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Steve Shiffrin

Thanks for your comments. I wish I could have taken her class. In
general, I doubt the capacity of social contract theories or discourse
theories to have much force in deriving principles. I think values
interact in too many complicated contexts for theory to dictate
concrete outcomes (I like Isaiah Berlin on this - though not on other
issues). That said, I am attracted to the capabilities approach though
I think Nussbaum is too sunny in claiming that a society can protect
all the capabilities without conflict, and I do not subscribe to
political liberalism, particularly the public reason doctrine.

I know that Rawls does not intend the people behind the veil to be
taken as moral models, but the model appeals to a rational choice
mentality, and that mentality is too often at odds with morality for me
to find it attractive. The main work in constructing the initial
position is moral and with an eye to constructing principles that can
be drawn from theory. Putting people with certain disabilities as
parties to the contract would make it much more difficult to determine
who the worst off group is for purposes of the difference principle.
Excluding a group from the realm of justice (basic or otherwise) in
order to keep it simple sacrifices justice to produce a theory. I think
this is indefensible.

Robert Hockett

Hello Gents,

This here's a test, just to ensure I'm able to comment on my co-webloggers' posts. I'll also soon post on the particular subject under discussion here -- our obligations to our fellow creatures, and the basis of those obligations. It's a subject of fairly longstanding and still growing interest to lil ole me, on which I've even 'blogged' a bit in recent months.

All best and more soon,

Steve Shiffrin

Thanks again for your comments. I will have to read Freemans review, but I do think Nussbaum makes a strong case for her view. In particular, see Frontiers, pp. 56-67, but the argument runs throughout the book (see the index under mutual advantage). Second, Rawls does exclude many people with disabilities from the contracting position. They may get benefits at the legislative stage, but the principles of justice afford them nothing because they are not necessarily part of the worst off group because the methods of defining that group do not take them into account. Third, animals are outside the theory of justice and the contract theory can not be extended to them, according to Rawls TJ 512. I would think the same argument he makes there would apply to some with mental disabilities. We certainly agree on Gauthier! And I agree that the conditions of the initial position are driven by a moral theory. The veil is designed to force benevolence. I look forward to reading Freemans review. Would be interested in learning more about Buddhist approaches to animals.

Patrick S. O'Donnell


I'll have to put off the attempt to answer some of your questions until another day.

As to what you say about social contract and animal ethics, I agree. Nonetheless, you might be interested in this social contract theory account of animal rights: Chris Tucker and Chris MacDonald, "Beastly Contractarianism? A Contractarian Analysis of the Basis of Animal Rights," Essays in Philosophy, Vol. 5: 2 (June 2004).
Available: http://www.humboldt.edu/~essays/tucker.html

Patrick S. O'Donnell


Thanks for your response.

One reason for my comment is found in the conclusion to Freeman's review, namely, that Nussbaum's "capabilities approach" is "more complementary to, rather than competitive with, Rawlsian contractarianism." I think the "mutual advantage" motivation is NOT a central theme of Rawlsian social contract theory nor even of the Hobbesian covenant/contract if it assumes an egoistic or self-preservation model of human nature (or simply purely 'self-interested' or 'self-centered' motivation), rather, such mutual advantage as may obtain amounts to a consequence or by-product of contract that theorists might (hence need not) cite, as a second-order or subsidiary reason, in its support. Thus I think Freeman is right to argue, for example, that

"The fundamental idea behind Rawls's contract doctrine is not mutual advantage but is implicit in the moral ideal of a well-ordered society. Is 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." [emphasis missing]

Thus the critique of "mutual advantage" motivation IS better directed at the likes of those CONTEMPORARY social contractarians I earlier referred to: Gauthier, Kavka, Binmore, et al., who are attracted to game theoretical models that mistakenly believe them to be, as Lloyd explains, improvements on Hobbesian moral and political reasoning. In other words, the model of rational egoists (or 'narrowly egoistic interest maximizing deliberators') trapped in a prisoner's dilemma motivated by their perception of mutual advantage does not apply, strictly speaking, to either Hobbes or Rawls. And the latter is closer to the former when he abandons, as Freeman notes, the notion of mutual advantage in favor of a conception of reciprocity, although Freeman is apparently unaware of how central the notion (or 'theorem') of reciprocity was to Hobbes as well, inspired as it was by his religious commitment to the Golden Rule (which summarize his Laws of Nature).

I don't think it is true, as Freeman makes clear, that the idea of mutual advantage "is part of the reason that people with disabilities are not parties to the Rawlsian contract," and the fact that they are not parties to the original contract does not mean that they are not owed duties of justice. It helps to keep in mind that, correctly or not, for Rawls,

"[R]emedial institutions and agencies for the disabled, like other important social institutions, such as religion---however profound their influence on people's lives---are NOT basic institutions. It is WITHIN the framework of basic social institutions that these and other important social institutions pursue their goals and that more specific problems of justice arise, including justice to the disabled. Claims of the disabled are important problems of justice. But not all 'basic political principles,' as Nussbaum understands them, are basic principles of BACKGROUND JUSTICE. Principles of redress for the disabled may be 'basic' in the sense that they are of great moral importance. But principles of redress are not principles of background justice for the basic structure of society, and the institutions needed to realize principles of redress are not basic social institutions in the aforementioned sense. [....]

Given the veil of ignorance, the specific nature of the problem of background justice, and the fact the problems of background justice and the basic structure are not resolvable by principles of redress, representatives for the disabled would agree (I believe) on Rawls's principles of justice. THERE ARE MANY IMPORTANT PROBLEMS OF JUSTICE THAT ARE NOT DIRECTLY ADDRESSED IN THE ORIGINAL POSITION OR BY THE PRINCIPLES OF JUSTICE FOR THE BASIC STRUCTURE OF SOCIETY [emphasis added] [Thus, it is not true that any 'moral duties must come from outside justice theory,' for there are principles and forms of justice that exist OUTSIDE those principles and that form that are applicable solely to the basic structure of society.] In addition to principles of redress for disabilities, there are principles of retributive justice...; 'commutative' justice...[etc., etc.]."

I therefore remain in vigorous disagreement with your claim that "bargaining or mutual advantage assumptions infect social contract theory and the infection goes far beyond Gauthier as Nussbaum’s detailed discussion of Rawls shows."

You've answered your own question about Kant's indirect duty to animals, which indeed involves the brutalization of human beings (hence the 'indirect' part) thought to result from the cruel treatment of animals.

For the record, and owing to its cosmopolitian orientation, I am far more attracted to Nussbaum's capabilities approach (which I've long spoken in favor of) to questions of justice and human rights than I am to social contract theory in general. Similarly, with regard to Regan, I merely wanted to clarify some of his ideas, not defend them, as my approach to the treatment of animals is motivated by Buddhist precepts and practices in the first instance and not by any of the contemporary secular philosophical defenses of animal ethics or 'rights,' however much I've learned from such defenses.

(Cross-posted at the Mirror of Justice blog)

Kevin P. Lee

Hi Steve and Patrick,

I am an admirer of Martha Nussbaum, although I disagree with her on many points and in most of her conclusions. I think your assessment of her work is quite correct.

I just picked up her new book, so I haven't read it yet. But, I was introduced to her thought in a course on neo-Aristotelianism that she taught. I found her work to be interesting enough to write and to defend (for my comp exams) a short essay on her book, "Women and Human Development". I argued that her approach to Sen's capabilities theory rests on some concealed and unacknowledged metaphysical presuppositions concerning the individuation of the person, and that the presuppositions are difficult to defend within the context of her overall project.

I admire her work on Aristotle, particularly her work with Hillary Putnam on "De Anima". It is very influential, and even some Analytical Thomists admire it and cite to it. I tend to agree with the later Putnam, however, that functionalism is not a sound basis for understanding the person.

I hope that you might say more about why you do not like the social contract. Do you think that political theories need to be rooted in virtue ethics? Or be grounded by metaphysically teleological claims? Or both? Or, can a non-teleological deontology be developed into a democratic theory--just a better one than the Rawls'?

I think some of the points you and Patrick raise might implicate the Habermasian critique of Rawls. Would you favor a social contract rooted in a discourse ethics: one which acknowledges the dialogical nature of rationality. Is the problem with the Rawlsian original position its radical monological perspective?

As for animals, I think that social contract theorists will never be able to stretch the concept of society broadly enough to include animals in any persuasive way. The dignity of an animal cannot approach that of a human being so long as rationality is the basis for accessing dignity.

Personally, I find St. Francis to be a guide here. He was working in a Christian Neo-Platonic framework, which allowed him to view animals in a continuum with the person in relation to God, who is known apophatically--i.e, non-conceptually, by both human and beast.

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