John Rawls's revival of Anglo-American political philosophy with his 1971 A Theory of Justice was also a revival of social contract theory, which, after its 1650–1800 heyday (Hobbes, Locke, Rousseau, Kant), had been judged to have been thoroughly refuted by utilitarian and historicist (Hegelian/Marxian) critiques. Today Rawlsian contractarianism is probably the single most influential approach to justice within the Anglo-American tradition, though it is of course the object of sharp criticism from both those within and those outside that tradition. But an unexpected consequence of this revival has been the emergence of what has variously come to be called “critical” or “radical” social contract theory. Here the contract is not being used to represent an ideal well-ordered society, as in Rawls, but a nonideal ill-ordered society. Carole Pateman's The Sexual Contract (1988) pioneered this contemporary adaptation of the contract idea, and, inspired by Pateman, I followed suit with The Racial Contract (1997). A case can be made—I have tried to make it—that Rousseau can be claimed as a classical forebear of this innovation, insofar as his Discourse on the Origin of Inequality might be thought of as sketching, albeit very briefly, the class contract among the wealthy.
In all three instances, then, the contract idea as a “device of representation” (to use Rawlsian language) is being employed to depict domination and exclusion rather than consent and inclusion. Males or whites or the privileged classes institutionalize a contract that may or may not pretend (depending on the groups involved) to bring everybody, or at least all able-bodied and able-minded adults, into the polity as equals, but which denies women, people of color, and the subordinated classes equal status in these sociopolitical systems. So it is a “domination contract,” a contract among oppressors. Depending on their political agenda, critics may then use the contract idea to expose sexism in the frameworks of the classic contract theorists and in other subsidiary gender contracts in the society (the marriage contract, the prostitution contract, the surrogate mother contract), revealing their oppressive character, as in Pateman; or couple this demystificatory enterprise with the project of choosing principles of corrective racial justice from behind a rethought veil of ignorance, as in my own work; or set out to show how radically different from the mainstream contract an ideal, genuinely egalitarian contract would need to be, as in Rousseau. So this revisionist “contract” may serve descriptive/analytic/explanatory as well as normative/prescriptive functions.
Stacy Simplican's The Capacity Contract is a welcome addition to this subversive tradition, looking at disability as another axis of exclusion within the putatively liberal democratic polity, and taking aim at both Pateman and myself for what she sees as ableist assumptions in our own work. The standard argument of feminists and antiracist theorists has historically been that it is unfair to exclude women and people of color from equal civic status and opportunities on the grounds of their supposed cognitive inequality, since in fact to the extent that any such inequality exists it is an artifact of the oppressive systems established (patriarchy, white supremacy) rather than innate. Simplican points out, however, that this response does not challenge the more fundamental assumption that only able-bodied and able-minded adults should be the polity's approved citizens. Thus, in what is an impressive simultaneous drawing on and overturning of her models (Pateman and Mills), she suggests that the capacity contract is actually the more basic category: “domination contracts are capacity contracts: political exclusion is justified on the supposed deficient capacities of women, nonwhites, and the less powerful” (27).
After her introduction, her argument unfolds in five tightly written and well-argued chapters. Disability, she points out, is not a novel category in political theory, as shown by John Locke's extensive discussion in different works of “idiocy.” Since a threshold level of rationality is central to Locke's conception of personhood and political inclusion, various groups—children, savages, lunatics, changelings—will not make the cut, but idiots are of particular significance because of their “shape-shifting quality” (39), which well illustrates the “indeterminacy of corporeality” in Locke's taxonomy. In an appropriation of the contract different from both Pateman (who rejects contractarianism) and myself (I use the domination contract as a device for corrective justice theory), Simplican urges a democratization of the capacity contract based on a recognition of our “shared corporeal vulnerability,” realization of the uncertainties of mensuration of “inferior capacities,” and conclusion that “we as citizens [should] stick together and err on the side of justice for the vulnerable” because “we are all vulnerable and limited” (43–44).
The second chapter looks at the work of three theorists of disability: Jean Marc Gaspard Itard's failed attempts to educate a feral child; John Langdon Down's racialized study and classification of idiots, which gave rise to the category of “Mongoloids” (now of course replaced by “Down's Syndrome”); and Henry H. Goddard's research into “feeblemindedness” and “degeneration,” as illustrated by the “Kallikak” family. The framing assumptions of all three research agendas were problematic, with severely regressive public policy implications in Goddard's work in particular: eugenic sterilization, racial immigration restrictions, institutionalization of mental defectives. Simplican criticizes critical theorists, including Pateman and myself, for neglecting disability and suggests that the capacity contract is different from the sexual and racial contracts in not having exploitation, whether sexual or racial, as a primary motivation.
Chapter 3 focuses on John Rawls and the “double disavowal of disability” (72) Simplican finds in his writings: first, the use of the disabled as a foil for the definition of normal “contracting” agents; second, the exclusion of disability from theoretical consideration in the choice of principles of justice. Thus Rawls presupposes a “medical” model of disability rather than the “social” model developed by disability rights activists (the social construction of the disabled as a subordinated group), and indeed endorses eugenic reasoning. Simplican discusses the “epistemology of ignorance” concept I advanced in The Racial Contract, but thinks that in this context an “epistemology of disavowal” is a more useful concept.
Finally, chapters 4 and 5 undertake an autoethnography based on three years of attendance at disability rights events (Simplican's brother is autistic), during the course of which she came to a deeper understanding both of the sources of her anxiety in the company of the disabled and the significance of the way their appearance in public changes that space to be more inclusive. While acknowledging the problematic nature of many of Hannah Arendt's categories, Simplican nonetheless concludes that her “conception of politics as spontaneous, plural, and public action” (100) constitutes a valuable resource for rethinking the self-advocacy of the disabled, and urges a strategy of empowerment via “alliance, humor, and dance” (120) for the democratization of the capacity contract.
Though short, the book, as evident from the summary above, covers a lot of territory, and for those (such as myself) unacquainted with the recent disability literature it will serve as a valuable historical and conceptual primer, as well as outlining a challenging new perspective on how we should think of the political in general and contractarianism in particular. The Capacity Contract should be required reading not just for political theorists but for everybody conscientious about being alerted to unconscious patterns of bias and exclusion in their everyday lives and practices.
