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