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Frontiers of JusticeReview - Frontiers of Justice
Disability, Nationality, Species Membership
by Martha C. Nussbaum
Belknap Press, 2006
Review by Alexandra Couto
Jul 24th 2007 (Volume 11, Issue 30)

This book is intended for an academic audience, but remains very accessible to a larger audience. In a truly impressive way, the problems are addressed at very different levels of analysis, as Nussbaum moves skillfully from philosophical discussions to empirical insights on each topic. She never loses sight of the connection between theory and real life cases and she draws valuable insights from the history of disabled rights. Inspired by the work of Irving Goffman in Stigma, she looks at the evolution of the social perceptions of disabilities. She demonstrates how specific social policies (such as changes in the arrangement of public space) can change our perception of what counts as a major disability.

Frontiers of Justice contains seven chapters. In the first three chapters, Nussbaum exposes her main criticisms against social contract theories. The fourth and fifth chapters address the issue of global inequality. The sixth chapter examines the demands of justice for nonhuman animals. The final chapter points to the crucial role of moral emotions within the capabilities approach.

Nussbaum argues that the three issues of disability, global justice and animal rights show the shortcomings of the social contract as a general framework for a liberal theory of justice. Her criticism targets Rawls' conception of justice [henceforth Justice-as-Fairness], because she takes it to be the best representative of contractarian theories. However, she does not exclusively focus on Rawls, as she gives a brief survey of the main ideas of the social contract tradition as articulated by Grotius, Hobbes, Locke and Kant.

In conformity with the whole social contract tradition, Rawls assumes that the individuals in the original position are equal, free and independent. Nussbaum claims that all these assumptions exclude disabled individuals. Equality presupposes equal natural powers and the assumption of natural freedom presupposes some natural capacities. Similarly, the qualification of individuals in the original position as independent excludes those who are dependent on care from others.

The main criticism addressed to Rawls by Nussbaum is what she labels the "postponement" of the question of disability. Rawls does not cater for the special needs of the disabled in the original position but only at a later stage of legislation. Rawls can't include the physically or mentally disabled in the original position for three reasons. First, the index of primary goods based on income and wealth can measure adequately the well-being of non-disabled, but it would not be appropriate to measure the well-being of the disabled, who might need more resources to achieve the same level of well-being. Rawls is committed to use wealth and income because he needs to identify clearly who are the worse-off. The ability to rank in a definite way the worse-off individuals is indeed crucial in order to apply the difference principle. Second, in the original position, the goal pursued by the parties of the social contract is mutual advantage. For the parties, it would thus not make sense to include the disabled. It is indeed doubtful that the costs of including the disabled would offset the benefits of their social productivity. Third, including the disabled would thus require a certain degree of moral benevolence on the part of the parties. Rawls aims at elaborating a theory that would be based on a minimal set of assumptions; adding moral benevolence as a motivation of the parties would add complexity.

Moreover, mental disabilities cause further problems for Rawls' account. Rawls uses a Kantian account of personhood, which is based on a specific account of rationality whose requirements are not satisfied by the mentally disabled. The mentally disabled are disqualified from being citizens because they do not have the type of rationality that is presupposed in Rawls' account.

Nussbaum claims that Rawls' exclusion of the disabled in Justice as Fairness has implications for non-disabled as well. All individuals are indeed temporarily dependent on others; in their young age, in their old age and/or when they are diseased or temporarily disabled. Excluding the disabled would thus also entail excluding the non-disabled when they are dependent on others.

To sum up, Nussbaum identifies four main ways in which Rawls exclude the disabled. First, Rawls uses wealth and income as a metric for social positions. Second, Rawls endorses a Kantian conception of the person, which requires a high degree of rationality and excludes the mentally disabled. Third, Rawls assume that the parties to the social contract are roughly equal in power and abilities. Fourth, the original position postulates mutual advantage as the goal pursued by all the parties. 

On all these counts, Nussbaum claims that the capabilities approach fares better. The capabilities approach starts from the Aristotelian conception of human beings as social and political beings. There is thus no need to justify by mutual advantage the constitution of a political community, since human beings find fulfillment only in a social and political environment. The approach considers justice and inclusiveness as ends of intrinsic value; the good of others is seen as a part of any citizen good.

The capabilities approach also does not need to postulate equality and independence as necessary features of individuals.

Inspired by an Aristotelian account of human nature, Nussbaum argues that some central human capabilities are implicit in the idea of a life worthy of human dignity. On this Aristotelian account, human beings are characterized by a combination of practical reasoning, sociable disposition and bodily needs. These characteristic features are defined by the capabilities. The capabilities are thus constitutive of a life with human dignity.

Moreover, she claims that these capabilities can become part of an overlapping consensus for citizens who have different comprehensive conceptions of the good. The capabilities approach is thus a political doctrine about basic entitlements, not a comprehensive moral doctrine. The ten central human capabilities identified by Nussbaum include: life; bodily health; bodily integrity; senses, imagination and thought; emotions; practical reasons; affiliation; other species (that is, the ability to live with concern for other species); play; control over one's environment (political and material). It is crucial in her account that a sharp distinction is made between a capability and a functioning. Capability refers to the opportunity and ability to do something while actual functioning entails that the individual is actually engaged in the activity in question. The capability approach aims at ensuring that individuals are able to engage in political participation and play, but does not demand that all individuals get actually involved in politics or play. It aims at improving individuals' choice. This allows the capabilities approach to remain liberal, despite articulating a specific conception of the good.

Nussbaum suggests that the main political and social goal should be to ensure that each citizen gets above a threshold level of each capability. Moreover, she claims that the same threshold of capabilities should be used for disabled and able alike, because most disabled people can be brought above this threshold, if appropriate social policies are designed. According to Nussbaum, a massive change in the design of public space and a massive investment in the education of the mentally impaired could bring most mentally disabled above the various thresholds of capabilities. However, Nussbaum recognizes that some disabled will not be able to reach this threshold. The only thing left to say about them is that, to the extent that they can't reach the same threshold of a specific capability, their life is unfortunate. One should strive nevertheless to help disabled individuals to reach as many of the capabilities threshold directly.

Nussbaum sketches the practical implications of the capabilities approach at the global level. Some specific principles must be articulated- and Nussbaum suggests ten such principles. Moreover, there must be a clear attribution of duties to specific institutions. However, the idea of human dignity that grounds the capabilities approach considers that entitlements –not duties- are fundamental. Practically, at the international level, however, it is crucial to know which actors are responsible to carry out these duties, given that the international institutional structure consists in a variety of different actors. The duties to promote the development of capabilities should thus be shared between states (with responsibilities to redistribute to poorer nations), multinational corporations (with responsibilities in the countries in which they operate), global economic agencies, other international bodies, nongovernmental organizations and individuals. The absence of centralized power leads to several problems: a collective action problem, a problem of asymmetry in the information obtained by the various duty-holders, unfairness in the distribution of duties and a problem of self-defeatingness. The will be self-defeatingness if individuals promote others' capabilities at the expense of their own capabilities. This is very similar to the utilitarian paradox: if everyone aims at maximizing the happiness of others, everyone ends up being less happy than she would otherwise be. According to Nussbaum, all these problems can be mitigated by the attribution of a clearer and bigger role to global institutions. 

The last chapter of the book indicates what remains to be done to complete the account of the capabilities approach. Nussbaum also claims that the reliance of the capabilities approach on a certain degree of benevolence is valuable, because the scope of benevolence in individual's motivation is very sensitive to social teaching. She argues that the fundamental conception of justice adopted in a society contributes fully to shape citizens' sense of justice. In contrast to the capabilities approach, a theory of justice based on a social contract would have a negative impact on the moral formation of individuals.

Frontiers of Justice is a wise book and it makes some powerful attacks on Rawls' Justice-as-Fairness. However, I would like to make here some critical comments and two more fundamental objections. Nussbaum's criticism of Rawls' primary goods is quite powerful. It seems indeed impossible for Rawls to include physical disability as one thing covered by the veil of ignorance, because at the next stage, the identification of the worst-off will be false if one uses a wealth and income index. Rawls himself has implicitly recognized the deficiency of the wealth and income index by refraining from using it to measure self-respect, which he nevertheless counts as one of the primary goods. However, I remain unconvinced by Nussbaum claims that it would be impossible for Justice as Fairness to use a capabilities-based metric to measure the index of primary goods. Nussbaum claims indeed that Justice as Fairness can't endorse a capability-based metric because it would then not be feasible to identify the worst-off. But it is not clear to me why a capability-based metric couldn't identify the worse-off. Individuals who have the least number of capabilities could be identified as the worst-off. For sure, these would constitute a bigger group of worse-off than the worse-off identified by a wealth and income index. But the difference principle could still be applied to them.

I am also unclear about the extent of divergence that separates Nussbaum from Rawls. Very early on, Nussbaum claims that she does not intend to dispute the principles selected by the Rawlsian procedure. Instead, she attempts to arrive at similar principles of justice by another route; her main objections being directed at the original position. However, despite her claims that her theory will arrive at similar principles, the capability approach endorses a sufficientarian principle of distribution instead of the difference principle. Nussbaum seems to be playing down the extent of her divergence from Rawls. By doing that, she misleads the reader.

I also remain unconvinced by Nussbaum's attempt to reconcile her commitment to an Aristotelian account of human dignity with her judgment that those who fail to display the characteristics typical of human beings remain human beings. This is self-contradictory. If the capabilities are constitutive of human dignity, individuals lacking these capabilities to the required extent are deprived of human dignity. Nussbaum can't argue at the same time that human beings are characterized by a set of features but that lacking these specific features does not entail a fall from the human species. One of the arguments that Nussbaum sketches is that disabled individuals belong to a set of close-knit interactions with human beings. This is a weak argument, as domestic pets are also living in close-knit interactions with human beings, but this fact alone does not ground their belonging to the human species. I believe that her account of what constitute human dignity lead her to endorse the view that those who lack these features lack human dignity.

Let me now turn to two more general objections to Nussbaum. First, Nussbaum's main criticisms are directed to the setting of the original position and the assumption of mutual advantage. She believes that any attempt to model justice on the basis of mutual advantage is wrong-headed. On her view, a true account of justice should deal with the appropriate development of certain ethical emotions. I will argue here however that she might be misunderstanding slightly the role of the original position in Rawls. Unlike Scanlon in What We Owe to Each Other, Rawls aims at providing an account of justice in which the individual is not motivated by the well-being of others. I do not believe though that the motivation of mutual advantage so postulated is to be taken as seriously as Nussbaum takes it. It is only for the sake of rendering explicit the source of our conception of justice that Rawls uses self-interest. Confronted to an injustice, an individual's compassion is based on his ability to imagine what it would be like to be on the receiving end of the injustice. The original position captures the origin of the benevolence one feels towards others. To her credit, Nussbaum acknowledges that the veil of ignorance complement the original position and that together they model impartiality. However, many of her criticisms remain targeted at the original position taken independently. 

Second, Nussbaum does not examine the possibility that her capabilities account and Justice-as-Fairness might be compatible. The achievement of a certain threshold of capabilities might function as a pre-condition to Justice-as-Fairness. Rawls suggests indeed that basic needs of individuals should already be met before the application of the two principles of justice. This suggestion is vague and leaves unsaid how many needs are to be met. But this indicates that Rawls could perfectly integrate in his account that some basic capabilities have to be met as a pre-condition to the application of his theory of justice. As he himself admits it, the basic political liberties are worthless if individuals are starving. To be fair to Nussbaum, she is aware that Rawls mentions that some basic needs have to be satisfied as a pre-condition to the application of the two principles of justice. However, she fails to take this as an indication of a possible compatibility between her capabilities approach and Rawls's Justice-as-Fairness. But this possibility deserves serious consideration. After all, the capabilities approach adopted as a theory of justice in and of itself would be very undemanding, as no further principle regulates the inequalities left after the attainment of the capabilities threshold by every citizen.

 

© 2007 Alexandra Couto

 

Alexandra Couto is a doctoral candidate in Political Theory at Oxford University. 


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