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 means-
tested 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.
 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.
 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.

 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 well-
ordered 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.