Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, February 10, 2010

Nussbaum and Social Contract Theory

I have been discussing Martha Nussbaum’s, Frontiers of Justice in my seminar on Constitutional Law and Political Theory. The book critiques social contract theories in the context of application to persons with disabilities, people from other nations, and to animals. My class is discussing only the first 223 pages which excludes people from other nations, and animals, but includes persons with disabilities.

I emerge from her discussion even more hostile to the social contract tradition than she is. As she observes, the moral work in the social contract tradition is done in setting up the conditions of the social contract. I do not see why the bargaining among equals model should be attractive in any religious tradition, let alone Catholicism. I do not see why we should hold up as a model the perspective of those bargaining for their own advantage (even understanding that the veil of ignorance is designed to produce a benevolent result). Nussbaum convincingly argues that Rawls, for example, cannot relax the conditions of his model to address the problems she discusses, and Rawls was well aware of it.

Nussbaum argues for an alternative in the natural law tradition to the social contract methodology. Of course, it is controversial in its particulars. In Catholic social theory, natural law is congenial. But there are Catholic Rawlsians. I am coming to the view that there should not be.

Finally, Nussbaum makes clear she will argue against the imperial claims of human beings over animals. I have not read her section on animals yet. But I have long thought that Kant’s view that we owe no duties to animals was dead wrong and that deriving the dignity of humans from their rationality as compared to animals downplayed important components of humanity. Nussbaum does not make that mistake (though there are some on my faculty who think she is insufficiently sensitive to the plight of and nature of animals).

cross posted with modifications at http://religiousleftlaw.typepad.com/religiousleftlawcom/


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It's nice to see the attention devoted to Nussbaum's work, which I think is also helpfully addressed in the context of contemporary cosmopolitan political theory (Caney, Held, Brock, Gould, Pogge, et al).

One brief comment: the social contract tradition in the history of Liberalism is perhaps best not characterized as "a bargaining among equals model," as that is more applicable to its rendering among contemporary political theorists (e.g., Kavka, but most egregiously, Gauthier) and those fond of game theoretic models (and a somewhat attenuated version of rational choice theory) of social cooperation (e.g., Binmore) who fancy themselves as part of that tradition or in some sense inspired by it. I also wonder if we might be (anachronistically) reading contract law (bargained-for-exchange) into the social contract tradition. Much of the social contract tradition in fact relies on a "tacit consent" contract/covenant model which upholds principles of freedom and equality (and by implication, fairness and justice) and notions of rationality and reasonableness that we might cherish, whatever we otherwise and justifiably find lacking in social contract theory as such, or however else we might choose to formulate or express those values and principles. The difference might be illustrated in standard interpretations of Hobbes's moral and political philosophy (e.g., Gauthier, Kavka, and Hampton), which views Hobbes as addressing the issue of social cooperation as such, whereas it appears Hobbes was interested principally in the more urgent (at least in his time and place) political question of social disorder, with significant consequences for how we understand the social covenant in Hobbes's account, to wit:

"The standard reading [of Hobbes] represents the disorder of the state of nature as the product of rational egoists trapped in a prisoner's dilemma, to be solved...by erecting a sovereign power to change the payoffs of noncooperation through threat of punishment. If this were right, Hobbes's solution would be capable of ORIGINALLY establishing order from the anarchy of the state of nature. But what analysis shall we give of RECURRENT disorder--of the recurring collapses of order within established societies? This, after all, was the problem Hobbes was addressing. He writes, 'long time after men have begun to constitute commonwealths, imperfect, and apt to relapse into disorder, there may principles of reason be found out, by industrious meditation, to make their constitution (excepting by externall violence) everlasting. And such are those which I have in this discourse set forth.'"

As S.A. Lloyd proceeds to explain, Hobbes was concerned with articulating the principles of reason necessary for the prevention of domestic rebellion and disorder, hence several of the axiomatic presuppositions and pivotal assumptions common to the bargaining model of social contract theory one finds among contemporary social contract theorists are NOT found in the Liberal social contract tradition that commences with Hobbes, and thus the picture of rational egoists trapped in a prisoner's dilemma responding to a change in the payoff matrix is no longer plausible (for the details, please see the section on the "Contemporary Uses of Hobbes's Normative Philosophy," in S.A. Lloyd's Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (2009): 376-409).

And we should keep in mind that the social contract is often on the order of a "thought experiment" (or has 'hypothetical' status) or, with Kant, "merely an IDEA of reason," which might temper our rather harsh assessment of its value. And of course the questions of political legitimacy and political obligation this model was designed to address remain no less pressing today.

Incidentally, the Lloyd work referenced above helps us appreciate the extent to which Hobbes understood himself, and not without justification, as part of the natural law tradition!

Lastly, while it is true that Kant held that have no DIRECT duties to animals, he did argue that we nonetheless have INDIRECT duties to the animal kingdom (being 'merely indirect duties to mankind'). Perhaps you're aware of it, but there's a thorough and sympathetic critique of Kant's views on this score in Tom Regan's classic tome, The Case for Animal Rights (1983): 174-194. Regan proceeds to use some Kantian and Kantian-like ideas and reasoning to make his case for animal rights.

(Cross-posted at the promising new weblog, ReligousLeftLaw.com)

Posted by: Patrick S. O'Donnell | Feb 10, 2010 6:45:30 PM

My view is that Nussbaum isn't, in fact, a very good critic of social contract views and gets them quite wrong at many points. For an excellent account along this line see Samuel Freeman's review of the book, "Frontiers of Justice: The Capabilities Approach vs. Contractarianism", in the Texas Law Review, December, 2006 85 Tex. L. Rev. 385. The argument needs more than I could put in a blog comment, but Freeman makes them in great detail.

Posted by: Matt | Feb 10, 2010 11:10:08 PM

That reveiw is found here: http://www.utexas.edu/law/journals/tlr/assets/old/Freeman.Proof.Final.pdf

Posted by: Patrick S. O'Donnell | Feb 10, 2010 11:42:05 PM