Rawls and Nussbaum

A Critique on Rawls’ View and Nussbaum’s Alternative Approach

PHILOS 3NO3

Dr. V. Igneski

Essay Draft

March 25 2019

Anoosh Iqbal (400087881)

The social contract aims to justify a particular conception of justice. With this aim in mind, we

are able search what kind of agreements we can create on certain principles of justice, that we

can later apply to our basic structure of society. Rawls rejects the idea that political theories

foundation should start with moral principles such as utilitarianism. According to Rawls, this is a

narrow theory, so he came up with principles of justice for organizing our institutions. It would

not be about justifying a sovereign or government, but about justifying our basic principles of

justice. Rawls theory of justice as fairness “describes a society of free citizens holding equal

basic rights and cooperating within an egalitarian economic system” (Stanford Encyclopedia of

Philosophy, 2008). On the other hand, Nussbaum’s alternative approach to justice focuses on the

theory of basic social justice which has a goal of improving the quality of life for all. In this

essay, I will argue that Rawls’ theory is problematic due to the fact that he describes family as an

institution that is hierarchical which implies that certain rules and responsibilities in accordance

with innate differences are given greater social significance. To make a counter argument,

Nussbaum’s alternative approach is more acceptable because applies to the individual more

directly through the opportunities available to them and focuses on what each individual is able

to do and be. I will prove my thesis by discussing Rawls’ theory of justice as fairness and how

his conception of the family as inherently just violates his principles and produces problems of

social justice. I will then explain Nussbaum’s alternative approach to justice and argue how it is

superior to Rawls’.

Justice as Fairness

When we think about when people get together to choose principles, the initial position of

choice needs a method of reasoning. This is how we are going to figure out what the principles
of justice are. It is designed to be fair and impartial and if it is that, it ensures that the agreements

reached are going to be fair. This theory is called justice as fairness, which has a goal to build

fairness in an initial situation or else the outcome will not be a fair one. In this original position,

there are restrictions that are reasonable. To begin with, there are no advantages based on nature

or social circumstance; we must figure out what principles are agreeing to. The veil of ignorance

can be identified as a hypothetical prop which ensures that the social contract is a fair one. There

is no previous knowledge about the particular individual being represented. All of these things

are important and would have a factor in determining what the principles of justice are. If

someone were to know these things, it would bias in an arbitrary way the principles that would

be accepted. Rawls argues that we must “nullify the effects of special contingencies which put

men at odds…” (Rawls, 118) because if one does not now these social circumstances, they

would not be able to try and make t so that the principles suited them and are made to their

advantage. All in all, the veil of ignorance is sued to correct any arbitrariness or injustice in the

world. The representatives behind the veil are meant to reason in accordance with certain kinds

of restrictions. It is not so much about negotiating rather than engaging in rational deliberation,

however, this has to be subject to certain restrictions Rawls places. Rawls adopts a weak and

widely shared assumption of mutual disinterest and rationality. It is said to achieve the same

purpose as benevolence when take in conjunction with the veil of ignorance. Rawls takes it that

once you pair mutual disinterest and rational with the veil, it will achieve the same purpose as

benevolence. Knowing certain factors about ourselves, such as being rich or poor, will influence

the factors that we think to believe are fair and justifiable. Adding on, favouring principles

according to circumstances are going to be great for one’s self-interest, but if we are trying to

figure out what policies and principles should structure institutions that treat everyone as free and
equal, we will not achieve that if everyone makes principles based on self-interest. The

individual conception of the “good” should not affect the principles they advocate for. For

example, everyone has different religious commitments, but those should not affect the

principles that are put forth to treat everyone as free and equal.

Justice as fairness opposes undeserved privilege. It treats people as equals, and an opposition

as undeserved privileges wherein some privileges are deserved, and others are not. There are

certain choices people make that lead to advantages and privileges which are deserved, but

others are the result of the basic structure of society being put together in a certain way. There

are two principles of justice which tell us how we divide advantages we accumulate through

cooperating together and distributing them among everyone. First, there is an equality of basic

rights and duties which takes priority over the second principle. Second, it can be argued that

social and economic inequalities are just only if they benefit the least advantaged, i.e. the

difference principle. According to Rawls, justice as fairness applies to institutions in the public

realm in order to keep a distinction between public and private, and reason and feeling. The

public sphere focuses on things that are a part of a basic structure, such as the constitution, or

political and economic institutions. On the other hand, the private sphere would include factors

such as family.

Rawls’ Position

Rawls believes that gender and sex are of those things that are concealed in the original

position; no one knows these particularities about themselves. He assumes that families are just,

and the head of the family is usually the father, also known as the representative in the original

position (Rawls, 111). We can understand families to be as a hierarchical institution. When we

have the principles of justice, and apply them to the constitutions, it is clear Rawls does not
apply them to the family or relative to the private sphere. The representatives in the original

principle are “heads of families”, so they are not in a position to be questioned. Rawls assumes

that families are just, so he does not apply the principles of justice to the family. He is not

assuming other institutions are just, such as the constitution or legislature, but he argues that

once we have principles of justice, we have to apply them to institutions and evaluate them on

the basis of being just or not and living up to the liberty or difference or not. Rawls introduces

the difference principle which states that inequalities in social and economic expectations are just

only if they are to the advantage of the least well-off. This principle is considered perfectly just if

it maximizes the expectation of life prospects for the least advantaged.

It is important to Rawls that we develop a sense of justice and learn how to be moral beings.

We learn this from family, thus, making family essential to moral development. All these points

raise the question that if Rawls’ two principles of justice were to be applied to the family, how

would this restructure the institution? For one, this might make their opinions independent.

Family is crucial to moral development because there might be certain innate differences such as

women being the only ones able to conceive children and breastfeed them. Because of this fact,

women are seen to be the primary caregivers of children. Rawls neglects injustice and justice

within the family. Family has an important role in moral development, and this is important

to moral persons because it shapes who we become, what values and principles of justice we

accept. It is justifiable that the family needs a hierarchy where parents have power over children

in order to raise them. The problem is that the socially constructed gender hierarchy inherent in

the family is unjust. Because gender hierarchy is unjust, this has a negative effect on moral

development. Women tend to be absent from traditional political theories, since the theories do

not say anything about them. The fact that they are absent, can be read as the theory being
neutral with respect to gender. There are ideas and theories that are shaped by the gendered

structure of society. Even if you are not explicitly saying anything or talking about women’s

virtues being subordinate, somehow the ideas behind the theory are going to be shaped behind

the fact that there is a gendered structure of society. Not only will ideas be shaped by this

gendered structure; the theory will justify the structure that it is assuming.

Rawls says representatives must go behind the veil of ignorance, and if they do not, people

would then tailor principles to their own advantage. However, if you do not know that you are

the head of the family you might reason in a different way which impacts the principles that you

agree to. The problem is that family is an institution that is hierarchical and based on socially

constructed gender differences. Roles and responsibilities are distributed in accordance with

innate differences that have been given great social significance. Susan Moller Okin critiques

Rawls and develops a feminist approach to social justice by reinterpreting the original position.

She argues that there is something in the original position, perhaps something that Rawls does

not explicitly see, but with her reinterpretation, she understands to be doing something in line

with a feminist approach. She believes that Rawls’ theory has elements that are relevant such as

responsibility, care and concern for others. In general, his theory is being criticized for being

excessively rationalistic, individualistic, and abstract away from what actual human beings are

like.

Nussbaum’s Alternative Approach

The question that arises is: what is each and every person actually able to do and be? We

cannot answer this question by simply looking at economic development. In order to answer this,

we need to know what opportunities are available to them – real opportunities. We are not asking

about an individual’s well-being, but rather about each person, and treating everyone as an end
of itself. Nussbaum’s theory of basic social justice has an aim to improve the quality of life for

all. The theory of social justice is concerned with social injustice and inequality, insofar as social

injustice and inequalities have an impact on an individual’s quality of life. They fail to have

certain capabilities that Nussbaum argues are important because they are discriminated or

marginalized within society. There are certain consequences for capabilities people have.

Nussbaum speaks on political liberalism, which is a comprehensive account of value that is

similar to Rawls. She wants to be agnostic about what theory of value is the correct one.

Nussbaum argues that it is up to the individuals to decide what a good life is for them. We should

ensure that individuals should decide for themselves, what they value and to ensure they have the

tools to pursue the kind of life they want. This theory is not one that claims there are certain

ways humans should function, but there are certain capacities that are important to being human

and living a life of dignity. Rawls’ theory focuses on a socially constructed gender hierarchy that

is concerned with the distribution of resources, and the justification of inequality if they are to

the advantage of the least well-off. However, Nussbaum argues that wealth and income are only

imperative if they promote human functioning (Nussbaum, 233). Nussbaum’s approach is clearly

superior to Rawls’ because we, a political society have the duty to make sure living a life of

dignity is in a way that people have substantive freedom.

A capability can be defined as a freedom or opportunity to choose or act in one’s specific

political, social and economic situation. Given the situation an individual is in, there is a strong

emphasis on freedom and choice to act in a particular way individual’s find meaningful and

valuable In total, there are three capabilities individuals may possess. First, basic capabilities,

which are innate faculties of a person that make development and training possible. Everyone
has certain basic capabilities. These are raw talents, are circumstantial, brute luck, and we do not

have the capacity to choose these things. Second, there are internal capabilities which include

personality traits, intellectual and emotional capacities and states of bodily fitness and health.

These are not just the basic capabilities we are born with, but ones that have been trained and

developed within us. These are not fixed, and they depend very much on the social and political

environment in terms of how well someone will have these traits developed. Lastly, combined

capabilities are internal capabilities plus social, political and economic conditions in which

functioning can actually be chosen. It is a set of usually related opportunities people have in

which they are going to choose to act in particular ways. The purpose is to establish political

principles for a nation aspiring to social justice. In turn, this theory

 Scope of capability approach can be summarized as justice applying everywhere. This

means that it applies to all humans independent of their birth or residence and not

only to social institutions. This differs from Rawls’ because his theory depends on

representatives in the original position, also known as the “heads of families”

 HOW IS THIS BETTER THAN RAWLS APPROACH?

There are ways of thinking about what capacities are worth developing and in order to figure

this out the concept of human dignity is at the center of it all. This statement is vague considering

it says people should live a quality life, one that respects human dignity, but what is that? It is a

vague concept, but it is not as if she defines human dignity and claims that from this concept, we

can derive all these principles and claim this is what is important. However, it is a holistic way of

justifying. Whether individuals have the right to do things to destroy some or all of their

capabilities, can individuals freely choose to destroy some of their capabilities? When it comes
to children, we need to protect them against this, whereas when it comes to adults, we should

limit their abilities to destroy their capabilities. Once you put together freedom and justice, it will

provide us with information about what kind of content we will get out of this idea, and what

kinds of freedom we might want to either limit or pursue. The capabilities approach is not

concerned about an individual’s well-being, but what each person is able to do and be. It is

inquiring about each person and treating every individual as an end of itself. The notion of

functioning is an active realization of one or more capabilities. For instance, a starving person

and a person who is fasting share the same functioning but acquire different capabilities. The

starving person did not choose to be starving. They have the innate capacities, which is hunger

but do not possess the ability to make the choice to eat since there is no food at their disposal.

The person who is fasting could make a choice to eat but chooses otherwise. There is a strong

focus on capability rather than functioning because Nussbaum believes what is most important is

having freedom of choice. If you pair the idea of freedom of choice and agency, we should then

respect the kind of life people choose to live.

SUMMARIZE CAPABILITIES APPROACH THEN COMPARE TO RAWLS  ARGUE

WHY YOU AGREE WITH NUSSBAUM

Conclusion