In the first part of her Tanner Lecture’s on Human Values Martha Nussbaum’s aim is to show that Rawls’s social contract theory cannot adequately address the needs of people that are dependent on care.
Her target are social contract theories in general however. Social contract theories derive from a conception of morality modelled on mutually agreeable reciprocity or cooperation between equals. This general idea can be developed in a variety of ways, depending on how one characterizes the relevant agreement, the parties to it and their equality and their conditions under which the agreement is made. Social contract theories can be broadly distinguished as being of contractarian or contractualist kind. Contractarianism and contractualism differ mainly in how moral principles are understood. In contractarianism moral principles result from rationally self-interested bargaining. In contractualism moral principles are attributed to the deliberative parties themselves. Morality does not arise out of prudential reasoning like it does in contractarianism. One way to see it is to think of contractarianism as reductionist and contractualism as being non-reductionist when it comes to morality. In Rawls’s theory the parties in the original position are portrayed as being motivated by purely self-interested reasoning. The moral part, which means the reciprocity, is ensured by an information constraint provided by the veil of ignorance. Rawls’s theory is therefore contractualist because it does not derive moral reasons from non-moral ones.
Nussbaum’s argument goes like this: Rawls’s contractualist theory of the social contract cannot adequately deal with dependency on care because:
- people dependent on care cannot be included among the parties bargaining for first political principles without rendering Rawls’s theory incoherent or impracticable
- such exclusion makes fair treatment of people dependent on care a matter of charity that has to be deferred until after the hypothetical agreement.
Nussbaum believes however, that adequate treatment of people that are dependent on care is an issue of social justice and not just of charity. As it turns out as an issue of charity in Rawls’s theory his theory must be wrong. It thus all hinges on premise a). Why can people dependent on care not be included in the bargaining process? Nussbaum gives several arguments which I think can mostly be summarized in two main reasons:
- A combination of Humean circumstances of justice and aKantian concept of personhood cannot accomodate an inclusion of disabled people
- Inclusion would force the difference principle to rely on intuitionistic balancing
The combination of Humean circumstances of justice and a Kantian concept of personhood leads to a bargaining process that is primarily concerned with mutual economic advantage between parties of roughly equal physical and mental capacities. Cooperation with both physically or mentally disabled people is usually not advantageous in this economic sense however, either because changing the public space to cater to disability would be too expensive or because disabilities are too severe to prevent disabled peoples from returning the cost that their care affords. In order to make parties in the OP consider other people’s interests we would need to forgo the idea of the social contract altogether because the social contract is defined as bargaining for mutual advantage.
As for the second argument, an inclusion of disabled people would require the theory to acknowledge the state of one’s body as a primary good to be distributed. This in return would lead to a complication of the determination of first political principles in the bargaining process. The difference principle would have to be reformulated because it measures social position by reference to wealth and income. Rawls would be forced to rely on intuitionistic balancing that he wants to avoid. He would need a way of measuring well-being that does not rely on income and wealth alone. However, need for care varies greatly even in non-disabled people and it is not clear how exactly one would compare relative social positions if we included the state of one’s body as a primary good to be distributed.
All of these criticisms apply to the situation of mentally disabled people. The Kantian conception of personhood makes the possession of mental and moral powers central both to citizenship and to reciprocity. Mentally disabled people are not only excluded from the original position because they offer no economic advantage to others but do not qualify as persons in a Kantian sense at all. Nussbaum’s conclusion is that the contract doctrine does not provide a complete ethical theory.
In order to escape this conclusion, one could for example deny either the assumption that dependency on care is not an issue of justice. How could insufficient support or no support for treatment of disabled people not be an issue of justice however? We could bite the bullet and claim that morality and thus justice only arises out of mutual advantage i.e. be reductionist about morality. This could explain why why care for elders and children is an issue of justice while care for disabled people is not. That is to say in the case of elders, they have already served society and children are expected to do so. While this is certainly a repugnant conclusion, it still would not save social contract theory. That is because considering any kind of care as an issue of justice would render the difference principle impracticable. You either have to accept that all dependency of care is an issue of social justice or let it go altogether. Biting the bullet would entail fully cooperating citizens having no moral responsibility towards any person being in need of care.
We could get rid of the difference principle and claim that people in the original position would choose a social minimum principle instead that foregos a listing of primary goods. This would attentuate Rawls’s commitment to fair conditions of opportunity however. Natural talents and the social positions that we are born into would have a much higher influence on our future if there was no redistribution as prescribed by the difference principle. Rawls’s theory would thus lose much of its appeal which originates out of the idea of choosing alternatives that are best for the worst-off.
We might try to reformulate the idea of mutual advantage without getting rid of the bargaining idea at the same time. We would thus still stay within the tradition of social contract theory but avoid the problem of excluding people that cannot fully cooperate. As Nussbaums recognizes however, a bargain as thought of in its usual sense does not allow for much consideration of others’ interests beyond such that facilitate mutual advantage.
Finally we could also accept Nussbaum’s conclusion and argue that theories of justice do not need to be complete in order to be convincing. This might go well together with considerations of non-ideal theory. We do not need a complete idea of justice in order to act politically. Then again a non-ideal theorist could argue that the problem lies exactly in the fact that Rawls tried to formulate an ideal of social justice that makes it impracticable in the real world. Consequently, Rawls’s theory might be considered as useless by a non-ideal theorist because its goal was to be ideal even though non-ideal theory accepts incomplete formulations of justice. An advocate of political realism might find that theories of social justice are useless no matter their degree of completeness. Anyways, none of these options are available to Rawls who explicitly acvocated ideal-theory.
It appears thus as if social contract theory is unable to adequately deal with the issue of dependency on care.