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The Mises Review

Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.


Frontiers of Justice: Disability, Nationality, Species Membership

Martha C. Nussbaum

1 2006
Volume 12, Number 1


The Welfare Mind Gone Mad

Frontiers of Justice: Disability, Nationality, Species Membership

Martha C. Nussbaum

Harvard University Press, 2006, xv + 487 pgs.

Martha Nussbaum’s Frontiers of Justice is one of the oddest books I have ever reviewed. Nussbaum is a well-known philosopher, and she raises some issues that are well worth our consideration; but in sections of the book, she has evidently taken leave of her senses. Her bizarre and mawkish view of justice toward animals brings to mind Charles Fourier’s speculation that the world’s oceans would turn to lemonade.

Nussbaum was a student of John Rawls, to whom the book is dedicated and whose philosophy she greatly esteems. She views his work as the highest development of the social contract tradition. But it suffers from fundamental mistakes.

In Rawls’s system, people in the Original Position bargain behind a "veil of ignorance." They "do not know their own race, or class, or birth, or sex, or conception of the good. The informational restrictions are intended to model the moral impartiality that real people can attain if they work at it" (p. 57). What terms of social cooperation would people under these limitations agree on, if each person were motivated by self-interest? Rawls’s answer includes the famous "difference principle": people would agree to only those inequalities that benefited the least well-off class in society.

Nussbaum subjects Rawls’s standpoint to penetrating criticism. As she points out, his model of a social contract rests on several unexamined assumptions. Contrary to widespread belief, by the "worst-off class" Rawls does not mean the severely disabled. Quite the contrary, Rawls assumes that everyone in the Original Position will be productive. The entire point of the bargaining that takes place there is to arrive at a fair division of the gains from social cooperation. Mentally ill and disabled people cost more to care for than they add to society through what they produce. They are thus not parties to the original contract at all: aid to the handicapped is not, for Rawls, part of the basic structure of society. As David Gauthier, whose theory of justice emphasizes self-interested bargaining to an even greater extent than Rawls’s does, puts the point: "The primary problem is care for the handicapped. Speaking euphemistically of enabling them to lead productive lives, when the services [of care] exceed any possible products, conceals an issue which, understandably, no one wants to face" (p. 96).

Nussbaum asks, why should we assume from the outset that justice is confined to what most benefits people trying to maximize what is in their self-interest? Should we rule out from the outset obligations to the unfortunate, adding in their welfare as an afterthought, when the principles of justice have been set without reference to them? Does not so momentous an assumption require some justification?

Rawls might counter that he does not rest his theory entirely on self-interest. Quite the contrary, the veil of ignorance is imposed to assure equality and impartiality. Is not Rawls here responding to the Kantian prescription that every person should be treated as an end in himself? He is no partisan of narrow self-interest.

Why then does he derive his principles of justice from asking what self-interested bargainers would agree on behind the veil? He might respond that he is trying to derive as much of the principles of justice as he can from assumptions that presuppose as few controversial moral beliefs as possible. If Rawls can derive justice from self-interest, is this not a great theoretical simplification?

In one of the best passages in the book, Nussbaum argues that the appeal to simplification fails: "[I]ncluding only self goal-directed motives and sentiments in the bargaining position may be simply a device to extract other-regarding results from a parsimonious starting point. Rawls omits benevolent motives for a related reason. But we should raise questions here. It is uncertain that this parsimonious starting point will even lead in the same direction as a more sympathetic and other-committed starting point. The pursuit of mutual advantage and the success of one’s own projects is not less [an assumption] than a compassionate commitment to the welfare of all human beings; it is just different" (p. 35).

Rawls makes another controversial assumption in setting forward his theory of justice. He starts with a closed society, essentially equivalent to the modern nation-state. The difference principle covers inequalities only within one society. People in the United States, e.g., will be concerned with how the worst off class in this country may be made better off, not with how to maximize the prospects of the worst off in Bangladesh or Rwanda. Rawls has devoted attention to obligations between the people of different nations, but these are much less exacting than those that apply within a society. 1

Nussbaum, as we might expect, asks for the justification of this restriction. Why is the application of the principles of justice confined to the citizens of one nation? (She also raises a question about restricting the principles of justice to human beings, but I shall for now postpone this issue.)

I must here reassure my readers. When I say that Nussbaum has raised good questions against Rawls, I do not intend to announce my conversion to the soppy socialism that she professes. I do not agree with her that justice obligates us to aid the disabled and the poor of our own society, let alone the poor of other nations. Rather, her valid point strikes at theories, like that of Rawls, that begin by assuming that all goods start off owned by "society" (Dan Usher has called this the primitive communism assumption.). Beginning from that assumption, the principles of justice assign these goods to individuals. Nussbaum appropriately asks, why should the members of "society" be limited to the non-disabled or the residents of one nation? Why should we not count everyone as a member of society?

Though her questions strike at the heart of social contract theories like that of Rawls, libertarian views of rights survive them intact. Libertarianism takes each person to have rights as an individual: it does not accept the primitive communism assumption. There is thus no question for libertarians of which people are to be admitted into "society," for the purpose of distributing goods.

Nussbaum recognizes that John Locke, the key philosophical precursor of libertarian rights theories, did not derive all rights from the social contract. People in Locke’s state of nature already have rights: "Locke’s central concern is to establish that in the state of nature, that is to say, a hypothetical situation without political society, human beings are naturally ‘free, equal, and independent.’ Free, in the sense that none is the natural ruler of any, and each is naturally entitled to rule himself; equal, in the sense that none is entitled to rule over the others . . . and independent in the sense that all are, as free, entitled to pursue their projects without being in a hierarchical relation with anyone else . . . moral reciprocity and the sentiments that undergird it do not need the social contract for their establishment" (pp. 41–43).

Contemporary libertarians have extended Locke’s view: in Murray Rothbard’s theory, e.g., there is no social contract at all, and land and natural resources, initially unowned, are available for acquisition by individuals acting separately. There is no point of entry for the questions Nussbaum addresses to Rawls. Rights are not limited to the citizens of a particular society, and disabled people have the same rights as everyone else.

Nussbaum does not use her objections to Rawls to move in a libertarian direction—far from it. She advocates a "capabilities" approach that she and the economist Amartya Sen have developed. She asks, what capabilities does a person need to have a good life? She proposes ten requirements, although she does not offer her list as final. A few of them are: "Being able to live to the end of a human life of normal length. . . . Being able to have good health. . . . Being able to use the senses, to imagine, think, and reason—and to do these things in a ‘truly human’ way, a way informed and cultivated by an adequate education . . . [and] Being able to have attachments to things and people outside ourselves" (p. 76).

Every person, in her view, is entitled as a matter of right to all of these capabilities. "The capabilities approach is fully universal: the capabilities in question are held to be important for each and every citizen, in each and every nation, and each person is to be treated as an end" (p. 78).

Is this not a far-reaching and radical thesis? She means, e.g., that a severely retarded person who can benefit from education has the right to be provided with it. For those not able to attain all the capabilities, society should strive to give them "as many of the capabilities as possible directly; and where direct empowerment is not possible, society ought to . . . [give] the capabilities through a suitable arrangement of guardianship" (p. 193).

No doubt it is morally admirable to help the disabled; but why is this a matter of rights? Nussbaum’s view in effect makes the disabled, or their representatives, slave masters able forcibly to commandeer the labor and property of others. She sometimes recognizes that people, as ends in themselves, have a right to lead their own lives without being subject to unlimited demands from others; but she nowhere specifies the limits to the demands that the needs of the disabled impose on us.

Given the severely demanding nature of her claims, does she not face a formidable task? How exactly does she endeavor to show that we are obligated to provide her list of rights? Incredibly, she offers nothing at all, not even a bad argument, to justify her claim. Nowhere in her long book is there any attempt to show how "people need capabilities" entails "people have a right to be provided with these capabilities." Evidently she takes the step to be intuitively obvious. She again and again says, e.g., that aid to the disabled is a matter of justice rather than charity; but she never tells us why this is so. Those who do not share her moral intuitions have been offered no reason whatever to revise their opinions.

Even on her own terms, her theory of justice is unacceptable. How can all of these capabilities be realized for every person in the world at the same time? What happens if suitable guardians are not available for all of the disabled? What is then to be done? She does say that one cannot trade one capability for another: if a single capability is unrealized, then society is to that extent unjust. Given that it is extremely unlikely that every capability can be satisfied, we conclude that every society is unjust. This gives us no guidance at all in cases of conflict.

To those who care about liberty, the little that she does say about the practical application of her ideas is not encouraging. She terms the family a "political institution;" apparently it is to be coercively remodeled to meet her various agendas, feminist not least among them. "[T]he capabilities approach rejects the familiar liberal distinction between the private and the public spheres, regarding the family as a social and political institution that forms part of the basic structure of society. The distribution of resources and opportunities within the family thus becomes an object of intense concern" (p. 212). Thankfully, she recognizes that "adult freedom of association" imposes some limits to state action: "it would not be acceptable for the state simply to mandate that husbands and wives divide care labor equally" (p. 212).

However unlibertarian her position, Nussbaum deserves praise on one important issue. Following Rawls, she rejects a world state: "Unlike domestic basic structures, a world state would be very unlikely to have a decent level of accountability to its citizens. It is just too vast an undertaking. . . . A world state would also be dangerous. If a nation becomes unjust, pressure from other nations may prevent it from committing heinous crimes. . . . If the world state should become unjust, there would be no corresponding recourse; the only hope would be rebellion from within 2. . . . Moreover, even if these problems could be overcome, there is a deep moral problem with the idea of a world state, uniform in its institutions and requirements. National sovereignty . . . has moral importance, as a way people have of asserting their autonomy, their right to give themselves laws of their own making" (pp. 313–14).

I have so far been guilty of a grave injustice toward our author. I suggested that in parts of the book, she has taken leave of her senses; but I have said nothing that supports so severe an indictment. At most, her theory is unlibertarian and confused; but this is hardly reason to classify her views as bizarre. She goes off the deep end when she reaches her last frontier of justice, species membership. Animals too have capabilities, albeit not identical with those of human beings. As one would by now expect, these capabilities imply rights: Nussbaum is nothing if not consistent in her resort to unsupported inference. We thus have not fully specified but vast duties toward animals.

Our question recurs: Nussbaum’s views here may not commend themselves to libertarians, but why are they absurd? We at last reach the end of our quest when we consider her warning against "the danger of romanticizing nature" (p. 367). Following John Stuart Mill, she means by this the danger of viewing animals as naturally peaceful: "nature, far from being morally normative, is actually violent, heedless of moral norms, prodigal, full of conflict" (p. 367).

Incredibly, she proposes to reform nature: "What about intraspecies harms? . . . There are some harms that we can straightforwardly oppose and prevent, such as assaults on infants by parents, and harsh policies toward sick, disabled, or elderly species members. Whether among domestic animals or ‘in the wild’[!], human beings are obliged to prevent these abuses" (p. 399). Animal competition and hierarchy pose more difficult issues: here "only the most egregious harms to weaker species members must be prevented, and other forms of hierarchy tolerated, though they will not be protected as central animal capacities" (p. 399).

Nussbaum is not finished. Animals are also entitled to peaceful relations with "species not their own. . . . This capability . . . calls for the gradual formation of an interdependent world in which all species will enjoy cooperative and mutually supportive relations. Nature is not that way and never has been. So it calls, in a very general way, for the gradual supplanting of the natural by the just" (pp. 399–400).

Ironically, she here embraces an argument that Tibor Machan, in his excellent Putting Humans First (Rowman & Littlefield, 2004) used as a reductio ad absurdum against animal rights. 3 He asked, if animals have rights, do we not have a duty to prevent animals from killing or assaulting each other? For Nussbaum, this is no absurdity at all.

Nussbaum uses her extensive knowledge of the history of philosophy to advantage; her remarks, e.g., on Grotius’s view of property rights are illuminating. But about one historical point she goes amiss. She criticizes Rawls for thinking that his conception of political liberalism "is justifiable only within democracies that were seriously marked by the experience of the Reformation and the Wars of Religion: thus, perhaps not the Nordic countries" (p. 302). She appears to have forgotten, one hopes temporarily, that the Protestant Reformation spread to Scandinavia.

The book is written in a clear but plodding way, and Nussbaum repeats her main points again and again. She has not convinced me that we are morally required to exert ourselves to bring mentally retarded apes in Borneo up to their full capacity.


 




1See his The Law of Peoples (Harvard University Press, 1999) and my review in The Mises Review, Winter 2000. For an attempt to justify Rawls’s non-global approach, appealing to his doctrine of "public reason," see Thomas Nagel, "The Problem of Global Justice" Philosophy & Public Affairs (April 2005) and my review in The Mises Review, Spring 2005.

2Does not an analogous argument give us reason to prefer competition in protection agencies to a single dominant agency?

3See my review in The Mises Review, Summer 2005.

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