Nussbaum: Disabilities and the Social Contract

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)

The capabilities approach: problems of justification

The moral basis of Nussbaum's capabilities approach is the claim to a certain reasonableness and objectivity. Both of these elements of justification, I argue, present challenges that potentially undermine the legitimacy of the capabilities approach.

Nussbaum writes that “[t]he claim that is made by the use of this single list is (…) is (…) that these capabilities can be agreed by reasonable citizens to be important prerequisites of reasonable conceptions of human flourishing, in connection with the political conception of the person as a political animal, both needy and dignified” (Nussbaum 182). This reasonableness, then, has two faces. The agreement itself of citizens on the list of capabilities as the basis of a minimally just society is reasonable; and the citizens who thus agree are reasonable themselves by virtue of having come to this agreement.

These assertions may raise immediate questions; for it is clear that not everyone favours non-discrimination on the basis of sexual orientation or religion, and not everyone may deem living living in concern for animals, plants and the world of nature a central human capability, or indeed of any vital importance. That these and other elements find themselves on the list of Central Human Capabilities might be interpreted as forcing all humans to accept “that these rights are implicit in the notion of human dignity and human flourishing” (Nussbaum 184). Indeed, not only does Nussbaum acknowledge this consequence, she also defends it by asserting bluntly that everyone, including those forced to adjust their conception of human dignity, has “chosen to live in a pluralistic democracy and to show respect for its values” (Nussbaum 184). Both of these assertions are highly problematic. Apart from those who voluntarily migrate from non-democracies to pluralistic democracies, one's existence in a pluralistic democracy is decidedly arbitrary; as Nussbaum herself argues in the chapter “Mutual Advantage and Global Inequality,” people do not choose the characteristics of the state in which they are born or whose passport they carry. One could object, following Nussbaum's principle of choice, that people might endeavour to migrate to anti-pluralistic states; but this would be antagonistic to her project, which involves humanity itself rather than state entities – besides, such states plausibly do not share Nussbaum's commitment to political pluralism. Questions should be raised, also, with respect to those who do not live in pluralistic democracies; for it is merely within such societies that Nussbaum locates choice. Might the residents of states that are not pluralistic democracies, then, be exempt from accepting certain capabilities as centrally human? Implicitly contrarily to this suggestion, Nussbaum also posits that even “the atheist who hates religion and hopes it will someday disappear from human life will still prefer the free choice of religion to a state, let's say a Marxist state, that left people no choice in these matters (…)” (Nussbaum 186). Nussbaum undertakes, in short, to argue that there do not empirically exist reasonable people (although she is not concerned with what unreasonableness may entail) who will disagree with the inclusion of any element on the list as a central human capability.

It is too big a generalisation, however, to state that by virtue of one's residence in a democracy one necessarily chooses to show respect for its values and, also, to believe that choice in terms of the right to exercise a religion or to participate politically or to read a free press or not is better than non-choice. One might, for example, consistently favour all elements of the capabilities list except for non-discrimination on the basis of sexual orientation. Implicit in this emphasis on choice is a notion of passivity; people, according to Nussbaum, might empirically choose to live in a limited number of states, each with their own combinations of rights, restrictions and ideologies, but, implicitly, they are not active participants in shaping, informing or contesting their society's values. The single reasonableness, outlined above, that renders people static and uniform also implies their passivity because rather than actively and creatively conceptualising social justice, they must be constrained to deliberating Nussbaum's own, universal 'agreement.' Although she acknowledges that the capabilities list itself is open to modification, the reasonableness of employing the list itself as a measure of a minimum level of justice is taken for granted.

Moreover, agency is potentially compromised in the area of self-respect and dignity, which Nussbaum identifies as the mere area in which functioning rather than capability should be the ambition of public policy – which suggests that something like self-respect or dignity may need to be taught. Nussbaum's conception of dignity is based on Aristotle's notion of the human being as a political animal and Marx's idea that humans require a plurality of life-activities, and is linked substantively to the elements of the capabilities list; failure to secure them, she writes, “is a particularly grave violation of basic justice, since these entitlements are held to be implicit in the very notions of human dignity and a life that is worthy of human dignity” (Nussbaum 155, 159). Human dignity or self-respect may be taken, perhaps, to refer to the awareness that one is entitled to the plurality of elements of the capabilities list. Given that the list itself is open-ended rather than definite, it seems that the concepts of human dignity or self-respect might become subject to change too at some point. Nonetheless, the claim to rightness within Nussbaum's version of the capabilities list – importantly, a claim of universality – also requires a degree of objectivity.

Although an excavation of the basis for the required objectivity is not Nussbaum's main project, she writes that the capabilities approach can be justified by the idea of an overlapping consensus, which has an empirical nature. That is, citizens can come to the list of entitlements of the capabilities approach as the conclusion of a deliberation among themselves that does not rely on any form of metaphysical or epistemological doctrines. Examples of existent documents that approximate Nussbaum's vision are the Universal Declaration of Human Rights and the Constitution of India.

An objection can be made to the argument that non-metaphysical, non-epistemological public deliberation will (hopefully) result in the list of entitlements of the capabilities approach as society's partial or minimum conception of the public good. Rousseau's distinction between the general will and the will of all informs this objection:

There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but take away from these same wills the pluses and minuses that cancel one another, and the general will remains as the sum of the differences. (Rousseau Of the Social Contract, “Book II”).

The distinction is crucial as it evidences that deliberations do not always materialise in a conception of the will of all, because “the people is never corrupted, but it is often deceived, and on such occasions only does it seem to will what is bad” (Rousseau “Book II”). In spite of Nussbaum's assertion that no reasonable person will disagree with any of the elements of the list of the Central Human Capabilities and the associated approach, it is doubtful that people will predictably arrive at the capabilities approach as the general will. At this point it might also be asked why, if the capabilities approach, with its universal character, can be justified by the idea of an overlapping consensus, its entirety has not been implemented in any society to date; one explanation may be that people do reason on the basis of metaphysics and epistemologies and thus prevent the approach's implementation.

The problem of justification features another dimension, which concerns the sequence of the elements deliberation, articulation of the capabilities approach, and implementation. The capabilities approach, although abstract and open to change, is also fixed in the sense that all of its items have to be met in order for the approach to function as a minimal form of justice; one element cannot substitute (partially) for another. In this sense, it is perhaps improbable that the entirety of the approach shall be invented independently from Nussbaum's project by deliberating citizens, empirically tied as they are to religions and ideologies. The most secure chance of implementation will thus be by firstly convincing reasonable peole that Nussbaum's capabilities approach is the best conception of social justice. But, as already stated, the tendency of people to divert from the general will in processes of deliberation renders this option unrealistic. The other option would be a posteriori justification; the realisation that after having implemented – emphatically not on the basis of public deliberation – the capabilities approach as the basis for the practice of politics, individual persons are better off. This, however, would contradict Nussbaum's commitment to political participation and, more specifically, item 10A on the list of the Central Human Capabilities, namely political control over one's environment. In sum, it is unclear how the capabilities approach could realistically be expected to be justified, in spite of its claims to reasonableness and objectivity.

By Caspar Plomp (Third year student, LUC)

Capabilities across Borders

A dear person once wrote me: “What good can we do to the world if we don’t start from the people we love? Should we paint, help the poor or just be home for your sister who is growing up?”. This question was constantly popping out from the back of my head while I was reading Martha Nussbaum’s chapter “Capabilities across national boundaries”.

In this chapter the author discusses the close relation between the capabilities approach and human rights. Both provide “an account of extremely important fundamental entitlements that can be used as a basis both for constitutional thought within a nation and for thinking about international justice” (284). Furthermore the capabilities approach, as the human rights discourse, believes in prepolitical entitlements: thus by the mere fact of being born into the human community, an individual posses rights. Nussbaum intensifies this idea by declaring “a nation that has not recognized these entitlements is to that extent unjust” (285).

image courtesy of The Guardian, 23.1.11

Human Rights are a historical product: events that occurred throughout the 19th and 20th century invited the international community to draft international documents in order to prevent such atrocities to take place ever again. Although many states ratified and signed these documents, consensus is far from being reached. From a religious perspective of the four major religions, Buddhism, Hinduism and Islam would like to see a shift of focus from entitlements to duties and from considering the individual as the final subject of justice to the community.

Human rights are a political artifact: their philosophical background is derived by the reality that we now live in organized political societies to which we are related through a legal system of rights and duties. Could we indeed think of the freedom to religious expression if we did not presuppose a division between public and private sphere? Could we think of the right to life if we lived in the ‘state of nature’? Furthermore within our daily lives we are always driven to think that it is not who we are, but what we do to define us. Thus why by simply being born, should we be empowered with human dignity?

HR is often treated as an aid-kit that can be distributed homogenously from North to South and West to East: local discourses are thus left behind, although they determine people’s worldviews. Nussbaum as well seems to forget the implications that specific cultures, languages and religions play in the formatting of an identity both on the personal and societal level. Indeed she states “to secure a right to citizens in these areas is to put them in a position of capability to function in that area” (287). Hence the capabilities/rights must be context based precisely because the conditions of work and livelihood shift. Consequently the “prerequisites for living a life that is fully human rather than subhuman” (278) can not be neither equal nor stable through space and time. I remember having a debate around this same issue in the Diversity & Integration class in my first year at LUC. Back then, I was arguing in favour of the most basic human rights: food, shelter and water. However thinking about it in Nussbaum’s terms, if a person is born in the U.S.A and he is deprived of education or Internet, is he then living a subhuman life?

To conclude Nussbaum defends the capabilities approach, and implicitly human rights, on the basis of equal human dignity. The author claims that because we are all recognized under this notion, the world community “should be working towards these goals together” (291). However I wonder what would she answer to “What good can we do the world, if we don’t start from the people we love?”. A negative answer to the question would indeed imply that as individuals we must firstly care for what strictly surrounds us in order to improve the whole reality.

By Georgia Rae Lasio (Third year student, LUC ... presently at McGill University)

Mutual Advantage and Global Inequality

The notions of hierarchy, and consequently of poverty and wealth, are inherent within human society. Such fact, attached to the importance of sovereignty, impedes the international community to reach an agreement on effectively solving certain issues.

graffiti based on iNeed stencil on canvas by Mantis, 'global inequality'

Martha Nussbaum in her chapter Mutual Advantage and Global Inequality criticizes Rawls’ theory of the social contract. In her view Rawls’ contractarianism is problematic because of the commitment to equality of power in the initial framing of the contract and because of the commitment to mutual advantage as its final goal (271). Nussbaum on the opposite side believes that human bond and respect is the starting point; human being is the main actor in the structure of the state. The citizen indeed continues to be “the basic subject of the theory of justice” (262), in which the state becomes the representation of the people both on a domestic and international level.
However, although the puzzle’s pieces are all present, it can not be completed. Due to the fixity of societies’ systems, states intentionally avoid any change domestically. Such phenomenon causes the impossibility to redistribute income and wealth in an equal manner among the various states of the world; it would necessitate a review of internal priorities (236). Thus territorial sovereignty, despite globalization and the erosion of national boundaries, maintains an important role both in domestic and international politics.
It is undeniable that international organizations and multinationals corporations have increased their influential power, but nevertheless sovereignty (quite paradoxically) still serves as a central theme: it is being sustained by the mutual recognition and shared expectations generated from the international society (Krasner, 3). Nussbaum herself touches upon this issue by questioning why as citizens we are up to this moment so attached to the state: “Why might people want the state, rather than corporations or international agencies, to supply much of the basic structure for their lives?” (237).
The effect of our need to be legitimized through a government generates the inequality of capabilities and means present in internal societies to be reproduced in the international sphere. The same framework of the United Nations, The organization that is supposed to promote justice, peace and sustainability, is characterized by a legalized hegemony. The Security Council, and therefore its permanent members control the entire functioning of the UN by maintaining their private interests.
In conclusion we can acknowledge the functional role of power and wealth in the process of forming a contract; natural inequalities are present from the beginning, thus determining the system’s procedure (31). Nussbaum correctly claims that the ultimate cause that brings people to form a society is an inherent need to bond; however she naively interprets humans’ disposition. The natural characteristic to socialize and care for the other is intrinsic to our weakness to stand on our own.

By Georgia Rae Lasio (Third year student, LUC ... currently at McGill University)


Sources:
Martha C. Nussbaum, “Frontiers of Justice: Disability, Nationality, Species Membership”, The Belkann Press of Harvard University Cambridge (2006).
Stephen D. Krasner “Sovereignty and its Discontents” Chapter 1 in Sovereignty Organized Hypocrisy, Princeton University Press (1999), 3-42.

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