Minimal mutual advantage: How the social contract can do justice to the disabled
| Author | Melanie Sisson,Martin DeNicolo |
| DOI | 10.1177/1474885114531238 |
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| Subject Matter | Articles |
European Journal of Political Theory
2015, Vol. 14(2) 161–179
!The Author(s) 2014
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DOI: 10.1177/1474885114531238
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Article
Minimal mutual advantage:
How the social contract can
do justice to the disabled
Melanie Sisson and Martin DeNicolo
University of Colorado Boulder, CO, United States
Abstract
In this work we address the proposition that because it emerges from the contract
tradition and so relies upon the assumption of mutual advantage, John Rawls’ theory of
‘‘Justice as Fairness’’ cannot accommodate persons with severe mental and/or physical
impairments. We respond to this criticism by proposing a revision to Rawls’ contracting
situation, the Original Position (OP). Specifically, we propose to supplant the traditional
understanding of mutual advantage—which we agree does constitute the necessary and
sufficient condition for deliberation to come about in the OP, as it stands—with a more
modest alternative: a Hobbes-inspired concept that we call minimal mutual advantage.
We argue that when this revision is introduced into Justice as Fairness, it reconciles
admirably the seeming tension between contractarianism’s insistence on the rational,
self-interested actor and the reality of societies in which not all members are capable of
meeting a standard of reciprocity understood in terms of productive contributions to
the general well-being. In so doing, minimal mutual advantage renders indistinguishable
the disabled from the able in the OP, allowing Justice as Fairness to capture successfully
problems of disability while leaving intact the more appealing aspects of liberalism that
other approaches would dismiss.
Keywords
Mutual advantage, justice, disability, Rawls, Nussbaum
Introduction
From liberalism have emerged theories of social justice that evidence a deep com-
mitment to the primacy of liberty, to one’s right to determine for herself the dimen-
sions of the life she will lead. Central to many of these accounts is the social
contract—the device by which people are imagined rationally to choose to
Corresponding author:
Martin DeNicolo, University of Colorado, 333 UCB Boulder, CO 80309, United States.
Email: martin.denicolo@colorado.edu
remove themselves from the state of nature by agreeing to subject their interactions
to the rule of law. This choice to limit liberty has long been understood by liberal
theorists to be made possible by merit of each person’s reasonable and morally
permissible interest in protecting and promoting the self. They have generally
explained that the social contract provides for this self-interest by means of
mutual advantage: the proposition that cooperation gives rise to the generation
and subsequent distribution of a surplus of social goods. Under this view, each
potential participant in a cooperative scheme understands that she will be able to
gain more through association than she will through independent action, and so the
ceding of some measure of liberty is made rational.
In her thought-provoking Frontiers of Justice Martha C Nussbaum takes issue
with the implications of this dependence upon mutual advantage, questioning
whether or not theories of justice that emerge from the contract tradition can
accommodate the hard cases of persons with severe mental and/or physical impair-
ments.
1
Her conclusion is that they cannot. Because mutual advantage tells us that
each person’s incentive to participate is contingent upon the belief that all other
participants will contribute to the generation of excess gain, she argues, there
is no plausible reason the able would enter into association with the disabled—that
is, those who may not be capable of contributing to the social surplus.
2
In such
cases, the self-interest of the able should in fact preclude cooperation with the
disabled.
In addition to this concern with the contract tradition in general, Nussbaum
also presents a thorough and compelling critique of its seminal twentieth-
century articulation, John Rawls’ theory of Justice as Fairness (JF).
3
At the
core of Nussbaum’s criticism is her conviction that Rawls’ emphasis on social
goods is misplaced. Instead, she focuses on equal provision of ‘‘capabil-
ities’’—those functionings so intrinsic to human dignity that it is the case that all
persons need them in order to live a good life—as what distinguishes just from
unjust societies.
4
Nussbaum presents her Capabilities Approach (CA) as premised upon an under-
standing of the human not as an atomistic seeker of self-interest but rather as an
associative and emotive Aristotelian ‘‘animal’’.
5
Acknowledging not only the
rational but also the ‘‘animal’’ qualities of the human, she argues, allows her
approach to be highly inclusive and to focus on the distribution of the proper
objects of justice—not the goods, but rather the capabilities, that humans need
in order to flourish.
6
Nussbaum’s criticism of the social contract as represented in JF is a serious
one. Indeed, it requires us to ask whether, as constituted, Rawls’ choice situ-
ation, the Original Position (OP), can achieve his own standard of reflective
equilibrium:
By going back and forth, sometimes altering the conditions of the contractual cir-
cumstances, at others withdrawing our judgments and conforming them to principle,
I assume that eventually we shall find a description of the initial situation that both
expresses reasonable conditions and yields principles which match our considered
162 European Journal of Political Theory 14(2)
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