Martha Nussbaum's latest book is a rich, comprehensive and devastating attack on the social contract tradition in general, and Rawlsian contractarianism in particular. Her main complaint is that the social contract, as that tradition conceives it, gives us an unsatisfactory account of justice with respect to three paradigmatic cases: people with severe disabilities, people who are not fellow-citizens of ours, and non-human animals. Any attempt to include members of these groups in a theory of justice would violate one of the three premises of contractarianism. These are: the contract is designed for the mutual benefit of all contractors; the contractors are roughly equal in their powers; and they are self-interested and rational in the pursuit of their interests. Yet, the severely disabled, citizens of developing nations and non-human animals usually cannot be part of a social contract that is designed for mutual benefit, nor are they of equal power with the other contractors. In addition, severely mentally disabled people and non-human animals cannot represent themselves in deliberations that are designed for rational agents. A contract-based theory of justice thus excludes all three groups and does not treat them as subjects of justice. In contrast, Nussbaum suggests that her (and Amartya Sen's) capability approach is able to provide an account of justice in dealing with the severely disabled, people in the third world and animals. And in that respect it is superior to Rawlsian contractarianism.
As Nussbaum points out, Rawls himself has acknowledged that these three cases present a challenge for contractarians such as himself, and has tried to respond to that challenge, at least in the case of our duties towards people in other countries. Nevertheless, Nussbaum's important contribution is in diagnosing the shortcomings of contractarianism. At the core of the problem she identifies is the fact that the social contract, in essence, seeks to establish justice as a prudent course of action for rational and self-interested agents. That has been the main thread in contractarian thinking about justice from Hobbes to Rawls. The kernel of Nussbaum's attack on that tradition is as simple as it is devastating: prudence and reciprocity do not exhaust the concern for justice. Consequently, hypothesizing about what prudent and rational individuals would choose to bind themselves to is inadequate in telling us what justice requires of us. At best, contractarian theories of justice appear to be simply a misguided spillover from contractarian theories of political obligation.
Nussbaum's comprehensive critique of the social contract tradition is also timely. It has the added value of summarizing, in a way, the current state of affairs between contractarians (and Rawlsians in particular) and their non-contractarian egalitarian critics (roughly, luck egalitarians who are not of the Dworkinian kind, plus capability theorists). We may say that in contrast to Rawlsian justice, non-contractarian egalitarian justice is natural as opposed to merely political; consequentialist as opposed to primarily procedural; and comprehensive as opposed to constrained by reciprocity and mutual benefit. From these three main points of departure, it appears that in recent years Rawlsians and their non-contractarian critics have been increasingly speaking past each other. That is partly why Nussbaum's book, and in particular her lengthy discussion of the three unresolved issues of justice, is so timely. By directing the spotlight to the above-mentioned three groups that are effectively shunned by contractarians, Nussbaum is in a position to renew the conversation between contractarians and their egalitarian critics, and thus help advance the egalitarian debate beyond its current impasse.
Still, one advantage of the contractarian (and especially the Rawlsian) strategy is that it is capable of generating a definite set of principles of justice. By so doing it also eschews the need for ‘intuitionistic balancing’ (p. 147). In that respect, Rawls presents a theory that appears more attractive than those of non-contractarians, and luck egalitarians in particular. Luck egalitarianism generates radical egalitarian implications and also calls for trading off these strong requirements of distributive justice with other ethical requirements. That theory therefore does not readily generate a definite set of principles. Some philosophers see this indeterminism as a distinct drawback of this egalitarian rival to Rawlsian contractarianism. Nussbaum's (and Sen's) theory of justice is situated somewhere in between Rawls's definite proceduralism and luck-egalitarians’ indeterminist intuitionism. Nussbaum's non-procedural stance does not allow her to arrive at a definite binding contract. But her adoption of the Rawlsian idea of overlapping consensus and the idea of reasonable agreement does allow her to stipulate a relatively definite set of rough guidelines. These guidelines take the shape of a list of capabilities, a ubiquitous feature in Nussbaum's and Sen's numerous publications. Whether or not that is an advantage is, however, debatable. There is something a little strange about political philosophers listing ten capabilities that any government ought to respect, as if these were commandments. This is made palpable when the philosopher then self-references ‘capability 7b’ (p. 292), as reading so and so, in the same serious tone with which one would invoke ‘the 4th amendment’, say.
In offering her finite list of capabilities Nussbaum thus offers an account of justice that is in fact sufficientarian. Because that theory of justice is less comprehensive in scope and less radical in its egalitarian implications than luck-egalitarianism (the other main egalitarian rival to Rawlsian contractarianism), she opens herself to an obvious criticism: why stop there? Why, that is, give a sufficientarian account of justice when it is possible to give an egalitarian one? The answer, it seems, is rooted in the grounding of Nussbaum's capability approach in treating agents with dignity, rather than in what is owed to them in terms of egalitarian distributive justice (see p. 70). Most non-Rawlsian egalitarians, I fear, may lose interest with Nussbaum's argument at this stage.
The heavy reliance of her capabilities approach on the notions of dignity and decency has further drawbacks. Nussbaum often rejects a policy on the ground that a ‘decent society’ (e.g. p. 182) would not act that way. (It would have been useful, in that context, to cite one of the major works on the topic in recent years, namely Avishai Margalit's The Decent Society (Harvard, 1996).) Or she criticizes certain proposals on the ground that to follow them would be ‘to fail to recognize [individuals’] equal human dignity’ (p. 293). One thing that is odd about Nussbaum's insistence on invoking the notion of ‘equal human dignity’ is that it is unclear what ‘unequal human dignity’ would look like, or that there is such a thing to begin with. Dignity, we commonly think, is not something that comes in different sizes and quantities. Another interesting thing about Nussbaum's allusion to dignity is that she rejects certain policies as incompatible with what she calls the ‘dignity’ of animals (e.g. p. 94). For her, non-human animals and humans both have dignity; and moreover, dignity of the same kind (p. 356). Human dignity, for her, is based not in our humanity (whatever may distinguish it, say our rationality) but actually in our being human animals (e.g. our susceptibility to pain, our needs). I find this idea intriguing and plausible when it comes to its implications for animals but I wonder whether Nussbaum has fully worked out its implications for humans.
Nussbaum's discussion of animals is in fact the part of the book that I found particularly fascinating and well argued. It tackles issues of animal welfare through an argument about what animals are owed as a matter of distributive justice, rather than the Rawlsian/Kantian approach that focuses on how we, as humans, should treat animals (namely, with compassion). Nussbaum's capability approach shifts the focus to the interests that animals have in flourishing to their full potential. Of course, treating animals as subjects of justice raises a whole set of theoretical difficulties. Perhaps most challengingly, it implies that animals have claims for distributive justice that are independent of their interaction with humans. That leads to the conclusion that a theory of justice would require the tiger to abstain from hunting a gazelle. It would also condemn an alpha-male wolf that humiliates another male member of its pack. Most people find not just Nussbaum's answers but the questions themselves to be absurd. She is well aware of these objections and she tackles them head on. On most cases Nussbaum bites the bullet and invites us to rethink our intuitions. For example, she acknowledges that treating animals as subjects of justice does tell us to prevent tigers from brutally killing gazelles, at least when we can, i.e. in zoos (p. 369). After all, most owners of cats already do something very similar with regard to toy mice and bells to ward off birds. On this and other occasions, I found myself questioning my own intuitions due to the force of Nussbaum's arguments.
In putting forward her own theory of justice towards animals Nussbaum had to rebut the utilitarian alternative, and she offers a fairly compelling critique. She convincingly shows why the utilitarian focus on sentience is insufficient. Utilitarians do not always give us a reason to refrain from needless destruction of animals provided it is painless. Utilitarianism may also be forced to decree against banning the use of animals in circuses if the utility gained in terms of animal welfare is outweighed by the disutility to unemployed lion-trainers and disappointed spectators. That seems wrong. Nussbaum's alternative account of justice towards animals is based on the Aristotelian idea of allowing agents to flourish to their full potential, and it seems to me that she makes a convincing case for that. But, however nuanced and careful her defense of justice to animals is, there are, perhaps inevitably, certain unresolved difficulties. Let me mention just two points to that effect. I mentioned that according to Nussbaum humans have a duty (positive and not just negative: see section 6.8) to enable animals to flourish and live to their full potential. The extent of their full potential is determined by their natural capabilities. It follows that on Nussbaum's account our obligations are restricted to enabling animals to fully realize their natural potential, whether for life, recreation, or social activity. It does not include helping them – even if it is not very costly for us – go beyond the potential that nature arbitrarily ascribed them. If we discovered a relatively cheap drug that might prolong the life of dogs (and humans for that matter) by five more years Nussbaum is not compelled to recommend it. Of course, she may bite the bullet on this, but others may claim that a comprehensive account of justice towards animals should include enhancements (provided they are not too expensive). Here is another issue that Nussbaum does not resolve. If she is right in her critique of utilitarianism that it is flourishing and not just the prevention of pain that we must promote then it is not obvious why her account should be restricted to animals. Shouldn't we allow flora and not just fauna to flourish and realize their God-given potential? But Nussbaum does not discuss plants here. However, in fact, her theory may prove correct in this regard. After all, if the destruction of butterflies (and mosquitoes provided they are harmless) is morally wrong (p. 362), then the wanton destruction of a giant sequoia is surely at least as morally bad. On that score, Nussbaum's Aristotelian account appears more in line with our intuitions than utilitarians’ insistence on sentience. Of course, an Aristotelian account would still need to tell us how to separate the flourishing of sequoias from that of the plants we and other vegetarians require in order to sustain ourselves. For Nussbaum this would have opened up a whole set of new problems, but it would have been useful at least to know what she thought about the matter.
These unresolved issues constitute a fraction of the variety of concerns that Nussbaum entertains here. In Frontiers of Justice she has written an important book. If not quite laying the social contract tradition to rest once and for all, the book will surely help in switching the balance of power away from contractarianism and towards more complete theories of justice.
