According to Sen, what is equally, if not more important than increases wages?
In what way, does Professor Nussbaum describe the relationship between capabilities and human rights? (Section IV) of her article.
Beyond Life and Health, which of her Central Human Capabilities do you find to be the most important? Do you disagree with any of these, or have further recommendations of your own?
Why should international agencies, such as the UNDP measure “quality of life” on capabilities, instead of more traditional measures?
only 1 question to answer of the 3
Don't use plagiarized sources. Get Your Custom Essay on
Amartya Sen
Thomas W. Lamont University Professor at Harvard
Nobel Memorial Price in Economic Sciences
Bengali Baidya
Welfare Economics and Famine.
Through the analysis of policy, looks at outcomes relating to the wellbeing of a community.
Development as Freedom (Reintroduced Ethics into Economics).
Capabilities & human rights
Human rights have been debated in virtually every country
Intellectually and lacking.
Bentham: rhetorical nonsense—Anarchical Fallacies.
Are human rights entitlements?
Can capability perspective provide a comprehensive coverage of the content of human rights?
How can we go about ascertaining the content of human rights and of basic capabilities when our values are supposed to be quite divergent?
Capabilities Cont’d
Human rights and Capabilities have to depend on public reasoning.
Sen rejects wealth happiness and basic needs as the best measurements for determining a ”good” outcome.
Capabilities as a positive option (the choices people have that they are free to realize)—what can they do? What is in their grasp? One outcome offers better capabilities to the citizens of a region than another, then we can judge that to be the better outcome.
It is an absolute concept, not a relative concept (it doesn’t depend upon comparing the options of one person to another).
Sen cont’d
Respects Human Diversity—not about just sending resources, but more, what can people do with these resources?
Bicycle…
HDI—Life Expectancy, Adult Literacy & School Enrollment in judging how developed a country is.
What capabilities should be universal? Hard to Operationalize HDI-–but how useful is it?
Dev As Freedom
Should economic development be concerned with increasing the freedom of ppl in developing economics?
Raising incomes is not useful if citizens still suffer from poor health and poor education.
5 Main Human Freedoms
Political
Economic
Social
Transparency guarantees
Protective Security
Comparative overview of Work v. Productivity and Happiness
Increase Freedom to gain more useful skills.
Increasing freedom is more beneficial in the long term.
Forcing productivity has poor performance, e.g., worse efficiency.
The four day work week?
The French (as well as a more European) Approach to Life/Work balance.
Follow uP
According to Sen, what is equally, if not more important than increases wages?
In what way, does Professor Nussbaum describe the relationship between capabilities and human rights? (Section IV) of her article.
Beyond Life and Health, which of her Central Human Capabilities do you find to be the most important? Do you disagree with any of these, or have further recommendations of your own?
Why should international agencies, such as the UNDP measure “quality of life” on capabilities, instead of more traditional measures?
Human Rights and Capabilities
AMARTYA SEN
Amartya Sen is Lamont University Professor at Harvard University,
Cambridge, MA, USA
Abstract The two concepts — human rights and capabilities — go well
with each other, so long as we do not try to subsume either concept
entirely within the territory of the other. There are many human rights that
can be seen as rights to particular capabilities. However, human rights to
important process freedoms cannot be adequately analysed within the
capability framework. Furthermore, both human rights and capabilities
have to depend on the process of public reasoning. The methodology of
public scrutiny draws on Rawlsian understanding of ‘objectivity’ in ethics,
but the impartiality that is needed cannot be confined within the borders
of a nation. Public reasoning without territorial confinement is important
for both.
Key words: Human rights, Capabilities, Public reasoning, Freedom
Introduction
The moral appeal of human rights has been used for varying purposes,
from resisting torture and arbitrary incarceration to demanding the end of
hunger and of medical neglect. There is hardly any country in the world —
from China, South Africa and Egypt to Mexico, Britain and the United
States — in which arguments involving human rights have not been raised
in one context or another in contemporary political debates.
However, despite the tremendous appeal of the idea of human rights,
it is also seen by many as being intellectually frail — lacking in foundation
and perhaps even in coherence and cogency. The remarkable co-existence
of stirring appeal and deep conceptual scepticism is not new. The
American Declaration of Independence took it to be ‘self-evident’ that
everyone is ‘‘endowed by their Creator with certain inalienable rights’’,
and 13 years later, in 1789, the French declaration of ‘the rights of man’
asserted that ‘‘men are born and remain free and equal in rights’’. But it
did not take Jeremy Bentham long to insist, in Anarchical Fallacies,
written during 1791–1792, that ‘‘natural rights is simple nonsense: natural
and imprescriptible rights [an American phrase], rhetorical nonsense,
nonsense upon stilts’’ (Bentham, 1792/1843, p. 501). That division
Journal of Human Development
Vol. 6, No. 2, July 2005
ISSN 1464-9888 print/ISSN 1469-9516 online/05/020151-16 # 2005 United Nations Development Programme
DOI: 10.1080/14649880500120491
remains very alive today, and there are many who see the idea of human
rights as no more than ‘‘bawling upon paper’’ (to use another of
Bentham’s barbed descriptions).
The concepts of human rights and human capabilities have something
of a common motivation, but they differ in many distinct ways. It is useful
to ask whether considering the two concepts together — capabilities and
human rights — can help the understanding of each. I will divide the
exercise into four specific questions. First, can human rights be seen as
entitlements to certain basic capabilities, and will this be a good way of
thinking about human rights? Second, can the capability perspective
provide a comprehensive coverage of the content of human rights? Third,
since human rights need specificity, does the use of the capability
perspective for elucidating human rights require a full articulation of the
list of capabilities? And finally, how can we go about ascertaining the
content of human rights and of basic capabilities when our values are
supposed to be quite divergent, especially across borders of nationality
and community? Can we have anything like a universalist approach to
these ideas, in a world where cultures differ and practical preoccupations
are also diverse?
Human rights as entitlements to capabilities
It is possible to argue that human rights are best seen as rights to certain
specific freedoms, and that the correlate obligation to consider the
associated duties must also be centred around what others can do to
safeguard and expand these freedoms. Since capabilities can be seen,
broadly, as freedoms of particular kinds, this would seem to establish a
basic connection between the two categories of ideas.
We run, however, into an immediate difficulty here. I have argued
elsewhere that ‘opportunity’ and ‘process’ are two aspects of freedom that
require distinction, with the importance of each deserving specific
acknowledgement.1 While the opportunity aspect of freedoms would
seem to belong to the same kind of territory as capabilities, it is not at all
clear that the same can be said about the process aspect of freedom.
An example can bring out the separate (although not necessarily
independent) relevance of both substantive opportunities and freedom of
processes. Consider a woman, let us call her Natasha, who decides that she
would like to go out in the evening. To take care of some considerations
that are not central to the issues involved here (but which could make the
discussion more complex), it is assumed that there are no particular safety
risks involved in her going out, and that she has critically reflected on this
decision and judged that going out would be the sensible — indeed the
ideal — thing to do.
Now consider the threat of a violation of this freedom if some
authoritarian guardians of society decide that she must not go out (‘it is
most unseemly’), and if they force her, in one way or another, to stay
A. Sen
152
indoors. To see that there are two distinct issues involved in this one
violation, consider an alternative case in which the authoritarian bosses
decide that she must — absolutely must — go out (‘you are expelled for
the evening — just obey’). There is clearly a violation of freedom even here
though Natasha is being forced to do exactly what she would have chosen
to do anyway, and this is readily seen when we compare the two
alternatives ‘choosing freely to go out’ and ‘being forced to go out’. The
latter involves an immediate violation of the process aspect of Natasha’s
freedom, since an action is being forced on her (even though it is an action
she would have freely chosen also).
The opportunity aspect may also be affected, since a plausible
accounting of opportunities can include having options and it can inter
alia include valuing free choice. However, the violation of the opportunity
aspect would be more substantial and manifest if she were not only forced
to do something chosen by another, but in fact forced to do something she
would not otherwise choose to do. The comparison between ‘being forced
to go out’ (when she would have gone out anyway, if free) and, say, ‘being
forced to polish the shoes of others at home’ (not her favourite way of
spending time, I should explain) brings out this contrast, which is
primarily one of the opportunity aspect, rather than the process aspect. In
the incarceration of Natasha, we can see two different ways in which she is
losing her freedom: first, she is being forced to do something, with no
freedom of choice (a violation of her process freedom); and second, what
Natasha is being obliged to do is not something she would choose to do, if
she had any plausible alternative (a violation of her substantive
opportunity to do what she would like to do).
2
It is important to recognise that both processes and opportunities can
figure powerfully in the content of human rights. A denial of ‘due process’
in being, say, sentenced without a proper trial can be an infringement of
human rights (no matter what the outcome of the fair trial might be), and
so can be the denial of opportunity of medical treatment, or the
opportunity of living without the danger of being assaulted (going beyond
the exact process through which these opportunities are made real).
The idea of ‘capability’ (i.e. the opportunity to achieve valuable
combinations of human functionings — what a person is able to do or be)
can be very helpful in understanding the opportunity aspect of freedom
and human rights.3 Indeed, even though the concept of opportunity is
often invoked, it does require considerable elaboration, and capability can
help in this elucidation. For example, seeing opportunity in terms of
capability allows us to distinguish appropriately between (i) whether a
person is actually able to do things she would value doing, and (ii)
whether she possesses the means or instruments or permissions to pursue
what she would like to do (her actual ability to do that pursuing may
depend on many contingent circumstances). By shifting attention, in
particular, towards the former, the capability-based approach resists an
overconcentration on means (such as incomes and primary goods) that
Human Rights and Capabilities
153
can be found in some theories of justice (e.g. in the Rawlsian Difference
Principle). The capability approach can help to identify the possibility that
two persons can have very different substantial opportunities even when
they have exactly the same set of means: for example, a disabled person
can do far less than an able-bodied person can, with exactly the same
income and other ‘primary goods’. The disabled person cannot, thus, be
judged to be equally advantaged — with the same opportunities — as the
person without any physical handicap but with the same set of means or
instruments (such as income and wealth and other primary goods and
resources).
The capability perspective allows us to take into account the
parametric variability in the relation between the means, on the one
hand, and the actual opportunities, on the other.
4 Differences in the
capability to function can arise even with the same set of personal means
(such as primary goods) for a variety of reasons, such as: (1) physical or
mental heterogeneities among persons (related, for example, to disability,
or proneness to illness); (2) variations in non-personal resources (such as
the nature of public health care, or societal cohesion and the helpfulness
of the community); (3) environmental diversities (such as climatic
conditions, or varying threats from epidemic diseases or from local
crime); or (4) different relative positions vis-à-vis others (well illustrated
by Adam Smith’s discussion, in the Wealth of Nations, of the fact that the
clothing and other resources one needs ‘‘to appear in public without
shame’’ depends on what other people standardly wear, which in turn
could be more expensive in rich societies than in poorer ones).
I should, however, note here that there has been some serious
criticism of describing these substantive opportunities (such as the
capability to live one kind of a life or another) as ‘freedoms’, and it has
been argued that this makes the idea of freedom too inclusive. For
example, in her illuminating and sympathetic critique of my Development
as Freedom, Susan Okin has presented arguments to suggest that I tend
‘‘to overextend the concept of freedom’’.
5 She has argued: ‘‘It is hard to
conceive of some human functionings, or the fulfilment of some needs and
wants, such as good health and nourishment, as freedoms without
stretching the term until it seems to refer to everything that is of central
value to human beings’’ (Okin, 2003, p. 292).
There is, certainly, considerable scope for argument on how
extensively the term freedom should be used. But the particular example
considered in Okin’s counter-argument reflects a misinterpretation. There
is no suggestion whatever that a functioning (e.g. being in good health or
being well nourished) should be seen as freedom of any kind, such as
capability. Rather, capability concentrates on the opportunity to be able to
have combinations of functionings (including, in this case, the oppor-
tunity to be well-nourished), and the person is free to make use of this
opportunity or not. A capability reflects the alternative combinations of
functionings from which the person can choose one combination. It is,
A. Sen
154
therefore, not being suggested at all that being well-nourished is to be
seen as a freedom. The term freedom, in the form of capability, is used
here to refer to the extent to which the person is free to choose particular
levels of functionings (such as being well-nourished), and that is not the
same thing as what the person actually decides to choose. During India’s
struggle for independence from the Raj, Mahatma Gandhi famously did
not use that opportunity to be well fed when he chose to fast, as a protest
against the policies of the Raj. In terms of the actual functioning of being
well-nourished, the fasting Gandhi did not differ from a starving famine
victim, but the freedoms and opportunities they respectively had were
quite different.
Indeed, the freedom to have any particular thing can be substantially
distinguished from actually having that thing. What a person is free to have
— not just what he actually has — is relevant, I have argued, to a theory of
justice.6 A theory of rights also has reason to be involved with substantive
freedoms.
Many of the terrible deprivations in the world have arisen from a lack
of freedom to escape destitution. Even though indolence and inactivity
had been classic themes in the old literature on poverty, people have
starved and suffered because of a lack of alternative possibilities. It is the
connection of poverty with unfreedom that led Marx to argue passionately
for the need to replace ‘‘the domination of circumstances and chance over
individuals by the domination of individuals over chance and circum-
stances’’.7
The importance of freedom can be brought out also by considering
other types of issues that are also central to human rights. Consider the
freedom of immigrants to retain their ancestral cultural customs and
lifestyles. This complex subject cannot be adequately assessed without
distinguishing between doing something and being free to do that thing. A
strong argument can be constructed in favour of an immigrant’s having the
freedom to retain her ancestral lifestyle, but this must not be seen as an
argument in favour of her pursuing that ancestral lifestyle whether she
herself chooses that pursuit or not. The central issue, in this argument, is
the person’s freedom to choose how she should live — including the
opportunity to pursue ancestral customs — and it cannot be turned into
an argument for that person specifically pursuing those customs in
particular, irrespective of the alternatives she has.8 The importance of
capability — reflecting opportunities — is central to this distinction.
The process aspect of freedom and information pluralism
In the discussion so far I have been concentrating on what the capability
perspective can do for a theory of justice or of human rights, but I would
now like to turn to what it cannot do. While the idea of capability has
considerable merit in the assessment of the opportunity aspect of
freedom, it cannot possibly deal adequately with the process aspect of
Human Rights and Capabilities
155
freedom, since capabilities are characteristics of individual advantages, and
they fall short of telling us enough about the fairness or equity of the
processes involved, or about the freedom of citizens to invoke and utilise
procedures that are equitable.
The contrast of perspectives can be brought out with many different
types of illustrations; let me choose a rather harsh example. It is, by now,
fairly well established that, given symmetric care, women tend to live
longer than men. If one were concerned only with capabilities (and
nothing else), and in particular with equality of the capability to live long,
it would have been possible to construct an argument for giving men more
medical attention than women to counteract the natural masculine
handicap. But giving women less medical attention than men for the
same health problems would clearly violate an important requirement of
process equity, and it seems reasonable to argue, in cases of this kind, that
demands of equity in process freedom could sensibly override a single-
minded concentration on the opportunity aspect of freedom (and on the
requirements of capability equality in particular). While it is important to
emphasise the relevance of the capability perspective in judging people’s
substantive opportunities (particularly in comparison with alternative
approaches that focus on incomes, or primary goods, or resources), that
point does not, in any way, go against seeing the relevance also of the
process aspect of freedom in a theory of human rights — or, for that
matter, in a theory of justice.
In this context, I should comment briefly also on a misinterpretation
of the general relevance of the capability perspective in a theory of justice.
A theory of justice — or more generally an adequate theory of normative
social choice — has to be alive both to the fairness of the processes
involved and to the equity and efficiency of the substantive opportunities
that people can enjoy.
9 In dealing with the latter, capability can indeed
provide a very helpful perspective, in comparison with, say, the Rawlsian
concentration on ‘primary goods’. But capability can hardly serve as the
sole informational basis for the other considerations, related to processes,
that must also be accommodated in normative social choice theory.
Consider the different components of Rawls’s (1971) theory of justice.
Rawls’s ‘first principle’ of justice involves the priority of liberty, and the
first part of the ‘second principle’ involves process fairness, through
demanding that ‘positions and offices be open to all’. The force and
cogency of these Rawlsian concerns (underlying his first principle and the
first part of the second principle) can neither be ignored nor be adequately
addressed through relying only on the informational base of capabilities.
We may not agree with Rawls’s own way of dealing with these issues, but
these issues have to be addressed, and they cannot be sensibly addressed
within the substantive boundaries of capability accounting.
On the other hand, the capability perspective comes into its own in
dealing with the remainder of the second principle; namely, ‘the
Difference Principle’ — a principle that is particularly concerned with
A. Sen
156
the distribution of advantages that different people enjoy (a consideration
that Rawls tried to capture, I believe inadequately, within the confines of
the accounting of ‘primary goods’). The territory that Rawls reserved for
primary goods, as used in his Difference Principle, would indeed, I argue,
be better served by the capability perspective. That does not, however,
obliterate in any way the relevance of the rest of the territory of justice
(related to the first principle and the first part of the second principle), in
which process considerations, including liberty and procedural equity,
figure.
A similar plurality of informational base has to be invoked in dealing
with the multiplicity of considerations that underlie a theory of human
rights. Capabilities and the opportunity aspect of freedom, important as
they are, have to be supplemented by considerations of fair processes and
the lack of violation of people’s right to invoke and utilise them.
Listing capabilities
I turn now to the controversial question of the listing of capabilities. In its
application, the capability approach allows considerable variations in
application. Martha Nussbaum has discussed powerfully the advantages of
identifying an overarching ‘list of capabilities’, with given priorities. My
own reluctance to join the search for such a canonical list arises partly
from my difficulty in seeing how the exact lists and weights would be
chosen without appropriate specification of the context of their use
(which could vary), but also from a disinclination to accept any substantive
diminution of the domain of public reasoning. The framework of
capabilities helps, in my judgement, to clarify and illuminate the subject
matter of public reasoning, which can involve epistemic issues (including
claims of objective importance) as well as ethical and political ones. It
cannot, I would argue, sensibly aim at displacing the need for continued
public reasoning.
Indeed, I would submit that one of the uses of the capability
perspective is to bring out the need for transparent valuational scrutiny of
individual advantages and adversities, since the different functionings have
to be assessed and weighted in relation to each other, and the
opportunities of having different combinations of functionings also have
to be evaluated.
10 The richness of the capability perspective broadly inter-
preted, thus, includes its insistence on the need for open valuational
scrutiny for making social judgements, and in this sense it fits in well with
the importance of public reasoning. This openness of transparent
valuation contrasts with burying the evaluative exercise in some mechan-
ical — and valuationally opaque — convention (e.g. by taking market-
evaluated income to be the invariable standard of individual advantage,
thereby giving implicit normative priority to institutionally determined
market prices).
Human Rights and Capabilities
157
The problem is not with listing important capabilities, but with
insisting on one pre-determined canonical list of capabilities, chosen by
theorists without any general social discussion or public reasoning. To
have such a fixed list, emanating entirely from pure theory, is to deny the
possibility of fruitful public participation on what should be included and
why.
I have, of course, discussed various lists of capabilities that would
seem to demand attention in theories of justice and more generally in
social assessment, such as the freedom to be well nourished, to live
disease-free lives, to be able to move around, to be educated, to participate
in public life, and so on. Indeed, right from my first writings on using the
capability perspective (for example, the 1979 Tanner Lecture ‘Equality of
what?’; Sen, 1980), I have tried to discuss the relevance of specific
capabilities that are important in a particular exercise. The 1979 Tanner
lecture went into the relevance of ‘‘the ability to move about’’ (I discussed
why disabilities can be a central concern in a way that an income-centred
approach may not be able to grasp), along with other basic capabilities,
such as ‘‘the ability to meet one’s nutritional requirements, the where-
withal to be closed and sheltered, the power to participate in the social life
of the community’’. The contrast between lists of capabilities and
commodities was a central concern in Commodities and Capabilities
(Sen, 1985a). The relevance of many capabilities that are often neglected
were discussed in my second set of Tanner Lectures, given at Cambridge
University under the title The Standard of Living (Hawthorn, 1987).
My scepticism is about fixing a cemented list of capabilities that is seen
as being absolutely complete (nothing could be added to it) and totally
fixed (it could not respond to public reasoning and to the formation of
social values). I am a great believer in theory, and certainly accept that a
good theory of evaluation and assessment has to bring out the relevance of
what we are free to do and free to be (the capabilities in general), as
opposed to the material goods we have and the commodities we can
command. But I must also argue that pure theory cannot ‘freeze’ a list of
capabilities for all societies for all time to come, irrespective of what the
citizens come to understand and value. That would be not only a denial of
the reach of democracy, but also a misunderstanding of what pure theory
can do, completely divorced from the particular social reality that any
particular society faces.
Along with the exercise of listing the relevant capabilities, there is also
the problem of determining the relative weights and importance of the
different capabilities included in the relevant list. Even with a given list, the
question of valuation cannot be avoided. There is sometimes a temptation
not only to have one fixed list, but also to have the elements of the list
ordered in a lexicographic way. But this can hardly work. For example, the
ability to be well-nourished cannot in general be put invariably above or
below the ability to be well-sheltered (with the implication that the tiniest
improvement of the higher ranked capability will always count as more
A. Sen
158
important than a large change in the lower ranked one). The judgement
must take into account the extent to which the different abilities are being
realised or violated. Also, the weighting must be contingent on circum-
stances. We may have to give priority to the ability to be well-nourished
when people are dying of hunger in their homes, whereas the freedom to
be sheltered may rightly receive more weight when people are in general
well-fed, but lack shelter and protection from the elements.
Some of the basic capabilities (with which my 1979 Tanner Lecture
was particularly concerned) will no doubt figure in every list of relevant
capabilities in every society. But the exact list to be used will have to take
note of the purpose of the exercise. There is often good sense in
narrowing the coverage of capabilities for a specific purpose. Jean Drèze
and I have tried to invoke such lists of elementary capabilities in dealing
with ‘hunger and public action’, and in a different context, in dealing with
India’s economic and social achievements and failures (Drèze and Sen,
1989, 2002). I see Martha Nussbaum’s powerful use of a given list of
capabilities for some minimal rights against deprivation as being extremely
useful, in the same practical way. For another practical purpose, we may
need quite a different list.
For example, when my friend Mahbub ul Haq asked me, in 1989, to
work with him on indicators of human development, and in particular to
help develop a general index for global assessment and critique, it was
clear to me that we were involved in a particular exercise of specific
relevance. So the ‘Human Development Index’ was based on a very
minimal listing of capabilities, with a particular focus on getting at a
minimally basic quality of life, calculable from available statistics, in a way
that the Gross National Product or Gross Domestic Product failed to
capture (United Nations Development Programme, 1990). Lists of
capabilities have to be used for various purposes, and so long as we
understand what we are doing (and, in particular, that we are getting a list
for a particular reason, related to assessment, evaluation, or critique), we
do not put ourselves against other lists that may be relevant or useful for
other purposes.
All this has to be contrasted with insisting on one ‘final list of
capabilities that matter’. To decide that some capability will not figure in
the list of relevant capabilities at all amounts to putting a zero weight on
that capability for every exercise, no matter what the exercise is concerned
with, and no matter what the social conditions are. This could be very
dogmatic, for many distinct reasons.
First, we use capabilities for different purposes. What we focus on
cannot be independent of what we are doing and why (e.g. whether we are
evaluating poverty, specifying certain basic human rights, getting a rough
and ready measure of human development, and so on).
Second, social conditions and the priorities that they suggest may
vary. For example, given the nature of poverty in India as well as the nature
of available technology, it was not unreasonable in 1947 (when India
Human Rights and Capabilities
159
became independent) to concentrate on elementary education, basic
health, and so on, and to not worry too much about whether everyone can
effectively communicate across the country and beyond. However, with
the development of the internet and its wide-ranging applications, and the
advance made in information technology (not least in India), access to the
web and the freedom of general communication has become a very
important capability that is of interest and relevance to all Indians.
Third, even with given social conditions, public discussion and
reasoning can lead to a better understanding of the role, reach and the
significance of particular capabilities. For example, one of the many
contributions of feminist economics has precisely been to bring out the
importance of certain freedoms that were not recognised very clearly — or
at all — earlier on; for example, freedom from the imposition of fixed and
time-honoured family roles, or immunity from implicit derogation
through the rhetoric of social communication.
To insist on a ‘fixed forever’ list of capabilities would deny the
possibility of progress in social understanding, and also go against the
productive role of public discussion, social agitation, and open debates. I
have nothing against the listing of capabilities (and take part in that activity
often enough), but I have to stand up against any proposal of a grand
mausoleum to one fixed and final list of capabilities.
Public reasoning, cultural diversity and universality
I turn now to the final question. If the listing of capabilities must be subject
to the test of public reasoning, how can we proceed in a world of differing
values and disparate cultures? How can we judge the acceptability of
claims to human rights and to relevant capabilities, and assess the
challenges they may face? How would such a disputation — or a defence
— proceed? I would argue that, like the assessment of other ethical claims,
there must be some test of open and informed scrutiny, and it is to such a
scrutiny that we have to look in order to proceed to a disavowal or an
affirmation. The status that these ethical claims have must be ultimately
dependent on their survivability in unobstructed discussion. In this sense,
the viability of human rights is linked with what John Rawls has called
‘public reasoning’ and its role in ‘ethical objectivity’.11
Indeed, the role of public reasoning in the formulation and
vindication of human rights is extremely important to understand. Any
general plausibility that these ethical claims — or their denials — have is,
on this theory, dependent on their ability to survive and flourish when
they encounter unobstructed discussion and scrutiny (along with
adequately wide informational availability). The force of a claim for a
human right would be seriously undermined if it were possible to show
that they are unlikely to survive open public scrutiny. But contrary to a
commonly offered reason for scepticism and rejection, the case for human
rights cannot be discarded simply by pointing to the possibility that in
A. Sen
160
politically and socially repressive regimes, which do not allow open public
discussion, many of these human rights are not taken seriously at all.
Open critical scrutiny is essential for dismissal as well as for defence.
The fact that monitoring of violations of human rights and the procedure
of ‘naming and shaming’ can be so effective (at least, in putting the
violators on the defensive) is some indication of the wide reach of public
reasoning when information becomes available and ethical arguments are
allowed rather than suppressed.
It is, however, important not to keep the domain of public reasoning
confined to a given society only, especially in the case of human rights, in
view of the inescapably universalist nature of these rights. This is in
contrast with Rawls’s inclination, particularly in his later works, to limit
such public confrontation within the boundaries of each particular nation
(or each ‘people’, as Rawls calls this regional collectivity), for determining
what would be just, at least in domestic affairs.
12 We can demand, on the
contrary, that the discussion has to include, even for domestic justice (if
only to avoid parochial prejudices and to examine a broader range of
counter-arguments), views also from ‘a certain distance’. The necessity of
this was powerfully identified by Adam Smith:
We can never survey our own sentiments and motives, we can
never form any judgment concerning them; unless we remove
ourselves, as it were, from our own natural station, and
endeavour to view them as at a certain distance from us. But
we can do this in no other way than by endeavouring to view
them with the eyes of other people, or as other people are likely
to view them.
13
Questions are often raised about whether distant people can, in fact,
provide useful scrutiny of local issues, given what are taken to be
‘uncrossable’ barriers of culture. One of Edmund Burke’s criticisms of the
French declaration of the ‘rights of man’ and its universalist spirit was
concerned with disputing the acceptability of that notion in other cultures.
Burke argued that ‘‘the liberties and the restrictions vary with times and
circumstances, and admit of infinite modifications, that cannot be settled
upon any abstract rule’’.
14 The belief that the universality that is meant to
underlie the notion of human rights is profoundly mistaken has, for this
reason, found expression in many other writings as well.
A belief in uncrossable barriers between the values of different
cultures has surfaced and resurfaced repeatedly over the centuries, and
they are forcefully articulated today. The claim of magnificent uniqueness
— and often of superiority — has sometimes come from critics of ‘Western
values’, varying from champions of regional ethics (well illustrated by the
fuss in the 1990s about the peerless excellence of ‘Asian values’), or
religious or cultural separatists (with or without being accompanied by
fundamentalism of one kind or another). Sometimes, however, the claim
of uniqueness has come from Western particularists. A good example is
Human Rights and Capabilities
161
Samuel Huntington’s (1996) insistence that the ‘‘West was West long before
it was modern’’, and his claim that ‘‘a sense of individualism and a tradition
of individual rights and liberties’’ are ‘‘unique among civilized societies’’.
Similarly, no less a historian of ideas than Gertrude Himmelfarb has argued
that ideas of ‘justice’, ‘right’, ‘reason’ and ‘love of humanity’ are ‘‘pre-
dominantly, perhaps even uniquely, Western values’’ (1996, pp. 74–75).
I have discussed these diagnoses elsewhere (for example Sen, 1999).
Contrary to cultural stereotypes, the histories of different countries in the
world have shown considerable variations over time as well as between
different groups within the same country. When, in the twelfth century,
the Jewish philosopher Maimonedes had to flee an intolerant Europe and
its Inquisitions to try to safeguard his human right to stick to his own
religious beliefs and practice, he sought shelter in Emperor Saladin’s Egypt
(via Fez and Palestine), and found an honoured position in the court of
this Muslim emperor. Several hundred years later, when, in Agra, the
Moghal emperor of India, Akbar, was arguing — and legislating — on the
government’s duty to uphold the right to religious freedom of all citizens,
the European Inquisitions were still going on, and Giordano Bruno was
burnt at the stake in Rome, in 1600.
In his autobiography, Long Walk to Freedom, Nelson Mandela (1994,
p. 21) describes how he learned about democracy and individual rights, as
a young boy, by seeing the proceedings of the local meetings held in the
regent’s house in Mqhekezweni:
Everyone who wanted to speak did so. It was democracy in its
purest form. There may have been a hierarchy of importance
among the speakers, but everyone was heard, chief and subject,
warrior and medicine man, shopkeeper and farmer, landowner
and laborer.
Not only are the differences on the subject of freedoms and rights that
actually exist between different societies often much exaggerated, but also
there is, typically, little note taken of substantial variations within each
local culture — over time and even at a point of time (in particular, right
now). What are taken to be ‘foreign’ criticisms often correspond to
internal criticisms from non-mainstream groups.
15 If, say, Iranian
dissidents are imprisoned by an authoritarian regime precisely because
of their heterodoxy, any suggestion that they should be seen as
‘ambassadors of Western values’ rather than as ‘Iranian dissidents’ would
only add serious insult to manifest injury. Being culturally non-partisan
requires respecting the participation of people from any corner of the
earth, which is not the same thing as accepting the prevailing priorities,
especially among dominant groups in particular societies, when informa-
tion is extremely restricted and discussions and disagreements are not
permitted.
Scrutiny from a ‘distance’ may have something to offer in the
assessment of practices as different from each other as the stoning of
A. Sen
162
adulterous women in the Taliban’s Afghanistan and the abounding use of
capital punishment (sometimes with mass jubilation) in parts of the
United States. This is the kind of issue that made Smith insist that ‘‘the eyes
of the rest of mankind’’ must be invoked to understand whether ‘‘a
punishment appears equitable’’.16 Ultimately, the discipline of critical
moral scrutiny requires, among other things, ‘‘endeavouring to view [our
sentiments and beliefs] with the eyes of other people, or as other people
are likely to view them’’ (The Theory of Moral Sentiments, III, 1, 2; in
Smith, 1976, p. 110).
Intellectual interactions across the borders can be as important in rich
societies as they are in poorer ones. The point to note here is not so much
whether we are allowed to chat across borders and to make cross-
boundary scrutiny, but that the discipline of critical assessment of moral
sentiments — no matter how locally established they are — requires that
we view our practices inter alia from a certain distance.
Both the understanding of human rights and of the adequacy of a list
of basic capabilities, I would argue, are intimately linked with the reach of
public discussion — between persons and across borders. The viability
and universality of human rights and of an acceptable specification of
capabilities are dependent on their ability to survive open critical scrutiny
in public reasoning.
Conclusions
To conclude, the two concepts — human rights and capabilities — go well
with each other, so long as we do not try to subsume either entirely within
the other. There are many human rights for which the capability
perspective has much to offer. However, human rights to important
process freedoms cannot be adequately analysed within the capability
approach.
Furthermore, both human rights and capabilities have to depend on
the process of public reasoning, which neither can lose without serious
impoverishment of its respective intellectual content. The methodology of
public scrutiny draws on Rawlsian understanding of ‘objectivity’ in ethics,
but the impartiality that is needed cannot be confined within the borders
of a nation. We have to go much beyond Rawls for that reason, just as we
also have to go beyond the enlightenment provided by his use of ‘primary
goods’, and invoke, in that context, the more articulate framework of
capabilities. The need for extension does not, of course, reduce our debt
to John Rawls. Neither human rights nor capabilities would have been easy
to understand without his pioneering departures.
Acknowledgements
This is the text of the author’s Presidential Address to the Human
Development and Capability Association at the University of Pavia on 7
Human Rights and Capabilities
163
September 2004. Some of the particular arguments presented here overlap
with the article ‘Elements of a theory of human rights’ (Sen, 2004),
although the two essays differ in focus. For helpful discussions, the author
is grateful to Sabina Alkire, Charles Beitz, Enrica Chiappero-Martinetti,
Joshua Cohen, Reiko Gotoh, Martha Nussbaum, Mozaffar Qizilbash, Ingrid
Robeyns, and Kotaro Suzumura.
Notes
1 See Sen (2002a), particularly the Arrow Lectures (‘Freedom and Social Choice’)
included there (essays 20–22).
2 An investigation of more complex features of the opportunity aspect and the process
aspect of freedoms can be found in the Arrow Lectures (‘Freedom and Social Choice’)
in Sen (2002a, essays 20–22).
3 On the concept of capability, see Sen (1980, 1985a, 1985b), Nussbaum and Sen (1993),
and Nussbaum (2000). See also the related theories of substantial opportunities
developed by Arneson (1989), Cohen (1989), and Roemer (1996), among other
contributions.
4 The relevance of such parametric variability for a theory of justice is discussed in Sen
(1990).
5 See Okin (2003, p. 293). On related issues see also Joshua Cohen (1994, especially
pp. 278–280), and G. A. Cohen (1995, especially pp. 120–125).
6 See Sen (1980, 1985a, 1985b). In contrast, G. A. Cohen has presented arguments in
favour of focusing on achieved functionings — related to his concept of ‘midfare’ —
rather than on capability (see Cohen, 1989, 1993).
7 See Marx (1845–1846/1977, p. 190).
8 There is a substantial difference between: (1) valuing multiculturalism because of the
way — and to the extent that — it enhances the freedoms of the people involved to
choose to live as they would like (and have reason to like); and (2) valuing cultural diver-
sity per se, which focuses on the descriptive characteristics of a social pattern, rather than
on the freedoms of the people involved. The contrast receives investigation in the
Human Development Report 2004 (United Nations Development Programme, 2004).
9 On the plurality of concerns that include processes as well as opportunities, which is
inescapably involved in normative social choice (including theories of justice), see Sen
(1970, 1985b). Since I have often encountered the diagnosis that I propound a
‘‘capability-based theory of justice’’, I should make it clear that this could be true
only in the very limited sense of naming something according to one principal part
of it (comparable with, say, using England for Britain). It is only one part of
the informational base of a theory of justice that the capability perspective can expect to
fill.
10 I cannot emphasise adequately how important I believe it is to understand that the
need for an explicit valuational exercise is an advantage, rather than a limitation, of the
capability approach, because valuational decisions have to be explicitly discussed,
rather than being derived from some mechanical formula that is used, without scrutiny
and assessment. For arguments against my position on this issue, see Beitz (1986) and
Williams (1987). My own position is more fully discussed in Sen (1999, 2004).
11 See Rawls (1971, 1993, especially pp. 110–113).
12 See particularly John Rawls (1999). See also Rawls’s formulation of the original
position in Political Liberalism (Rawls, 1993, p. 12): ‘‘I assume that the basic structure
is that of a closed society: that is, we are to regard it as self-contained and as having no
relations with other societies. … That a society is closed is a considerable abstraction,
justified only because it enables us to focus on certain main questions free from
distracting details.’’
A. Sen
164
13 See Smith (1759/1790, III, 1, 2). Smith (1976, p. 110). I have tried to discuss and extend
the Smithian perspective on moral reasoning in Sen (2002b).
14 Quoted in Lukes (1997, p. 238).
15 On this see Nussbaum and Sen (1988).
16 Smith (1978/1982, p. 104).
References
Arneson, R. (1989) ‘Equality and Equal Opportunity for Welfare’, Philosophical Studies, 56,
pp. 77–93.
Beitz, C. (1986) ‘Amartya Sen’s resources, values and development’, Economics and
Philosophy, 2, pp. 282–290.
Bentham, J. (1792) Anarchical Fallacies; Being an Examination of the Declaration of
Rights Issued during the French Revolution [Republished in J. Bowring (Ed.) (1843) The
Works of Jeremy Bentham, volume II, William Tait, Edinburgh].
Cohen, G.A. (1989) ‘On the currency of egalitarian justice’, Ethics, 99, pp. 906–944.
Cohen, G.A. (1993) ‘Equality of what? On welfare, resources and capabilities’, in M.
Nussbaum and A. Sen (Eds.), The Quality of Life, Clarendon Press, Oxford.
Cohen, G.A. (1995) ‘Review: Amartya Sen’s unequal world’, The New Left Review, January,
pp. 117–129.
Cohen, J. (1994) ‘Review of Sen’s Inequality Reexamined’, Journal of Philosophy, 92,
pp. 275–288.
Drèze, J. and Sen, A. (1989) Hunger and Public Action, Clarendon Press, Oxford.
Drèze, J. and Sen, A. (2002) India: Participation and Development, Oxford University
Press, Delhi.
Hawthorn, G. (Ed.) (1987) Amartya Sen et al, The Standard of Living, Cambridge
University Press, Cambridge.
Himmelfarb, G. (1996) ‘The illusions of cosmopolitanism’, in M. Nussbaum with
respondents (Ed.), For Love of Country, Beacon Press, Boston.
Huntington, S. (1996) The Clash of Civilizations and the Remaking of World Order, Simon
and Schuster, New York.
Lukes, S. (1997) ‘Five fables about human rights’, in M. Ishay (Ed.), The Human Rights
Reader, Routledge, London.
Mandela, N. (1994) Long Walk to Freedom, Little, Brown & Co., Boston.
Marx, K. (1845–1846) The German Ideology, with F. Engels [Republished in D. McLellan
(Ed.) (1977) Karl Marx: Selected Writings, Oxford University Press, Oxford].
Nussbaum, M. (2000) Women and Human Development: The Capabilities Approach,
Cambridge University Press, Cambridge.
Nussbaum, M. and Sen, A. (1988) ‘Internal criticism and indian rationalist traditions’, in M.
Krausz (Ed.), Relativism: Interpretation and Confrontation, University of Notre Dame
Press, Notre Dame.
Nussbaum, M. and Sen, A. (Eds) (1993) The Quality of Life, Clarendon Press, Oxford.
Okin, S. (2003) ‘Poverty, Well-being and gender: what counts, who’s heard?’, Philosophy
and Public Affairs, 31, pp. 280–316.
Rawls, J. (1971) A Theory of Justice, Harvard University Press, Cambridge, MA.
Rawls, J. (1993) Political Liberalism, Columbia University Press, New York.
Rawls, J. (1999) The Law of Peoples, Harvard University Press, Cambidge, MA.
Roemer, J.E. (1996) Theories of Distributive Justice, Harvard University Press, Cambridge,
MA.
Sen, A. (1970) Collective Choice and Social Welfare, Holden-Day, San Francisco
[Republished by North-Holland, Amsterdam].
Sen, A. (1980) ‘Equality of what?’, in S. McMurrin (Ed.), Tanner Lectures on Human Values,
volume I, Cambridge University Press, Cambridge: University of Utah Press, Cambridge.
Sen, A. (1985a) Commodities and Capabilities, North-Holland, Amsterdam.
Human Rights and Capabilities
165
Sen, A. (1985b) ‘Well-being, agency and freedom: the Dewey Lectures 1984’, Journal of
Philosophy, 82, pp. 169–221.
Sen, A. (1985/1987) The Standard of Living, Tanner Lectures, Cambridge University Press,
Cambridge.
Sen, A. (1990) ‘Justice: means versus freedoms’, Philosophy and Public Affairs, 19,
pp. 111–121.
Sen, A. (1999) Development as Freedom, Knopf, New York: Oxord University Press, New
York.
Sen, A. (2002a) Rationality and Freedom, Harvard University Press, Cambridge, MA.
Sen, A. (2002b) ‘Open and closed impartiality’, The Journal of Philosophy, 99, pp. 445–469.
Sen, A. (2004) ‘Elements of a theory of human rights’, Philosophy and Public Affairs, 32(4),
pp. 315–356.
Smith, A. (1759/1790/1976) The Theory of Moral Sentiments, revised edition 1790
[Republished by Clarendon Press, Oxford].
Smith, A. (1776/1979) An Inquiry into the Nature and Causes of the Wealth of Nations,
Clarendon Press, Oxford [Reprinted by Liberty Press, 1981].
Smith, A. (1978/1982) in R.L. Meek, D.D. Raphael and P.G. Stein (Eds.), Lectures on
Jurisprudence, Clarendon Press, Oxford [Reprinted by Liberty Press, Indianapolis].
United Nations Development Programme (1990) Human Development Report 1990,
Oxford University Press, Oxford.
United Nations Development Programme (2004) Human Development Report 2004,
Oxford University Press, Oxford.
Williams, B. (1987) ‘The standard of living: interests and capabilities’, in G. Hawthorn
(Ed.), Amartya Sen et al, The Standard of Living, Cambridge University Press,
Cambridge.
A. Sen
166
Fordham Law Review
Volume 66 | Issue 2 Article 2
1997
Capabilities and Human Rights
Martha C. Nussbaum
This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for
inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information,
please contact tmelnick@law.fordham.edu.
Recommended Citation
Martha C. Nussbaum, Capabilities and Human Rights, 66 Fordham L. Rev. 273 (1997).
Available at: http://ir.lawnet.fordham.edu/flr/vol66/iss2/2
http://ir.lawnet.fordham.edu/flr
http://ir.lawnet.fordham.edu/flr/vol66
http://ir.lawnet.fordham.edu/flr/vol66/iss2
http://ir.lawnet.fordham.edu/flr/vol66/iss2/2
mailto:tmelnick@law.fordham.edu
CAPABILITIES AND HUMAN RIGHTS
Martha C. Nussbaum*
INTRODUCTION
W HEN governments and international agencies talk about peo-
ple’s basic political and economic entitlements, they regularly
use the language of rights. When constitutions are written in the mod-
em era, and their framers wish to identify a group of particularly ur-
gent interests that deserve special protection, once again it is the
language of rights that is regularly preferred.
The language of rights has a moral resonance that makes it hard to
avoid in contemporary political discourse. But it is certainly not on
account of its theoretical and conceptual clarity that it has been pre-
ferred. There are many different ways of thinking about what a right
is, and many different definitions of “human rights.”‘ For example,
rights are often spoken of as entitlements that belong to all human
beings simply because they are human, or as especially urgent inter-
ests of human beings as human beings that deserve protection regard-
less of where people are situated.2 Within this tradition there are
differences. The dominant tradition has typically grounded rights in
the possession of rationality and language, thus implying that non-
human animals do not have them, and that mentally impaired humans
may not have them.3 Some philosophers have maintained that senti-
ence, instead, should be the basis of rights; thus, all animals would be
rights-bearers.4 In contrast to this entire group of natural-rights theo-
rists, there are also thinkers who treat all rights as artifacts of state
action.5 The latter position would seem to imply that there are no
* Ernst Freund Professor of Law and Ethics: Law School, Philosophy Depart-
ment, and Divinity School, The University of Chicago.
1. For one excellent recent account, with discussions of other views, see Alan
Gewirth, The Community of Rights (1996).
2. For just one example, this is the view of Thomas Paine. See Thomas Paine,
Rights of Man-Common Sense 80-85 (Alfred A. Knopf 1994) (quoting and discuss-
ing the French Declaration of the Rights of Man and of Citizens); id. at 114 (insisting
that rights, so conceived, should be the foundation of a nation’s prosperity). Such
views ultimately derive from ancient Greek and Roman Stoic views of natural law.
The Latin word ius can be translated either as “right” or as “law,” Grotius already
discussed the manifold applications of ius. See Hugo Grotius, De lure Belli Ac Pacis
(On the Law of War and Peace) (P.C. Molhuysen, A.W. Sijthoff 1919) (1625).
3. The most influential exemplar of such a view, followed by most later theorists,
is Cicero. See M. Tulli Ciceronis, De Officiis (On Duties), bk. 1, paras. 11-14 (Oxford
Univ. Press 1994) (distinguishing humans from beasts by reference to rationality and
language); id. paras. 20-41 (deriving duties from this).
4. See Peter Singer, Animal Liberation (2d ed. 1990).
5. This view is most influentially found in Kant. See Immanuel Kant, The Meta-
physics of Morals, in Kant: Political Writings 132-35 (Hans Reiss ed. & H.B. Nisbet
trans., Cambridge Univ. Press 2d enlarged ed. 1991) (1798) (defining right and the
theory of right with reference to law and the state).
FORDHAM LAW REVIEW
human rights where there is no state to recognize them. Such an ap-
proach appears to the holders of the former view to do away with the
very point of rights language, which is to point to the fact that human
beings are entitled to certain types of treatment whether or not the
state in which they happen to live recognizes this fact.
There are many other complex unresolved theoretical questions
about rights. One of them is the question whether the individual is
the only bearer of rights, or whether rights belong, as well, to other
entities, such as families, ethnic, religious, and linguistic groups, and
nations. Another is whether rights are to be regarded as side-con-
straints on goal-seeking action, or as parts of a goal that is to be pro-
moted.6 Still another unresolved question is whether rights-thought
of as justified entitlements-are correlated with duties. If A has a
right to S, then it would appear there must be someone who has a duty
to provide S to A. But it is not always clear who has these duties-
especially when we think of rights in the international context. Again,
it is also unclear whether all duties are correlated with rights. One
might hold, for example, that we have a duty not to cause pain to
animals without holding that animals have rights-if, for example, one
accepted one of the classic accounts of the basis of rights that makes
reference to the abilities of speech and reason as the foundation, and
yet still believed that we have other strong reasons not to cause ani-
mals pain.
Finally, there are difficult theoretical questions about what rights
are to be understood as rights to. When we speak of human rights, do
we mean, primarily, a right to be treated in certain ways? A right to a
certain level of achieved well-being? A right to certain resources with
which one may pursue one’s life plan? A right to certain opportuni-
ties and capacities with which one may, in turn, make choices regard-
ing one’s life plan? Political philosophers who debate the nature of
equality standardly tackle a related question head on, asking whether
the equality most relevant to political distribution should be under-
stood, primarily, as equality of well-being, or equality of resources, or
equality of opportunity, or equality of capabilities.’ The language of
6. An influential example of the first approach is in Robert Nozick, Anarchy,
State, and Utopia 26-53 (1974) (Chapter 3: Moral Constraints and the State), arguing
that rights supply moral constraints on state action. See also Samuel Scheffler, The
Rejection of Consequentialism (rev. ed. 1994) (developing a theory of rights as side
constraints). For the second approach, see, for example, Amartya Sen, Rights as
Goals, in Equality and Discrimination: Essays in Freedom and Justice (Stephen
Guest & Alan Milne eds., 1985) [hereinafter Rights as Goals], developing an account
of rights as among the goals of public action.
7. See Amartya Sen, Equality of What?, I The Tanner Lectures on Human Values
195 (Sterling M. McMurrin ed., 1980), reprinted in Choice, Welfare and Measurement
353 (1982) [hereinafter Equality of What?] (arguing that the most relevant type of
equality for political purposes is equality of capability); see also Amartya Sen, Ine-
quality Reexamined passim (1992) [hereinafter Inequality Reexamined] (making the
same case in more detail); Richard J. Arneson, Equality and Equal Opportunity for
[Vol. 66
HUMAN RIGHTS IN THEORY
rights to some extent cuts across this debate and obscures the issues
that have been articulated.
Thus, one might conclude that the language of rights is not espe-
cially informative, despite its uplifting character, unless its users link
their references to rights to a theory that answers at least some of
these questions.8 It is for this reason, among others, that a different
language has begun to take hold in talk about people’s basic entitle-
ments. This is the language of capabilities and human functioning.
Since 1993, the Human Development Reports of the United Nations
Development Programme 9 (“UNDP”) have assessed the quality of
life in the nations of the world using the concept of people’s capabili-
ties, or their abilities to do and to be certain things deemed valuable.”0
Under the influence of economist/philosopher Amartya Sen, they
have chosen that conceptual framework as basic to inter-country com-
parisons and to the articulation of goals for public policy.
Along with Sen, I have been one of the people who have pioneered
what is now called the “capabilities approach,” defending its impor-
tance in international debates about welfare and quality of life. My
own use of this language was originally independent, and reflected the
fact that Aristotle used a notion of human capability (Greek dunamis)
and functioning (Greek energeia) in order to articulate some of the
goals of good political organization. 1 But the projects soon became
fused: I increasingly articulated the Aristotelian idea of capability in
Welfare, 56 Phil. Stud. 77 (1989) (defending equality of opportunity for welfare); G.A.
Cohen, On the Currency of Egalitarian Justice, 99 Ethics 906, 920-21 (1989) (arguing
that the right thing to equalize is “access to advantage”); Ronald Dworkin, What Is
Equality? Part 1: Equality of Welfare, 10 Phil. & Pub. Aff. 185 (1981) (discussing
distributional equality); Ronald Dworkin, What Is Equality? Part 2: Equality of Re-
sources, 10 Phil. & Pub. Aff. 283 (1981) (arguing that the right thing to equalize are
resources, and defining a suitable conception of equality of resources); John E. Roe-
mer, Equality of Resources Implies Equality of Welfare, 101 04. Econ. 751 (1986)
(arguing that, suitably understood, equality of resources implies equality of welfare).
8. See, e.g., Bernard Williams, The Standard of Living: Interests and Capabilities,
in The Standard of Living 94, 100 (Geoffrey Hawthorn ed., 1987) (arguing for an
approach to basic human rights through basic capabilities).
9. See, e.g., United Nations Development Progamme, Human Development Re-
port 1996; United Nations Development Progamme, Human Development Report
1993 [hereinafter Human Development Report 1993].
10. The reports’ primary measure of quality of life is the -human development
index” (“HDI”). Human Development Report 1993, supra note 9, at 10. HDI is a
composite of three basic components of human development: longevity (measured by
life expectancy), knowledge (measured by a combination of adult literacy and mean
years of schooling), and standard of living (measured by income relative to the pov-
erty level). Id- at 100. For a standard definition of capabilities, see Amartya Sen,
Capability and Well-Being, in The Quality of Life 30-31 (Martha Nussbaum &
Amartya Sen eds., 1993), explaining the choice of the term and its relationship to
other basic concepts.
11. See Martha C. Nussbaum, Nature, Function, and Capability: Aristotle on Polit-
ical Distribution, in [Supplementary Volume] Oxford Studies in Ancient Philosophy
145 (Julia Annas & Robert H. Grimm eds., 1988) [hereinafter Nature, Function, and
Capability].
1997]
FORDHAM LAW REVIEW
terms pertinent to the contemporary debate, 2 while Sen increasingly
emphasized the ancient roots of his idea. 3 In a variety of contexts, we
argued that the capabilities approach was a valuable theoretical
framework for public policy, especially in the international develop-
ment context. 14 We commended it to both theoreticians and practi-
tioners as offering certain advantages over approaches that focus on
opulence-GNP per capita, or welfare-construed in terms of utility
or desire-satisfaction, or even the distribution of basic resources.
15
Both Sen and I stated from the start that the capabilities approach
needs to be combined with a focus on rights. Sen wrote about rights
as central goals of public policy throughout the period during which
he developed the approach. 16 I stressed from the start that Aristotle’s
theory was grossly defective because it lacked a theory of the basic
human rights, especially rights to be free from government interfer-
ence in certain areas of choice. 7 More recently, responding to com-
12. See Martha Nussbaum, Aristotelian Social Democracy, in Liberalism and the
Good 203 (R. Bruce Douglass et al. eds., 1990) [hereinafter Aristotelian Social De-
mocracy]; Martha C. Nussbaum, Aristotle on Human Nature and the Foundations of
Ethics, in World, Mind, and Ethics: Essays on the Ethical Philosophy of Bernard
Williams 86 (J.E.J. Altham & Ross Harrison eds., 1995) [hereinafter Human Nature];
Martha C. Nussbaum, Human Capabilities, Female Human Beings, in Women, Cul-
ture, and Development 61 (M. Nussbaum & J. Glover eds., 1995) [hereinafter Human
Capabilities]; Martha Nussbaum, Non-Relative Virtues: An Aristotelian Approach, in
The Quality of Life, supra note 10, at 242; Martha C. Nussbaum, Human Functioning
and Social Justice: In Defense of Aristotelian Essentialism, 20 Pol. Theory 202 (1992)
[hereinafter Human Functioning]; Martha C. Nussbaum, The Good as Discipline, The
Good as Freedom, in The Ethics of Consumption and Global Stewardship 312 (D.
Crocker & T. Linden eds., forthcoming 1998) (manuscript on file with the Fordham
Law Review) [hereinafter The Good as Discipline, The Good as Freedom]; Martha C.
Nussbaum, Sex and Social Justice (forthcoming 1998) (Chapter 1: Women and Cul-
tural Universals) (manuscript on file with the Fordham Law Review) [hereinafter Wo-
men and Cultural Universals].
13. See, for example, Inequality Reexamined, supra note 7, which also contains his
most recent formulation of the approach.
14. A good summary of our approaches, and the similarities and differences be-
tween Sen’s and my views, is in David A. Crocker, Functioning and Capability: The
Foundations of Sen’s and Nussbaum’s Development Ethic, 20 Pol. Theory 584 (1992)
[hereinafter Functioning and Capability: Part 1], and David A. Crocker, Functioning
and Capability: The Foundations of Sen’s and Nussbaum’s Development Ethic, Part 2,
in Women, Culture, and Development, supra note 12, at 153 [hereinafter Functioning
and Capability: Part 2].
15. See Amartya Sen, Capability and Well-Being, in The Quality of Life, supra
note 10, at 30; Amartya Sen, Commodities and Capabilities (1985); Equality of What?,
supra note 7; Amartya Sen, Gender Inequality and Theories of Justice, in Women,
Culture, and Development, supra note 12, at 259 [hereinafter Gender Inequality];
Amartya Sen, Well-Being, Agency and Freedom: The Dewey Lectures 1984, 82 J. Phil.
169 (1985) [hereinafter Well-Being].
16. See Amartya Sen, Rights and Capabilities, in Morality and Objectivity: A Trib-
ute to J.L. Mackie 130 (T. Honderich ed., 1985), reprinted in Amartya Sen, Resources,
Values and Development 307-24 (1984) [hereinafter Rights and Capabilities]; Rights as
Goals, supra note 6; Amartya Sen, Rights and Agency, 11 Phil. & Pub. Aff. 3 (1982)
[hereinafter Rights and Agency].
17. See Aristotelian Social Democracy, supra note 12, at 239.
[Vol. 66
HUMAN RIGHTS IN THEORY
munitarian critics of rights-based reasoning and to international
discussions that denigrate rights in favor of material well-being, both
Sen and I have even more strongly emphasized the importance of
rights to our own capabilities approach. We stressed the various roles
liberty plays within our respective theories and emphasized the close-
ness of our approach to liberal theories such as that of John Rawls.”
8
Moreover, rights play an increasingly large role inside the account
of what the most important capabilities are. Unlike Sen, who prefers
to allow the account of the basic capabilities to remain largely implicit
in his statements, I have produced an explicit account of the most cen-
tral capabilities that should be the goal of public policy. The list is
continually being revised and adjusted, in accordance with my meth-
odological commitment to cross-cultural deliberation and criticism.
But another source of change has been an increasing determination to
bring the list down to earth, so to speak, making the “thick vague
conception of the good”‘ 9 a little less vague, so that it can do real
work guiding public policy. At this point, the aim is to come up with
the type of specification of a basic capability that could figure in a
constitution,2 or perform, apart from that, the role of a constitutional
guarantee.
In the process, I have increasingly used the language of rights, or
the related language of liberty and freedom, in fleshing out the ac-
count of the basic capabilities. Thus, in Human Capabilities, I speak
of “legal guarantees of freedom of expression … and of freedom of
religious exercise” 21 as aspects of the general capability to use one’s
mind and one’s senses in a way directed by one’s own practical reason.
I also speak of “guarantees of non-interference with certain choices
that are especially personal and definitive of selfhood,” and of “the
freedoms of assembly and political speech.” 2′ In a forthcoming paper,
I actually use the language of rights itself in articulating the capability
to seek employment outside the home, and several of the other impor-
tant capabilities.3 In part, this is a rhetorical choice, bringing the list
18. See John Rawls, Political Liberalism (1993) [hereinafter Political Liberalism];
John Raws, A Theory of Justice (1971) [hereinafter A Theory of Justice]. Sen dis-
cusses, and supports, the Rawlsian notion of the priority of liberty in Freedoms and
Needs, New Republic, Jan. 10 & 17, 1994, at 31-38 [hereinafter Freedoms and Needs].
I discuss the relationship between my own version of the capabilities view and Rawls’s
theory in Aristotelian Social Democracy, supra note 12, and The Good as Discipline,
The Good as Freedom, supra note 12. In The Good as Discipline, The Good as Free-
dom, I emphasize the liberal roots of my own Aristotelianism, contrasting my view
with two non-liberal forms of Aristotelianism.
19. This is my term from Aristotelian Social Democracy, supra note 12, at 217,
contrasting with Rawls’s “thin theory of the good.” A Theory of Justice, supra note
18, at 395-99.
20. See Human Capabilities, supra note 12, at 85.
21. Id at 84.
22. Id at 84-85.
23. Women and Cultural Universals, supra note 12, at 25-26.
1997]
FORDHAM LAW REVIEW
of capabilities into relation with international human rights instru-
ments that have a related content. But in part it also reflects a theo-
retical decision to emphasize the affiliations of the approach with
liberal rights-based theories, in an era of widespread reaction against
the Enlightenment and its heritage.2 4
But there are still some large questions to be answered. The rela-
tionship between the two concepts remains as yet underexplored.
Does the capabilities view supplement a theory of rights, or is it in-
tended to be a particular way of capturing what a theory of rights
captures? Is there any tension between a focus on capabilities and a
focus on rights? Are the two approaches competitors? On the other
hand, is there any reason why a capabilities theorist should welcome
the language of rights-that is, is there anything in the view itself that
leads naturally in the direction of recognizing rights? Would a natu-
ral-law Catholic theorist who used an Aristotelian language of capa-
bility and functioning, but rejected liberal rights-based language, be
making a conceptual error? 5 Does the capabilities view help us to
answer any of the difficult questions that I sketched above, which have
preoccupied theorists of rights? Does the capabilities view incline us
to opt for any particular set of answers to the various questions about
rights, or any particular conception of rights? For example, is Sen jus-
tified in thinking that the capabilities view supports a conception of
rights as goals, rather than as side-constraints?2 6 Finally, is there any
reason, other than a merely rhetorical one, why we should continue to
use the language of rights in addition to the language of capabilities?
In short, the conceptual relationship needs further scrutiny.
2 7 Com-
menting on Sen’s Tanner Lectures in 1987, Bernard Williams ex-
pressed sympathy with the capabilities approach, but called for a
conceptual investigation:
I am not very happy myself with taking rights as the starting point.
The notion of a basic human right seems to me obscure enough, and
I would rather come at it from the perspective of basic human capa-
bilities. I would prefer capabilities to do the work, and if we are
going to have a language or rhetoric of rights, to have it delivered
from them, rather than the other way around. But I think that there
24. For the close relationship between the capabilities approach and Enlighten-
ment liberalism, see Freedoms and Needs, supra note 18, and The Good as Discipline,
The Good as Freedom, supra note 12.
25. I put things this way because the most prominent anti-liberal natural law theo-
rists do not explicitly reject rights language, see John Finnis, Natural Law and Natural
Rights (1980), and Robert P. George, Making Men Moral: Civil Liberties and Public
Morality (1993), and the most prominent Catholic opponent of rights language does
not endorse the capabilities approach, see Mary Ann Glendon, Rights Talk: The Im-
poverishment of Political Discourse (1991), but the combination is easy enough to
imagine.
26. See Rights and Capabilities, supra note 16, at 310-12.
27. A valuable beginning, bringing together all that Sen and I have said on the
topic, is in Functioning and Capabilities: Part 2, supra note 14, at 186-91.
[Vol. 66
HUMAN RIGHTS IN THEORY
remains an unsolved problem: how we should see the relations be-
tween these concepts.
8
This paper is a contribution to that project. I shall not be able to an-
swer all the outstanding questions, and I shall certainly not be able to
offer a theory of rights that solves all the problems I outlined. But I
hope to illuminate some of the issues that must be faced when one
does attempt to connect the two ideas, some of the options one has,
some of the problems that arise, and some of the positive dividends
one may reap.
I shall begin by describing the capabilities approach and the motiva-
tions for its introduction: what it was trying to do in political philoso-
phy, how it commended itself by contrast to other standard ways of
thinking about entitlements. Then I shall briefly clarify the connec-
tion between the capabilities approach and liberal theories of justice.
Finally, I shall turn to my central topic, the relationship between rights
and capabilities.
I. THE CAPABILITIES APPROACH: MOTIVATION AND ARGUMENT
Why, then, should there be a theory of human capabilities? What
questions does it answer, and what is its practical point? Why should
an international agency such as the UNDP use a measure of quality of
life based on human capability and functioning, rather than other
more traditional measures: for example, those based on opulence,
utility, or a distribution of resources that satisfies some constraint,
whether it be a social minimum, or the Rawlsian Difference Principle,
or some more exacting egalitarian condition?
The account of human capabilities has been used as an answer to a
number of distinct questions, such as: What is the living standard?2 9
What is the quality of life?30 What is the relevant type of equality that
we should consider in political planning?3 It has also been closely
linked to discussion of a theory of justice, because such a theory has a
need for an account of what it is trying to achieve for people. I be-
lieve that the most illuminating way of thinking about the capabilities
approach is that it is an account of the space within which we make
comparisons between individuals and across nations as to how well
they are doing. This idea is closely linked with the idea of a theory of
justice, since one crucial aim of a theory of justice typically is to pro-
mote some desired state of people; and in Aristotelian Social Democ-
racy I linked it very closely to an account of the proper goal of
government, to bring all citizens up to a certain basic minimum level
28. Williams, supra note 8, at 100.
29. Id. at 100-02 (discussing Sen’s proposal that the living standard should be de-
fined in terms of capabilities).
30. See The Quality of Life, supra note 10.
31. See Inequality Reexamined, supra note 7.
1997] 279
FORDHAM LAW REVIEW
of capability.” But up to a point, the approach is logically independ-
ent of a theory of justice, since a theory of justice may acknowledge
many constraints with regard to how far it is entitled to promote peo-
ple’s well-being. For example, Robert Nozick could grant that capa-
bilities are the relevant space within which to make comparisons of
well-being, while denying that this has anything at all to do with a
theory of justice, since he rejects theories of justice based on a “pat-
terned end-state” conception, preferring to define justice solely in
terms of procedures and entitlements.3 3
The capabilities idea is also closely linked to a concern with equal-
ity, in that Sen has always used it to argue that people are entitled to a
certain level of rough material and social equality. But, strictly speak-
ing, these two concerns of Sen’s are logically independent. One might
agree that capabilities are the relevant space within which to compare
lives and nations, and yet hold that equality of capability is not the
appropriate goal. Capabilities inform us as to what type of equality
might be thought pertinent; they do not by themselves tell us whether
we should value an equal distribution or some other distribution.
As a theory of the relevant space within which to make compari-
sons, the capabilities approach is best understood by contrasting it
with its rivals in the international development arena. The most com-
mon method of measuring the quality of life in a nation and making
cross-national comparisons used to be simply to enumerate GNP per
capita. This crude method is reminiscent of the economics lesson
imagined by Charles Dickens in Hard Times, and used by Sen and me
to introduce our volume on The Quality of Life:
“And he said, Now this schoolroom is a Nation. And in this nation,
there are fifty millions of money. Isn’t this a prosperous nation?
Girl number twenty, isn’t this a prosperous nation, and a’n’t you in
a thriving state?”
“What did you say?” asked Louisa.
“Miss Louisa, I said I didn’t know. I thought I couldn’t know
whether it was a prosperous nation or not, and whether I was in a
thriving state or not, unless I knew who had got the money, and
whether any of it was mine. But that had nothing to do with it. It
was not in the figures at all,” said Sissy, wiping her eyes.
“That was a great mistake of yours,” observed Louisa.
34
In short, the crude approach does not even tell us who has the money,
and thus typically gave high marks to nations such as South Africa,
which contained enormous inequalities. Still less does it provide any
information at all about elements of human life that might be thought
very important in defining its quality, but that are not always well cor-
32. Supra note 12.
33. Nozick, supra note 6, at 150-64 (criticizing patterned end-state conceptions in
favor of procedural conceptions).
34. Charles Dickens, Hard Times 74-75 (Oxford Univ. Press 1989) (1854).
[Vol. 66
HUMAN RIGHTS IN THEORY
related with GNP per capita: educational opportunities, health care,
life expectancy, infant mortality, the presence or absence of political
liberties, the extent of racial or gender inequality.
Somewhat less crude is an economic approach that measures quality
of life in terms of utility, understood as the satisfaction of preference
or desire.” This approach at least has the advantage of concerning
itself to some degree with distribution, in the sense that it does look at
how resources are or are not going to work to make people’s lives
better. But it has severe shortcomings. First, there is the familiar
problem that utilitarianism tends to think of the social total, or aver-
age, as an aggregate, neglecting the salience of the boundaries be-
tween individual lives.36 As Rawls pointed out, this approach means
that utilitarianism can tolerate a result in which the total is good
enough, but where some individuals suffer extremely acute levels of
deprivation, whether of resources or of liberty.37 In that sense, it does
not tell Sissy “who has got the money and whether any of it is mine,”
any more than does the GNP-based approach. (Indeed, Sissy’s
teacher was clearly a Benthamite Utilitarian.) Rawls was convinced
that the failure of utilitarianism to justify adequately strong protec-
tions for the basic political liberties, given this propensity to aggre-
gate, was by itself sufficient reason to reject it.’ Bernard Williams,
similarly, has considered utilitarianism’s neglect of the “separateness
of persons” to be a cardinal failure, and a reason why the theory can-
not give an adequate account of social well-being.3 9
A second problem with utilitarianism is its commitment to the com-
mensurability of value, the concern to measure the good in terms of a
single metric and thus to deny that there are irreducibly plural goods
that figure in a human life.” Both Sen and I have pursued this ques-
35. For discussion of this approach, see Equality of What?, supra note 7, at 358-64.
36. See A Theory of Justice, supra note 18; Amartya Sen & Bernard Williams,
Introduction to Utilitarianism and Beyond 1, 4-5 (Amartya Sen & Bernard Williams
eds., 1982) (arguing that utilitarianism views persons simply as locations of their re-
spective utilities).
37. See A Theory of Justice, supra note 18, at 179-83 (arguing that utilitarianism
treats people as means, rather than as ends).
38. Id. at 207 (arguing that it is unacceptable to take chances with basic liberties).
39. Here I am combining arguments from Williams’s essay, A Critique of Utilitari-
anism, in Utilitarianism: For and Against 77 (1973), arguing that utilitarianism cannot
give an adequate account of a person’s special connection to his or her own. actions,
and therefore of personal integrity, with his Persons, Character and Morality, in The
Identities of Persons 197 (Amdlie 0. Rorty ed., 1969), arguing that the separateness
of persons is a central fact of ethical life.
40. See the discussion in Martha C. Nussbaum, Plato on Commensurability and
Desire, in Love’s Knowledge 106 (1990) [hereinafter Commensurability and Desire],
and Martha C. Nussbaum, The Discernment of Perception: An Aristotelian Concep-
tion of Private and Public Rationality, in Love’s Knowledge, supra, at 54 [hereinafter
Discernment of Perception], arguing that the plurality and distinctness of the valuable
things in life make any single metric a damaging distortion.
1997]
FORDHAM LAW REVIEW
tion extensively, apart from our work on capabilities.4 1 But it has also
had importance in justifying the capabilities approach, since the qual-
ity of life seems to consist of a plurality of distinct features-features
that cannot be simply reduced to quantities of one another. This rec-
ognition limits the nature of the tradeoffs it will be feasible to make.42
But a third feature of utilitarianism has been even more central to
the capability critique. As Sen has repeatedly pointed out, people’s
satisfactions are not very reliable indicators of their quality of life.
Wealthy and privileged people get used to a high level of luxury, and
feel pain when they do not have delicacies that one may think they do
not really need. On the other hand, deprived people frequently adjust
their sights to the low level they know they can aspire to, and thus
actually experience satisfaction in connection with a very reduced liv-
ing standard. Sen gave a graphic example: In 1944, the year after the
Great Bengal Famine, the All-India Institute of Hygiene and Public
Health did a survey.43 Included in this survey were a large number of
widows and widowers.” The position of widows in India is extremely
bad, in all kinds of ways but notoriously in terms of health status.
45
But in the survey, only 2.5 percent of widows, as against 48.5 percent
of widowers, reported that they were either ill or in indifferent
health. 46 And when the question was just about “indifferent health,”
as opposed to illness-for which we might suppose there are more
public and objective criteria-45.6 percent of widowers said their
health was “indifferent,” as opposed to zero percent of the widows.
47
The likely explanation for this discrepency is that people who have
regularly been malnourished, who have in addition been told that they
are weak and made for suffering, and who, as widows, are told that
they are virtually dead and have no rights, will be unlikely to recog-
nize their fatigue and low energy as a sign of bodily disease; but not so
for males, who are brought up to have high expectations for their own
physical functioning. Sen concludes: “Quiet acceptance of depriva-
41. See The Discernment of Perception, supra note 40; Plato on Commensurability
and Desire, supra note 40; see also Martha C. Nussbaum, The Fragility of Goodness
290-317 (1986) (arguing that Aristotle was right to recognize a type of deliberation
that does not rely on a single metric); Amartya Sen, On Ethics and Economics 62-63
(1987) [hereinafter On Ethics and Economics] (discussing plurality and non-commen-
surability); Amartya Sen, Plural Utility, 81 Proc. Aristotelian Soc’y 193 (1981) [herein-
after Plural Utility] (arguing that the right way to think of utility is as a plurality of
vectors).
42. See Human Capabilities, supra note 12, at 85-86; On Ethics and Economics,
supra note 41, at 63-64.
43. Rights and Capabilities, supra note 16, at 309.
44. Id.
45. Id.
46. Id.
47. Id.
[Vol. 66
HUMAN RIGHTS IN THEORY
tion and bad fate affects the scale of dissatisfaction generated, and the
utilitarian calculus gives sanctity to that distortion.”4″
This phenomenon of “adaptive preferences”-preferences that ad-
just to the low level of functioning one can actually achieve-has by
now been much studied in the economic literature, 9 and is generally
recognized as a central problem, if one wants to use the utilitarian
calculus for any kind of normative purpose in guiding public policy.”0
We are especially likely to encounter adaptive preferences when we
are studying groups that have been persistent victims of discrimina-
tion, and who may as a result have internalized a conception of their
own unequal worth. It is certain to be true when we are concerned
with groups who have inadequate information about their situation,
their options, and the surrounding society-as is frequently the case,
for example, with women in developing countries. For these reasons,
then, the utility-based approach seems inadequate as a basis for offer-
ing comparisons of quality of life.
Far more promising is an approach that looks at a group of basic
resources and then asks about their distribution, asking, in particular,
how well even the worst off citizens are doing with respect to the
items on the list. Such is the approach of John Rawls, who, in A The-
ory of Justice and subsequent works, advanced a list of the “primary
goods” intended to be items that all rational individuals, regardless of
their more comprehensive plans of life, would desire as prerequisites
for carrying out those plans.5′ These items include liberties, opportu-
nities, and powers, wealth and income, and the social basis of self-
respect. More recently, Rawls has added freedom of movement and
the free choice of occupation.52 The idea is that we measure who is
better off and less well off by using such a list of primary resources;
48. Id
49. See Jon Elster, Sour Grapes-Utilitarianismn and the Genesis of Wants, in Utili-
tarianism and Beyond, supra note 36, at 219 (defining adaptive preferences and argu-
ing that their existence poses insuperable problems for utilitarianism); Amartya K.
Sen, Gender and Cooperative Conflicts, in Persistent Inequalities 123 (Irene Tinker
ed., 1990) (arguing that women frequently adjust their expectations to the low level of
well-being they can achieve, and that on this account a bargaining model of the family
is superior to a utilitarian account).
50. See Gary S. Becker, Nobel Lecture: The Econonic Wiay of Looking at Behav-
ior, in The Essence of Becker 633, 636-37 (Ram6n Febrero & Pedro S. Schwartz eds.,
1995) (arguing that the beliefs of employers, teachers, and others that minorities are
less productive can be self-fulfilling, causing minorities to underinvest in education
and work skills, thus becoming less productive than they would otherwise have been).
51. A Theory of Justice, supra note 18, at 62, 90-95, 396-97. More recently, Rawls
has qualified his view by stating that the primary goods are to be seen not as all-
purpose means, but as the needs of citizens understood from a political point of view,
in connection with the development and expression of their “moral powers.” He has
stressed that the account of the moral powers–of forming and revising a life plan-is
itself an important part of the political theory of the good. See Political Liberalism,
supra note 18, at 178-90.
52. Political Liberalism, supra note 18, at 181.
1997]
FORDHAM LAW REVIEW
that information is used, in turn, by the parties who are choosing prin-
ciples of justice. Notice that this list is heterogeneous. Some of its
items are capacities of persons such as liberties, opportunities, and
powers, and the social basis of self-respect is a complex property of
society’s relation to persons, but income and wealth are pure re-
sources. And income and wealth frequently play a central role in the
measurement of who is better and worse off.5 3 Rawls was at pains,
moreover, to state that this list of “primary goods” is not a compre-
hensive theory of what is good or valuable in life. 54 For Rawls, the
attraction of operating with a list of resources is that it enables the
approach to steer clear of prescribing the basic values of human life,
which individuals must be able to select for themselves, in accordance
with their own more comprehensive religious or ethical conceptions.
Sen’s basic argument against Rawls, for the past twenty years, has
been that the space of resources is inadequate as a space within which
to answer questions about who is better and who is worse off.” The
inadequacy derives from the fact that individuals vary greatly in their
need for resources and in their ability to convert resources into valua-
ble functionings. Some of these differences are physical. Nutritional
needs vary with age, occupation, and sex. A pregnant or lactating wo-
man needs more nutrients than a non-pregnant woman. A child needs
more protein than an adult. A person whose limbs work well needs
few resources to be mobile, whereas a person with paralyzed limbs
needs many more resources to achieve the same level of mobility.
Many such variations escape our notice if we live in a prosperous na-
tion that can afford to bring all individuals to a high level of physical
attainment; in the developing world we must be highly alert to these
variations in need. Some of the variations, again, are social, and have
to do with traditional social hierarchies. If we wish to bring all citizens
of a nation to the same level of educational attainment, we will need
to devote more resources to those who encounter obstacles from
traditional hierarchy or prejudice. Thus, women’s literacy will prove
more expensive than men’s literacy in many parts of the world. This
means that if we operate only with an index of resources, we will fre-
quently reinforce inequalities that are highly relevant to well-being.
An approach focusing on resources does not go deep enough to diag-
nose obstacles that can be present even when resources seem to be
adequately spread around, causing individuals to fail to avail them-
selves of opportunities that they in some sense have, such as free pub-
lic education, the the right to vote, or the right to work.
53. A Theory of Justice, supra note 18, at 97-98 (discussing different ways of defin-
ing the least well off-both favored approaches focus on income and wealth as
indicators).
54. Political Liberalism, supra note 18, at 187-88.
55. See Equality of What?, supra note 7, at 364-67; Gender Inequality, supra note
15, at 263-66.
[Vol. 66
HUMAN RIGHTS IN THEORY
For this reason, we argue that the most appropriate space for com-
parisons is the space of capabilities. Instead of asking “How satisfied
is person A,” or “How much in the way of resources does A com-
mand,” we ask the question: “What is A actually able to do and to
be?” In other words, about a variety of functions that would seem to
be of central importance to a human life, we ask: Is the person capa-
ble of this, or not? This focus on capabilities, unlike the focus on
GNP, or on aggregate utility, looks at people one by one, insisting on
locating empowerment in this life and in that life, rather than in the
nation as a whole. Unlike the utilitarian focus on satisfactions, it
looks not at what people feel about what they do, but about what they
are actually able to do.5 6 Nor does it make any assumptions about the
commensurability of the different pursuits. Indeed, this view denies
that the most important functions are all commensurable in terms of a
single metric and it treats the diverse functions as all important, and
all irreducibly plural. 7 Finally, unlike the focus on resources, it is
concerned with what is actually going on in the life in question: not
how many resources are sitting around, but how they are actually go-
ing to work in enabling people to function in a fully human way.58
II. THE CENTRAL HUMAN CAPABILITIES
Sen has focused on the general defense of the capability space, and
has not offered any official account of what the most central human
capabilities are, although in practice he has to some extent done so, by
focusing on some areas of human life and not others in constructing
the measures used in the Human Development Reports.5 9 Again, his
recent book on India gives many concrete examples of the importance
and the interrelationships of various concrete human capabilities.’ I,
by contrast, have focused on the task of producing such a working list,
describing a methodology by which we might both generate and jus-
tify such a list6 and defending the whole project of giving such a list
56. Sen has insisted, however, that happiness is “a momentous functioning,” in
Well-Being, supra note 15, at 200, and I have insisted that emotional functioning is one
of the important types of functioning we should consider. See Martha C. Nussbaum,
Emotions and Women’s Capabilities, in Women, Culture, and Development, supra
note 12, at 360.
57. See Human Capabilities, supra note 12, at 85-86; Plural Utility, supra note 41.
58. In this sense, the approach takes its inspiration from Marx’s discussion of fully
human functioning in several early works in which he was in turn much influenced by
Aristotle. For discussion of these links, see Hnman Nature, supra note 12, at 119-20.
59. See supra notes 9-10 and accompanying text.
60. See, e.g., Jean Drize & Amartya Sen, India: Economic Development and So-
cial Opportunity 13-16, 109-39 (1995) (discussing the relationship between health and
education and other capabilities); id. at 155-178 (discussing the relationship between
gender inequality and women’s functioning and capability). For an enumeration of all
the examples Sen has given in a variety of different works, see Functioning and Capa-
bility: Part 1, supra note 14, and Functioning and Capability: Part 2, supra note 14.
61. This is especially evident in Human Nature, supra note 12, at 90-95.
1997]
FORDHAM LAW REVIEW
against the objections of relativists and traditionalists. 62 The list is
supposed to be a focus for political planning, and it is supposed to
select those human capabilities that can be convincingly argued to be
of central importance in any human life, whatever else the person pur-
sues or chooses. The central capabilities are not just instrumental to
further pursuits: They are held to have value in themselves, in making
a life fully human. But they are held to have a particularly central
importance in everything else we plan and choose. In that sense, cen-
tral capabilities play a role similar to that played by primary goods in
Rawls’s more recent account: They support our powers of practical
reason and choice, and have a special importance in making any
choice of a way of life possible. They thus have a special claim to be
supported for political purposes in societies that otherwise contain a
great diversity of views about the good. I do not think of the political
sphere in exactly the way that Rawls conceives it, since I do not make
the assumption that the nation-state should be the basic deliberative
unit,63 and the account is meant to have broad applicability to cross-
cultural deliberations. Nonetheless, the basic point of the account is
the same: to put forward something that people from many different
traditions, with many different fuller conceptions of the good, can
agree on as the necessary basis for pursuing their good life. 64
The list is an attempt to summarize the empirical findings of a broad
and ongoing cross-cultural inquiry. As such, it is open-ended and
humble; it can always be contested and remade. It does not claim to
read facts of “human nature” off of biological observation, although it
does of course take account of biology as a relatively constant element
in human experience. Nor does it deny that the items on the list are to
some extent differently constructed by different societies. Indeed,
part of the idea of the list is that its members can be more concretely
specified in accordance with local beliefs and circumstances. In that
sense, the consensus it hopes to evoke has many of the features of the
“overlapping consensus” described by Rawls.65
Here is the current version of the list, revised as a result of my re-
cent visits to development projects in India:6
62. See Human Capabilities, supra note 12, at 67-72, 93-95; Human Functioning,
supra note 12; Women and Cultural Universals, supra note 12, at 12-20.
63. For an excellent discussion of this question, and a critique of Rawis with which
I largely agree, see Thomas W. Pogge, Realizing Rawls 211-280 (1989).
64. See The Good as Discipline, The Good as Freedom, supra note 12, at 324,
where I have stressed this political-liberal role of the capabilities list more than in
previous papers.
65. Political Liberalism, supra note 18, passim.
66. The primary changes are a greater emphasis on bodily integrity, a focus on
dignity and non-humiliation, and an emphasis on control over one’s environment.
Oddly, these features of human “self-sufficiency” are the ones most often criticized by
Western feminists as “male” and “Western”-one reason for their more muted role in
earlier versions of the list. See Martha C. Nussbaum, The Feminist Critique of Liber-
[Vol. 66
HUMAN RIGHTS IN THEORY
1. LmE. Being able to live to the end of a human life of normal
length; not dying prematurely, or before one’s life is so reduced as
to be not worth living.
2. BODILY HEALTH. Being able to have good health, including
reproductive health; to be adequately nourished; to have adequate
shelter.
3. BODILY INTEGRITY. Being able to move freely from place to
place; to be secure against violent assault, including sexual assault
and domestic violence; having opportunities for sexual satisfaction
and for choice in matters of reproduction.
4. SENSES, IMAGINATION, AND THOUGHT. Being able to use the
senses; being able to imagine, to think, and to reason-and to do
these things in a “truly human” way, a way informed and cultivated
by an adequate education, including, but by no means limited to,
literacy and basic mathematical and scientific training. Being able
to use imagination and thought in connection with experiencing and
producing expressive works and events of one’s own choice, reli-
gious, literary, musical, and so forth. Being able to use one’s mind
in ways protected by guarantees of freedom of expression with re-
spect to both political and artistic speech and freedom of religious
exercise. Being able to have pleasurable experiences and to avoid
non-beneficial pain.
5. EMOTIONS. Being able to have attachments to things and peo-
ple outside ourselves; to love those who love and care for us, to
grieve at their absence; in general, to love, to grieve, to experience
longing, gratitude, and justified anger. Not having one’s emotional
development blighted by fear and anxiety. Supporting this capabil-
ity means supporting forms of human association that can be shown
to be crucial in their development.
6. PRACTICAL REASON. Being able to form a conception of the
good and to engage in critical reflection about the planning of one’s
life. This entails protection for the liberty of conscience and reli-
gious observance.
7. AFFILIATION.
A. FRIENDSHIP. Being able to live for and to others, to recognize
and show concern for other human beings, to engage in various
forms of social interaction; to be able to imagine the situation of
another and to have compassion for that situation; to have the capa-
bility for both justice and friendship. Protecting this capability
means, once again, protecting institutions that constitute such forms
of affiliation, and also protecting the freedoms of assembly and
political speech.
B. REsPEcr. Having the social bases of self-respect and non-hu-
miliation; being able to be treated as a dignified being whose worth
is equal to that of others. This entails provisions of non-discrimina-
tion on the basis of race, sex, ethnicity, caste, religion, and national
origin.
alism, The Lindley Lecture, Univ. of Kansas (1997), also in Sex and Social Justice
(Martha C. Nussbaum ed., forthcoming 1998).
1997]
FORDHAM LAW REVIEW
8. OTHER SPECIES. Being able to live with concern for and in rela-
tion to animals, plants, and the world of nature.
9. PLAY. Being able to laugh, to play, and to enjoy recreational
activities.
10. CONTROL OVER ONE’S ENVIRONMENT.
A. POLITICAL. Being able to participate effectively in political
choices that govern one’s life; having the right of political participa-
tion, protections of free speech and association.
B. MATERIAL. Being able to hold property (both land and mov-
able goods); having the right to employment; having freedom from
unwarranted search and seizure.
The list is, emphatically, a list of separate and indispensible compo-
nents. We cannot satisfy the need for one of them by giving a larger
amount of another. All are of central importance and all are distinct
in quality. Practical reason and affiliation, I argue elsewhere, are of
special importance because they both organize and suffuse all the
other capabilities, making their pursuit truly human.6 7 The individual
importance of each component limits the trade-offs that it will be rea-
sonable to make, and thus limits the applicability of quantitative cost-
benefit analysis. At the same time, the items on the list are related to
one another in many complex ways. One of the most effective ways of
promoting women’s control over their environment, and their effec-
tive right of political participation, is to promote women’s literacy.
Women who can seek employment outside the home have more re-
sources in protecting their bodily integrity from assaults within it.
III. CAPABILITY OF GOAL
I have spoken of both functioning and capability. How are they
related? Understanding this relationship is crucial in defining the re-
lation of the “capabilities approach” to both liberalism and views of
human rights. For if we were to take functioning itself as the goal of
public policy, the liberal would rightly judge that we were precluding
many choices that citizens may make in accordance with their own
conceptions of the good, and perhaps violating their rights. A deeply
religious person may prefer not to be well-nourished, but instead pre-
fer to engage in strenuous fasting. Whether for religious or for other
reasons, a person may prefer a celibate life to one containing sexual
expression. A person may prefer to work with an intense dedication
that precludes recreation and play. Am I declaring, by my very use of
the list, that these are not fully human or flourishing lives? And am I
instructing government to nudge or push people into functioning of
the requisite sort, no matter what they prefer?
67. See Aristotelian Social Democracy, supra note 12, at 226-28; Human Nature,
supra note 12, at 102-20.
288 [Vol. 66
HUMAN RIGHTS IN THEORY
It is important that the answer to these questions is no. Capability,
not functioning, is the political goal. Capability must be the goal be-
cause of the great importance the capabilities approach attaches to
practical reason, as a good that both suffuses all the other functions,
making them human rather than animal,’ s and figures itself as a cen-
tral function on the list. It is perfectly true that functionings, not sim-
ply capabilities, are what render a life fully human: If there were no
functioning of any kind in a life, we could hardly applaud it, no matter
what opportunities it contained. Nonetheless, for political purposes it
is appropriate for us to strive for capabilities, and those alone. Citi-
zens must be left free to determine their course after they have the
capabilities. The person with plenty of food may always choose to
fast, but there is a great difference between fasting and starving, and it
is this difference that we wish to capture. Again, the person who has
normal opportunities for sexual satisfaction can always choose a life of
celibacy, and we say nothing against this. What I speak against, for
example, is the practice of female genital mutilation, which deprives
individuals of the opportunity to choose sexual functioning, and in-
deed, the opportunity to choose celibacy as well. 69 A person who has
opportunities for play can always choose a workaholic life. Again,
there is a great difference between that chosen life and a life con-
strained by insufficient maximum-hour protections and/or the “double
day” that make women unable to play in many parts of the world.
I can make the issue clearer, and also prepare for discussion of the
relationship between capabilities and rights, by pointing out that there
are three different types of capabilities that figure in my analysis.70
First, there are what I call basic capabilities: the innate equipment of
individuals that is the necessary basis for developing the more ad-
vanced capability. Most infants have from birth the basic capability
for practical reason and imagination, though they cannot exercise such
functions without a lot more development and education. Second,
there are internal capabilities: that is, states of the person herself that
are, so far as the person herself is concerned, sufficient conditions for
the exercise of the requisite functions. A woman who has not suffered
genital mutilation has the internal capability for sexual pleasure; most
adult human beings everywhere have the internal capability to use
speech and thought in accordance with their own conscience. Finally,
68. See Human Nature, supra note 12, at 119-20 (discussing Marx).
69. See Martha C. Nussbaum, Religion and Women’s Hnnan Rights, in Religion
and Contemporary Liberalism 93, 107-10 (Paul J. Weithman ed., 1997) [hereinafter
Religion and Women’s Human Rights]; Martha Nussbaum, Double Moral Standards?,
Boston Rev., Oct.-Nov. 1996, at 28, 30 (replying to Yael Tamir’s Hands Off Clito-
ridectomy, Boston Rev., Summer 1996, at 21-22).
70. See Human Capabilities, supra note 12, at 88 (discussing the basic capabilities);
Nature, Function, and Capability, supra note 11, at 160-64 (referring to Aristotle’s
similar distinctions). Sen does not use these three levels explicitly, although many
things he says assume some such distinctions.
1997]
FORDHAM LAW REVIEW
there are combined capabilities,7 which I define as internal capabili-
ties combined with suitable external conditions for the exercise of the
function. A woman who is not mutilated but is secluded and forbid-
den to leave the house has internal but not combined capabilities for
sexual expression-and work, and political participation. Citizens of
repressive non-democratic regimes have the internal but not the com-
bined capability to exercise thought and speech in accordance with
their conscience. The aim of public policy is the production of com-
bined capabilities. This idea means promoting the states of the person
by providing the necessary education and care, as well as preparing
the environment so that it is favorable for the exercise of practical
reason and the other major functions.72
This explanation of the types of capability clarifies my position. I
am not saying that public policy should rest content with internal capa-
bilities, but remain indifferent to the struggles of individuals who have
to try to exercise these capabilities in a hostile environment. In that
sense, my approach is highly attentive to the goal of functioning, and
instructs governments to keep functioning always in view. On the
other hand, I am not pushing individuals into the function: once the
stage is fully set, the choice is up to them.
The approach is therefore very close to Rawls’s approach using the
notion of primary goods.73 We can see the list of capabilities as like a
long list of opportunities for life-functioning, such that it is always ra-
tional to want them whatever else one wants. If one ends up having a
plan of life that does not make use of all of them, one has hardly been
harmed by having the chance to choose a life that does. Indeed, in the
cases of fasting and celibacy it is the very availability of the alternative
course that gives the choice its moral value. The primary difference
between this capabilities list and Rawls’s list of primary goods is its
length and definiteness, and in particular its determination to include
the social basis of several goods that Rawls has called “natural goods,”
such as “health and vigor, intelligence and imagination.”74 Since
Rawls has been willing to put the social basis of self-respect on his list,
it is not at all clear why he has not made the same move with imagina-
tion and health.” Rawls’s evident concern is that no society can guar-
71. In earlier papers I called these “external capabilities,” see, for example, Na-
ture, Function, and Capability, supra note 11, at 164, but Crocker has suggested to me
that this suggests a misleading contrast with “internal.”
72. This distinction is related to Rawls’s distinction between social and natural
primary goods. A Theory of Justice, supra note 18, at 62. Whereas he holds that only
the social primary goods should be on the list, and not the natural (such as health and
imagination), we say that the social basis of the natural primary goods should most
emphatically be on the list.
73. Id. at 62, 90-95.
74. Id. at 62.
75. Rawls comments that “although their possession is influenced by the basic
structure, they are not so directly under its control.” Id. This is of course true if we
are thinking of health, but if we think of the social basis of health, it is not true. It
290 [Vol. 66
HUMAN RIGHTS IN THEORY
antee health to its individuals-in that sense, saying that the goal is
full external capability may appear unreasonably idealistic. Some of
the capabilities, for example, some of the political liberties, can be
fully guaranteed by society, but many others involve an element of
chance and cannot be so guaranteed. My response to this concern is
that the list is a list of political goals that should be useful as a bench-
mark for aspiration and comparison. Even though individuals with
adequate health support often fall ill, it still makes sense to compare
societies by asking about actual health-capabilities, since we assume
that the comparison will reflect the different inputs of human plan-
ning, and can be adjusted to take account of more and less favorable
natural situations. Sometimes, however, it is easier to get information
on health achievements than on health capabilities; to some extent we
must work with the information we have, while not forgetting the im-
portance of the distinction.
In saying these things about the political goal, we focus on adults
who have full mental and moral powers-what Rawls calls “normal
cooperating member[s] of society.”7 6 Children are different, since we
are trying to promote the development of adult capabilities. We may
in some cases be justified in requiring functioning of an immature
child, as with compulsory primary and secondary education, but we
must always justify coercive treatment of children with reference to
the adult-capability goal.
Earlier versions of the list appeared to diverge from the approach of
Rawlsian liberalism by not giving as large a place to the traditional
political rights and liberties-although the need to incorporate them
was stressed from the start.’ This version of the list corrects that de-
fect of emphasis. These political liberties have a central importance in
rendering well-being human. A society that aims at well-being while
overriding these liberties has delivered to its members a merely
animal level of satisfaction.7 8 As Sen has recently written: “Political
rights are important not only for the fulfillment of needs, they are
crucial also for the formulation of needs. And this idea relates, in the
end, to the respect that we owe each other as fellow human beings. 7 9
This idea of freedoms as need has recently been echoed by Rawls:
primary goods specify what citizens’ needs are from the point of view
of political justice.8 0
seems to me that the case for putting these items on the political list is just as strong as
the case for the social basis of self-respect. In The Priority of Right and Ideas of the
Good, 17 Phil. & Pub. Aff. 251,257 (1988), Rawls suggests adding leisure time and the
absence of pain to the list. He makes the same suggestion in Political Liberalism,
supra note 18, at 181-82. For Rawls’s current treatment of health, see id. at 184.
76. Political Liberalism, supra note 18, at 183.
77. See Aristotelian Social Democracy, supra note 12, at 239-40.
78. See Human Nature, supra note 12, at 110-120.
79. Freedoms and Needs, supra note 18, at 38.
80. Political Liberalism, supra note 18, at 187-88.
1997]
FORDHAM LAW REVIEW
The capability view justifies its elaborate list by pointing out that
choice is not pure spontaneity, flourishing independently of material
and social conditions. If one cares about people’s powers to choose a
conception of the good, then one must care about the rest of the form
of life that supports those powers, including its material conditions.
Thus, the approach claims that its more comprehensive concern with
flourishing is perfectly consistent with the impetus behind the Rawl-
sian project. Rawls has always insisted that we are not to rest content
with merely formal equal liberty and opportunity, but that we must
pursue their fully equal worth by ensuring that unfavorable economic
and social circumstances do not prevent people from availing them-
selves of liberties and opportunities that are formally open to them. 81
The guiding thought behind this form of Aristotelianism is, at its
heart, a profoundly liberal idea,8′ and one that lies at the heart of
Rawls’s project as well: the idea of the citizen as a free and dignified
human being, a maker of choices.83 Politics here has an urgent role to
play, providing citizens with the tools that they need, both in order to
choose at all and in order to have a realistic option of exercising the
most valuable functions. The choice of whether and how to use the
tools, however, is left up to the citizens, in the conviction that this
choice is an essential aspect of respect for their freedom. They are
seen not as passive recipients of social patterning, but as dignified free
beings who shape their own lives.84
IV. RIGHTS AND CAPABILITIES: Two DIFFERENT RELATIONSHIPS
How, then, are capabilities related to human rights? We can see, by
this time, that there are two rather different relations that capabilities
have to the human rights traditionally recognized by international
human rights instruments. In what follows, I shall understand a
human right to involve an especially urgent and morally justified claim
that a person has, simply by virtue of being a human adult, and inde-
pendently of membership in a particular nation, or class, or sex, or
ethnic or religious or sexual group.
First, there are some areas in which the best way of thinking about
rights is to see them as, what I have called, combined capabilities to
function in various ways. The right to political participation, the right
to religious free exercise, the freedom of speech, the freedom to seek
81. A Theory of Justice, supra note 18, at 83-90, 224-27.
82. Though in one form Aristotle had it too. See Human Nature, supra note 12, at
110-120.
83. See A Theory of Justice, supra note 18, at 251-57; Freedoms and Needs, supra
note 18, at 38.
84. Cf Freedoms and Needs, supra note 18, at 38 (“The importance of political
rights for the understanding of economic needs turns ultimately on seeing human be-
ings as people with rights to exercise, not as parts of a ‘stock’ or a ‘population’ that
passively exists and must be looked after. What matters, finally, is how we see each
other.”).
[Vol. 66
HUMAN RIGHTS IN THEORY
employment outside the home, and the freedom from unwarranted
search and seizure are all best thought of as human capacities to func-
tion in ways that we then go on to specify. The further specification
will usually involve both an internal component and an external com-
ponent: a citizen who is systematically deprived of information about
religion does not really have religious liberty, even if the state imposes
no barrier to religious choice. On the other hand, internal conditions
are not enough: women who can think about work outside the home,
but who are going to be systematically denied employment on account
of sex, or beaten if they try to go outside, do not have the right to seek
employment. In short, to secure a right to a citizen in these areas is to
put them in a position of capability to go ahead with choosing that
function if they should so desire.
Of course, there is another way in which we use the term “right” in
which it could not be identified with a capability. We say that A has
“a right to” seek employment outside the home, even when her cir-
cumstances obviously do not secure such a right to her. When we use
the term “human right” this way, we are saying that just by virtue of
being human, a person has a justified claim to have the capability se-
cured to her: so a right in that sense would be prior to capability, and
a ground for the securing of a capability. “Human rights” used in this
sense lie very close to what I have called “basic capabilities,” since
typically human rights are thought to derive from some actual feature
of human persons, some untrained power in them that demands or
calls for support from the world. Rights theories differ about which
basic capabilities of the person are relevant to rights, but the ones
most commonly chosen are the power of reasoning, generally under-
stood to be moral reasoning, and the power of moral choice.’
On the other hand, when we say, as we frequently do, that citizens
in country C “have the right of free religious exercise,” what we typi-
cally mean is that this urgent and justified claim is being answered,
that the state responds to the claim that they have just by virtue of
being human. It is in this sense that capabilities and rights should be
seen to be equivalent: For I have said, combined capabilities are the
goals of public planning.
Why is it a good idea to understand rights, so understood, in terms
of capabilities? I think this approach is a good idea because we then
understand that what is involved in securing a right to people is usu-
ally a lot more than simply putting it down on paper. We see this very
85. This way of thinking derives from the ancient Stoic tradition, continued
through Cicero and on into Grotius and Kant. See Martha C. Nussbaum, Kant and
Stoic Cosmopolitanism, 5 J. Pol. Phil. 1 (1997) [hereinafter Kant and Stoic Cosmopoli-
tanism]; Martha C. Nussbaum, The Incomplete Feminism of Musonius Rufus: Plato-
nis4 Stoic, and Roman, Paper presented at the Conference on Gender and Sexual
Experience in Ancient Greece and Rome, Finnish Academy in Rome (June 22-25,
1997) (on file with the Fordliam Law Review).
19971
FORDHAM LAW REVIEW
clearly in India, for example, where the Constitution is full of guaran-
tees of Fundamental Rights that are not backed up by effective state
action. Thus, since ratification women have had fights of sex equal-
ity-but in real life they are unequal not only de facto, but also de ]ure.
This inequality results from the fact that most of the religious legal
systems that constitute the entire Indian system of civil law have une-
qual provisions for the sexes, very few of which have been declared
unconstitutional.86 So we should not say that women have equal
fights, since they do not have the capabilities to function as equals.
Again, women in many nations have a nominal fight of political par-
ticipation without really having this fight in the sense of capability:
for they are secluded and threatened with violence should they leave
the home. This is not what it is to have a fight. In short, thinking in
terms of capability gives us a benchmark in thinking about what it is
really to secure a right to someone.
There is another set of fights, largely those in the area of property
and economic advantage, which seem to me analytically different in
their relationship to capabilities. Take, for example, the fight to a cer-
tain level of income, or the fight to shelter and housing. These are
rights that can be analyzed in a number of distinct ways, in terms of
resources, or utility, or capabilities. We could think of the fight to a
decent level of living as a fight to a certain level of resources; or, less
plausibly, as a fight to a certain level of satisfaction; or as a right to
attain a certain level of capability to function.
Once again, we must distinguish the use of the term “fight” in the
sentence “A has a fight to X,” from its use in the sentence “Country C
gives citizens the fight to X.” All human beings may arguably have a
right to something in the first sense, without being in countries that
secure these fights. If a decent living standard is a human fight, then
American citizens have that fight although their state does not give
them, or secure to them, such a fight. So far, then, we have the same
distinctions on our hands that we did in the case of the political liber-
ties. But the point I am making is that at the second level, the analysis
of “Country C secures to its citizens the right to a decent living stan-
dard” may plausibly take a wider range of forms than it does for the
political and religious liberties, where it seems evident that the best
way to think of the secured fight is as a capability. The material fights
may, by contrast, plausibly be analyzed in terms of resources, or possi-
bly in terms of utility.
86. See Religion and Women’s Human Rights, supra note 69, at 121-26 (reviewing
this situation). Typically, only small and unpopular religions get their laws thrown
out. Thus, the Christian inheritance law-or one of them, since Christians in India
are governed by a bewildering variety of different systems of Christian law-was de-
clared unconstitutional on grounds of sex equality, but the attempt to set aside a part
of the Hindu marriage act on these grounds was reversed at the Supreme Court level.
Id. at 108.
[Vol. 66294
HUMAN RIGHTS IN THEORY
Here again, however, I think it is valuable to understand these
rights, insofar as we decide we want to recognize them, in terms of
capabilities. That is, if we think of a right to a decent level of living as
a right to a certain quantity of resources, then we get into the very
problems I have pointed to: that is, giving the resources to people
does not always bring differently situated people up to the same level
of functioning. If you have a group of people who are traditionally
marginalized, you are probably going to have to expend more re-
sources on them to get them up to the same living standard-in capa-
bility terms-than you would for a group of people who are in a
favorable social situation.
Analyzing economic and material rights in terms of capabilities
would thus enable us to understand, as we might not otherwise, a ra-
tionale we might have for spending unequal amounts of money on the
disadvantaged, or creating special programs to assist their transition to
full capability. The Indian government has long done this. Indeed,
affirmative action in this sense for formerly despised caste and tribal
groups was written into the Constitution itself, and it has played a
crucial role in creating the situation we have today, in which lower-
caste parties form part of the ruling government coalition. Indeed,
one could also argue that even to secure political rights effectively to
the lower castes required this type of affirmative action. If we think of
these economic rights asking the question-“What are people actually
able to do and to be?”-then I think we have a better way of under-
standing what it is really to put people securely in possession of those
rights, to make them able really to function in those ways, not just to
have the right on paper.
If we have the language of capabilities, do we still need, as well, the
language of rights? The language of rights still plays, I believe, four
important roles in public discourse, despite its unsatisfactory features.
When used in the first way, as in the sentence “A has a right to have
the basic political liberties secured to her by her government,” rights
language reminds us that people have justified and urgent claims to
certain types of urgent treatment, no matter what the world around
them has done about that. I have suggested that this role of rights
language lies very close to what I have called “basic capabilities,” in
the sense that the justification for saying that people have such natural
rights usually proceeds by pointing to some capability-like feature of
persons that they actually have, on at least a rudimentary level, no
matter what the world around them has done about that. And I actu-
ally think that without such a justification the appeal to rights is quite
mysterious. On the other hand, there is no doubt that one might rec-
ognize the basic capabilities of people and yet still deny that this en-
tails that they have rights, in the sense of justified claims, to certain
types of treatment. We know that this inference has not been made
through a great deal of the world’s history, though it is false to sup-
1997]
FORDHAM LAW REVIEW
pose that it only was made in the West, or that it only began in the
Enlightenment.8 7 So, appealing to rights communicates more than ap-
pealing to basic capabilities: it says what normative conclusions we
draw from the fact of the basic capabilities.
Even at the second level, when we are talking about rights guaran-
teed by the state, the language of rights places great emphasis on the
importance and the basic role of these things. To say, “Here’s a list of
things that people ought to be able to do and to be” has only a vague
normative resonance. To say, “Here is a list of fundamental rights,”
means considerably more. It tells people right away that we are deal-
ing with an especially urgent set of functions, backed up by a sense of
the justified claim that all humans have to such things, by virtue of
being human.
Third, rights language has value because of the emphasis it places
on people’s choice and autonomy. The language of capabilities, as I
have said, was designed to leave room for choice, and to communicate
the idea that there is a big difference between pushing people into
functioning in ways you consider valuable and leaving the choice up to
them. At the same time, if we have the language of rights in play as
well, I think it helps us to lay extra emphasis on this very important
fact: that what one ought to think of as the benchmark are people’s
autonomous choices to avail themselves of certain opportunities, and
not simply their actual functionings.
Finally, in the areas where there is disagreement about the proper
analysis of right talk-where the claims of utility, resources, and capa-
bilities are still being worked out-the language of rights preserves a
sense of the terrain of agreement, while we continue to deliberate
about the proper type of analysis at the more specific level.
One further point should be made. I have discussed one particular
view about human capabilities and functioning, my own, and I have
indicated its relationship to Sen’s very similar view. But of course
there are many other ways in which one might construct a view based
on the idea of human functioning and capability without bringing ca-
pabilities nearly so close to rights. As I have suggested, the view Sen
and I share is a liberal view of human capabilities, which gives a strong
priority to traditional political and religious liberties, and which fo-
87. On Indian discussions of religious pluralism and liberty, see Amartya Sen,
Human Rights and Asian Values, New Republic, July 14 & 21, 1997, at 33-40. For
related discussion of Indian conceptions of pluralism, see Amartya Sen, Tagore and
His India, N.Y. Rev. Books, June 26, 1997, at 55-56. On the Greek and Roman ori-
gins of ideas of human rights, see Fred D. Miller, Jr., Nature, Justice, and Rights, in
Aristotle’s Politics (1995), arguing that Aristotle’s political theory contains the basic
ingredients of a theory of rights; Nature, Function, and Capability, supra note 11, ar-
guing that Aristotle’s political theory contains the view that the job of politics is to
distribute to citizens the things that they need for a flourishing life; Kant and Stoic
Cosmopolitanism, supra note 86, arguing that Kant’s view of basic human rights is in
many ways indebted to the views of the Greek and Roman Stoics.
[Vol. 66
HUMAN RIGHTS IN THEORY
cuses on capability as the goal precisely in order to leave room for
choice. In addition, as I have more recently stressed, the items on my
list of basic capablities are to be regarded as the objects of a specifi-
cally political consensus, rather like a Rawlsian list of primary goods,
and not as a comprehensive conception of the good.
A capabilities theorist might construct a view that departed from
our view in all of these ways. First, the content of the list might be
different: it might not give the same importance to the traditional lib-
eral freedoms. Second, government might be given much more lati-
tude to shoot directly for functioning as a goal, and to penalize people
who do not exhibit the desired mode of functioning. Such, indeed, is
the strategy of some natural-law thinkers in the Catholic tradition, and
in this regard they are closer to Aristotle himself than I am.’ In that
sense, as I have written, they construe the account of the human good
as a source of public discipline on the choices of citizens, whereas we
construe the good as an account of freedoms citizens have to pursue a
variety of different plans of life. Finally, one might think of the ac-
count of human functioning as a comprehensive conception of human
flourishing for both public and private purposes, rather than as the
object of a specifically political consensus. Again, natural law theo-
rists sometimes understand the view this way, as does Aristotle him-
self-although some Catholic thinkers have themselves adopted a
political-liberal interpretation of their tradition.’ Insofar as any of
these alternatives are pursued, the relationship between capabilities
and rights will shift accordingly.
V. RIGHTS AS GOALS AND SIDE-CONsTRAINrs
One final question remains to be discussed. Sen has argued that
thinking of rights in terms of capabilities should lead us to opt for a
particular way of thinking about rights and to reject another way.
Specifically, it should encourage us to think of rights as goals, and thus
as part of a more general account of social goals that it is reasonable
to promote, rather than to think of them as “side-constraints,” or as
justified claims of individuals that should be respected no matter what,
and that thus constrain the ways in which we may promote our social
goals.9 0 Since Sen’s target here is the libertarian theory of Robert
Nozick, and since I believe his critique has force primarily ad
hominem against Nozick, and not against all versions of a side-con-
straints view, I must describe Nozick’s position.
88. See Finnis, supra note 25; George, supra note 25. For a detailed discussion of
differences between the Sen/Nussbaum view and those views in a range of areas of
public policy, see The Good as Discipline, The Good as Freedom, supra note 12.
89. For an eloquent example, see Jacques Maritain, Truth and Human Fellowship,
in On the Use of Philosophy: Three Essays 16, 24-29 (1961).
90. Rights and Capabilities, supra note 16; Rights as Goals, supra note 6; Rights
and Agency, supra note 16.
1997]
FORDHAM LAW REVIEW
Nozick’s basic argument, in Anarchy, State, and Utopia,91 is that
people have rights, in the sense-apparently, since no account of
rights is presented-that these rights should not be overridden for the
sake of the greater good. The rights people have are a function of
their initial entitlements, together with a theory of just transfer. One of
the notoriously frustrating aspects of Nozick’s theory is that he refuses
to present his own account of initial entitlements, although he alludes
to a controversial interpretation of Locke, in order to illustrate the
type of thing he has in mind. Through this process, he derives the
view-which must be advanced tentatively, since the account of initial
entitlement has not been given-that people have a right to the prop-
erty they hold, just in case they acquired it by a series of just transfers
from the original owners. It is wrong of the state to take any of this
property away from them for redistributive purposes. Nozick focuses
on property throughout the book, and says little about political, reli-
gious, and artistic liberty.
Nozick’s theory has been criticized in a number of ways. First of all,
in the absence of a theory of initial entitlement, it is very difficult to
see what the upshot will be, and thus impossible to know whether a
procedural conception of justice like Nozick’s will produce results that
are acceptable or quite bizarre and unacceptable. And of course one
might answer questions about entitlement very differently from the
way in which Nozick seems inclined to answer them, saying, for exam-
ple, that individuals are never entitled to any property they do not
need for their own use, or that they are never entitled to accumulate a
surplus. Such, for example, was Aristotle’s view of entitlement, and
this meant that for Aristotle the very existence of private ownership of
land was a highly dubious business.’ In Aristotle’s ideal city, fully
half of the land is publicly owned, and the rest is “common in use,”
meaning its produce can be taken by anyone who is in need.93 So
Aristotle’s view of entitlement, combined with his strong moral dis-
taste for hoarding and accumulation, would certainly not yield the
Nozickian conclusion that: “Capitalist acts between consenting adults
are no crime.”
Second, it has been pointed out that even if individuals do have
entitlements to what they have acquired in a just transfer, it does not
follow that they are entitled to the surplus value of these goods, when
for contingent reasons they rise in value during the time they hold
them. In fact, even the Lockean tradition is much divided on this
question.
94
91. Supra note 6.
92. See Aristotelian Social Democracy, supra note 12, at 203-06, 231-32.
93. See id. at 205.
94. Barbara Fried, Wilt Chamberlain Revisited: Nozick’s “Justice in Transfer” and
the Problem of Market-Based Distribution, 24 Phil. & Pub. Aff. 226 (1995).
[Vol. 66
HUMAN RIGHTS IN THEORY
Third, one might point out that the economic inequalities appar-
ently tolerated in Nozick’s minimal state would erode the meaningful
possession of other rights that Nozick apparently thinks people have,
such as the right to political participation. Nozick nowhere con-
fronted possible tensions between two parts of his libertarian view, so
we do not even know whether he would be willing to tax people in
order to get the money to support the institutions that make meaning-
ful political and religious liberties for all a social reality. In these
ways, his attitude toward rights remained obscure.
Fourth, the view of self-ownership on which much of Nozick’s argu-
ment rested was both rather obscure and somewhat questionable.’ 5
What does it mean to say of people that they own themselves, and
how, precisely, does and should this affect arguments on a variety of
topics, from the morality of slavery to the legality of prostitution?
These are only some of the ways in which one might criticize
Nozick’s view. Let me now describe Sen’s critique. Sen argues that if
we allow rights to function the way Nozick says they should, as “side-
constraints” that can almost never be overridden for the sake of the
general good, then we will be led to tolerate an unacceptable level of
misery.
The question I am asking is this: if results such as starvation and
famines were to occur, would the distribution of holdings still be
morally acceptable despite their disastrous consequences? There is
something deeply implausible in the affirmative answer. Why
should it be the case that rules of ownership, etc., should have such
absolute priority over life-and-death questions?
.*. But once it is admitted that consequences can be important in
judging what rights we do or do not morally have, surely the door is
quite open for taking a less narrow view of rights, rejecting assess-
ment by procedures only.
9 6
Sen seems to be saying two things not easily made compatible. First,
that Nozick has given the wrong account of what rights people have:
they do not have the right to keep their surplus when others are dying.
Second, that the consideration of consequences shows that the type of
view of rights Nozick advances must be wrong: a side-constraints view
is implausible, and we should think of rights as parts of a total system
of social goals. But if the first point is correct, as I believe it certainly
is, then we have had as yet no reason to accept the second claim. If
we question the whole way Nozick thinks about what people’s rights
and entitlements are, as we most certainly should, then we have no
reason to think that a correct list of rights should not be used as side-
constraints.
95. G.A. Cohen, Self-Ownership, Freedom, and Equality 1-115 (1995).
96. Rights and Capabilities, supra note 16, at 312.
19971
FORDHAM LAW REVIEW
This realization is important, since a list of human rights typically
functions as a system of side-constraints in international deliberation
and in internal policy debates. That is, we typically say to and of gov-
ernments, let them pursue the social good as they conceive it, so long
as they do not violate the items on this list. I think this is a very good
way of thinking about the way a list of basic human rights should func-
tion in a pluralistic society, and I have already said that I regard my
list of basic capabilities this way, as a list of very urgent items that
should be secured to people no matter what else we pursue. In this
way, we are both conceiving of capabilities as a set of goals-a subset
of total social goals-and saying that they have an urgent claim to be
promoted, whatever else we also promote. Indeed, the point made by
Sen, in endorsing the Rawlsian notion of the priority of liberty, was
precisely this.97 We are doing wrong to people when we do not secure
to them the capabilities on this list. The traditional function of a no-
tion of rights as side-constraints is to make this sort of anti-utilitarian
point, and I see no reason why rights construed as capabilities-or
analyzed in terms of capabilities-should not continue to play this
role.
Of course there will be circumstances in which we cannot secure to
all the citizens the capabilities on my list. Sen and I have argued that
the political liberties and liberties of conscience should get a high de-
gree of priority within the general capability set.98 But we also con-
ceive of the capabilities as a total system of liberty, whose parts
support one another. Thus we also hold that there is something very
bad about not securing any of the items. The precise threshold level
for many of them remains to be hammered out in public debate; but
there are surely levels easy to specify, beneath which people will have
been violated in unacceptable ways if the capabilities are not secured.
Viewing capabilities as rather like side-constraints also helps here: for
it helps us to understand what is tragic and unacceptable in such situa-
tions, and why individuals so treated have an urgent claim to be
treated better, even when governments are in other ways pursuing the
good with great efficiency.
97. See Freedoms and Needs, supra note 18, at 32 (defending the Rawlsian priority
of liberty).
98. See Religion and Women’s Human Rights, supra note 69, at 113-14 (religious
liberty); Freedoms and Needs, supra note 18, at 32-38; The Good as Discipline, The
Good as Freedom, supra note 12, at 314-21 (defending the general liberal approach);
id. at 332-33 (political liberty).
[Vol. 66
Fordham Law Review
1997
Capabilities and Human Rights
Martha C. Nussbaum
Recommended Citation
tmp.1306558111 .DZzKO
What Will You Get?
We provide professional writing services to help you score straight A’s by submitting custom written assignments that mirror your guidelines.
Premium Quality
Get result-oriented writing and never worry about grades anymore. We follow the highest quality standards to make sure that you get perfect assignments.
Experienced Writers
Our writers have experience in dealing with papers of every educational level. You can surely rely on the expertise of our qualified professionals.
On-Time Delivery
Your deadline is our threshold for success and we take it very seriously. We make sure you receive your papers before your predefined time.
24/7 Customer Support
Someone from our customer support team is always here to respond to your questions. So, hit us up if you have got any ambiguity or concern.
Complete Confidentiality
Sit back and relax while we help you out with writing your papers. We have an ultimate policy for keeping your personal and order-related details a secret.
Authentic Sources
We assure you that your document will be thoroughly checked for plagiarism and grammatical errors as we use highly authentic and licit sources.
Moneyback Guarantee
Still reluctant about placing an order? Our 100% Moneyback Guarantee backs you up on rare occasions where you aren’t satisfied with the writing.
Order Tracking
You don’t have to wait for an update for hours; you can track the progress of your order any time you want. We share the status after each step.
From brainstorming your paper's outline to perfecting its grammar, we perform every step carefully to make your paper worthy of A grade.
Preferred Writer
Hire your preferred writer anytime. Simply specify if you want your preferred expert to write your paper and we’ll make that happen.
Grammar Check Report
Get an elaborate and authentic grammar check report with your work to have the grammar goodness sealed in your document.
One Page Summary
You can purchase this feature if you want our writers to sum up your paper in the form of a concise and well-articulated summary.
Plagiarism Report
You don’t have to worry about plagiarism anymore. Get a plagiarism report to certify the uniqueness of your work.
Free Features $66FREE
Most Qualified Writer
$10FREE
Plagiarism Scan Report
$10FREE
Unlimited Revisions
$08FREE
Paper Formatting
$05FREE
Cover Page
$05FREE
Referencing & Bibliography
$10FREE
Dedicated User Area
$08FREE
24/7 Order Tracking
$05FREE
Periodic Email Alerts
$05FREE
Our Services
Join us for the best experience while seeking writing assistance in your college life. A good grade is all you need to boost up your academic excellence and we are all about it.
On-time Delivery
24/7 Order Tracking
Access to Authentic Sources
Academic Writing
We create perfect papers according to the guidelines.
Professional Editing
We seamlessly edit out errors from your papers.
Thorough Proofreading
We thoroughly read your final draft to identify errors.
Thorough Proofreading
We thoroughly read your final draft to identify errors.
Delegate Your Challenging Writing Tasks to Experienced Professionals
Work with ultimate peace of mind because we ensure that your academic work is our responsibility and your grades are a top concern for us!
We Analyze Your Problem and Offer Customized Writing
We understand your guidelines first before delivering any writing service. You can discuss your writing needs and we will have them evaluated by our dedicated team.
Clear elicitation of your requirements.
Customized writing as per your needs.
We Mirror Your Guidelines to Deliver Quality Services
We write your papers in a standardized way. We complete your work in such a way that it turns out to be a perfect description of your guidelines.
Proactive analysis of your writing.
Active communication to understand requirements.
We Handle Your Writing Tasks to Ensure Excellent Grades
We promise you excellent grades and academic excellence that you always longed for. Our writers stay in touch with you via email.
Thorough research and analysis for every order.
Deliverance of reliable writing service to improve your grades.
