Martha C. Nussbaum. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge: Harvard University Press, 2006. xiii + 415 pp. $35.00 (cloth), ISBN 978-0-674-01917-1.

Reviewed by Tove H. Malloy (Institute for Minority Rights, European Academy, Bozen/Bolzano, Italy)
Published on H-Human-Rights (January, 2008)

Ensuring Justice Through Imagination

In Frontiers of Justice: Disability, Nationality, Species Membership, Martha Nussbaum seeks to further the debate among social justice scholars about three unresolved problems. These are the problem of providing justice to people with physical and mental impairments, the problem of extending justice to all world citizens, and the issues of justice involved in our treatment of nonhuman animals. She approaches her topic by undertaking a philosophical critique of John Rawls's contractarian theory of justice (A Theory of Justice [1971]) that she holds cannot solve these problems. Rawls acknowledged the problem of theorizing justice for these three issues and sought, in his later work (Political Liberalism [1993]), to address the second issue. Martha Nussbaum's central argument is that the capabilities approach that she has been developing suggests promising and perhaps superior insights to the three problems. Although she accedes that her approach converges in large part with contractarianism of a different type than that of John Rawls, namely a purely Kantian ethical type without mutual advantage, and while she adopts John Rawls's ideas of political liberalism and the overlapping consensus, she nonetheless argues that her capabilities approach can resolve the three specific problems of justice. Of particular interest, Nussbaum extends and modifies her capability approach to deal with issues of transnational justice.

Martha Nussbaum's capabilities approach is distinctively Aristotelian and decidedly feminist. It argues that international and political thought should be attentive to the special problems women face, problems that should inform any policy making in the area of poverty and development. Such policy making should be assessed for its ability to recognize these problems and to make recommendations for their solution. Her approach is a philosophical account of central human functions. It is universal without being insensitive to local particularity and difference. It is constitutional. It addresses human capabilities. It sees each person as an end. It sets a threshold level of each person's capability beneath which truly human functioning is not available. Therefore, it specifies the space within which comparisons of life quality are most revealing made among states, not in terms of GNP but in terms of normative political theory. As Samuel Freeman has rightly argued, Martha Nussbaum's approach is a kind of human rights view. It sets forth the necessary conditions to which any person has a moral right by virtue of being a member of the human species.[1]

Persuasive human rights guidelines are therefore the central component in Martha Nussbaum's argument for suggesting the application of the capabilities approach across national boundaries. However, for ethical internationalists and cosmopolitan democrats, there is little solace to be had from this book. In addressing the second problem of social justice, the issue of transnational justice, the general outlook remains state-centered. Even as she promises to globalize the capabilities approach and take us towards a global contract and an international contractarianism, Martha Nussbaum thinks in national terms. This is perhaps not surprising, given that contracts need parties, and a global contract for all humankind is simply utopian. She therefore argues for national sovereignty to be respected through a thin, decentralized but forceful global public sphere, where all institutions and individuals should focus on the problems of the disadvantaged in each nation and region. This international domain should see the attractions of a Kantian type contractarianism that is normative and ethical as opposed to the Hobbesian/realist approach that sees international relations as devoid of binding moral requirement between states (pp. 270-272). Ironically, Martha Nussbaum is critical of John Rawls's approach to global justice and accuses him of ratifying what powerful states would want to do anyhow (p. 236). Even with the stronger focus on capabilities, it is not clear why her theory should be superior.

Thus, the book follows a progression from the individual to the collective to the environment. Chapter 1 begins addressing the unresolved problems of John Rawls's theory of the social contract which is carried through the entire book. In fact, even though Martha Nussbaum's aim is to take the capabilities approach further, over half the book is devoted to criticism of John Rawls's social contract theory. The main problem with social contract theory is, according to Martha Nussbaum, that it has a limited account of social cooperation. This means that John Rawls's contractarianism sees the purpose of cooperation as mutual advantage based on each person's self-interest. The reasons why contractarianism cannot deal with the three unresolved problems of justice are fourfold. First, it provides justice to people who are roughly similar in mental and physical powers but leaves weaker people out. Second, it presupposes that individuals have certain natural characteristics for moral and practical reasoning. Third, contractarianism sees mutual advantage as the purpose of social cooperation with emphasis on the parties' own advantage. Fourth, parties to the social contract are not able to be motivated by altruism, benevolence, or sympathy. They are in fact indifferent to the well being of others (pp. 64-66). Martha Nussbaum contrasts this view of the social contract to the contractualism which takes its starting point in theories proposed by T. M. Scanlon in What We Owe to Each Other (1998) and by Brian Barry in Justice as Impartiality (1995) and with which theories she has greater affinities. This type of contractualism discards the idea of mutual advantage and therefore works from the pure Kantian ideas of fairness and mutual acceptability.

Chapters 2 and 3 thus address disabilities in relation to the contractarianism of John Rawls and argue that it does not do well with physical impairments and mental disabilities due to the assumption that persons are fully rational and capable of living full lives. If there are disadvantages, these will be adjudicated according to the difference principle which must ensure that disabled receive a fair share of primary goods. To Martha Nussbaum this results, however, in the primary goods distributed in the contractarian situation being unequal because while it may distribute primary goods fairly, it may not distribute resources fairly. Since contractarianism cannot handle economically unproductive people, Martha Nussbaum holds that it promotes an overly narrow conception of social cooperation. This is partly due to Rawls's view of the person. In that he rejects Kant's dualism, his contractarianism is unable to address the rights and needs of the disabled (pp. 130-133). Contractualism, on the other hand, would ensure representation of disabled through a system of trustees in a contracterian agreement. Taking examples from European welfare states, such as Sweden and Germany (pp. 196-199), Martha Nussbaum concludes by arguing for a revised liberalism that offers a view of social cooperation based on complexity and multiplicity, including love, respect for humanity, and the passion for justice, as well as the search for advantage (pp. 220-223).

Moving on to the transnational scene in chapter 4, Martha Nussbaum enters the debate about John Rawls's later work. In February 1993 he delivered an Oxford Amnesty Lecture titled "The Law of Peoples." It was subsequently published in an edited volume by Stephen Shute and Susan Hurley called On Human Rights: The Oxford Amnesty Lectures, 1993 (1993). Not being satisfied with his theory as it was not fully developed and due to the fact that it received much criticism which John Rawls saw as the essay being open to misinterpretation, he reworked the theory and published it in the book The Law of Peoples (1999). Rawls proposed eight principles of justice that would govern what is called the second social contract, meaning the contract that well-ordered societies or peoples agree to enter. These required peoples to (1) respect other people's freedom and independence; (2) to keep their treaties and undertakings; (3) to recognize each other as equals; (4) to observe a duty of nonintervention; (5) to engage in war only for reasons of self-defence; (6) to honor human rights; (7) to observe reasonable restrictions in conducting war, including respecting the rights of enemy non-combatants; and (8) to assist other peoples who live under unfavorable conditions that prevent them from having a just or decent society (p. 37).

The criticisms that the lecture had yielded centered on his argument that well-ordered peoples whether liberal or what he termed "decent hierarchical" should tolerate each other. This, John Rawls argued was to ensure that a liberal foreign policy was not unreasonable to the rest of the world. Thus, decent hierarchies could have state religions and deny those not adhering to the state religion to hold positions of power within the state. They may even limit participation to engagement via corporatism rather than via elections. The theory held however that such states were not to violate human rights. If so, they would be considered outlawed. However, if a state was forced to suspend human rights for a period, aid should still be given to its government although with a cut off point in sight. He saw it as a moral problem that developed states subsidized underdeveloped states indefinitely and that these underdeveloped states were not held accountable and acted irresponsible knowing that they would be bailed out by the developed states.

Needless to say, Martha Nussbaum's capabilities approach has problems with any theory that allows for the circumvention of human rights even for a short period. Although Martha Nussbaum recognizes that the theory developed in The Law of Peoples was an account of the correct foreign policy for decent liberal societies and not a account of global justice, as she would like to discuss, she nonetheless holds that John Rawls had in mind global justice when he wrote the essay. Martha Nussbaum's disagreement with the theory is therefore that it cannot meet the requirements of the capabilities approach. Moreover, in its treatment of the concept of toleration of decent hierarchies even if they are not liberal, she argues is likely to descend into relativism (pp. 251-257). Here she echoes many of the critics that spoke up against John Rawls after the Oxford Amnesty Lecture. Nevertheless, in her argument she is forced to accept this non-imperial approach to international relations as long as the states in question are decent.

Toward the end of chapter 4, Nussbaum offers a theory of the global contract following Charles Beitz (Political Theory and International Relations [1979]) and Thomas Pogge (Realizing Rawls [1989]). This view sees the national origin of the individual as a contingent fact about a person that should not be permitted to deform a person's life. Thus, people's basic opportunities in life should not be violated by unfair hierarchy, whether the hierarchy is based on race or sex or class, or on birth within a particular state. Instead the individual should be respected as a subject of justice in a global system where resources are not subject to the ownership of territorial states accessible by all. This optimizes the position of the least well off because a global redistribution principle governs rights over these assets (pp. 264-270). In addition, Thomas Pogge suggests an initial global agreement on a list of human rights which may be redefined over time to become more robust. The list of human rights is broader than the one John Rawls proposed in The Law of Peoples. While the approaches offered by Charles Beitz and Thomas Pogge are not optimal according to Martha Nussbaum because they do not fully theorize a system of redistribution, they nonetheless come much closer to accommodating the capabilities approach. A theory of redistribution in social cooperation is therefore the key to theorizing the global contract that promotes the capabilities approach.

Chapter 5 is where Martha Nussbaum takes her capabilities approach to the global level and beyond its development in Women and Human Development. Interestingly, she argues this part of her theory on the basis of ethical reasoning about rights and entitlements. Ethical reasoning and sociability thus form the central features of what she calls moral intelligence, or the idea that the dignity of human beings is the individual as an ethical being, that our dignity is fully equal no matter where we are placed, and that human dignity means a common life with others in respect for that equal dignity (p. 274). At the international level this further requires a theory of the good in terms of an account of basic human entitlements. But realizing that powerful duty-based theories of global justice have been put forth, Martha Nussbaum engages with some of these in order to show that an entitlements-based theory is superior.

Chapter 6 addresses justice for nonhuman animals. The idea that there should be justice served for nonhuman animals is no longer a foreign idea. Whether we have duties to nonhuman animals is another matter. But to seek to extend the capabilities approach to nonhuman animals is clearly odd. If capabilities presuppose the individual administration of personal freedom towards personal well being and goals, it is difficult to see how this relates to nonhuman animals. However, to Martha Nussbaum this translates into ensuring dignified existence which allows nonhuman animals to flourish by exercising their type of capabilities (p. 326). Moreover, it follows that nonhuman animals have rights to entitlements that can secure a dignified existence. With regard to the social contract, Martha Nussbaum's theory runs into problems, for obvious reasons. Although Rawls promoted moral rights of compassion and humanity for nonhuman animals, he realized that the parties to a contract would have to possess the capacity to distinguish between right and wrong. Martha Nussbaum attributes this view to the inability of John Rawls to imagine the intelligence of nonhuman animals.

Instead Martha Nussbaum suggests that nonhuman parties to the social contract are represented by proxy; similar to her argument for accommodating the disabled. This approach actually follows similar arguments put forth by theorists of Green political thought. Martha Nussbaum then takes the discussion of justice for nonhuman animals through most of the arguments examined for disabled. In the end she asks us to apply our imagination just as John Rawls did with the idea of the Original Position. She calls it "sympathetic imagining" and compares it to a complex holistic method (p. 355). On the basis of this methodology Martha Nussbaum takes the reader through a lengthy discussion of nonhuman animal capabilities, positive and negative liberty, equality, death and harm, overlapping consensus and ends with a list of capabilities for nonhuman animals. This is by all standards a highly innovative approach and the impoverished review offered here is clearly unfair to the scope and breath of this type of thinking and theorizing. In principle, I have no problem with imaginative philosophy making. Much good philosophy has been theorized with the help of imagination. It remains a question though how imagined justice can be justified. It seems rather more an element of our human psychology. Perhaps this is the reason that Martha Nussbaum finishes off the book in the last chapter with a brief philosophical discussion of the psychology of the individual with regard to compassion and benevolence concluding that our basic equipment is more Rousseauian than Hobbesian.

The book is a valuable contribution to the discussion of global justice. However, it presupposes a knowledge of John Rawls's theory of justice. It requires the willingness of the reader to engage in complex philosophical thinking. The advantage of the book is that it can be read selectively so that a reader who is interested in only one of the three unresolved problems of social justice can read the introductory chapters, the chapters of relevance and the conclusion. The strength of the book is the discussion of disability. This is where Martha Nussbaum takes her theory farthest with regard to the unresolved problems of social justice. Internationalists interested in the capabilities approach might be better off with her previous book, Woman and Human Development.

Note

[1]. Samuel Freeman, "Frontiers of Justice: The Capabilities Approach vs. Contractarianism," Texas Law Review 85 (2006-2007): 385-430.

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Citation: Tove H. Malloy. Review of Nussbaum, Martha C., Frontiers of Justice: Disability, Nationality, Species Membership. H-Human-Rights, H-Net Reviews. January, 2008.
URL: http://www.h-net.org/reviews/showrev.php?id=14074

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