Academic journal article Texas Law Review

Frontiers of Justice: The Capabilities Approach vs. Contractarianism

Academic journal article Texas Law Review

Frontiers of Justice: The Capabilities Approach vs. Contractarianism

Article excerpt

Frontiers of Justice: The Capabilities Approach vs. Contractarianism FRONTIERS OF JUSTICE: DISABILITIES, NATIONALITY, SPECIES MEMBERSHIP. By Martha C. Nussbaum.[dagger] Cambridge, MA: Harvard University Press, 2006. Pp. 487. $35.00.

Martha Nussbaum's Frontiers of Justice1 is a major critical assessment of John Rawls's contractarian theory of justice and a highly original treatment of three "unsolved problems of justice": our duties to the impaired and disabled; to members of other nationalities; and to other animal species. Nussbaum develops and applies the "capabilities approach" to justice, which she set forth in Women and Human Development.2 In that book, Nussbaum presents the capabilities approach in connection with issues of women's rights and sex equality in developing countries. In Frontiers of Justice, she exhibits the versatility of the capabilities approach by further developing her theory in addressing three different problems.

The intuitive idea behind the capabilities approach is that there are certain basic human needs and capacities that must be realized to a minimum degree if human beings are to live a decent life consonant with human dignity and flourishing. Some of these "capabilities for human functioning" are straightforward and noncontroversial: a normal life span; health and nutrition; bodily integrity; and adequate development of one's senses, imagination, and thinking capacities. Others are more controversial (e.g., opportunities for political participation; nondiscrimination on the basis of sex, sexual orientation, religion, race, ethnicity, etc.). Working from ideas of human dignity and "truly human functioning" said to be implicit in Aristotle and Marx, Nussbaum presents an account of the central human capabilities that society must satisfy-by the provision of necessary rights, entitlements, and background social conditions-if it is to render minimal justice to all its members.

In developing and applying her capabilities approach to rights of the disabled, other nationalities, and animals, Nussbaum engages in a thorough criticism of social contract doctrine. She focuses on John Rawls, providing a lengthy discussion and assessment of his position. Her main contention is that, for all its strengths in dealing with issues of social, political, and economic justice among "normal" cooperating members of a democratic society, contractarianism proves inadequate when extended to disabilities, other nationalities, and other species. For this and other reasons, she finds Rawls's account of justice "seriously flawed."

In my discussion, I proceed differently than Nussbaum's exposition. Whereas she discusses contractarianism's shortcomings first and then argues that her position better deals with the issues, I first set forth in Part I the broad outlines of Nussbaum's capabilities approach to justice, and briefly discuss how it applies to disabilities and other nationalities. This enables a better appreciation of the originality and strengths of her capabilities approach. In Part II, I review Nussbaum's general criticisms of Rawlsian contractarianism. I then present in Part III a different interpretation of Rawls's contractarianism than Nussbaum's. Parts IV and VI respond to Nussbaum's specific criticisms of Rawls's treatment of disabilities and international justice respectively, while Part V explains why primary goods are the appropriate measure of the "currency" of justice. I conclude in Part VII with a brief exposition of her account of our duties to other animal species.

This is a lengthy and complex book. I do not pretend to have addressed all of Nussbaum's criticisms of contractarianism, or to have fully done her book justice. For all the disagreements I have with Nussbaum's criticisms of Rawls, her book is a major development of an alternative approach to justice and human rights than provided by contractarianism and other contemporary positions. Her capabilities approach provides significant advances in our understanding of three difficult areas in moral and political philosophy and in pointing the way towards addressing these problems. …

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