The Ethics of Human Rights (49): Human Rights and the Capabilities Approach

How do these two approaches to global ethics compare? Strikingly well as it turns out. I can’t possibly give an adequate overview of the capabilities approach in a blog post (if that’s what you’re after, better go here). It is a highly complex moral theory. However, the short version is that the approach focuses not on the resources people should have or on the aggregate utility (happiness etc.) that society should maximize, but rather on the capabilities that everyone should have in order to achieve wellbeing or live a truly human life. “Capabilities” here means real opportunities or real freedom to do and be what we have reason to value.

Proponents of the capabilities approach don’t always agree on the set of capabilities that are important or even on the desirability of determining a set. One prominent proponent, namely Martha Nussbaum, has defined such a set, and for a comparison between the capabilities approach and the human rights approach it’s useful to concentrate on her set and step away momentarily from the intricate details of the capabilities approach. This is a summary of the set (which I’ve stolen from here):

  1. Life – Able to live to the end of a normal length human life, and to not have one’s life reduced to not worth living.
  2. Bodily Health – Able to have a good life which includes (but is not limited to) reproductive health, nourishment and shelter.
  3. Bodily Integrity – Able to change locations freely, in addition to, having sovereignty over one’s body which includes being secure against assault (for example, sexual assault, child sexual abuse, domestic violence and the opportunity for sexual satisfaction).
  4. Senses, Imagination and Thought – Able to use one’s senses to imagine, think and reason in a “truly human way”–informed by an adequate education. Furthermore, the ability to produce self-expressive works and engage in religious rituals without fear of political ramifications. The ability to have pleasurable experiences and avoidance of non-necessary pain. Finally, the ability to seek the meaning of life.
  5. Emotions – Able to have attachments to things outside of ourselves; this includes being able to love others, grieve at the loss of loved ones and be angry when it is justified.
  6. Practical Reason – Able to form a conception of the good and critically reflect on it.
  7. Affiliation A. Able to live with and show concern for others, empathize with (and show compassion for) others and the capability of justice and friendship. Institutions help develop and protect forms of affiliation. B. Able to have self-respect and not be humiliated by others, that is, being treated with dignity and equal worth. This entails (at the very least) protections of being discriminated on the basis of race, sex, sexuality, religion, caste, ethnicity and nationality. In work, this means entering relationships of mutual recognition.
  8. Other Species – Able to have concern for and live with other animals, plants and the environment at large.
  9. Play – Able to laugh, play and enjoy recreational activities.
  10. Control over One’s EnvironmentA. Political – Able to effectively participate in the political life which includes having the right to free speech and association. B. Material – Able to own property, not just formally, but materially (that is, as a real opportunity). Furthermore, having the ability to seek employment on an equal basis as others, and the freedom from unwarranted search and seizure.

The similarities with the human rights approach are noteworthy, as are a limited number of differences. Let’s go over these one by one:

  1. The right to life covers the ability to live to the end of a normal life, since a violation of the right to life obviously means that a life is cut short. However, the norm that one’s life should not be reduced to a life that is not worth living is more difficult to translate into rights language. There is no “right to a life worth living”. However, implicitly; one could combine a set of existing human rights and interpret it as something similar to a “right to a life worth living”: violations of the rights not to suffer poverty, torture, slavery etc. may result in a life not worth living.
  2. The capability of bodily health is entirely covered by human rights.
  3. The same is true for bodily integrity. However, the opportunity for sexual satisfaction is, perhaps unfortunately, not a human right.
  4. The capability to engage in thinking, reasoning and imagining is difficult to translate in human rights terms, because there’s no right to be able to think, reason and imagine. We do have freedom of thought and conscience, but that’s more like a negative right, directed at people trying to interfere with our thoughts and conscience; we don’t have a right to develop our capability to think etc. The best approximation is the right to education – indeed, why else would we need education and a right to education if not as a means to develop our capacity to think, reason and imagine? The inclusion of expressive and religious capabilities in capability 4 is clearly compatible with human rights; the avoidance of non-necessary pain and the ability to seek the meaning of life are not.
  5. Capability 5 goes way beyond the realm of the human rights approach.
  6. As does capability 6.
  7. The capability to affiliate is covered by the freedom of association and the freedom of religion. The ability to have self-respect, to avoid humiliation, and to live a life of dignity and equal worth are not explicitly covered by specific human rights. However, it’s common to find self-respect, dignity and equal worth among the values that are supposed to ground the set of human rights. Protection against discrimination, on the other hand, is covered by specific human rights.
  8. See capabilities 5 and 6.
  9. See capabilities 5 and 6.
  10. The capability of control is covered by political rights, property rights and privacy rights.

The capabilities approach, at least the version expounded by Nussbaum, is therefore very similar to and yet more wide ranging than the system of human rights. There are also some meta-similarities: for example, the capabilities approach focuses on capabilities rather than actual functionings, and the human rights approach on the rights people have and not on whether they choose to use or waive those rights.

The capabilities approach covers more space than the system of human rights, but the contrary is also true. There’s no mention in the capabilities approach of the right to a fair trial (or of the more detailed rights that make up this right), the right to a nationality, etc.

The Compatibility of Freedom and Equality (11): Freedom as Capability

Freedom as independence or the absence of interference (especially government interference) is an important concept but it doesn’t cover all useful meanings of the word. Freedom is more than just the (relatively) unhindered ability to do as you like; it’s also the availability of significant and wide ranging choices and of the capabilities to do the things you choose to do. Choices and capabilities may be enhanced by the absence of interference, but also by interference. Someone who’s doesn’t suffer interference by her government, and who isn’t pressured by her family, tradition or society, may still lack freedom because her choices and capabilities are limited: maybe she doesn’t have a basic income necessary to make choices and act on these choices. Or maybe she didn’t receive the education necessary to have the capabilities to make informed choices. In those cases, government interference in society by way of poverty reduction and the provision of education may enhance freedom. Take an example that’s less controversial than education or poverty: traffic rules. These rules interfere with what we can do, and yet they vastly increase our choices and opportunities and they allow us to do what we choose (getting somewhere), because they prevent chaos and accidents.

Normally, the point of driving is to get somewhere. The traffic laws enable us to get where we are going much more quickly and safely than we would if each of us had to decide for him- or herself which side of the street to drive on. The traffic laws do not tell us where to go. They leave the choice of destination, and for that matter the decision whether to drive at all, entirely up to us. They simply tell us which side of the road to drive on, that we should stop at various points, and so forth. By taking away our freedom to drive on the left, or to blast through busy intersections, they grant us much more freedom in the form of a greatly enhanced ability to get wherever we want to go quickly and safely.

Anyone who thinks that the traffic laws enhance our freedom should acknowledge that in some cases, including this one, government action can enhance our freedom, even if that action takes the form of restrictions on what we can and cannot do. An enormous number of questions about which (other) forms of government action might enhance our freedom would remain to be answered, but the fact that some government policy involves either a more active government or new restrictions on our action would not, by itself, imply that it diminishes our freedom. Hilary Bok (source)

Traffic rules are a form of government interference that enhances our capabilities. And while they may not be representative of all government rules, we can safely conclude that some constraining rules can also be enabling rules. By limiting certain kinds of behavior, government actions and laws can greatly expand the range of possible behavior. Paradoxically, limiting freedom can mean expanding freedom.

Government can enhance our freedom by helping us to expand our choices and foster our capabilities, and by giving us the opportunity to exercise our capabilities as often – or as little – as we want. It does so especially for those of us who would struggle to foster and use our capabilities by ourselves. Hence, government enhancement of capabilities often means equalization of capabilities. Not in the case of traffic rules because in that case everyone equally depends on government intervention; in the case of education and poverty reduction, however, some will benefit much more than others.

The important thing, according to Martha Nussbaum (who, together with Amartya Sen, has written a lot about the capabilities approach), is not that we exercise all our capabilities all of the time, but that we all have an equal opportunity to exercise our capabilities as much or as little as we choose. People who starve cannot exercise their capabilities, but people who fast could exercise their capabilities but choose not to. Only in the former case is there a task for government. Likewise, something must be done when people in a totalitarian state can’t read the books they want, not when people in a free country decide to be coach potatoes. The power of choice is the central concern, not what is actually chosen. Capabilities are important, not actual functionings.

Read the other posts in this series here.