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)

Extending the capabilities approach: Non-Human Animals and Justice

In last week’s session, we discussed the final chapter of Nussbaum’s book, titled ‘Beyond “Compassion and humanity”’. Whereas previous chapters are primarily concerned with justice for human beings situated outside of the social contract, this chapter revolves around extending the social contract to include non-human animals. Although many of us (including me) would react sceptically to this notion, Nussbaum offers us a framework through which such a contract can be made possible. Nussbaum’s criticism of social-contract theorist John Rawls and Utilitarianism is convincing, but her own framework lacks the same convincing argumentation.

Non-Human Animals.  Image: District 9

From the get-go, it is clear that Nussbaum is providing us with a theory to elevate non-human animals from 'the state of nature' into a social contract. She argues that human beings have much in common with non-human animals in terms of sentience and intelligence, and thinks it plausible that ‘our relationship with animals should be regulated by justice, instead of war for survival and power that obtains’ (326). Her criticism of contractarianism in general and John Rawl’s theory in specific focuses on core contractarian assumptions of mutual advantage, rough equality and self-interest, as well as the notion of Kantian personhood. Although Nussbaums 'capabilities approach' builds, for the most part, on Rawl's contractarian-based theory, it finds an ally in Utilitarianism with regard to animal justice, which has 'done more for recognizing animal suffering as evil than any other theory' (338). Utilitarianism, like the capabilities approach, is an outcome-oriented theory, as opposed to the more institutional-centered contractarian doctrines. Despite the merits of Utilitarianism, Nussbaum criticizes a few core concepts of Utilitarianism, of which consequentialism (the right act promotes the best overall consequences) and sum-ranking (concerned with aggregating all preferences in order to form a coherent outcome) form the biggest problems. She argues that consequentialism leads politicians to pursue 'the good' (whatever that may be), which might prove detrimental for individual liberties. In contrast, Nussbaum's capabilities approach focuses on providing subjects of justice the basics. Moreover, she claims that sum-ranking is prone to providing downright bad results, as it 'never rules out in advance results that are extremely harsh' (343).  Nussbaum argues that the capabilities approach is able to incorporate justice for non-human animals, because of its alternative approach to personhood and its focus on capabilities. Instead of following Rawls in using the Kantian conception of 'the person', for which rationality is pivotal, Nussbaum follows the Aristotelian conception. Here, rationality is not given a central role, but rather is seen as a trait of a particular species. Its focus, then, is based on viewing human beings as an animal among animals, regards all life as 'something wonderful and wonder-inspiring' (347) and renders no life form more important than others. Such a view allows us to extend the capabilities approach from solely human beings to all sentient creatures. This, in turn, would render it unjust and immoral not to view the individual animal as an agent and as an end in itself. Nussbaum thus focuses on the individual animal, instead of the species, and implores us that 'all moral relevance lies in the capabilities of the individual' (360). Therefore, she cleverly detaches herself from a difficult position, by argueing that, as long as the basic prerequisites of justice for individual animals has been secured, the survival or extinction of species is of no moral concern to us. However, since we have to view animals as agents, which obliges us to allow them to flourish (an ethical obligation), Nussbaum argues we have both positive and negative duties towards animals. Hence, she proposes that, next to the negative duty of refraining from harming animals, we have a positive duty to protect their flourishing as large numbers of animals live under the direct control of human beings (373). In such a context, zoos are permitted (and might actually be better for animals than nature), but should be focused on breeding inter-species friendship (376). We might even go so far as policing nature, as the capabilities approach regards 'torture of the gazelle is as bad when done by a tiger  as it is when done by a human' (397). Additionally, we are allowed to, for example, 'neutralize' rats to cancel the spread of a disease, although in the case of animal control, we should always use the least painful approach.
Although Nussbaum offers us an interesting approach to animal justice, I am not completely convinced by her arguments. First and foremost, Nussbaums primary reason to include justice for non-human animals in the book seems to be the regulation of justice between human and non-human animals. She argues that human beings often mistreat animals, and that we should thus move to a conception of justice in which we have the moral duty to prevent such infractions of animal justice, as well as providing non-human animals with the opportunity to flourish. This is by all means a noble goal. If her conception of justice would focus only on justice from human beings to non-human animals, her unconvincing method of 'imagination' to establish animals preferences might prove convincing after all. Although this method would only allow us to view animals in a human-centric perspective (hereby 'humanizing' animals), we would probably learn much about ourselves and our interaction with animals in the course of doing so. However, by extending our duties to policing the animal world and creating inter-species friendship, we run the risk of being over-paternalistic to animals, and ending up curbing their freedom and flourishing more than adding to it. Moreover, it is difficult enough to imagine the preferences of specific species, let alone individual animals. In the context of human-animal justice, it makes sense to opt for such an approach. However, I am not convinced that Nussbaums approach allows us to extend this method for animal to animal justice based solely on the argument that we should not worship nature. Additionally, I am not completely convinced of Nussbaum's criticism of Peter Singer's preference-Utilitarianism. She criticises preference utilitarianism for the 'ambiguity of the very notion of a preference' (341). However, Nussbaum does not offer a clear answer for what preferences, especially in the case of animals, are. Although Nussbaum appears not to want to 'impose on animals a form of life that is not what they “would choose”', it never really becomes clear how we would go about this.
In summary, Nussbaum provides us yet again with an interesting criticism of Contractarianism and Utilitarianism. Although her own arguments are certainly not completely airtight, she deserves credit for boldly forwarding an interesting theory. As in the case with the disabled and international settings, it forces us to re-think conventional ideas on justice and what our duties really are to our fellow creatures.

Source: Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006)

By Jasper Ginn (Second year student, LUC The Hague)

Nussbaum on thin ice

After having read well into Martha Nussbaum’s “Frontiers of Justice” and having covered chapter V: “Capabilities Across National Boundaries”, it is time to return to some of the questions that were raised in our discussions in the Dean’s Master class as well as on the corresponding web blog. From the start, general curiosity went out as to how Nussbaum would attempt to extend and modify Rawlsian contractarianism to truly create a global theory of justice that exceeds the nation state. Barend de Rooij raised one fundamental question - from across the North Atlantic pond on his exchange at Rutgers University - about Nussbaum’s use of a shared intuition as the base of her theory. He posed whether “intuitions, even intuitions that are shared by many,  [are] really a strong enough foundation on which to base theories of justice?” (see web post from the 3rd of December 2012). This is a question that underscores some of the most questionable aspects of Nussbaum’s inquiry and extends to questions about universality and practicality that particularly come to mind with this specific chapter.

In the book Nussbaum intends to maintain a purely philosophical inquiry that shapes public policy at heart. Her duty, as she sees it, is to provide a sound theoretical foundation for the practical aspirations that she puts forward. In the last paragraph of the chapter she states that “these principles [Ten Principles for the Global Structure], together with the theoretical analysis that supports them, are at least a sign of what the capabilities approach can offer as we move from goals and entitlements to the construction of a decent global society.” (Nussbaum P324) In the respective chapter she has thus tried to set out a philosophical framework with highly practical implications. My idea is that in her attempt to create a clean-shaven philosophy (as we might call it) but simultaneously with the purpose to create practical changes in the world that she has already in mind prior to her investigation, she is trying to build a bridge over troubled water (Simon and Garfunkel). That is, she is making enthusiastic steps on very thin ice, leading her to create a rather incoherent theory that has questionable premises.

Image: Nussbaum attempts to pursue  “clean shaven” philosophical inquiry – (drawing by Bart Lutters)

One of these premises is her usage of human dignity and our intuitive association with this concept. Nussbaum regards that humans share a dignity regardless of place and that certain minimum needs are to be met if we do not want to undermine this dignity (Nussbaum P274). In this view of dignity she has transformed it directly into a global concept, without having made assumptions about the content of what then are the minimum aspects of human life that we need to fulfill in order to live in dignity. In her definition of social cooperation, this becomes somewhat more substantive, as she puts the capabilities approach at the heart of the matter. Continuing on she states that “the idea of what human beings need for fully human living is among the most vivid intuitive ideas we share.” (Nussbaum P279). However, she leaves the definition of what dignity entails rather vague. In this chapter she invokes and high lights an intuitive empathy with the idea of human dignity. Every reader (at least if they have not become too skeptical) will probably relate one way or another to the idea of dignity. So to the extent that the idea of dignity is perhaps something we intuitively share she might be right, but to what extent do we share the same conception of dignity? A conception of dignity is possibly present in every culture or group of people, but the conception of dignity might differ greatly. This is where it becomes problematic. Nussbaum argues for a universal theory that, if it is to become a goal we strive for, needs the agreement of many. Yet, would this agreement then not be based on potentially highly varied (practical) conceptions of dignity? Is this then at all possible? These questions and critiques make me doubt the strength of such a foundation for her theory.

Perhaps I am trying to challenge Nussbaum’s for no reason. After all, she does not want to impose a global normative doctrine, but rather transform policymaking and the international arena towards focusing on achieving the capabilities for all. She has a strong appreciation for state sovereignty, but argues that “the capabilities approach insists that certain core entitlements should be part of domestic constitutions worldwide.” (Nussbaum, P314) She continues that there should be a lot of room for interpretation in order to protect political freedom and pluralism. Although I appreciate her point, again she seems to be standing on thin ice. On a practical note, the mentioning of certain rights in a constitution does not mean by far that these are actually becoming reality. More importantly, she seems to fundamentally contradict herself by giving a requirement of the state whilst simultaneously advocating sovereignty. It seems as if she is trying to avoid this confrontation by remaining vague about which core entitlements these concern. Furthermore, on the one hand she proposes that all individuals hand over their duty to institutional structures and for the provision of entitlements and on the other hand argues for the nation state to providing these. Again she remains vague about what exactly she envisions these “institutional structures” to be. If they involve national structures, she is not as paradoxical, but she also strongly advocates international institutions such as the United Nations, international treaties and NGO’s. It thus remains unclear how the capabilities approach and its practical implementation can embrace pluralism and state sovereignty while also putting certain requirements on the nation state and have a responsibility for the implementation at (international) institutional structures.

The discussion above by no means touches even close to all dimensions of Nussbaum’s inquiry, be they problematic or not. What does become clear from the debate is that regardless of the fact that Nussbaum tries to stay away from making practical implications; she is somewhere stuck in between the philosophical and practical realm. As said before, I think that one of the issues that do not allow her to make a clean-shaven philosophical inquiry is that she has already set out her goal before she starts her inquiry. She therefore tries to pave the path from point A to a predetermined part B, which requires her to take a couple of questionable turns. Her inquiry is definitely creative, but has too many sides that make it problematic to just take as a piece of creative writing. Another question that thus pops up is whether and to what extent she than misuses (not necessarily intentionally) little bits of theory from Rawls, Grotius etc. in order to persuade the reader. As a final note of this web post, this is the question I would like to ask to the reader.

By Laura Brouwer (Second year student, LUC The Hague)

The Mutual Benefit of Free, Equal & Independent Individuals

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)

Choice, Capabilities & the Species Norm – universality in Frontiers of Justice

Among the most fundamental underpinnings of Nussbaum’s capabilities approach are the twin ideas of human dignity and inviolability. Together, these ideas form the foundation for Nussbaum’s view that every individual is worthy of a fully human life. At least in principle, she holds, every individual should be capable to flourish as a human being. To this end, Nussbaum identifies ten central human capabilities that each individual should be able to exercise and develop so as to be able to live a fully human life. This list includes such capabilities as the capability of life, bodily health, bodily integrity, imagination and thought, emotion, play, affiliation and control over one´s environment. These capabilities are inextricably bound up with Nussbaum’s view of human nature; that is, it is informed by the activities, capacities and endowments she deems essential to human beings as a species. This is not, however, a biological view of man’s nature—it is an ethically evaluative view; that is, out of all the capabilities that are characteristically human, she thinks these are the most important ones. Although Nussbaum does not believe that human beings should develop all of these capabilities in order to flourish, she does hold that they should be able to do so if they so desire. The choice of what capabilities to develop, however, is ultimately one that individuals will have to make for themselves. This emphasis on choice may raise some problems for her theory, especially as regards its pretension of universality.
Nussbaum is well aware of the fact that not everyone will want to fully develop each of the capabilities she listed. Individuals in different societies and with different beliefs will have different ideas of what constitutes a fully human life, or of what can be called a flourishing life. “The claim that is made by the use of this single list,” she writes, “is not that there is a single type of flourishing for the human being, but, rather, that these capabilities can be agreed by reasonable citizens to be important prerequisites of reasonable conceptions of human flourishing (p. 182).” These capabilities are important insofar as they enable people with widely different conceptions of the humanly good to live worthy lives. They enable individuals who think political participation is essential to human flourishing as well as those who think it is wrong to do so to live out their own conception of the good life simultaneously. In this way, Nussbaum makes a distinction between human functioning and capability. Capabilities are potentialities, options that are (or should be) offered to every individual. Should an individual choose to realise these potentialities, he has brought them down to the level of functioning; that is, he has not only affirmed their value as general capabilities or entitlements, but has affirmed their value as abilities that are important to him personally. This choice of which capability to develop and which one to leave aside, a choice that Nussbaum holds human beings should have, enables her to generalize her theory of justice and make it range over diverse groups of people.
There appears to be a slight discrepancy here. On the one hand, Nussbaum’s list of capabilities purports to be a list of the ten capabilities that are essential to human flourishing. This idea is given such weight in her theory that when it is the case that these capabilities are almost wholly absent we have reason to doubt one is capable of living a human life at all, and that when it is the case that not all of them are guaranteed to at least a minimum extent it is impossible to live a dignified human life. On the other hand, Nussbaum allows for the possibility that individuals will choose not to realize certain individual capabilities so as to be able to pursue their own conception of the humanly good. An Amish citizen, for instance, may well believe that it is better not to participate in political life—that it is not essential to human flourishing to participate in politics. This raises the question of just how universal Nussbaum’s capabilities are.
One may object to this question, as Nussbaum does, by pointing out that there is a difference between having the choice to develop a certain capability and actually developing this capability. An Amish citizen may choose not to develop his capability to “control his own environment” by engaging in political life, while still affirming the value of having the choice to do so. He may well believe it is best for him not to be politically active, but not for everyone else. Certainly we have reason to believe he will prefer choice to non-choice, democracy to dictatorship, insofar as he “has chosen to live in a pluralistic democracy and to show respect for its values” (p. 184).  After all, this implies that “[he] does after all think that these values are very important political values, even though the associated function is something they will not use” (p. 184). Capabilities are potentialities that may or may not be realised—but they should at least be possible to realise.
This objection, however, does not speak to my point directly. Even if it were the case that this Amish citizen affirmed the value of the right to vote regardless of his choice not to exercise it, we have reason to believe he might still be able to flourish – live a fully human life in his sense of the word – deprived of this right. It is not necessarily essential to his conception of human dignity (even though it may be). Similarly, a strictly religious individual who holds that religion is fundamental to human flourishing may be able to flourish even in a society where only his form of religion is allowed and the freedom of religion is otherwise curtailed. Of course, most religious individuals will think that freedom of religion is essential—but my point is that it is not sure that all of them will. Thus, it is not clear that the capabilities approach is as universal as Nussbaum needs it to be. At any rate, it would seem that these capabilities are not as essential to human flourishing as she takes them to be.
At this point, one may remind me of the fact that Nussbaum thinks the capabilities are only the “prerequisites of reasonable conceptions of human flourishing,” and not of all conceptions. There is this further distinction between reasonable and unreasonable conceptions. But where will we draw the line? Does human dignity entitle us to flourish in a reasonable way only? Is one way of flourishing better than the other? How would you justify this difference? And what does it imply for persons who are not capable of rational thought? These are some questions that may be difficult to answer, but they are essential to a full and correct understanding of Nussbaum’s theory. It appears to me, therefore, that her theory needs some further refinement here.

Source: Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006), pp. 155-223.

By Barend de Rooij (Third Year Student, LUC ... presently at Rutgers)