Anita Silvers & Michael Ashley Stein, Disability and the Social Contract, 74 U. Chi. L. Rev. 1615 (2007) (reviewing Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (2006)).
Abstract: Part I of this Review sets forth Nussbaum’s version of the capabilities approach, and her arguments why that framework is preferable as a theory of justice to Rawls’s version of social contract theory. Next, Part II describes in greater detail Nussbaum’s application of the capabilities approach to persons with disabilities and considers its implications. In Part III, we apply Nussbaum’s capability theory to current disability law jurisprudence and assess the extent of the practical guidance her book offers to courts when deciding disability rights cases. Even if philosophers take themselves to be developing ideal theories of justice, a fair test of the plausibility and power of their views lies in how well the conceptions they devise line up with, and account for, our intuitions about what counts as just treatment under the law. Therefore, while acknowledging that Nussbaum pursues Rawls’s footsteps along the path of ideal theory, we believe that examining how her theory plays out in the context of real and problematic disability cases, and how her approach would affect jurisprudence, will illuminate some of its strengths and disclose some of its limitations.