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)
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