Juris Project.docx

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION 2017-18

Analysis of Book Review:- “Frontiers Of Justice: The Capabilities Approach vs Contractarianism

Submitted to:

Submitted By:

Mr Manwendra Kr. Tiwari

Ashish Amar Tiwari

Asst. Professor(Law),

Enroll No-150101030

Dr. RMLNLU, Lucknow

BA LLB (hons), Sem- V

ACKNOWLEDGEMENT :

I express my gratitude and deep regards to my Jurisprudence teacher Mr. Manwendra Kr. Tiwari for giving me such a challenging topic and also for his exemplary guidance, monitoring and constant encouragement throughout the course of this thesis. I also take this opportunity to express a deep sense of gratitude to my seniors in the college for their cordial support, valuable information and guidance, which helped me in completing this task through various stages. I am obliged to the staff members of the MadhuLimaye Library, for the timely and valuable information provided by them in their respective fields. I am grateful for their cooperation during the period of my assignment. Lastly, I thank almighty, my family and friends for their constant encouragement without which this assignment would not have been possible.

INTRODUCTION Martha Nussbaum's Frontiers of Justice 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. 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.

The problems towards which the essay is addressed. 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."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 address.

The Capabilities Approach  A General Outline Nussbaum develops Amartya Sen's work(Sen’s capabilities approach as part of a conception of social and global justice). She does not provide a complete theory of justice but rather an account of minimal social justice, the minimal conditions that must be met for any human being. The capabilities approach is not intended to provide a complete account of social justice. It says nothing, for example, about how justice would treat inequalities above the threshold. (In that sense it does not answer all the questions answered by Rawls's theory.) It is an account of minimum core social entitlements, and it is compatible with different views about how to handle issues of justice and distribution that would arise once all citizens are above the threshold level. In this regard, Nussbaum's account is a kind of human rights view: it provides an account of the necessary conditions to which any person has a moral right by virtue of being a member of the human species. It does not address all of the questions regarding economic and social justice that Rawls's account does. A society can satisfy Nussbaum's conditions by providing adequately for everyone's central capabilities and still not be a just society. Nussbaum lists ten "central human capabilities" that are necessary for "truly human functioning." The central capabilities (with rights necessary for them in parentheses) are: (1) living a normal life span; (2) bodily health, including (rights to) adequate nourishment; (3) bodily integrity (including freedom of movement and security against assault, as well as freedom of choice in reproduction and in sexual relations); (4) being able to use the senses, the imagination, and thought (including freedom of expression and religious exercise, and adequate education), and being able to have pleasurable experiences; (5) experiencing normal human emotions, including longing, grief, anger, etc., and having emotional attachments to others (i.e., love, friendships, and the normal range of affective emotions); (6) development of one's capacities for practical reason, including the capacity of critical reflection upon one's good or plan of life (protected by liberty of

conscience and religious freedom, among other rights); (7) capabilities for affiliation (including both having the capacities to care for and commiserate with others, and having social bases of self-respect and nonhumiliation (with rights to nondiscrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, and national origin)); (8) living with other species; (9) play, including the ability to enjoy recreational activities; (10) control over one's environment (including rights to political participation, freedom of association, and having property rights on an equal basis with others and equal opportunities). It is the duty of governments and societies to guarantee the rights and resources that realize central human capabilities for functioning. This implies an extensive list of rights and entitlements owed to all humans. Later she argues that these are a "species" of human rights imposing duties upon people in other societies. Many (including Rawls) would regard some of these rights not as human rights, but as liberal rights of persons who regard themselves as free and equal citizens. Nussbaum does not seem to accept the distinction between human rights and liberal rights that Rawls makes in The Law of Peoples. She includes most of the basic liberties of Rawls's first principle of justice among the human rights needed to realize the ten central human capabilities.

 Disabilities Nussbaum's capabilities approach is especially attuned to meet the needs of the severely disabled. Nussbaum says that all persons are equally entitled to necessities of living a good life. Society then has a duty to provide to the disabled "the social basis of all the capabilities on the list" of central capabilities, so far as this is possible. We should "work tirelessly to bring all children with disabilities up to the same threshold of capability that we set for other citizens." The aim is to make those with mental impairments and physical disabilities "fully equal as citizens" in exercising their central capabilities for functioning. This comports with the purpose of social cooperation on a capabilities approach, which "is not to gain an advantage; it is to foster the dignity and well-being of each and every citizen."

Nussbaum's discussions of the public policy implications for the disabled of her capabilities approach are illuminating. For example, she endorses the German guardianship law, which mandates the least restrictive alternative and avoids formal legal incapacitation to a degree compatible with the handicapped person's good. The appointment of guardians for the mentally impaired should not automatically deprive them of their rights to vote, marry, and make a will. People with even profound disabilities should be regarded "as holders of fully equal rights, entitled to a wide range of social services that ensure that they get a chance to exercise their rights." The role of guardianship "becomes not a matter of dealing with the 'incompetence' of a person, but [is] a way of facilitating that person's access to all the central capabilities. The norm should always be to put the person herself in a position to choose functioning of the relevant sort" so far as possible. One of the main features of the capabilities approach missing from other accounts of justice, Nussbaum says, is the role of care. Care is a "primary social entitlement" for people with all kinds of disabilities and for children

and the elderly. other things, Nussbaum advocates

governments' "direct payment to family members who perform care work," which is not meanstested but is "like a salary, giving social dignity and recognition to the work in question."

General Problems with Social Contract Theory The main problem with Rawls's position for Nussbaum is that it has a limited account of social cooperation and the social contract. Nussbaum sees Rawls's social contract as resembling Hobbesian views; it proceeds from the idea that the purpose of cooperation is mutual advantage based on each person's self-interest. She distinguishes this "classical social contract" account from T.M. Scanlon's contractualism, which is inspired by Kant and with which she says she has affinities. Rawls is clearly influenced by Kant too, she says, but Kant's influence is not part of Rawls's contractarianism in the original position. Hence, "Rawls's theory has a hybrid character" because it attempts to join Kantian considerations with a classical contract doctrine. Nussbaum sees these two sides of Rawls's theory--his contractarianism and his Kantianism--in uneasy if not unstable tension.

There are four primary features of Rawls's contractarianism that Nussbaum sees as behind its alleged inability to deal with the three "unsolved problems" of justice. (1) Rawls assumes the circumstances of justice, which he describes (following Hume) as "the normal conditions under which human cooperation is both possible and necessary." There are "objective circumstances" of moderate scarcity of goods and resources, and there are "subjective circumstances" that people have different aims and interests and affirm different comprehensive moral, religious, and philosophical doctrines that put them into potential conflict. A further fact among the objective circumstances that Rawls mentions briefly, and that Nussbaum repeatedly emphasizes, is the rough similarity of people in mental and physical powers. Nussbaum infers from this that relations of justice exist for Rawls only among people who are "roughly similar" in mental and physical powers, and that there are no relations of justice with people who are substantially weaker than normal. It is noteworthy that Rawls never actually says this, and indeed it defies his assumption of cooperation among peoples or states, some of whom often can but do not dominate those much weaker. (2) The parties to the social contract are regarded as "free, equal, and independent." Here, Nussbaum says, it is to Rawls's credit that he (unlike Hobbesians) sees this as a moral rather than natural condition. Rawls presupposes that persons are by right morally free and equal and ought to be treated as such. But here again Rawls rests a right to equality and equal justice on persons having certain natural characteristics he calls the "moral powers" for moral and practical reasoning. Once again, these are characteristics of persons which apply to a lesser degree to the disabled, and not at all to the severely impaired (or animals). (3) For Rawls, Nussbaum says, the purpose of social cooperation is mutual advantage, and their own advantage is what motivates the parties to the social contract in Rawls's original position. (4) Accordingly, the parties to Rawls's contract are not motivated by altruism, benevolence, sympathy, or even justice. They are motivated only by their conceptions of the good and are thus mutually disinterested, or indifferent, with respect to others' well-being. Because of these four conditions, Nussbaum contends, Rawls's account of justice cannot adequately address the unsolved problems of justice owed to the disabled, other nationalities, and animals. Nussbaum is particularly critical of the alleged mutual advantage condition. She says that for Rawls, like other social contract positions, "cooperation is preferable to noncooperation for reasons of mutual advantage." It is true, she continues, that Rawls recognizes the importance of "love of justice", it is present in the intuitive underlying ideas of the theory.

Rawls does, however, outline an approach to society's duties to the disabled. Nussbaum finds this account inadequate. Her main point is that Rawls's social contract doctrine, because of its assumptions of mutual advantage and the freedom, equality, and independence of persons, has no satisfactory way to extend rights and entitlements to the mentally impaired. What is needed are "richer ideas of social cooperation." Nussbaum sees Rawls's contractarianism wholly in terms of the interested choice of the rational parties in the original position. This is not an unreasonable interpretation of Rawls; it is one shared by many commentators, including Brian Barry. Nussbaum, like Barry, argues that it is a mistake for Rawls to try to derive moral principles from the rational agreement of mutually disinterested persons. This approach, they argue, is inadequate even when it is embedded in the moral conditions on choice (e.g., the veil of ignorance) in Rawls's original position.

Rawls's Contractarianism Rather than mutual advantage and rational agreement, Rawls's contractarianism incorporates the different idea of reciprocity and reasonable agreement. Mutual advantage in the sense relied upon by Hobbesian views plays no role in Rawls's argument. But more important, Rawls's theory is not a "hybrid" mixture of classical social contract theory with Kantian ethics; rather, it develops the natural rights theory of the social contract of Locke, Rousseau, and Kant so that it incorporates decision procedures parallel to Kant's categorical imperative and Kingdom of Ends. Consequently there are two social contracts in Rawls. The hypothetical agreement among rational representatives in the original position is designed to represent a more fundamental "reasonable agreement" among morally motivated free and equal persons in a "well-ordered society." The fundamental idea behind Rawls's contract doctrine is not mutual advantage but is implicit in the moral ideal of a well-ordered society. It is an ideal of free and equal persons motivated by their moral sense of justice and their rational good, cooperating on terms of reciprocity and mutual respect that all reasonably accept and agree upon, and these terms are justified to them for reasons they also accept as reasonable and rational persons. This is the complicated moral ideal behind Rawls's contractarianism. Once explained, its attractions become readily apparent.

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Social Cooperation Rawls's condition that each person should benefit from social cooperation does not mean that each person must benefit from each and every other person as a condition of cooperating with them. In this sense, social cooperation and the social contract differ from the mutual advantage of ordinary contracts, as Rawls goes to great lengths to explain. It means, rather, that each cooperating person has interests and a conception of the good that are to be fairly served by taking part in social cooperation. Hobbes argues that everyone has sufficient reason to cooperate according to society's terms whatever these terms might be so long as people are better off than they would be in a state of noncooperation.

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A Well-Ordered Society Rawls says that the reason that he invokes the idea of a social contract is that it mirrors the idea of a well-ordered society. A well-ordered society is a contractarian ideal, the "most desirable conception of [social] unity." It is a society in which (1) all reasonable persons accept and agree on the same public principles of justice; (2) society's laws and basic institutions conform to these principles; and (3) reasonable persons generally comply with these terms ("strict compliance") because they are motivated by their effective sense of justice. They do not comply simply because it is for their mutual or private advantage; often it is not advantageous when justice imposes limits on pursuit of their rational advantage. Rawls says of a well-ordered society, "Social unity so understood is the most desirable conception of unity available to us; it is the limit of the practical best." In later works, Rawls emphasizes the "social role" of a conception of justice and adds that in a well-ordered society, principles and basic institutions are justifiable to its members for reasons ("public reasons") they can accept in their capacity as free, equal, reasonable, and rational citizens.

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Free and Equal Moral Persons Rawls assumes that persons are free, equal, and independent with the moral powers for justice and a conception of the good, and that they live a normal life span. Nussbaum alludes to these features to contend that Rawls does not regard the severely disabled and

impaired as subjects of justice. The reason Rawls assumes the moral powers is that they are essential capacities for practical reasoning and for social cooperation. People without these capacities to a minimal degree are incapable of rational action or of understanding and complying with laws and other terms of social cooperation. They are not regarded as morally or legally competent or as responsible for their actions. In this way, the capacity for a sense of justice is essential to human sociability. To borrow Nussbaum's terms, the capabilities for justice and for practical reason are essential to living a good and flourishing life. The capabilities approach to justice is not then a theory of distributive justice or (except indirectly) of political justice. Instead, it addresses issues of human rights and minimal social justice. "The capabilities approach is one species of a human rights approach." In this regard, the real parallel that exists between Nussbaum's capabilities approach and Rawls's position is not with his account of social justice and the basic structure of a wellordered society, but rather with the account of human rights that is part of his Law of Peoples.

Disabilities and the Social Contract Nussbaum says that social contract theories "do not do well" with physical impairments and mental disabilities, for, in addition to the assumption of mutual advantage, contract theories presuppose that persons are fully rational and lead a complete and normal life as "free, equal, and independent." "It is clear, however, that such theories must handle severe mental impairments and related disabilities as an afterthought, after the basic institutions of society are already designed." There is, she says, a "failure to deal adequately with the needs of citizens with impairments and disabilities," and this is a "serious flaw" in social contract theories. A primary defect Nussbaum finds in Rawls is his use of "primary social goods" to make decisions about quality of life and interpersonal comparisons of well-being. For Rawls, principles of justice are designed to distribute rights and liberties, opportunities, powers and positions of office, income and wealth, and the institutional "bases of self-respect”. A more serious problem arises with regard to the needs of the severely mentally and physically disabled. Here, Nussbaum says, social contract theory "positively breaks down" because of the Humean rough equality assumption implicit in the circumstances of justice. Contractarianism cannot handle economically unproductive people, since it is not to others' mutual advantage to

cooperate with or care for them. Against this, Nussbaum contends that contractarianism has an overly narrow conception of social cooperation, for we have many noneconomic benefits to gain from the mentally disabled. Nussbaum closes her criticism of contractarianism's treatment of disabilities by saying that any contractarian approach will have problems with disabilities; since agreements cannot be made by the severely disabled, respect for them and their rights will only be covered "derivatively" at best by even the most benign contractarian approach. I believe Nussbaum greatly exaggerates the manner and degree to which Rawls's contractarianism is tied to an assumption of natural equality.

Justice Among Peoples Rawls's The Law of Peoples is an extension of his theories of social justice and political legitimacy. Rawls seeks to determine the principles of cooperation for such "well-ordered peoples." Rawls thinks nonideal conditions cannot adequately be addressed unless principles of justice are determined for ideal conditions. Otherwise, we cannot know what kind of just society (among persons or among peoples) to aim for and establish and the necessary means to realize it. Nussbaum objects that Rawls's list of human rights is not lengthy enough. She objects to his theoretical toleration of "decent" societies that respect human rights and seek to promote a good common to all their members, but which deny them all the liberal basic rights and liberties Rawls himself recognizes as appropriate for a liberal society. "Rawls's toleration argument justifies as fully and equally just systems that violate many of the human rights that the international order currently recognizes." As such, "Rawls's theory of international justice neglects the inviolability of each person that is a key to Rawls's domestic theory. But persons are persons, and violation is violation, wherever it occurs." Here Nussbaum suggests that Rawls endorses a kind of relativism with regard to justice, a view that (except for minimal human rights) a person's rights are relative to his or her society, and that a society without liberal traditions may with justice treat its members unequally so long as Rawls's minimal human rights are respected. This is not Rawls's position. He says, "A decent hierarchical society does not treat its own members reasonably or justly as free and equal

citizens.”

Justice and Other Species I conclude with some remarks on Nussbaum's discussion of justice for nonhuman animals. The idea of justice has traditionally been reserved for human beings. Philosophers have long recognized that we have duties with respect to animals--for example, not to cause them unnecessary pain and not to be cruel to them. But traditionally these have not been seen as duties owed to animals as such. Moreover, the still stronger idea of "animal rights" is not an idea that has been taken up by any of the major moral or political philosophers. It is difficult to maintain that we owe duties to animals, and more difficult still to believe that they have individual rights and entitlements, so long as we continue to consume or tolerate the consumption of animal species. Nussbaum, however, says that "there seems to be no good reason why existing mechanisms of basic justice, entitlement, and law cannot be extended across the species barrier." Her capabilities approach focuses on nonhuman animals living a "dignified existence" in which they are able to flourish by exercising species-specific capabilities. Finally, Nussbaum says, “It seems that there is no reasonable way to deny the equal dignity of creatures across species”. One might then think that justice to animals surely must require vegetarianism for human beings. But Nussabaum seems hesitant to embrace vegetarianism. She focuses more on the unnecessary pain caused animals in farming them for consumption and in their working conditions. She wants to say that, we should focus on treating animals well during life and painlessly killing them for consumption.

CONCLUSION Finally, while Nussbaum criticizes Rawls's account of toleration, she nonetheless accepts Rawls's position that it is not the role of liberal societies to impose liberal and democratic institutions upon nonliberal societies so long as they meet certain threshold requirements of legitimacy (like those Rawls imposes on decent hierarchical societies). The reason, she says (referring to Grotius), is that the dignity of human beings requires that "the ability to join with others to give one another laws is a fundamental aspect of human freedom." Respect by other states for the integrity of a nation is necessary to respect the dignity of persons. I am arguing that we ought to respect the state, that is, the institutions of the basic structure of society that a given group of people have accepted and that are accountable to them. The state is seen as morally important because it is an expression of human choice and autonomy. I have presented Nussbaum's capabilities approach as being more complementary to, rather than competitive with, Rawlsian contractarianism than she intends. In particular, the capabilities approach provides an important way to understand duties of justice owed the severely disabled. For this and other reasons, Frontiers of Justice is a valuable contribution to discussions of justice and human rights.