This Essay offers a utilitarian perspective on Martha Nussbaum's theory of justice. Nussbaum believes that society should guarantee to every individual a threshold level of central human capabilities. Although Nussbaum's approach has considerable appeal, it is implausible and unappealing when it diverges greatly from utilitarianism. Nussbaum's theory sequires that enormous sums of money be devoted to people who receive very little benefit from efforts to raise them toward a capability threshold. Moreover, Nussbaum refitses to take a principled position on how conflicts among below-threshold interests should be resolved, even when one alternative would produce enormously more good than another alternative. Nussbaum mitigates these problems through an implicit incorporation of utilitarianism to address conflicts among below-threshold interests, but this partial adoption of utilitarianism cannot completely cure her theory. In addition to critiquing Nussbaum's theory, this Essay responds to some of Nussbaum's criticisms of utilitarianism. It rejects Nussbaum's claim that utilitarianism is wrong to give weight to adaptive preferences. It also demonstrates that Nussbaum misstates the relationship between her theory and the doctrine of incommensurability: features of her theory that she attributes to a denial of commensurability actually reflect a commitment to commensurability across the capability threshold.
Mark S. Stein, Nussbaum: A Utilitarian Critique, 50 B.C.L. Rev. 489 (2009), http://lawdigitalcommons.bc.edu/bclr/vol50/iss2/4