Beyond the social contract: capabilities and global justice. an Olaf Palme lecture, delivered in Oxford on 19 June 2003

Abstract

The dominant theory of justice in the western tradition of political philosophy is the social contract theory, which sees principles of justice as the outcome of a contract people make, for mutual advantage, to leave the state of nature and govern themselves by law. Such theories have recently been influential in thinking about global justice. I examine that tradition, focusing on Rawls, its greatest modern exponent; I shall find it wanting. Despite their great strengths in thinking about justice, contractarian theories have some structural defects that make them yield very imperfect results when we apply them to the world stage. More promising results are given by a version of the capabilities approach, which suggests a set of basic human entitlements, similar to human rights, as a minimum of what justice requires for all.

But among the traits characteristic of the human being is an impelling desire for fellowship, that is for common life, not of just any kind, but a peaceful life, and organized according to the measure of his intelligence, with those who are of his kind … Stated as a universal truth, therefore, the assertion that every animal is impelled by nature to seek only its own good cannot be conceded.

  (Grotius, On the Law of War and Peace)

Global inequalities in income increased in the 20^th century by orders of magnitude out of proportion to anything experienced before. The distance between the incomes of the richest and poorest country was about 3 to 1 in 1820, 35 to 1 in 1950, 44 to 1 in 1973 and 72 to 1 in 1992.

 (Human Development Report 2000, United Nations Development Programme)

Notes

 Martha C. Nussbaum, University of Chicago Law School, 1111 E 60th Street, Chicago, IK, 60637, USA.

This article derives from a book in progress, entitled Global Justice and Fellowship: Disability, Nationality, Species Membership. The book, under contract to Harvard University Press, is based on my Tanner Lectures 2003. All data in this paragraph are from Human Development Report 2002 (New York, Oxford University Press, 2001), pp. 141–144. Data are from 2000. Sierra Leone ranks last overall among the 173 countries in the HDI.

Kant says, rightly, that “Law of Nations” is a misnomer: it ought to be “Law of States” (in his Latin, ius publicum civitatum).

See also: Idea for a Universal History, where Kant speaks of the “barbarous freedom of established states” (p. 49); Theory and Practice, where he speaks of a “state of international right, based upon enforceable public laws to which each state must submit (by analogy with a state of civil or political right among individual men)” (p. 92); Perpetual Peace, where he speaks of the “lawless condition of pure warfare” between states, and continues, “Just like individual men, they must renounce their savage and lawless freedom, adapt themselves to public coercive laws …” (p. 105). (All translations from these works are from Kant: Political Writings, in: H. Reiss (Ed.) translated by H.B. Nisbet (Cambridge, Cambridge University Press, 1970). Pages are given as in that edition, since it does not include the Akademie pagination.)

See Stiglitz, who describes a notorious photograph in which a French representative of the IMF stands over a seated Indonesian leader, arms crossed, in a posture of high colonial condescension, delivering the wisdom of the rich nations and their agencies.

For this language, see The Law of Peoples, pp. 144–145: “the political conception is a module, an essential constituent part, that in different ways fits into and can be supported by various reasonable comprehensive doctrines that endure in the society regulated by it”.

See The Law of Peoples, p. 65 n. 2: “this liberty of conscience may not be as extensive nor as equal for all members of society: for instance, one religion may legally predominate in the state government, while other religions, though tolerated, may be denied the right to hold certain positions”.

See The Law of Peoples, p. 71: “… all persons in a decent hierarchical society are not regarded as free and equal citizens, nor as separate individuals deserving equal representation (according to the maxim: one citizen, one vote) …”.

In his formulation, none, since the society is assumed to be closed.

Charles Beitz, Political Theory and International Relations (Princeton, Princeton University Press, 1979); Pogge, Realizing Rawls.

Realizing Rawls, p. 247.

Realizing Rawls, p. 273.

Realizing Rawls, p. 272.

See George Soros, The New Republic, August 2002.

See Liam Murphy, Moral Demands in Non‐ideal Theory (New York, Cambridge University Press, 2001).

In one form, this family of objections is eloquently pressed by Bernard Williams, in “A critique of utilitarianism”, in: J.J.C. Smart & B. Williams, Utilitarianism For and Against (Cambridge, Cambridge University Press, 1973), pp. 77–150.

See Thomas Nagel, Equality and Partiality (New York, Oxford University Press, 1991).

See, e.g. Stiglitz, and the review of his book, summarizing pertinent criticisms, by Benjamin Friedman in The New York Review of Books, 22 August 2002.

In several cases, for example, the norms of sex equality in the Convention on the Elimination of All Forms of Discrimination Against Women have been held to be binding on nations that have ratified it, in a way that has affected the outcome of legal disputes, and also generated new legislation.

See my “Women and education: a global challenge”, (2004), in Signs, 29, pp. 325–355.

Additional information

Notes on contributors

Martha C. Nussbaum *

 Martha C. Nussbaum, University of Chicago Law School, 1111 E 60th Street, Chicago, IK, 60637, USA.