Disability and the Social Contract

The University of Chicago Law Review, Vol. 74, p. 1635, 2007

William & Mary Law School Research Paper No. 09-39

26 Pages Posted: 15 Feb 2010  

Michael Ashley Stein

Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights

Anita Silvers

San Francisco State University - Department of Philosophy

Date Written: February 12, 2010

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.

Keywords: disability, capability theory, jurisprudence

Suggested Citation

Stein, Michael Ashley and Silvers, Anita, Disability and the Social Contract (February 12, 2010). The University of Chicago Law Review, Vol. 74, p. 1635, 2007; William & Mary Law School Research Paper No. 09-39. Available at SSRN: https://ssrn.com/abstract=1552017 or http://dx.doi.org/10.2139/ssrn.1552017

Michael Ashley Stein (Contact Author)

Visiting Professor, Harvard Law School ( email )

1585 Massachussetts Avenue
Austin Hall 305
Cambridge, MA 02138
United States
617-495-1726 (Phone)

University of Pretoria Faculty of Law, Centre for Human Rights ( email )

Private Bag X20
Hatfield 0028
Pretoria
South Africa

Anita Silvers

San Francisco State University - Department of Philosophy ( email )

1600 Holloway Avenue
San Francisco, CA 94132
United States

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