Frontiers of Justice

Martha Nussbaum

Here is a version of a review I wrote of Martha Nussbaum’s book Frontiers of Justice. Although I wrote it last year, it has just been published now in the journal Philosophical Books. Nussbaum writes so much so fast, I see she already had another book out before my review appeared!

My original draft included a bit more explanatory material about John Rawls, but it was taken out during the edits. For anyone unfamiliar with his work, Rawls is famous for his device of the Original Position, which asks us to imagine collectively choosing principles of justice from behind a Veil of Ignorance (another famous Rawlsian term of art). By bracketing our knowledge of our place in society, Rawls argued, such deliberations would lead us to agree on a social contract that upholds impartial, and therefore just, social arrangements.

UPDATE: I’ve inserted the original page numbers in square brackets, in case anyone who does not have access to Philosophical Books would like to cite it. The reference is:

Lamey, A. (2007). “Frontiers of Justice: Disability, Nationality, Species Membership (review),” Philosophical Books, 48/4: 376-81.

Frontiers of Justice: Disability, Nationality, Species Membership
By Martha Nussbaum
Belknap/Harvard University Press 2006, xiii + 487 pp. US$35.00

How should we measure human development? The most popular method used to be to focus on wealth and income, as when international development agencies rank countries according to their per capita gross domestic product. Critics, however, have long noted shortcomings with this approach. Consider for example a wealthy person in a wheelchair: her problem is not a financial one, but a lack of access to public spaces. Even if she were to hire porters to carry her in and out of stores and libraries, that would not really address her situation. There is a basic sense of dignity and self-respect that comes with being able to move around on one’s own. Even for a disabled millionaire, that will only be possible when public buildings are wheelchair accessible. To fully grasp what the handicapped need, we have to look beyond purely economic [377] measures of well-being, and take into account the actual capabilities people can exercise in their daily lives.

The example of the well-off person in a wheelchair illustrates what Martha Nussbaum calls the capabilities approach to human development. It was first pioneered in economics by Amartya Sen (who came up with the wheelchair example), and Nussbaum has for years been associated with a more philosophical variation, which uses the idea of capabilities to outline basic political principles. In Frontiers of Justice: Disability, Nationality, Species Membership, Nussbaum takes this project even further, and applies the capabilities approach to issues of justice involving not only the disabled and the global poor, but animals as well.

Nussbaum’s analysis has three primary goals. One is to advance concrete proposals to improve the condition of animals and distant and disabled people. Second is to offer a critique of the social contract tradition in philosophy. Even the most sophisticated contract theories, Nussbaum argues, cannot give an adequate account of the entitlements of the three groups she examines. Hence Nussbaum’s third project, an extended brief for the capabilities approach itself, a major strength of which, she argues, is that it can address the “three unsolved problems of justice” (p. 9) her book deals with.

In a very fundamental sense, this is a book about John Rawls. Frontiers is dedicated to Rawls, and his ideas are subject throughout to a respectful but critical examination. Nussbaum points out that there is a restriction on who can imaginatively enter Rawls’s Original Position: only entities that possess a sense of justice and a high degree of rationality are admitted. This means that the claims of severely mentally impaired people and animals will be ruled out from the start, as they do not conform to the Kantian conception of the person which Rawls takes as a prerequisite for being owed strict justice, as opposed to stray crumbs of charity.

Nussbaum, however, highlights an even deeper problem. It concerns the motivation Rawls’s hypothetical contractors have for deliberating over social institutions in the first place. Rawls sees his parties as occupying what David Hume called the Circumstances of Justice: a situation in which resources are moderately scarce, and the contractors are all roughly equal in power, so that none can easily dominate the others. Conditions of this kind mean that the parties have to co-operate to achieve their own goals. And this, in turn, means there is an element of self-interest in the parties’ motivation.

The motivation of self-interest introduces a “deep tension” (p. 119) in Rawls’s theory. His basic vision of justice is caught between two competing first principles, that of impartiality vs. mutual advantage. One of Rawls’s principles would have us approach justice by asking, What is in it for everyone? The other asks, What is in it for me and anyone who might benefit me? These concepts are ultimately irreconcilable, yet both are present in the Original Position. The ideal of impartiality is embodied by the Veil of Ignorance, while the motivation of mutual advantage is introduced by the Circumstances of Justice.

Nussbaum skilfully demonstrates how the presence of a strong mutual advantage account of justice, which defines advantage largely in economic terms, prevents Rawls from acknowledging the full moral worth of mentally [378] and physically handicapped people, let alone animals. There is little economic advantage in treating the handicapped with equal respect. Indeed, there have often been considerable incentives to do the opposite, as when during the 19th century the mentally retarded served as a revenue source in freak shows. Nor are the handicapped and animals so equal to us in power that we need to co-operate with them to achieve our projects. They are all too easily dominated by our greater abilities. A central paradox of the mutual advantage view is that it places some of the most helpless members of our society beyond the pale of justice—even though our everyday morality says these are the people who most need moral protection.

In his later work Rawls tried to develop a contract theory that would address one of Nussbaum’s three central problems, namely, the question of international justice. But Rawls’s solution was simply to propose a second contract, this time between sovereign states. Among other problems, Nussbaum argues, Rawls’s two-stage contract treats as legitimate countries that violate the human rights of their own citizens. A more promising solution is offered by thinkers such as Charles Beitz and Thomas Pogge, who propose a Rawlsian Original Position that includes everyone on earth. These global Rawlsians share Rawls’s commitment to impartiality but not his attachment to mutual advantage. Their proposals thus preserve the Veil of Ignorance (and extend it across national borders) but reject the Circumstances of Justice. This, however, leaves them without an account of the motivation of the contractors in the Original Position. Perhaps the parties engage in deliberations out of a commitment to global equality as such. But if that is the case, why use the contract device at all? Why not simply argue for equality and be done with it? According to Nussbaum, global Rawlsians have not given an adequate answer to this question.

Like the global Rawlsians, and like Rawls in his impartialist mode, Nussbaum’s theory is based on an intuitive commitment to equal dignity and respect. The organizing idea she uses to advance this ideal, however, is not a contract, but capabilities. Thus, much like Aristotle, Nussbaum stresses the good of political participation. Her list of central human capabilities includes 10 items in all, made up not only of traditional political goods such as the right to bodily health, religious freedom and literacy training, but also more modern entitlements such as the ability to live in harmony with nature and the right to enjoy recreational activities.

Nussbaum’s virtue-ethics approach is based on a rejection of the naturalistic fallacy. We can and should devise the ‘ought’ of human flourishing from the ‘is’ of human capability (or at least those capabilities we admire: Nussbaum notes there are negative human abilities we should not encourage). This however is not the same as saying that people should be forced to exercise the capacities Nussbaum highlights. She stresses that her theory is “emphatically liberal,” (p. 217) and that the central capacities should form a schedule or rights and opportunities guaranteed to everyone rather than a basis for coercion.

The public policy measures Nussbaum does endorse include guardianship laws for the disabled as currently found in Sweden and Germany, as well as, in the American context, the 1997 Individuals with Disabilities Education Act, which mandates an education individually tailored to the needs of every [379] disabled child. In the realm of international justice, Nussbaum proposes, among other measures, higher international labour standards, more foreign aid and a global resource tax. When it comes to animals, she notes that other species have their own central capabilities. To promote their flourishing in the short term we should implement labelling laws indicating the conditions under which meat animals live and die. In the long term, we should push for a consensus against eating pigs, chicken, cows—any sentient creature that feels pain.

Nussbaum’s advocacy claims often have a familiar feel. To be sure, her section on animals contains a highly original discussion of the painless killing of food animals, which Nussbaum forcefully argues is still wrong because it prevents the future exercise of the animal’s central life-functions. With that exception, however, while there is often considerable sense in Nussbaum’s political proposals, it usually comes at the price of originality. Although Frontiers criticizes utilitarianism, for example, there is little difference between Nussbaum’s recommendations regarding global justice and those Peter Singer puts forward in his utilitarian work One World: The Ethics of Globalization. As for the disabled, one hardly needs to be a neo-Aristotelian to support the Individuals with Disabilities Education Act. These consideration sometimes make it unclear as to what is gained by adopting the capabilities approach, if it makes so little difference in terms of what political measures are put forward.

Nussbaum’s more philosophical analysis also contains an element of familiarity. This is especially true of her critique of Rawls. Going back to the 1980s, critics such as Thomas Scanlon, Brian Barry and Will Kymlicka have all diagnosed the same tension between impartiality and mutual advantage in Rawls’s work. This is the central theme, for example, of Barry’s 1989 book Theories of Justice, a major work of Rawls scholarship that anticipates nearly all of Nussbaum’s criticisms (and which is noticeably absent from her bibliography).

Nussbaum writes that the social contract tradition has “profoundly shaped thinking about justice in the Western tradition, not only in philosophy but also public policy and international relations.” (P. 26) But Kymlicka notes in his widely used introductory political philosophy text that, “social contract arguments are usually thought of as being weak” (p. 59). Surely this is a more accurate assessment of the status and influence of social contract theory, given all the problems Nussbaum and others have pointed out. Nussbaum, however, frequently makes it sound like she is the first person to notice the drawbacks she discusses. The effect, unfortunately, is a little bit like watching someone make a show of pushing through an open door.

That leaves the affirmative side of Nussbaum’s analysis, her capabilities approach. Certainly it contains many interesting and intelligent elements. But even here, it is often not clear what new idea is being put forward. Nussbaum sometimes seems to suggest that the important thing about capabilities is that they actually be exercised. Particularly when she aligns herself with Aristotle, Nussbaum seems to imply that it would be best if people actively participated in political life. More often however, Nussbaum says it is not the exercise of any capacity that is important, but a person simply having the potential to exercise that capability. This is no doubt Nussbaum’s considered view. But if so, it is not clear how it differs from other liberal theories that emphasize autonomy and choice without reference to capabilities. [380]

Indeed, for a philosophy called the capabilities approach, it is surprising how little theoretical work capabilities do in Nussbaum’s own account. This is particularly evident in Nussbaum’s discussion of two controversial ethical issues.

The first is animal experiments. Nussbaum writes that her theory is “animated by the Aristotelian sense that there is something wonderful and worthy of awe in any complex natural organism.” (p. 94) She thus draws a sharp distinction between her approach to animals and utilitarianism, which, she notes, treats some creatures as means to the ends of others. Yet when it comes to experiments, Nussbaum writes that, “As a matter of ideal entitlement theory, this research is morally bad. As a matter of current implementation, I do not favour stopping all such research immediately. What I do favour is: (a) asking whether this research is really necessary to promote a major human or animal capability” (p. 404).

Nussbaum’s position on experiments is a reasonable one, but it is a thoroughly utilitarian view of animals, despite what she says. More to the point, it is misleading to claim that animal capabilities serve as her position’s theoretical foundation. This become clear when one recalls Nussbaum’s remarks about the inviolability of mentally disabled humans, whom Nussbaum argues should never be treated as means to the ends of others. Nussbaum’s view is thus that no human being, no matter how underdeveloped his capabilities, can be treated as a means, while any animal, even the most intelligent great ape, can be used this way if the benefits are large enough. Either way, individual capabilities never enter into the analysis. Nussbaum’s recourse to what she calls a “species norm” (p. 179) account of capabilities to address this is unsuccessful. Among other problems, it is incompatible with Darwinism: animal species are constantly evolving new norms and capabilities.

Finally, there is abortion. Number three on Nussbaum’s list of central capabilities is choice in matters of reproduction. Yet it is unclear how this is connected to any capability of the kind Nussbaum discusses. The capacity to give birth, for example, is surely “wonderful and worthy of awe.” But those of us who support abortion rights would seem committed to the view that it is sometimes necessary to actively prevent the exercise of this natural capability. It thus seems no more plausible to say abortion rights are rooted in the exercise of a central human capability than to say they are grounded in such a capability’s deliberate frustration.

Nussbaum presents her central capabilities list as the subject of an overlapping consensus. This idea, which derives from Rawls, is based on the belief that people of different religious and philosophical views can endorse political institutions and entitlements which are philosophically and religiously neutral. As Nussbaum puts it, her list of capabilities are presented “without reliance on metaphysical and epistemological doctrines (such as those of the soul, or revelation, or the denial of either of these) that would divide citizens along lines of religion” (P. 163). But to put forward any proposal regarding abortion, either for or against, is to inevitably divide people according to religion. Whatever the strength of the overlapping consensus model in other areas, it is unrealistic to believe abortion rights can command such widespread assent. They need to be defended on other grounds. [381]

There are positive aspects of Frontiers of Justice. Nussbaum has a thought-provoking discussion of the different attitudes men and women have toward caring for dependents such as elderly parents. She is also to be warmly commended for her many sensible political recommendations. But overall, one phrase came to mind while reading her 480-page book. It was the remark often attributed to Samuel Johnson upon receiving a writer’s unpublished work: “Your manuscript is both good and original; but the part that is good is not original, and the part that is original is not good.”

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