Religion & Law

I have been discussing Martha Nussbaum?s, Frontiers of Justice in my seminar on Constitutional Law and Political Theory. The book critiques social contract theories in the context of application to persons with disabilities, people from other nations, and to animals. My class is discussing only the first 223 pages which excludes people from other nations, and animals, but includes persons with disabilities.

I emerge from her discussion even more hostile to the social contract tradition than she is. As she observes, the moral work in the social contract tradition is done in setting up the conditions of the social contract. I do not see why the bargaining among equals model should be attractive in any religious tradition, let alone Catholicism. I do not see why we should hold up as a model the perspective of those bargaining for their own advantage (even understanding that the veil of ignorance is designed to produce a benevolent result). Nussbaum convincingly argues that Rawls, for example, cannot relax the conditions of his model to address the problems she discusses, and Rawls was well aware of it.

Nussbaum argues for an alternative in the natural law tradition to the social contract methodology. Of course, it is controversial in its particulars. In Catholic social theory, natural law is congenial. But there are Catholic Rawlsians. I am coming to the view that there should not be.

Finally, Nussbaum makes clear she will argue against the imperial claims of human beings over animals. I have not read her section on animals yet. But I have long thought that Kant?s view that we owe no duties to animals was dead wrong and that deriving the dignity of humans from their rationality as compared to animals downplayed important components of humanity. Nussbaum does not make that mistake (though there are some on my faculty who think she is insufficiently sensitive to the plight of and nature of animals).

cross posted with modifications at http://religiousleftlaw.typepad.com/religiousleftlawcom/