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Monday, March 20, 2006

Disabilities and the Social Contract

I'm in the middle of Martha Nussbaum's new book, Frontiers of Justice : Disability, Nationality, Species Membership.  One of its central claims is that the social contractarian tradition of political theory is inadequate to the task of devising principles of social justice because the theory necessarily excludes certain classes of individuals who clearly deserve considerations of justice.  In particular, she argues that because the disabled do not participate in the original social contract (on either Locke's, Gauthier's, or Rawls's versions), we should prefer a "capabilities" approach to political theory, ensuring that we furnish substantive justice to each individual (as a sort of natural law) before we worry about procedural justice of the form contractarians aim to provide.   

Admittedly, contemporary contractarians do tend to insist that the members of the community who participate in the fictional "Original Position" where principles of justice are devised must be equal and, for the most part, rational.  (There is some debate about whether the contractarians think mutual advantage is the exclusive motivation of the "actors" leaving the state of nature.)  And Nussbaum is surely right that the severly mentally disabled (though probably not the  physically disabled) cannot be imagined to  participate usefully in this fictional moment of principle-generation.

But does this mean the contractarian tradition must be abandoned?  Although I have many problems with the contractarian methodology (and think the "capabilities" approach has a lot going for it), I fail to see the challenge Nussbaum adumbrates as a substantial inadequacy.  In short, it seems to me that contractarians have recourse to a few rejoinders.  The most important of which is that the methodology is complete fiction.  No actual disabled persons have been excluded from anything real; the contractarians merely insist that at the level of principle-generation for a polity, it is useful to imagine the deliberating entities as ones who are capable of reasoning as adults.  I can see how it might be viewed as insensitive or, perhaps, unfortunate to think about constraining deliberation in this way.  But is it any more a challenge to social contractarianism that children seem to be excluded from the "Original Position"?  Perhaps.  But I don't see how the disabled, then, present a unique problem in this regard.  One can disagree with the paternalism implicit in contractarianism but I think there is a coherence to the idea that in devising the major constitutional structure of liberal political society, it makes sense to imagine a group of equal, rational, and reasonable people.

Let me be clear: contractarianism has many holes.  But charging it with "excluding" the disabled seems to be a bit of a cheap shot.

Posted by Ethan Leib on March 20, 2006 at 01:43 PM in Books | Permalink


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Tracked on Mar 22, 2006 7:40:27 PM


Obviously, I think Adil's reply is wholly adequate. Arguments about commas aside, the debate in which we are engaged has nothing to do with Supreme Court precedent, the ADA, or any other positive law. It is simply a definitional matter for the purposes of this conversation that some class of severely mentally disabled persons could not realistically participate in the fictional social contract -- because members of that class would fail a basic test required by social contract theories. It may be that there is no such subgroup in reality (a proposition I think can't be right); or it may be offensive to call this group "disabled" since that appellation suggests that all disabled people suffer this particular inadequacy (though such a suggestion is so fallacious that it is hard to take seriously -- or as a serious criticism).

To the extent, however, that my comments or any comments on this blog were read to suggest that anyone thinks all mentally disabled persons are unable to participate in rational discourse, sincere apologies. I don't think that is a reasonable construction of anything anyone said; but we obviously are all capable of giving people reasons to misunderstand our intentions.

Posted by: Ethan Leib | Mar 22, 2006 7:42:44 PM

Mary: As I have tried to make clear in the gentlest way possible, my initial comment did not attribute to all individuals with mental disabilities any shared level of cognitive ability, nor do I believe any such attribution to be sound. I do not harbor nor have I expressed any negative attitude toward individuals with mental disabilities, and consider such attitudes a form of bigotry as serious as racism or sexism. If you wish to ascribe such attitudes to me, I cannot stop you. I can only make clear that I have given you no reason to do so, and tell you that I find your unfounded accusations and insinuations deeply hurtful. I hope you will reconsider your statements, and that we can end this exchange cordially and promptly.

Posted by: Adil Haque | Mar 22, 2006 7:29:12 PM

Ethan, I will respond to you rather patrnizing cmments sometime later in the next 1-2 days, as I am rather busy at my husband's law office on deadlin. However, since Adil chose to post his private email to me publicly, I shall likewise post my private email response publicly.


I think you are offering a very poor excuse for what it is quite clear you really intended. If you have to resort to placment of a comma to "change the meaning" of what you say, when you are dealing with people like autistics, then maybe you ought to reassess you whole approach to how you are effectively communicating to this disabled population -- starting with learning to use more clarity, more literal language, and eliminating the vague read-beteen-the-lines methodology that allows you to escape through changing your posture at the drop of a hat, depending on how it goes and the feedback you get.

Nothing I said was "misleading;" you just don't like hearing an opposing viewpoint. I also have no "hurt feelings" -- an attribute only a disability basher would have the balls to project onto someone with autism by implying emotional reactions to a person whose brain cells do not read emotion. The fact I said your viewpoint is offensive, not to mention violates the Americans With Disabiltiies Act and Rehabilitation Act of 1973 is a reasonably objective conclusion based on the more than 10,000 cases in that area of jurisprudence I have read over 16 years. That is why I asked what law school you are affiliated with, since they can properly be charged with such a federal anti-discrimination law violation if you refuse to publicly retract or apologize to the disabled community for your remarks.

If there is any "misunderstanding" it is on your part alone -- I understood the "gist" and direction of your comments quite clearly. The only "misunderstanding" you have is that people with certain types of mental disbailities can think as well or better then yourself, in fact, well enough to take offense at these types of ignorant, scientifically misleading, wrong, and harted inciting comments.

If you were intending to limit your comments to one "subgroup," then, as all law students, lawyers, and law professors learn, why did you not spell out exactly which "subgroup" and state how it is sound analysis to classify by "subgroup" when the Supreme Court quite clearly has ruled an "individualized assessment" is required to make conclusions about the functional impairments of peope with any type of disability?

Instead of making a second attack on those you perceive to be mentally disabled, why don't you just admit you are wrong, and publish an apology. At least Eugene Volokh, who is a class act, would do that.

Posted by: Mary K. Day-Petrano | Mar 22, 2006 4:29:02 PM

Hi Mary: Just to clarify, I referred to "mental disabilities which directly implicate the two moral powers as well as the ability to rationally contract", using "which" to restrict the set of mental disabilities under discussion to a smaller set with certain properties. By contrast, had I written of "mental disabilities, which directly implicate . . ." that would incorrectly state that all mental disabilities have those properties. I know it's just (the absence of) a comma, but it actually changes the meaning of the sentence quite a bit, and chopping up my comment as you did can be quite misleading.

Posted by: Adil Haque | Mar 22, 2006 10:52:58 AM

Surprised it took you so long to weigh in, Mary. We are addressing ongoing disputes in political theory to which I'm sure you have much to contribute. No one here (I feel comfortable speaking for Dave and Adil, I think) means any offense to the disabled, however lumped for the purposes of having a discussion about the merits of social contract theory. All of your huffing and puffing aside, do you have something to say about whether social contractarianism should be discredited as a political theory for discrimination against the severly mentally disabled, however defined? I should note here that it is a matter of definition -- and little else -- that the class of interest for the debate cannot participate in the founding moment of Rawls's Original Position. It is those people, according to Nussbaum, who present a challenge to the social contract theory. If what you are saying is that the very lumping of the disabled into a category of any kind is what you find offensive, you would have problems with Nussbaum's book -- which itself is poised to reject contractarianism because she deems it unfair to the disabled. So you'd have to find her offensive as well. And do you really want to be in a position of finding anyone offensive (or "trash") who uses the term "disabled" to stand in for something -- even if it is the disabled such a person was interested in protecting?

Nobody relevant to this debate takes a position that the disabled are not discriminated against in the real world. We are debating a more theoretical point about whether the purported exclusion of the disabled from Rawls's fictional Original Position is a strike against it. Perhaps all political theorists should "get a life" and not have debates about fictions; but please don't mistake a claim about a theory from a claim about the real world.

Posted by: Ethan Leib | Mar 21, 2006 8:32:21 PM

"And Nussbaum is surely right that the severly mentally disabled (though probably not the physically disabled) cannot be imagined to participate usefully in this fictional moment of principle-generation."

"No actual disabled persons have been excluded from anything real; the contractarians merely insist that at the level of principle-generation for a polity, it is useful to imagine the deliberating entities as ones who are capable of reasoning as adults. I can see how it might be viewed as insensitive or, perhaps, unfortunate to think about constraining deliberation in this way."

"I also think Nussbaum is on firmer ground with respect to mental disabilities which directly implicate the two moral powers as well as the ability to rationally contract. Such individuals really do seem outside the parameters of the thought experiment."

Wow, I can't believe I am reading such trash about people with mental disabilities on an actual legal blawg. What are law schools teaching these days, anyway? Lets take a look at this flawed logic of bogotry a little more critically:

1. "Severely mentally disabled" people are lumped together in a big generalization with no objectively reasonable scientific or medical basis for drawing this conclusion from such categorization. One could only get away with such garbage if one lived in the more primitive 1600-1800s. But this discussion is taking place on a legal balwg in 2006!!

2. Mentally disabled people cannot participate in:

A. The moments of philosophiccal underpinning of government;

B. "Capability" of "reasoning" or "deliberating" "as adults;"

C. Any activity that implicates "the two moral powers as well as the ability to rationally contract;"

D. Any activity inside "the parameters of thought experiment."

Anyone who continues to harbor this clearly outdated and invalidated mindset in 2006 needs to hear it from an opposing autistic viewpoint.

This type of discussion is the source of hundreds of years of vile morally depraved hatred, bullying, and predatory financial actions by the strong against those perceived to be weak purposefully directed toward certain classifications of disabled people that is intolerable in a scientifically modern civilized society.

And if people who are going to law school and writing discussions on legal blawgs of this type that perpetuate the discrimination that laws like the Americans With Disabilities Act intend to eradicate want to espouse such scientifically wrong and ignorant information, then prepare to hear the other viewpoint -- from an autistic with a JD/MBA passer of the California Bar Examination. I know I am not the only disabled person who can comprehend the offensive nature of these comments. FYI, to demonstrate my "capability for rational thought," I took 6-7 philosophy-based classes in college, and never scored less than a "B."

"No actual disabled persons have been excluded from anything."

Get a life, and open your eyes -- the above mindset that seeks to justify deliberately unequal treatment and exclusion of autistics by lumping them in a generic category of "severely mentally disabled" as cause to write such people off, is seriously out of touch with reality and recent science. What law schools are you all affiliated with? Someone should notify Bazelon, DREDF, and Protection & Advocacy that the law schools you represent distribute this kind of ignorant information about the mentally disabled -- and, yes, people actually ARE excluded by such. I am surprised you all did not go so far as to propose a blanket voting ban on all mentally disabled people. I have not read such a ridiculous blawg thread since the psychiatric disability of drapetomania was attributed by white men to blacks.

You should all be ashamed.

Posted by: Mary K. Day-Petrano | Mar 21, 2006 3:53:49 PM

Ethan: I'm fairly sure Rawls treats children under the heading of transgenerational justice, as a matter of perpetuating the basic structure over time. I may be mistaken. I also think Nussbaum is on firmer ground with respect to mental disabilities which directly implicate the two moral powers as well as the ability to rationally contract. Such individuals really do seem outside the parameters of the thought experiment.

Dave: I am more sympathetic to Nussbaum's argument. It seems question-begging to imagine other-regarding concerns of the kind you mention as inputs rather than outputs of the (real or imagined) social contract. The point of the thought experiment is to show how other-regarding principles may be justified through reference to rational self-interest given specified conditions of factual ignorance and predictive uncertainty. Alternatively, the point is to illuminate the structure of our sense of fairness using a model of the form just described. If we substitute for the idea of a collective endeavor for mutual advantage the idea of a collective endeavor for whoever's advantage is worth caring about then the idea of contract is no longer doing any work. We're just operating on the basis of first-order moral judgments and principles justifed on other grounds. Not that there's anything wrong with that . . . .

Posted by: Adil Haque | Mar 20, 2006 6:47:46 PM

When I read Frontiers, I wasn't sure if Nussbaum's claim was that the social contractarian view was flawed because it had historically excluded consideration of certain marginal groups like the disabled (probably right) or because it was structurally incapable of incorporating concern for such groups (a much shakier proposition).

It does seem like there's nothing necessary about the premises of social contract theory have been imagined since they the whole notion of social contracting is, as Ethan points out and Nussbaum rightly concedes, a fiction. But the assumptions that have historically undergirded this fiction could readily be relaxed without making nonsense of the fiction.

For example, Nussbaum is critical of Rawls' assumption that parties in the original position have no interest in one another's interests. ("They are not necessarily egoists, but they are concerned to advance their own conceptions of the good, not those of others." FJ p. 33.) Yet it seems entirely possible to eliminate this assumption without abandoning the notion that the parties engaged in deliberating about the social contract possess the capacity for rational discussion.

If anything, the latter seems like the more plausible position because public policy often reflects deliberators' other-regarding preferences (e.g., foreign humanitarian aid). Nor does it seem necessary that these other-regarding preferences need be limited to concern for humans with similar capacities or even for other humans at all, as statutes like the ADA and the AWA (Animal Welfare Act) illustrate.

Posted by: Dave | Mar 20, 2006 4:04:51 PM

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