We are all vulnerable: human capability, corporeality and dignity: functional diversity examined in the light of Martha C. Nussbaum's commitment to justice

Abstract

When one is asked to contribute to a volume honoring a colleague—a prominent expert in one’s field of knowledge, a professor with a long and distinguished career, “master” to some and “friend” to most—one is naturally eager to “rise to the occasion” and offer something that manages to convey the impact, mediating influence, and inspiration received from that illustrious honoree. In my case I was particularly anxious to do so, considering that the object of this richly deserved homage is the Right Honorable Prof. Dr. José Iturmendi Morales, a scholar who is all of those things to me: esteemed colleague, renowned jurist, seasoned educator, and, most importantly, friend and master. On countless occasions in the recent years of my academic career, Professor Iturmendi’s intercession and inspiring influence have guided the direction of my research and informed my choice of subject. By exchanging bibliographic finds in impromptu conversations on the most diverse doctrinal issues— conducted in a casual, café du commerce tone that concealed his erudite genius, his voracious reading habits, and his humble respect for the incommensurable vastness of philosophical and humanistic knowledge—Professor Iturmendi has generously guided and instructed academic colleagues who, like myself, had the privilege of sharing our educational pursuits with a man who dignified the profession of university professor every day for more than fifty years. The legal-philosophical examination of “vulnerability,” as an attribute or quality inherent to certain groups of people who are traditionally at some type of socio-political, economic, or cultural disadvantage, has been a recurring topic in my conversations with Professor Iturmendi over the years. The theme of vulnerability associated with disability, far from being an incidental point of interest in Professor Iturmendi’s academic and scholarly career, has been constantly explored in his work since the publication of his pioneering treatise, Estatuto jurídico de las lenguas de señas en el Derecho español: Aproximaciones, an in-depth study of the principle of equal opportunity and the treatment of sensory disability in the context of the deaf community.1 As Professor Iturmendi rightly observed in his discussion of the debate between communitarians and liberals on the rights and values of the “deaf community,” the concept of vulnerability associated with disability is framed within the historical narratives of our beliefs about justice. Those narratives are represented by basic philosophical notions of (i) utility, seeking the greatest happiness for as many people as possible; (ii) consent, respecting the individual freedom of persons with functional diversity to choose their own understanding of dignity; and (iii), virtue, promoting a “good quality of life” for persons with functional diversity by creating public policies that cater to their needs. Professor Iturmendi blazed a new trail in Spanish legal doctrine in 2005, and today we can continue down that path by asking the following question: Which legal-philosophical conception of vulnerability best fits the contemporary model of functional diversity? Today, examining the narratives of philosophical beliefs about social justice is the only way to approach the debate on the ethical underpinnings of the model of “functional diversity”: a model that advocates a “good life” for as many functionally diverse people as possible, respecting their dignity and, above all, their individual freedom to choose how they want to live.