The moral basis of Nussbaum's capabilities approach is the claim to a certain reasonableness and objectivity. Both of these elements of justification, I argue, present challenges that potentially undermine the legitimacy of the capabilities approach.
Nussbaum writes that “[t]he claim that is made by the use of this single list is (…) is (…) that these capabilities can be agreed by reasonable citizens to be important prerequisites of reasonable conceptions of human flourishing, in connection with the political conception of the person as a political animal, both needy and dignified” (Nussbaum 182). This reasonableness, then, has two faces. The agreement itself of citizens on the list of capabilities as the basis of a minimally just society is reasonable; and the citizens who thus agree are reasonable themselves by virtue of having come to this agreement.
These assertions may raise immediate questions; for it is clear that not everyone favours non-discrimination on the basis of sexual orientation or religion, and not everyone may deem living living in concern for animals, plants and the world of nature a central human capability, or indeed of any vital importance. That these and other elements find themselves on the list of Central Human Capabilities might be interpreted as forcing all humans to accept “that these rights are implicit in the notion of human dignity and human flourishing” (Nussbaum 184). Indeed, not only does Nussbaum acknowledge this consequence, she also defends it by asserting bluntly that everyone, including those forced to adjust their conception of human dignity, has “chosen to live in a pluralistic democracy and to show respect for its values” (Nussbaum 184). Both of these assertions are highly problematic. Apart from those who voluntarily migrate from non-democracies to pluralistic democracies, one's existence in a pluralistic democracy is decidedly arbitrary; as Nussbaum herself argues in the chapter “Mutual Advantage and Global Inequality,” people do not choose the characteristics of the state in which they are born or whose passport they carry. One could object, following Nussbaum's principle of choice, that people might endeavour to migrate to anti-pluralistic states; but this would be antagonistic to her project, which involves humanity itself rather than state entities – besides, such states plausibly do not share Nussbaum's commitment to political pluralism. Questions should be raised, also, with respect to those who do not live in pluralistic democracies; for it is merely within such societies that Nussbaum locates choice. Might the residents of states that are not pluralistic democracies, then, be exempt from accepting certain capabilities as centrally human? Implicitly contrarily to this suggestion, Nussbaum also posits that even “the atheist who hates religion and hopes it will someday disappear from human life will still prefer the free choice of religion to a state, let's say a Marxist state, that left people no choice in these matters (…)” (Nussbaum 186). Nussbaum undertakes, in short, to argue that there do not empirically exist reasonable people (although she is not concerned with what unreasonableness may entail) who will disagree with the inclusion of any element on the list as a central human capability.
It is too big a generalisation, however, to state that by virtue of one's residence in a democracy one necessarily chooses to show respect for its values and, also, to believe that choice in terms of the right to exercise a religion or to participate politically or to read a free press or not is better than non-choice. One might, for example, consistently favour all elements of the capabilities list except for non-discrimination on the basis of sexual orientation. Implicit in this emphasis on choice is a notion of passivity; people, according to Nussbaum, might empirically choose to live in a limited number of states, each with their own combinations of rights, restrictions and ideologies, but, implicitly, they are not active participants in shaping, informing or contesting their society's values. The single reasonableness, outlined above, that renders people static and uniform also implies their passivity because rather than actively and creatively conceptualising social justice, they must be constrained to deliberating Nussbaum's own, universal 'agreement.' Although she acknowledges that the capabilities list itself is open to modification, the reasonableness of employing the list itself as a measure of a minimum level of justice is taken for granted.
Moreover, agency is potentially compromised in the area of self-respect and dignity, which Nussbaum identifies as the mere area in which functioning rather than capability should be the ambition of public policy – which suggests that something like self-respect or dignity may need to be taught. Nussbaum's conception of dignity is based on Aristotle's notion of the human being as a political animal and Marx's idea that humans require a plurality of life-activities, and is linked substantively to the elements of the capabilities list; failure to secure them, she writes, “is a particularly grave violation of basic justice, since these entitlements are held to be implicit in the very notions of human dignity and a life that is worthy of human dignity” (Nussbaum 155, 159). Human dignity or self-respect may be taken, perhaps, to refer to the awareness that one is entitled to the plurality of elements of the capabilities list. Given that the list itself is open-ended rather than definite, it seems that the concepts of human dignity or self-respect might become subject to change too at some point. Nonetheless, the claim to rightness within Nussbaum's version of the capabilities list – importantly, a claim of universality – also requires a degree of objectivity.
Although an excavation of the basis for the required objectivity is not Nussbaum's main project, she writes that the capabilities approach can be justified by the idea of an overlapping consensus, which has an empirical nature. That is, citizens can come to the list of entitlements of the capabilities approach as the conclusion of a deliberation among themselves that does not rely on any form of metaphysical or epistemological doctrines. Examples of existent documents that approximate Nussbaum's vision are the Universal Declaration of Human Rights and the Constitution of India.
An objection can be made to the argument that non-metaphysical, non-epistemological public deliberation will (hopefully) result in the list of entitlements of the capabilities approach as society's partial or minimum conception of the public good. Rousseau's distinction between the general will and the will of all informs this objection:
There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but take away from these same wills the pluses and minuses that cancel one another, and the general will remains as the sum of the differences. (Rousseau Of the Social Contract, “Book II”).
The distinction is crucial as it evidences that deliberations do not always materialise in a conception of the will of all, because “the people is never corrupted, but it is often deceived, and on such occasions only does it seem to will what is bad” (Rousseau “Book II”). In spite of Nussbaum's assertion that no reasonable person will disagree with any of the elements of the list of the Central Human Capabilities and the associated approach, it is doubtful that people will predictably arrive at the capabilities approach as the general will. At this point it might also be asked why, if the capabilities approach, with its universal character, can be justified by the idea of an overlapping consensus, its entirety has not been implemented in any society to date; one explanation may be that people do reason on the basis of metaphysics and epistemologies and thus prevent the approach's implementation.
The problem of justification features another dimension, which concerns the sequence of the elements deliberation, articulation of the capabilities approach, and implementation. The capabilities approach, although abstract and open to change, is also fixed in the sense that all of its items have to be met in order for the approach to function as a minimal form of justice; one element cannot substitute (partially) for another. In this sense, it is perhaps improbable that the entirety of the approach shall be invented independently from Nussbaum's project by deliberating citizens, empirically tied as they are to religions and ideologies. The most secure chance of implementation will thus be by firstly convincing reasonable peole that Nussbaum's capabilities approach is the best conception of social justice. But, as already stated, the tendency of people to divert from the general will in processes of deliberation renders this option unrealistic. The other option would be a posteriori justification; the realisation that after having implemented – emphatically not on the basis of public deliberation – the capabilities approach as the basis for the practice of politics, individual persons are better off. This, however, would contradict Nussbaum's commitment to political participation and, more specifically, item 10A on the list of the Central Human Capabilities, namely political control over one's environment. In sum, it is unclear how the capabilities approach could realistically be expected to be justified, in spite of its claims to reasonableness and objectivity.
By Caspar Plomp (Third year student, LUC)
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