Beyond Compassion and Humanity

We, humans, do not live alone in this world. We are surrounded by other creatures, creatures that play a functional role in our survival. Thus we have a duty to take care of the animals (especially from a utilitarian point of view): our productivity largely depends on their perpetuation. However we also share resources with them; plants, flowers, water etc. are a basic need for all animals, human and nonhuman, and they are fundamental in the maintenance of the world, of the circle of life.

Martha Nussbaum in her chapter believes in extending the “mechanism of basic justice, entitlement and law across the species barrier” (326). She criticizes Kantian social contract theories because of their commitment to rationality and of their conception of political principles derived from a contract among rough equals (327). Thus they deny obligations of justice towards nonhuman animals; the capabilities approach instead provides better theoretical guidance to the issue of animal entitlements. It recognizes a wide range of types of animal dignity and corresponding needs for flourishing since it takes into consideration the variety of activities and goals that different creatures pursue (327).

Despite the author’s virtuous will, her view is highly problematic because of its impracticality and lack of necessity. The social theory contract arises from a reality in which individuals by interacting among each other organize themselves into political societies. Individuals became citizens tied through a legal system of rights and duties. Hence when we discuss justice and law not only entitlements are involved but also obligations; how can this relationship, between the two forces, be balanced when extended to the other species? How can you decide nonhuman’s responsibilities?

Nussbaum thinks of animals in terms of agents and subjects that seek a flourishing existence (337); however she seems to forget one of her most crucial points in her entire discourse: the subjects in this case would not be represented during the decision making process. She justifies this point by arguing that the two questions, “who makes the laws and principles” and “for whom are the laws and principles made”, can be treated separately (349). Precisely from this position the problem of Nussbaum’s theory, and ultimately of democracy, arises: the total of subjective opinions becomes the objective one and because it is treated so, it is applied all over. If we were to take into consideration the different opinions people, cultures and religions have on animals and on their function, we would find divergences that are irresolvable. National rules can be implemented, but a general consensus stands far away from the reality in which we live.

Furthermore the nonhuman animal community is already shaped by laws; these laws follow the survival of the fittest. Although they are not necessarily ‘just’ (since they do not provide equal opportunity), we nevertheless find an order inherent in its perpetuation. This is not to say that Nussbaum is not correct in the provision of regulations regarding the treatment of animals; however the process of extending the mechanism of basic justice, entitlement and law should end at the point where the animal’s well being is met. Jewish law presents an example on the practicality of such notion. In the discussion of whether animal experimentation is biblically or rabbinically legal, Rabbi Caro declares that there must be a real objective. If the benefit to scientific knowledge is negligible, trivial or minor and other means can be approached to have the same final conclusion, animal experimentation is not allowed.[i] This argument demonstrates how the nonhuman species can be utilized as tools, but their essence and goodness must be kept into consideration.

Martha Nussbaum’s chapter “Beyond Compassion and Humanity”, although it provides an interesting reading, does not strengthen her capabilities approach theory. Her argument seems rather exaggerated and not fully feasible when put into practice.

Source: Nussbaum, chapter 6 “Beyond Compassion and Humanity”

By Georgia Rae Lasio (Third year student, LUC)

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[i] Rabbi Alfred S. Cohen, “Animal Experimentation”, in The Journal of Halacha, 19-32. 

The Shared Intuition of Many—towards a justification of Human Dignity

In my previous entry I pointed out that Nussbaum´s capabilities approach seems to depend entirely on the intuitive idea of human dignity, and argued that this leaves her theory in a vulnerable position.  Nussbaum argues for her theory from the assumption that all human beings (and other animals) have an inherent worth which entitles them to the development and exercise of certain capabilities essential to living a life worthy of their dignity. At the same time, she criticizes Rawls and various other social contract theorists for assuming too much, or for simply assuming the wrong things. Thus, it seems to me, that if we are to grant Nussbaum the assumption of human dignity, we would somehow have to establish that it is (a) a valid assumption to make and (b) a better assumption to make than the ones made by Rawls and the social contract theorists who are the object of her criticism. This can be done in various ways, two of which I will explore in this brief essay.

                  The most obvious, and I think strongest, case for granting Nussbaum the assumption of human dignity can be made by evaluating the capabilities approach in light of the results it yields. The very reason Nussbaum constructs her theory is to address various shortcomings of other theories of justice, shortcomings which she holds are all solved by the capabilities approach. Arguing that all humans are entitled to the development and exercise of certain fundamentally human capabilities allows her to conceive of transnational relations of justice and, perhaps more importantly, to address the problem of how to extend theories of justice to cover the just treatment of physically or mentally impaired individuals, something most other theories of justice are unable to do. Arguing that all other life-forms are similarly entitled to treatment worthy of their dignity allows her to extend these theories to cover the just treatment of animals. Judging by results, then, Nussbaum’s capabilities approach is, in various ways, an improvement of these other theories of justice (such as Rawls’s). Her theory covers a wider area of justice than the social contract theories do, and thus seems to be fairer or more just, a good reason to grant her the assumption of human dignity.

                  According to Nussbaum, however, there are better reasons to believe in human dignity than mere pragmatic ones. “The idea of what human beings need for a fully human living,” she writes, “is among the most vivid intuitive ideas we share” (p. 279). The assumption of human dignity, she argues, is a fair one because intuitively, everyone feels it is right; it is an intuition shared by many. There is something inviolable, inherently worthy, about human beings, something that entitles them to flourish, to live up fully to their human potential. “The intuitive idea of a life with human dignity,” she writes, “suggests this: people are entitled not only to mere life, but to a life compatible with human dignity” (292). This is why we often think it is a travesty when we witness injustices; we are ethical beings who intuitively feel that all human beings have equal dignity and are thus equally entitled to a life worthy of that dignity. Nussbaum’s capabilities approach is an attempt to render explicit what human beings already know implicitly: the basic requirements of a fully human life. Thus, Nussbaum makes the argument that the assumption of human dignity is a valid assumption to make because it is grounded in widely shared intuitions.

                  This argument is slightly more problematic. Although I agree with Nussbaum that there is such a thing as the intuitive idea of human dignity, that it is an idea which every human being will relate to in one way or another, it is not altogether clear that “the idea of what human beings need for a fully human living” is the same for everyone who feels that all human beings have equal dignity. The concept of human dignity may entail different things for different individuals, even for those who have grown up in similar cultures. Thus, although the intuition of human dignity may be shared by many individuals, this does not necessarily mean the same thing for all of these individuals. Laura Brouwer explores this problem in more depth in her entry “Nussbaum on Thin Ice.” Another objection that may be raised against the assumption of human dignity is that there appear to be so many injustices in the world, and so many of them caused by human beings, that we may doubt whether the intuition of human dignity really is one that is shared by many. Of course, this objection may be brushed off by pointing out that all theories are slightly idealized and generalized (slightly different from reality), or by arguing that human beings really do share this intuitive idea but that the social arrangements of reality render it impossible for everyone to live up to it.  

                  In my first blog entry I asked whether or not intuitions, even intuitions that are shared by many, are really a strong enough foundation upon which to base a theory as ambitious as the one Nussbaum is developing—and I am still not sure. The idea of human dignity is a beautiful idea, and it enables Nussbaum to construct a theory of justice that covers a wider area than many other ones. The three unsolved problems of justice around which she bases her book, Frontiers of Justice, all seem to be solved by the capabilities approach. This is a strong reason for granting her the assumption of human dignity and seems to indicate that the assumption is better than the assumptions on which the social contract theorists base their theories, assumptions criticized by Nussbaum. Still, the concept of human dignity is conspicuously empty; it may mean different things to different individuals—and where does it come from? Intuition alone? If so, is it a strong enough intuition to support the capabilities approach? The jury is (still) out.

Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006), pp. 273-324.

Barend de Rooij, (3rd year student, LUC) 

Transnational Justice & The Legitimacy of the State

One of the unsolved problems of justice Nussbaum addresses in Frontiers of Justice is the problem of how to make theories of justice range over all world citizens, irrespective of their nationality. Social contract theorists cannot satisfactorily do this, she holds, because most of their theories are designed in the context of single nation-states. As such, they have difficulties addressing the complex interrelations between various nations and fail to give a place to transnational corporations. The world, however, contains various grave inequalities, some of which greatly influence our life chances and most of which transcend national borders. Such “morally alarming” inequalities include, for instance, economic inequalities, but also gender, race and religious inequalities. The fact that we are born in one nation rather than another is, however, clearly a contingent fact. Thus, Nussbaum holds, our nationality should not be a significant factor in the chances we get to live a dignified life.  Although various social contract theorists have seen this, Nussbaum argues, the fact remains that their theories cannot accurately respond to problems of transnational justice. In making this argument, she extensively criticizes The Law of Peoples, Rawls’s attempt to globalize A Theory of Justice in which he sets forth the procedures by which transnational principles of justice might be derived. This leads her to discuss the legitimacy of the nation-state, offering some valuable insights as to why it is a structure we might want to maintain. All of these insights depend, however, on her view of human dignity— something she simply seems to take for granted, but which would, I think, benefit from deeper justification.

                  Although social contract theorists fail to respond accurately to transnational problems of justice for various reasons, Nussbaum holds, many of the most prominent ones revolve around the privileged status social contract theorists attribute to the nation-state. Traditionally, social contract theories have been part of the project of legitimising the state, showing why, given the state of nature and the circumstances of justice, it is the most mutually beneficent and just structure under which man can live together. This is why, often, social contract theorists have taken the nation-state for granted as the certain outcome of the procedures through which participants to the social contract determine the political principles of their society. They all enter it to ensure mutual advantage within a single state. This makes it difficult, for instance, to conceive of their relations with citizens of different nations, and even more difficult to conceive of transnational relations of justice. One way in which this difficulty has been addressed by, for instance, Rawls is to conceive of the social contract in an international context as a two-stage contract. In the first stage of the contract, members of one society get together to determine the principles of their state; in the second stage of the contract, representatives of all liberal and “decent hierarchical societies” (p. 241) get together to determine the transnational principles of justice.

                  In this second-stage contract, Nussbaum points out, nations are treated the same way as persons are in the first-stage contract. As such, nations are conceived of as being rough equals pursuing their rational self-interest. According to Nussbaum this is plainly wrong: “states are both self-interested,” she argues, “and moral” (p. 246, emphasis mine) and the gross inequalities that exist in this world make it impossible for us to conceive of nations as rough equals. Rawls’s theory that states enter into some sort of contract together to determine transnational principles of justice that are mutually beneficent to all is inaccurate simply because such a  contract would not be mutually beneficent to all. More problematic for dealing with problems that transcend national borders is, however, the fact that “Rawls treats the domestic principles of justice, in both liberal and nonliberal peoples, as fixed and not up for grabs in the second-stage contract” (p. 242). Thus, within this framework, international treaties cannot change the domestic socio-political structures beyond “the thin menu of human rights that nations are assumed [by Rawls] to respect” (p. 243). And yet, Nussbaum points out, many international treaties do bear directly on the domestic arrangements of nations. Moreover, she writes, “the assumption of fixity and finality [of the state] means that we get no interesting account of why states and their basic structure matter” (ibid). For this reason, she implies, the privileged status Rawls attributes to the state is even more problematic, for he simply seems to take it for granted. He does not further justify it, and so fails to give valid reasons as to why their domestic arrangements should be respected as final and unchangeable. This leads Nussbaum to discuss why we might want to maintain that nation-states are in principle inviolable, a category worth respecting and maintaining.

                  At this point, Nussbaum looks to Grotius, according to whom “the ability to join with others to give one another laws is a fundamental aspect of human freedom … [and] the fundamental unit through which people exercise this fundamental aspect of human freedom is the nation-state” (p. 257). The nation-state, she agrees with Grotius, represents one of the most fundamental aspects of our human freedom, even in all its imperfections. It is the joint product of humans living together in geographical proximity, a product through which they try to advance their own conception of the good. Although we may be able to recognise injustices within a state, Nussbaum holds, we should still respect it as the expression of an essential human freedom, as a matter, that is, of human dignity. Not coincidentally, the freedom to determine one’s own environment through participation in the political life is one of the central human capabilities she identifies. In this way, she gives a moral argument as to why the state is a category worth maintaining, recognizing the “fundamental bond between citizens and the basic structure of the state that is theirs, [showing] respect for that bond, as a way of respecting persons” (p. 262). This enables her, unlike Rawls, to justify the state and sovereignty and to argue for its protection in the face of increasing globalisation.

                  In making the argument that states are worth respecting as an expression of fundamental human freedoms, as a way, that is, of respecting persons, Nussbaum makes her argument dependent on the idea of human dignity. This is the idea on which her entire capabilities approach seems to depend. Although I agree with many of the arguments she is making, this one included, I cannot help but feel that this notion needs further explanation. As of now, it seems to be an idea she simply takes for granted, much like Rawls and the social-contract theorists take the state for granted, and although it is a strongly intuitive idea, I fear that intuition alone is not a solid enough foundation on which to base such an ambitious argument. Other philosophers, such as, for example, Sartre, have tried to argue that the dignity of human beings derives from their distinctly human capacities such as the capacities to reason, exercise free will and the power of choice—capacities that set us apart from the rest of nature and thus make us somehow “special” in the universe. Nussbaum, however, seems to turn this argument around: according to her, our dignity does not derive from our central human capabilities, but our human dignity entitles us to exercise the central human capabilities. This is why it is so deeply regrettable that severely impaired people often cannot flourish according to the standards of unimpaired individuals: they have equal dignity, are moral equals, and have the same entitlements as unimpaired individuals do, but they cannot exercise all of the central human capabilities. Nussbaum needs to turn the argument around insofar as she does not base the notion of human dignity on the capacity to exercise certain fundamental human capabilities, which would problematize the notion that people who cannot exercise them are equally worthy of exercising them.

                  Although this move is totally understandable, and in many ways an improvement of traditional theories of justice insofar as, intuitively, her theory captures a wider spectrum of justice than many of her predecessors did, it would still benefit from stronger arguments as to where humans derive their dignity from. This is so, especially, because she criticizes Rawls and the social contract theorists for taking for granted the state, the circumstances of justice and the idea that individuals only pursue their rational interest. The only reason, as of now, to hold that it is better to proceed from the assumption of human dignity than from the assumption of the inviolability of the state is that the former assumption allows for a completer theory of justice than the latter. But it is still an assumption, and an assumption from which different people may conclude different things. We might, at this point, concede the fact that every theory takes certain things for granted, and that we should, or should not, let them get away with in light of the results they yield. Since Nussbaum’s theory intuitively yields a just theory, a more just one than her predecessors in various ways, we might simply grant her these assumptions. At any rate, we cannot simply ask from Nussbaum that she gives a comprehensive justification of human dignity—this is perhaps one of the most difficult problems of philosophy and justice still with us today. The fact remains, however, that this leaves her theory in a vulnerable position. There is work to be done.

Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006), pp. 224-273.

Barend de Rooij (3rd year student, LUC)