in university libraries to which she has access. Judging from
her frequent citations to it in her published writings, she has no difficulty getting hold of it when
she needs it. So what is truly absurd is her claim that, since she doesn't "have it around," it would
have been "absurd" for her to cite it.
51. The James A. Moffett Lecture in Ethics.
52. Op. cit. n. 1, p. 26.
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53. 80 VLR 1621-1622. In her fn. 389, pp. 1620 ff., Professor Nussbaum quotes an open letter from
Richard Sorabji, director of the Institute for Classical Studies at the University of London, "on file
with the Virginia Law Review Association," to the effect that the Liddell and Scott Lexicon (by
which, I assume, he means the Jones edition, referred to by classicists and in the Jones edition itself
as "Liddell and Scott"), though "the best of the available dictionaries for the purposes of learning
Ancient Greek, it has to be used with caution in matters of scholarship, and can serve at best as an
initial source of opinions." (Sorabji's letter is quoted earlier, fn. 64, p. 1535, as critical of Bury's
translations for lacking "the kind of accuracy required for understanding precise philosophical
meaning." No indication is given, however, whether Sorabji supports Professor Nussbaum's
contention that a pejorative rendering of "tolmema" in Plato's Laws 636c is beyond the scope of
reasonable scholarly possibility. Nor is any indication given whether Sorabji states an opinion
regarding her honesty in citing the Lexicon in her sworn affidavit.) Professor Nussbaum also cites
A. W. Price's first letter (see n. 37) to the effect that lexicographers can make mistakes, so "[i]t
would be...erroneous to cite some particular edition of a Greek lexicon as if that was gospel." Of
course, none of this gives any cover to Professor Nussbaum. To repeat: She introduced the Lexicon,
telling the court, under oath, that it was "the authoritative dictionary relied on by all scholars in this
area," while hiding the fact that the Jones edition, which she and all other scholars regularly cite as
the authoritative dictionary, even exists. Since that edition, as she apparently knew, contradicted
her contention regarding the reasonableness of pejorative translations of "tolmema," she had a strict
obligation to inform the court of the difference between the nineteenth- and twentieth-century
editions and to state her reasons (if she could identify any) for preferring, in this case, the
nineteenth-century edition.
54. 80 VLR 1629 (footnote omitted).
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55. Finnis's article made several other allegations against Professor Nussbaum of misconduct in her
use of sources in testimony given under oath in the Amendment 2 case. These allegations she has,

as far as I can determine, thus far ignored in published writings. One hopes that she will take them
up in the future. At that time, perhaps, she will also answer some of the questions I have put to her
in this essay.
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56. Sir Kenneth Dover to Finnis, letter, 9 July 1994 (on file with the editor of Academic Questions.
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