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)
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