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)