Extending the capabilities approach: Non-Human Animals and Justice

In last week’s session, we discussed the final chapter of Nussbaum’s book, titled ‘Beyond “Compassion and humanity”’. Whereas previous chapters are primarily concerned with justice for human beings situated outside of the social contract, this chapter revolves around extending the social contract to include non-human animals. Although many of us (including me) would react sceptically to this notion, Nussbaum offers us a framework through which such a contract can be made possible. Nussbaum’s criticism of social-contract theorist John Rawls and Utilitarianism is convincing, but her own framework lacks the same convincing argumentation.

Non-Human Animals.  Image: District 9

From the get-go, it is clear that Nussbaum is providing us with a theory to elevate non-human animals from 'the state of nature' into a social contract. She argues that human beings have much in common with non-human animals in terms of sentience and intelligence, and thinks it plausible that ‘our relationship with animals should be regulated by justice, instead of war for survival and power that obtains’ (326). Her criticism of contractarianism in general and John Rawl’s theory in specific focuses on core contractarian assumptions of mutual advantage, rough equality and self-interest, as well as the notion of Kantian personhood. Although Nussbaums 'capabilities approach' builds, for the most part, on Rawl's contractarian-based theory, it finds an ally in Utilitarianism with regard to animal justice, which has 'done more for recognizing animal suffering as evil than any other theory' (338). Utilitarianism, like the capabilities approach, is an outcome-oriented theory, as opposed to the more institutional-centered contractarian doctrines. Despite the merits of Utilitarianism, Nussbaum criticizes a few core concepts of Utilitarianism, of which consequentialism (the right act promotes the best overall consequences) and sum-ranking (concerned with aggregating all preferences in order to form a coherent outcome) form the biggest problems. She argues that consequentialism leads politicians to pursue 'the good' (whatever that may be), which might prove detrimental for individual liberties. In contrast, Nussbaum's capabilities approach focuses on providing subjects of justice the basics. Moreover, she claims that sum-ranking is prone to providing downright bad results, as it 'never rules out in advance results that are extremely harsh' (343).  Nussbaum argues that the capabilities approach is able to incorporate justice for non-human animals, because of its alternative approach to personhood and its focus on capabilities. Instead of following Rawls in using the Kantian conception of 'the person', for which rationality is pivotal, Nussbaum follows the Aristotelian conception. Here, rationality is not given a central role, but rather is seen as a trait of a particular species. Its focus, then, is based on viewing human beings as an animal among animals, regards all life as 'something wonderful and wonder-inspiring' (347) and renders no life form more important than others. Such a view allows us to extend the capabilities approach from solely human beings to all sentient creatures. This, in turn, would render it unjust and immoral not to view the individual animal as an agent and as an end in itself. Nussbaum thus focuses on the individual animal, instead of the species, and implores us that 'all moral relevance lies in the capabilities of the individual' (360). Therefore, she cleverly detaches herself from a difficult position, by argueing that, as long as the basic prerequisites of justice for individual animals has been secured, the survival or extinction of species is of no moral concern to us. However, since we have to view animals as agents, which obliges us to allow them to flourish (an ethical obligation), Nussbaum argues we have both positive and negative duties towards animals. Hence, she proposes that, next to the negative duty of refraining from harming animals, we have a positive duty to protect their flourishing as large numbers of animals live under the direct control of human beings (373). In such a context, zoos are permitted (and might actually be better for animals than nature), but should be focused on breeding inter-species friendship (376). We might even go so far as policing nature, as the capabilities approach regards 'torture of the gazelle is as bad when done by a tiger  as it is when done by a human' (397). Additionally, we are allowed to, for example, 'neutralize' rats to cancel the spread of a disease, although in the case of animal control, we should always use the least painful approach.
Although Nussbaum offers us an interesting approach to animal justice, I am not completely convinced by her arguments. First and foremost, Nussbaums primary reason to include justice for non-human animals in the book seems to be the regulation of justice between human and non-human animals. She argues that human beings often mistreat animals, and that we should thus move to a conception of justice in which we have the moral duty to prevent such infractions of animal justice, as well as providing non-human animals with the opportunity to flourish. This is by all means a noble goal. If her conception of justice would focus only on justice from human beings to non-human animals, her unconvincing method of 'imagination' to establish animals preferences might prove convincing after all. Although this method would only allow us to view animals in a human-centric perspective (hereby 'humanizing' animals), we would probably learn much about ourselves and our interaction with animals in the course of doing so. However, by extending our duties to policing the animal world and creating inter-species friendship, we run the risk of being over-paternalistic to animals, and ending up curbing their freedom and flourishing more than adding to it. Moreover, it is difficult enough to imagine the preferences of specific species, let alone individual animals. In the context of human-animal justice, it makes sense to opt for such an approach. However, I am not convinced that Nussbaums approach allows us to extend this method for animal to animal justice based solely on the argument that we should not worship nature. Additionally, I am not completely convinced of Nussbaum's criticism of Peter Singer's preference-Utilitarianism. She criticises preference utilitarianism for the 'ambiguity of the very notion of a preference' (341). However, Nussbaum does not offer a clear answer for what preferences, especially in the case of animals, are. Although Nussbaum appears not to want to 'impose on animals a form of life that is not what they “would choose”', it never really becomes clear how we would go about this.
In summary, Nussbaum provides us yet again with an interesting criticism of Contractarianism and Utilitarianism. Although her own arguments are certainly not completely airtight, she deserves credit for boldly forwarding an interesting theory. As in the case with the disabled and international settings, it forces us to re-think conventional ideas on justice and what our duties really are to our fellow creatures.

Source: Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006)

By Jasper Ginn (Second year student, LUC The Hague)

Nussbaum on thin ice

After having read well into Martha Nussbaum’s “Frontiers of Justice” and having covered chapter V: “Capabilities Across National Boundaries”, it is time to return to some of the questions that were raised in our discussions in the Dean’s Master class as well as on the corresponding web blog. From the start, general curiosity went out as to how Nussbaum would attempt to extend and modify Rawlsian contractarianism to truly create a global theory of justice that exceeds the nation state. Barend de Rooij raised one fundamental question - from across the North Atlantic pond on his exchange at Rutgers University - about Nussbaum’s use of a shared intuition as the base of her theory. He posed whether “intuitions, even intuitions that are shared by many,  [are] really a strong enough foundation on which to base theories of justice?” (see web post from the 3rd of December 2012). This is a question that underscores some of the most questionable aspects of Nussbaum’s inquiry and extends to questions about universality and practicality that particularly come to mind with this specific chapter.

In the book Nussbaum intends to maintain a purely philosophical inquiry that shapes public policy at heart. Her duty, as she sees it, is to provide a sound theoretical foundation for the practical aspirations that she puts forward. In the last paragraph of the chapter she states that “these principles [Ten Principles for the Global Structure], together with the theoretical analysis that supports them, are at least a sign of what the capabilities approach can offer as we move from goals and entitlements to the construction of a decent global society.” (Nussbaum P324) In the respective chapter she has thus tried to set out a philosophical framework with highly practical implications. My idea is that in her attempt to create a clean-shaven philosophy (as we might call it) but simultaneously with the purpose to create practical changes in the world that she has already in mind prior to her investigation, she is trying to build a bridge over troubled water (Simon and Garfunkel). That is, she is making enthusiastic steps on very thin ice, leading her to create a rather incoherent theory that has questionable premises.

Image: Nussbaum attempts to pursue  “clean shaven” philosophical inquiry – (drawing by Bart Lutters)

One of these premises is her usage of human dignity and our intuitive association with this concept. Nussbaum regards that humans share a dignity regardless of place and that certain minimum needs are to be met if we do not want to undermine this dignity (Nussbaum P274). In this view of dignity she has transformed it directly into a global concept, without having made assumptions about the content of what then are the minimum aspects of human life that we need to fulfill in order to live in dignity. In her definition of social cooperation, this becomes somewhat more substantive, as she puts the capabilities approach at the heart of the matter. Continuing on she states that “the idea of what human beings need for fully human living is among the most vivid intuitive ideas we share.” (Nussbaum P279). However, she leaves the definition of what dignity entails rather vague. In this chapter she invokes and high lights an intuitive empathy with the idea of human dignity. Every reader (at least if they have not become too skeptical) will probably relate one way or another to the idea of dignity. So to the extent that the idea of dignity is perhaps something we intuitively share she might be right, but to what extent do we share the same conception of dignity? A conception of dignity is possibly present in every culture or group of people, but the conception of dignity might differ greatly. This is where it becomes problematic. Nussbaum argues for a universal theory that, if it is to become a goal we strive for, needs the agreement of many. Yet, would this agreement then not be based on potentially highly varied (practical) conceptions of dignity? Is this then at all possible? These questions and critiques make me doubt the strength of such a foundation for her theory.

Perhaps I am trying to challenge Nussbaum’s for no reason. After all, she does not want to impose a global normative doctrine, but rather transform policymaking and the international arena towards focusing on achieving the capabilities for all. She has a strong appreciation for state sovereignty, but argues that “the capabilities approach insists that certain core entitlements should be part of domestic constitutions worldwide.” (Nussbaum, P314) She continues that there should be a lot of room for interpretation in order to protect political freedom and pluralism. Although I appreciate her point, again she seems to be standing on thin ice. On a practical note, the mentioning of certain rights in a constitution does not mean by far that these are actually becoming reality. More importantly, she seems to fundamentally contradict herself by giving a requirement of the state whilst simultaneously advocating sovereignty. It seems as if she is trying to avoid this confrontation by remaining vague about which core entitlements these concern. Furthermore, on the one hand she proposes that all individuals hand over their duty to institutional structures and for the provision of entitlements and on the other hand argues for the nation state to providing these. Again she remains vague about what exactly she envisions these “institutional structures” to be. If they involve national structures, she is not as paradoxical, but she also strongly advocates international institutions such as the United Nations, international treaties and NGO’s. It thus remains unclear how the capabilities approach and its practical implementation can embrace pluralism and state sovereignty while also putting certain requirements on the nation state and have a responsibility for the implementation at (international) institutional structures.

The discussion above by no means touches even close to all dimensions of Nussbaum’s inquiry, be they problematic or not. What does become clear from the debate is that regardless of the fact that Nussbaum tries to stay away from making practical implications; she is somewhere stuck in between the philosophical and practical realm. As said before, I think that one of the issues that do not allow her to make a clean-shaven philosophical inquiry is that she has already set out her goal before she starts her inquiry. She therefore tries to pave the path from point A to a predetermined part B, which requires her to take a couple of questionable turns. Her inquiry is definitely creative, but has too many sides that make it problematic to just take as a piece of creative writing. Another question that thus pops up is whether and to what extent she than misuses (not necessarily intentionally) little bits of theory from Rawls, Grotius etc. in order to persuade the reader. As a final note of this web post, this is the question I would like to ask to the reader.

By Laura Brouwer (Second year student, LUC The Hague)

The Mutual Benefit of Free, Equal & Independent Individuals

Although the social contract tradition is incredibly diverse, we find at its core a certain set of recurrent ideas and assumptions. One such assumption is the idea that it only makes sense for human beings to enter into a social contract under a specific set of circumstances. Unless these circumstances obtain, it is implied, there would be no occasion for the virtue of justice or even the most basic political principles. The idea that the concept of justice needs certain circumstances for it to be a valuable addition to human life was first made explicit by Hume, who referred to them as “the circumstances of justice,” but is implicit in the works of every major social contract theorist. This notion is absolutely central, for instance, in the theory of Rawls, who defines these circumstances as “the normal conditions under which human cooperation is both possible and necessary” (A Theory of Justice, Harvard University Press, 1971: p. 126). Since Rawls’s social contract theory gives a procedural account of justice, where the principles of justice are arrived at by a fair process on the basis of these conditions, it is in these circumstances that we might hope to find the root cause of any problems we identify in the resulting principles of justice. Not surprisingly, then, it is in the circumstances of justice as laid out by Rawls that Nussbaum identifies various problematic assumptions which lead to the “three unsolved problems of justice,” thus raising the question of whether the social contract theories could be improved, rescued if you will, by modifying these circumstances. The answer, she argues, is no, they cannot be improved in this way; but I am not entirely convinced this argument is successful.
Nussbaum distinguishes between two kinds of circumstances of justice on which Rawls’s theory appears to rely: objective and subjective circumstances. The objective circumstances include such things as the condition of moderate scarcity of resources, the geographical proximity of human beings, and their rough equality in mental and physical powers. It would not make sense, is the idea, for human beings to pursue justice if resources were so scarce that any attempt to redistribute them fairly by cooperating with each other would be doomed to fail; similarly, the pursuit of justice would be in vain if these resources were in fact so abundant that their redistribution would be unnecessary. There would be no occasion for justice or cooperation, moreover, if human beings did not live in geographical proximity and therefore could not affect each other, or if they were so unequal in physical or mental powers that a select few could dominate the others (Nussbaum, p. 29). The subjective circumstances of justice include the rough similarity of man’s needs and interests, such that it makes sense for them to cooperate to secure similar ends. Although Rawls acknowledges that each individual is unique, he holds that the physical and intellectual capacities of every human being designing the social contract are within a “normal range,” and so he excludes persons with severe mental or physical disabilities (Rawls, p. 25).
All of these circumstances of justice appear to be geared towards the central assumption of most social contract theories that human beings enter the contract in order to secure mutual benefits. In fact, these circumstances render cooperation necessary insofar as individuals will recognise that they are less well-off without it. The assumption that human beings enter the contract because they believe it will be mutually beneficent requires the further presupposition that the parties to the contract are free, independent and equal individuals; that is, they have to be free and autonomous individuals if they are to be in a position to voluntarily give up a set of freedoms in exchange for others; they have to be independent, driven to (rationally) pursue their own interests  if their chief motivation for entering the contract is to secure certain benefits; and, finally, they have to be equal if they are all to be in a position where they can expect to reap similar benefits from the contract.
The twin ideas that men enter the social contract to secure mutual benefits and are free, independent and equal individuals greatly problematize the citizenship of physically and mentally impaired individuals. Depending on what “benefits” the social contract is designed to yield, one could argue that these individuals are not party to the social contract since their participation in society would yield no sufficient benefits to those members of society whose capacities fall within a normal range. This is clearly the case if these benefits are defined in economic terms, such as Rawls, who contrasts different societies with each other by looking at their GDP, appears to do. Other problems inherent in viewing parties to the social contract as necessarily free, equal and independent are that these individuals are not, at least in a physical or mental sense, equal to the rest of society and are not, as most people are, completely independent and autonomous, often cared for by others. Again, this asymmetry problematizes the notion that social contracts are necessarily designed in such a way as to be mutually advantageous.
Given these assumptions on which most social contract theories rely, we might wonder whether or not these theories could be improved by modifying them; they are, after all, stipulations, hypothetical circumstances that social contract theorists think warrant cooperation. One strategy we could follow is, for instance, arguing that the picture these theories sketch of the state of nature or the view of reality entailed in the circumstances of justice is incomplete or plainly false, and that individuals are driven by motivations other than simply material or economic wellbeing. Another  strategy we could follow is that of pointing out that physically or mentally impaired individuals are often highly productive.  This would problematize the notion that individuals who are unequal in mental or physical powers cannot be equally productive. Nussbaum argues, however, that we can by no means expect all of these individuals to be highly productive, and often it requires costly modifications to workspace environments to enable these individuals to function as human beings. This is not, of course, a reason not to enable them to work, but it is a problem for the social contract theory, which is, after all, geared towards securing mutual benefits. Thus, Nussbaum writes:
 Here we see the naked face of the contract idea. Moralize the starting point as we may, the bottom line is that the whole point of departing from the state of nature is to reap benefits from mutual cooperation, and the benefits are defined by all such theorists in quite familiar way. (p. 118-19)
That is, they are largely defined in a material or economic way.
At this point, it seems intuitive to simply reject the idea that parties to the social contract are necessarily in it to secure mutual benefits. However, Nussbaum points out, this is problematic for another reason, for “if we eschew the ideas of the state of nature, mutual advantage, and the status of the parties as free, equal and independent, it seems fair to say that such an account would no longer fall within the classical theory of the social contract” (p. 149). In other words, she holds it to be an essential property of social contract theories that they are based on these ideas, all of which are problematic for the full inclusion of physically and mentally impaired individuals; and so, any social contract theorist who hopes to resolve this problem by rejecting any of these ideas will, in a sense, cease to be a social contract theorist; we are not at liberty to modify these essential features of social contract theories as we like. For this reason, Nussbaum argues, it is difficult to see how the three unsolved problems of justice can be resolved within the social contract tradition.
I am not entirely sure that Nussbaum’s analysis is correct on this point, but do see the problems she is pointing at and will definitely not go so far as to say that she is wrong. It seems to me, however, that another strategy we could follow is that of stipulating the fact that parties to the social contract are not only concerned with their own interests, but also with the interests of others. This stipulation might be grounded, for instance, in the intuition that the wellbeing or flourishing of others is essential to the wellbeing of ourselves, a view that Locke appears to subscribe to and is also implicit in the works of Marx; a view that is not merely an intuition, but corroborated by observations done in real life, as when a parent makes his own happiness conditional on the flourishing on his child. This would get rid of the idea that individuals are only in the social contract to reap benefits that are largely material or economic in virtue of a more complete understanding of “benefits” that includes mental or emotional wellbeing; Nussbaum considers this option, but points out that Rawls rejects it on the grounds that he does not want to assume more than absolutely necessary for his theory to be successful; that is, he wants it to be as parsimonious as possible. I understand this; one of the many virtues of his theory is, after all, its simplicity. If, however, this additional stipulation would resolve certain problems in the social contract theory, might we not settle for a less parsimonious theory? Do we have to look beyond the social contract tradition?
One objection that may be raised against this solution is that even if we grant that human beings may pursue other advantages than merely economic or material ones, physically or mentally impaired individuals would not be party to the social contract insofar as their physical and mental powers would still be unequal to the majority of society. The equality, freedom and independence of those who are subject to the social contract is, after all, one of its essential features. If, however, we take the benefits individuals are pursuing to include the welfare of others, the rough equality of individuals is no longer a necessary condition for the theory to work; on this view, economic benefits are not the only, or even the primary, benefits pursued; and so, the entire framework that depends on the notion that human beings only enter into the social contract in order to secure mutual economic benefits can be broken down.
Alas, perhaps this line of reasoning is too radical a departure from the social contract tradition for it to count as a social contract theory. Perhaps it is simply faulty and presupposes too much. Social contract theories are, after all, most often procedural accounts of justice, and should not include too many intuitions as regards the nature of justice in the “original position.” But it would resolve some problems.

Source: Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006), pp. 96-154.

By Barend de Rooij (Third year student, LUC ... presently at Rutgers)

Choice, Capabilities & the Species Norm – universality in Frontiers of Justice

Among the most fundamental underpinnings of Nussbaum’s capabilities approach are the twin ideas of human dignity and inviolability. Together, these ideas form the foundation for Nussbaum’s view that every individual is worthy of a fully human life. At least in principle, she holds, every individual should be capable to flourish as a human being. To this end, Nussbaum identifies ten central human capabilities that each individual should be able to exercise and develop so as to be able to live a fully human life. This list includes such capabilities as the capability of life, bodily health, bodily integrity, imagination and thought, emotion, play, affiliation and control over one´s environment. These capabilities are inextricably bound up with Nussbaum’s view of human nature; that is, it is informed by the activities, capacities and endowments she deems essential to human beings as a species. This is not, however, a biological view of man’s nature—it is an ethically evaluative view; that is, out of all the capabilities that are characteristically human, she thinks these are the most important ones. Although Nussbaum does not believe that human beings should develop all of these capabilities in order to flourish, she does hold that they should be able to do so if they so desire. The choice of what capabilities to develop, however, is ultimately one that individuals will have to make for themselves. This emphasis on choice may raise some problems for her theory, especially as regards its pretension of universality.
Nussbaum is well aware of the fact that not everyone will want to fully develop each of the capabilities she listed. Individuals in different societies and with different beliefs will have different ideas of what constitutes a fully human life, or of what can be called a flourishing life. “The claim that is made by the use of this single list,” she writes, “is not that there is a single type of flourishing for the human being, but, rather, that these capabilities can be agreed by reasonable citizens to be important prerequisites of reasonable conceptions of human flourishing (p. 182).” These capabilities are important insofar as they enable people with widely different conceptions of the humanly good to live worthy lives. They enable individuals who think political participation is essential to human flourishing as well as those who think it is wrong to do so to live out their own conception of the good life simultaneously. In this way, Nussbaum makes a distinction between human functioning and capability. Capabilities are potentialities, options that are (or should be) offered to every individual. Should an individual choose to realise these potentialities, he has brought them down to the level of functioning; that is, he has not only affirmed their value as general capabilities or entitlements, but has affirmed their value as abilities that are important to him personally. This choice of which capability to develop and which one to leave aside, a choice that Nussbaum holds human beings should have, enables her to generalize her theory of justice and make it range over diverse groups of people.
There appears to be a slight discrepancy here. On the one hand, Nussbaum’s list of capabilities purports to be a list of the ten capabilities that are essential to human flourishing. This idea is given such weight in her theory that when it is the case that these capabilities are almost wholly absent we have reason to doubt one is capable of living a human life at all, and that when it is the case that not all of them are guaranteed to at least a minimum extent it is impossible to live a dignified human life. On the other hand, Nussbaum allows for the possibility that individuals will choose not to realize certain individual capabilities so as to be able to pursue their own conception of the humanly good. An Amish citizen, for instance, may well believe that it is better not to participate in political life—that it is not essential to human flourishing to participate in politics. This raises the question of just how universal Nussbaum’s capabilities are.
One may object to this question, as Nussbaum does, by pointing out that there is a difference between having the choice to develop a certain capability and actually developing this capability. An Amish citizen may choose not to develop his capability to “control his own environment” by engaging in political life, while still affirming the value of having the choice to do so. He may well believe it is best for him not to be politically active, but not for everyone else. Certainly we have reason to believe he will prefer choice to non-choice, democracy to dictatorship, insofar as he “has chosen to live in a pluralistic democracy and to show respect for its values” (p. 184).  After all, this implies that “[he] does after all think that these values are very important political values, even though the associated function is something they will not use” (p. 184). Capabilities are potentialities that may or may not be realised—but they should at least be possible to realise.
This objection, however, does not speak to my point directly. Even if it were the case that this Amish citizen affirmed the value of the right to vote regardless of his choice not to exercise it, we have reason to believe he might still be able to flourish – live a fully human life in his sense of the word – deprived of this right. It is not necessarily essential to his conception of human dignity (even though it may be). Similarly, a strictly religious individual who holds that religion is fundamental to human flourishing may be able to flourish even in a society where only his form of religion is allowed and the freedom of religion is otherwise curtailed. Of course, most religious individuals will think that freedom of religion is essential—but my point is that it is not sure that all of them will. Thus, it is not clear that the capabilities approach is as universal as Nussbaum needs it to be. At any rate, it would seem that these capabilities are not as essential to human flourishing as she takes them to be.
At this point, one may remind me of the fact that Nussbaum thinks the capabilities are only the “prerequisites of reasonable conceptions of human flourishing,” and not of all conceptions. There is this further distinction between reasonable and unreasonable conceptions. But where will we draw the line? Does human dignity entitle us to flourish in a reasonable way only? Is one way of flourishing better than the other? How would you justify this difference? And what does it imply for persons who are not capable of rational thought? These are some questions that may be difficult to answer, but they are essential to a full and correct understanding of Nussbaum’s theory. It appears to me, therefore, that her theory needs some further refinement here.

Source: Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006), pp. 155-223.

By Barend de Rooij (Third Year Student, LUC ... presently at Rutgers)

Nussbaum: Disabilities and the Social Contract

What is a just society? Which principles should rule society and how do we establish these principles? These questions have been posed over and over again throughout history. Hobbes, Locke, and Rousseau – all of these great thinkers have engaged with answering these questions and eventually developed one of the most prevailing social theory traditions, i.e. the Social Contract Theory. Although each of them is working with a slightly different framework, their main assumptions and conclusions are very similar.
Individuals decide to leave the “state of nature” (according to Hobbes a hypothetical pre-societal anarchic state) to form a political society with the intention to gain mutual benefits by giving up some of their freedoms in return for security and stability. The principals of the political society are decided upon in a Social Contract between the individuals. Further assumptions are that the parties to the contract are free, independent and of “rough equality in power and capacity” (p. 31) as well as that the same individuals who form the agreement will be the subjects of the agreement.
One of the most recent and most comprehensive theories in the Social Contract tradition is that of John Rawls. With the aim to construct a theory of justice with minimal assumptions he combines the basic elements of the contractarian tradition with elements of Kantian philosophy. On the one hand he adapts mutual advantage as motivation for cooperation and agreement on political principles, as well as the “rough equality” of mental and physical power of the parties to the contract. Rawls is also committed to the Humean “Circumstances of Justice”. This states that justice is only possible in a state of moderate scarcity of resources, in combination with humans being generally competitive, but also able to act generous under certain circumstances (pp.46-47). On the other hand, Rawls introduces the Veil of Ignorance to the “original position” of choice, which ensures the parties to the contract to be impartial and thus, that the principles that are agreed upon treat every human as an end and never as a mean. The Veil of Ignorance, which omits all knowledge of the individuals concerning their later position in society, as well as characteristics such as sex and ethnicity, expresses the Kantian moral basis of Rawls contract theory.
Although Rawls theory has established some of the most influential ideas with regards to social justice and just political principles, its specific approach to social justice overlooks three issues that have gained importance over the last years. These are namely, (1) disabilities, (2) nationality and (3) species membership. Martha Nussbaum addresses exactly these three issues in her book Frontiers of Justice. Her critical endeavour aims not at refuting Rawls theory, but to enhance it in ways that make it possible to include the above mentioned issue of social justice more adequately. However, it quickly becomes clear that remodelling the social contract theory is a very ambitious objective. In the following I will discuss some of the obstacles Nussbaum encounters along her way.
Considering only the case of disabilities and social justice, we see that the inclusion of individuals with impairments - both physically and mentally – challenges the very foundation of Rawls Social Contract Theory. First of all, the inclusion of individuals with impairments into the political society yields no benefit for the whole of the society. This is due to the fact that the costs of inclusion normally outweigh by far the productive contributions that those individuals can make to society. Hence, including them would contradict the initial motivation – mutual advantage – of forming a society. This issue also arises because of the solely economic notion with which Rawls uses mutual advantage. It is quite possible, however, as Nussbaum points out to broaden the notion of mutual advantage and benefits to include social interaction into the term.
 Secondly, people with impairment do not confirm with the rough equality criterion of the parties to the social contract. Therefore, they are excluded from the very beginning of the process of designing social principles. Rawls does not include them as participants in the “original position”, but postpones the issue of their social position to a later state. The obvious question now seems to be why we would not just include people with impairments into the “original position”? The Veil of Ignorance could also omit whether an individual will be impaired, just as it does with sex and ethnicity. Adding this possibility to the original choice could lead the parties to the agreement of including the needs of disabled into the very principals of their society. Even though this sounds like a sensible suggestion, it leads to further conflicts with the basic elements of Rawls’ theory.
If the theory has to consider the possibility of severe variation in physical ability, it becomes much more complex to determine an individual’s relative position in society. It is no longer possible to measure social position by a linear measurement based only on economic wealth as Rawls does. Now, one could wonder why the linear measurement is so important to Rawls. Defining who is the best-off in a society just on basis of economic statues seems overly simplified. It is easy to come up with numerous examples where economic status and social position do not converge. In the end money can’t buy you happiness. It is not like Rawls does not agree with that old wisdom. His list of “primary goods” comprises far more than economic status. There are two reasons why he, nevertheless, opts for a linear economic measurement. Firstly, he bases his concept of equity – the Difference Principal – purely on social position measured by income and wealth. Multiple indicators to determine social position would make it very difficult to determine who is the least well of in a society, and if a certain action benefits this least well of or not. Hand in hand with this goes the second reason, which is Rawls commitment to simplicity and minimum assumptions of his theory.
As discussed above, Rawls’ theory also significantly draws upon Kantian ideas. While the Kantian morals strengthen the concept of social justice in his theory, Rawls also takes over the Kantian perception of personhood. This poses major challenges to the inclusion of mentally impaired people specifically. For Kant associates personhood and human dignity with the capability of reason, especially the capability of moral judgment. This approach also excludes the possibility of reciprocity between people with “moral capacity” (p. 133) and those people without it. Thus, the exclusion of (some) mentally impaired people is anchored in the very principles of Rawls theory. In this context we then also have to ask the question of how we categorize elderly people that become senile or have dementia, as an example. Do we deny them to have human dignity because they lost their capacity for moral rationality? Do we deny that they are entitled to be subject to justice?
 These questions also bring attention to the different kinds of impairment. Severe mental and physical impairment is only one end of the scale. Many people may however only be temporarily impaired, through injuries or illnesses. Nussbaum points out that “the continuity between the one group and the other becomes very great” (p 126). Rawls unrealistically assumes that the parties to the social contract are “fully cooperating…over a complete life” (p. 109 Political Liberalism p. 20) and thereby denies the basic human need for care. The level of care we need changes throughout our lives, normally being the greatest during our childhood and in old age. But also during our ‘best years’ our need for care can be heavily influenced by things such as injuries resulting from accidents or severe depressions.
Thomas Scanlon’s moral based contract theory offers two solutions for situations of “extreme dependency” (p. 136). The first one being a trusteeship/guardianship system in which the parties of the contract are trustees for those members of society that are not able to take part in the forming of political principles. This would mainly apply to severely mentally impaired persons. Rawls rejects this approach due to excluding the possibility of benevolence of the parties from the Original Position. The suggestion is, however, also criticisable because of the fact that it still does not include disabled people on the basis of their inherent rights to be citizens, which follows from their human dignity. It is then questionable if a comprehensive theory of justice, that treats some humans as not “fully equal subjects of political justice” (p. 138), is acceptable.
The other option Scanlon offers is that Rawls theory is simply not a complete moral account of social justice. Which means we therefore, need to add to the theory a part that treats situations of extreme dependency. Eva Kittay and Amartya Sen follow along these lines by proposing that the list of primary goods needs to be enhanced by including a plethora of amendments, e.g. care. As discussed above, giving up his linear ranking in favour of a more heterogenic one poses major problems for Rawls. Nussbaum endorses Sen’s idea to replace primary goods with a list of capabilities. She recognises that this approach requires major changes in Rawls assumptions on human dignity and the motivation for cooperation. The capabilities approach also lacks the theoretic simplicity that Rawls is so committed to. Especially the development of an independent account of the good is a challenge. Nussbaum presents a list of 10 capabilities that are supposed to fill this gap. Her list has to face the same criticism as similar lists in human rights approaches, i.e. that they present a list of Western values that are not universal.
In conclusion, Nussbaum skilfully identifies the parts of Rawls theory that are incompatible with her endeavour to include impaired people as full citizens into society. Nevertheless, Nussbaum is still committed to enhancing Rawls theory rather than refuting it. It is doubtful if she will be successful after having pulled nearly all of the theories roots. The exclusion of people with impairments is ingrained in most societies. So the question remains if Nussbaum’s capabilities approach can comprehensively solve these issues.

Sources:
Nussbaum, Martha C. Frontiers of Justice: Disability, Nationality, Species Membership. Harvard University Press, 2006.

By Judith Bayer (First year student, LUC)

The capabilities approach: problems of justification

The moral basis of Nussbaum's capabilities approach is the claim to a certain reasonableness and objectivity. Both of these elements of justification, I argue, present challenges that potentially undermine the legitimacy of the capabilities approach.

Nussbaum writes that “[t]he claim that is made by the use of this single list is (…) is (…) that these capabilities can be agreed by reasonable citizens to be important prerequisites of reasonable conceptions of human flourishing, in connection with the political conception of the person as a political animal, both needy and dignified” (Nussbaum 182). This reasonableness, then, has two faces. The agreement itself of citizens on the list of capabilities as the basis of a minimally just society is reasonable; and the citizens who thus agree are reasonable themselves by virtue of having come to this agreement.

These assertions may raise immediate questions; for it is clear that not everyone favours non-discrimination on the basis of sexual orientation or religion, and not everyone may deem living living in concern for animals, plants and the world of nature a central human capability, or indeed of any vital importance. That these and other elements find themselves on the list of Central Human Capabilities might be interpreted as forcing all humans to accept “that these rights are implicit in the notion of human dignity and human flourishing” (Nussbaum 184). Indeed, not only does Nussbaum acknowledge this consequence, she also defends it by asserting bluntly that everyone, including those forced to adjust their conception of human dignity, has “chosen to live in a pluralistic democracy and to show respect for its values” (Nussbaum 184). Both of these assertions are highly problematic. Apart from those who voluntarily migrate from non-democracies to pluralistic democracies, one's existence in a pluralistic democracy is decidedly arbitrary; as Nussbaum herself argues in the chapter “Mutual Advantage and Global Inequality,” people do not choose the characteristics of the state in which they are born or whose passport they carry. One could object, following Nussbaum's principle of choice, that people might endeavour to migrate to anti-pluralistic states; but this would be antagonistic to her project, which involves humanity itself rather than state entities – besides, such states plausibly do not share Nussbaum's commitment to political pluralism. Questions should be raised, also, with respect to those who do not live in pluralistic democracies; for it is merely within such societies that Nussbaum locates choice. Might the residents of states that are not pluralistic democracies, then, be exempt from accepting certain capabilities as centrally human? Implicitly contrarily to this suggestion, Nussbaum also posits that even “the atheist who hates religion and hopes it will someday disappear from human life will still prefer the free choice of religion to a state, let's say a Marxist state, that left people no choice in these matters (…)” (Nussbaum 186). Nussbaum undertakes, in short, to argue that there do not empirically exist reasonable people (although she is not concerned with what unreasonableness may entail) who will disagree with the inclusion of any element on the list as a central human capability.

It is too big a generalisation, however, to state that by virtue of one's residence in a democracy one necessarily chooses to show respect for its values and, also, to believe that choice in terms of the right to exercise a religion or to participate politically or to read a free press or not is better than non-choice. One might, for example, consistently favour all elements of the capabilities list except for non-discrimination on the basis of sexual orientation. Implicit in this emphasis on choice is a notion of passivity; people, according to Nussbaum, might empirically choose to live in a limited number of states, each with their own combinations of rights, restrictions and ideologies, but, implicitly, they are not active participants in shaping, informing or contesting their society's values. The single reasonableness, outlined above, that renders people static and uniform also implies their passivity because rather than actively and creatively conceptualising social justice, they must be constrained to deliberating Nussbaum's own, universal 'agreement.' Although she acknowledges that the capabilities list itself is open to modification, the reasonableness of employing the list itself as a measure of a minimum level of justice is taken for granted.

Moreover, agency is potentially compromised in the area of self-respect and dignity, which Nussbaum identifies as the mere area in which functioning rather than capability should be the ambition of public policy – which suggests that something like self-respect or dignity may need to be taught. Nussbaum's conception of dignity is based on Aristotle's notion of the human being as a political animal and Marx's idea that humans require a plurality of life-activities, and is linked substantively to the elements of the capabilities list; failure to secure them, she writes, “is a particularly grave violation of basic justice, since these entitlements are held to be implicit in the very notions of human dignity and a life that is worthy of human dignity” (Nussbaum 155, 159). Human dignity or self-respect may be taken, perhaps, to refer to the awareness that one is entitled to the plurality of elements of the capabilities list. Given that the list itself is open-ended rather than definite, it seems that the concepts of human dignity or self-respect might become subject to change too at some point. Nonetheless, the claim to rightness within Nussbaum's version of the capabilities list – importantly, a claim of universality – also requires a degree of objectivity.

Although an excavation of the basis for the required objectivity is not Nussbaum's main project, she writes that the capabilities approach can be justified by the idea of an overlapping consensus, which has an empirical nature. That is, citizens can come to the list of entitlements of the capabilities approach as the conclusion of a deliberation among themselves that does not rely on any form of metaphysical or epistemological doctrines. Examples of existent documents that approximate Nussbaum's vision are the Universal Declaration of Human Rights and the Constitution of India.

An objection can be made to the argument that non-metaphysical, non-epistemological public deliberation will (hopefully) result in the list of entitlements of the capabilities approach as society's partial or minimum conception of the public good. Rousseau's distinction between the general will and the will of all informs this objection:

There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but take away from these same wills the pluses and minuses that cancel one another, and the general will remains as the sum of the differences. (Rousseau Of the Social Contract, “Book II”).

The distinction is crucial as it evidences that deliberations do not always materialise in a conception of the will of all, because “the people is never corrupted, but it is often deceived, and on such occasions only does it seem to will what is bad” (Rousseau “Book II”). In spite of Nussbaum's assertion that no reasonable person will disagree with any of the elements of the list of the Central Human Capabilities and the associated approach, it is doubtful that people will predictably arrive at the capabilities approach as the general will. At this point it might also be asked why, if the capabilities approach, with its universal character, can be justified by the idea of an overlapping consensus, its entirety has not been implemented in any society to date; one explanation may be that people do reason on the basis of metaphysics and epistemologies and thus prevent the approach's implementation.

The problem of justification features another dimension, which concerns the sequence of the elements deliberation, articulation of the capabilities approach, and implementation. The capabilities approach, although abstract and open to change, is also fixed in the sense that all of its items have to be met in order for the approach to function as a minimal form of justice; one element cannot substitute (partially) for another. In this sense, it is perhaps improbable that the entirety of the approach shall be invented independently from Nussbaum's project by deliberating citizens, empirically tied as they are to religions and ideologies. The most secure chance of implementation will thus be by firstly convincing reasonable peole that Nussbaum's capabilities approach is the best conception of social justice. But, as already stated, the tendency of people to divert from the general will in processes of deliberation renders this option unrealistic. The other option would be a posteriori justification; the realisation that after having implemented – emphatically not on the basis of public deliberation – the capabilities approach as the basis for the practice of politics, individual persons are better off. This, however, would contradict Nussbaum's commitment to political participation and, more specifically, item 10A on the list of the Central Human Capabilities, namely political control over one's environment. In sum, it is unclear how the capabilities approach could realistically be expected to be justified, in spite of its claims to reasonableness and objectivity.

By Caspar Plomp (Third year student, LUC)

Capabilities across Borders

A dear person once wrote me: “What good can we do to the world if we don’t start from the people we love? Should we paint, help the poor or just be home for your sister who is growing up?”. This question was constantly popping out from the back of my head while I was reading Martha Nussbaum’s chapter “Capabilities across national boundaries”.

In this chapter the author discusses the close relation between the capabilities approach and human rights. Both provide “an account of extremely important fundamental entitlements that can be used as a basis both for constitutional thought within a nation and for thinking about international justice” (284). Furthermore the capabilities approach, as the human rights discourse, believes in prepolitical entitlements: thus by the mere fact of being born into the human community, an individual posses rights. Nussbaum intensifies this idea by declaring “a nation that has not recognized these entitlements is to that extent unjust” (285).

image courtesy of The Guardian, 23.1.11

Human Rights are a historical product: events that occurred throughout the 19th and 20th century invited the international community to draft international documents in order to prevent such atrocities to take place ever again. Although many states ratified and signed these documents, consensus is far from being reached. From a religious perspective of the four major religions, Buddhism, Hinduism and Islam would like to see a shift of focus from entitlements to duties and from considering the individual as the final subject of justice to the community.

Human rights are a political artifact: their philosophical background is derived by the reality that we now live in organized political societies to which we are related through a legal system of rights and duties. Could we indeed think of the freedom to religious expression if we did not presuppose a division between public and private sphere? Could we think of the right to life if we lived in the ‘state of nature’? Furthermore within our daily lives we are always driven to think that it is not who we are, but what we do to define us. Thus why by simply being born, should we be empowered with human dignity?

HR is often treated as an aid-kit that can be distributed homogenously from North to South and West to East: local discourses are thus left behind, although they determine people’s worldviews. Nussbaum as well seems to forget the implications that specific cultures, languages and religions play in the formatting of an identity both on the personal and societal level. Indeed she states “to secure a right to citizens in these areas is to put them in a position of capability to function in that area” (287). Hence the capabilities/rights must be context based precisely because the conditions of work and livelihood shift. Consequently the “prerequisites for living a life that is fully human rather than subhuman” (278) can not be neither equal nor stable through space and time. I remember having a debate around this same issue in the Diversity & Integration class in my first year at LUC. Back then, I was arguing in favour of the most basic human rights: food, shelter and water. However thinking about it in Nussbaum’s terms, if a person is born in the U.S.A and he is deprived of education or Internet, is he then living a subhuman life?

To conclude Nussbaum defends the capabilities approach, and implicitly human rights, on the basis of equal human dignity. The author claims that because we are all recognized under this notion, the world community “should be working towards these goals together” (291). However I wonder what would she answer to “What good can we do the world, if we don’t start from the people we love?”. A negative answer to the question would indeed imply that as individuals we must firstly care for what strictly surrounds us in order to improve the whole reality.

By Georgia Rae Lasio (Third year student, LUC ... presently at McGill University)

Mutual Advantage and Global Inequality

The notions of hierarchy, and consequently of poverty and wealth, are inherent within human society. Such fact, attached to the importance of sovereignty, impedes the international community to reach an agreement on effectively solving certain issues.

graffiti based on iNeed stencil on canvas by Mantis, 'global inequality'

Martha Nussbaum in her chapter Mutual Advantage and Global Inequality criticizes Rawls’ theory of the social contract. In her view Rawls’ contractarianism is problematic because of the commitment to equality of power in the initial framing of the contract and because of the commitment to mutual advantage as its final goal (271). Nussbaum on the opposite side believes that human bond and respect is the starting point; human being is the main actor in the structure of the state. The citizen indeed continues to be “the basic subject of the theory of justice” (262), in which the state becomes the representation of the people both on a domestic and international level.
However, although the puzzle’s pieces are all present, it can not be completed. Due to the fixity of societies’ systems, states intentionally avoid any change domestically. Such phenomenon causes the impossibility to redistribute income and wealth in an equal manner among the various states of the world; it would necessitate a review of internal priorities (236). Thus territorial sovereignty, despite globalization and the erosion of national boundaries, maintains an important role both in domestic and international politics.
It is undeniable that international organizations and multinationals corporations have increased their influential power, but nevertheless sovereignty (quite paradoxically) still serves as a central theme: it is being sustained by the mutual recognition and shared expectations generated from the international society (Krasner, 3). Nussbaum herself touches upon this issue by questioning why as citizens we are up to this moment so attached to the state: “Why might people want the state, rather than corporations or international agencies, to supply much of the basic structure for their lives?” (237).
The effect of our need to be legitimized through a government generates the inequality of capabilities and means present in internal societies to be reproduced in the international sphere. The same framework of the United Nations, The organization that is supposed to promote justice, peace and sustainability, is characterized by a legalized hegemony. The Security Council, and therefore its permanent members control the entire functioning of the UN by maintaining their private interests.
In conclusion we can acknowledge the functional role of power and wealth in the process of forming a contract; natural inequalities are present from the beginning, thus determining the system’s procedure (31). Nussbaum correctly claims that the ultimate cause that brings people to form a society is an inherent need to bond; however she naively interprets humans’ disposition. The natural characteristic to socialize and care for the other is intrinsic to our weakness to stand on our own.

By Georgia Rae Lasio (Third year student, LUC ... currently at McGill University)


Sources:
Martha C. Nussbaum, “Frontiers of Justice: Disability, Nationality, Species Membership”, The Belkann Press of Harvard University Cambridge (2006).
Stephen D. Krasner “Sovereignty and its Discontents” Chapter 1 in Sovereignty Organized Hypocrisy, Princeton University Press (1999), 3-42.

Of Social Contracts & Capabilities: Expanding the Frontiers of Justice

One of the most influential traditions in the history of Western philosophical thought is the so-called social contract tradition.  This tradition, which finds its roots in the early modern period with such thinkers as Hobbes, Locke and Rousseau and finds more recent expression in such thinkers as John Rawls, is premised on the idea that the interests of an individual are best served by political society. For these thinkers, this awareness typically drives man to emerge from a state of nature, the hypothetical condition in which man finds himself before political society and the invention of the state, by consenting to a social contract in which he resigns some of his freedoms to a higher authority, often the state, so as to preserve a set of other freedoms and rights such as the right to own property. As such, the paradigmatic social contract theories (the specifics of which are in fact highly diverse) have in common the view that the modern state is the most just way of arranging society since it derives its legitimacy from the consent of all of its subjects who have come to realise their interests are best served by its existence.

In Frontiers of Justice (2006), the American philosopher Martha Nussbaum argues that although the social contract tradition is responsible for some of the most valuable contributions to theories of social justice (and its relation to the modern state), it has failed to address three major problems that are still with us today: (a) the problem of how to treat individuals with mental or physical disabilities such that they too can flourish and live up to their human potential; (b) the problem of how to extend theories of justice so as to range over all world citizens irrespective of their nationality or locale; and (c) the problem of how to extend theories of justice so as to include the just treatment of non-human animals. Nussbaum devotes the bulk of her book exploring these problems, showing why they are not adequately addressed in traditional social contract theories and proposing an approach to social justice she thinks is better suited to tackle them—the so-called capabilities approach.
The “three unsolved problems of justice”, Nussbaum argues, cannot be addressed satisfactorily by existing theories of justice in the social contract tradition since these theories are premised on a set of highly problematic assumptions about the nature of social contracts and their design. These assumptions include, most notably, the assumptions that (i) those who design the social contract are roughly equal in power; that (ii) those who design the social contract are those who will ultimately be the ones subject to it; and that (iii) those who design the social contract believe it will be mutually beneficial and that this is their chief motivation to enter it.  These assumptions render it difficult, if not impossible, for us to conceive of the place of individuals with a severe mental or physical disabilities and animals in social contract theories. After all, neither impaired individuals nor animals are equal in power to most individuals in society and so would not be the ones designing the contract. As such, it is unclear that they would be subject to the contract or, even if they were, how their interests would be served by it. It is also unclear how they would figure in relations of mutual benefit. Since the focus of social contract theories lies with singular states and societies, moreover, it is not clear how transnational relations of justice can be conceived of within the framework of the social contract. Thus, Nussbaum writes, “these problems … prompt us to look beyond the social contract” (p. 22) — they prompt us to push outward the frontiers of justice (the frontiers of theories of justice, at any rate—I would venture to say the question of how to treat physically or mentally impaired individuals, other world citizens and animals lies squarely within the domain of justice, and not beyond its frontiers).

Although Nussbaum challenges us to look beyond the social contract, her book is emphatically not a rejection of social contract theories; especially not Rawls’s, which she implies is “truly great” (p. 3). Rather, she situates these theories in their historical context and argues that it is not surprising that these problems were not treated in the early modern theories of justice, since their designers had more pressing issues to resolve and since they were informed by different norms and values. We now live, however, in an era where these problems seem ever more glaring. This is the case, firstly, because the social contract tradition has over the past few centuries evolved into providing one of the most solid foundations on which theories of social justice can be based, and so its failure to address the aforementioned problems can no longer be justified by claims that there is more basic work to be done in the intellectual project of defining, theorising and seeking justice. Secondly, this is the case because the social-contract ideals of freedom, independence and equality have wrought their way into the political lives of every individual such that the question of how to treat unequal and dependent individuals (or non-human animals) can no longer be ignored.
As a response to the shortcomings of traditional social contract theories, most notably those of Rawls’s as set forth in A Theory of Justice (1971), Nussbaum outlines her so-called capabilities approach to social justice, an approach that provides guidelines for the arrangement of a minimally just society. That is, “it is an account of minimum core social entitlements” (p. 79) a set of ten central human capabilities that are essential to the human flourishing of any individual; a set of ten central capabilities human dignity dictates every individual is entitled to. These capabilities are universal, and for any state to count as minimally just it must guarantee each of them to at least a certain extent. One of the main differences between her approach to social justice and the approach taken by social contract theorists is that she starts with these ten principles and argues that in whatever way a society is arranged, it must be informed by these principles if it is to be just, whereas social contract theorists typically subscribe to procedural views of justice such that, for them, the principles governing a just society are the outcome of a fair procedure— say, the bargaining process in which the designers of the social contract lay out the laws, rules and dynamics of the political society they are constructing. This has as its major advantage that we are free to include intuitive ideas about justice as necessary conditions for justice—say, the idea that parties unequal in power are equally worthy of flourishing and fully realizing their potential or the idea that animals should be treated with dignity.
The fact that the central human capabilities selected by Nussbaum are largely based on intuitive ideas, however, also raises several questions about her approach—questions she herself does not dismiss. How can we be certain that the capabilities she identified are final? And how can we be sure that they are, in fact, necessary conditions for justice? Which, if any, capability takes precedence in the case two of them are conflicting? How, moreover, do non-human animals figure in this list, or how can it be extended to include their wellbeing as well? Nussbaum’s response to the first questions is that her list of capabilities is discursive as much as it is intuitive—none of the capabilities are final, and the list can be modified in light of newly gained insights as time progresses. Her answer to the second question is, it appears, we cannot—in the end, the list of capabilities is based on largely intuitive ideas (informed, I am sure, by real problems). The answer to the third question is not entirely clear to me at this moment, but Nussbaum evidently holds that the capabilities should not conflict, since all of them must be guaranteed simultaneously for a society to be just and trade-offs are a no -go. I am certain she will get around to answering my final question in chapter six, the chapter where she writes specifically on “justice for nonhuman animals.”
For now, therefore, question two and three seem most pressing. Are intuitions, even intuitions that are shared by many, really a strong enough foundation on which to base theories of justice? Is it impossible for two or more of the central human capabilities to conflict with each other? This would pose a serious problem for her theory, but one I am sure that could be resolved. At any rate, these are some things to think about as we move outside of the comfort provided by the social contract tradition. It will be interesting to see where Nussbaum’s attempt to break new ground on the frontiers of justice takes us.

Barend Cornelis de Rooij, (third year student, LUC... presently at Rutgers University) 28/11/2012