CREATING CAPABILITIES The Human Development Approach Martha C. Nussbaum e permanent blacki € approach promises a new, and rela- tively unified, perspective on problems that are often treated in iéolation from one another, The list is to Some extent arbitrary: other issues could easily be added. (Three that come immediately to mind are migration, the Internet, and global warming.) Disadvantage Alongstanding debateAvithin development economics concerns the right way to thi. jut poverty and disdtivantage. Sen has long argued that poverty is best understgod4s capabilit ‘failure, not just as shortage of commodities or even of inco: id wealth( Poverty involves heterogeneous failures of opportunity, which are not al- iys well correlated with income; moreover, people in positions of [ social exclusion may have difficulty converting income into actual apenas fsCREATING mn vaenstuniniai ties le not even a good proxy for capabilities. In me is a means to aml end, and cal abilities are the end. WZ h measuring poverty thro res pertain to the household; a focus he neglect of s& bias in nutrition, ff poverty: Tooking at poverty in ncourages 4 focus on how ributional ine walities in also been assertive in de- izance of the value of un- ing relative disad- functioning, } general, inco! | One particular difficulty wid a is that available income measut Wom on income therefore encourages © lark health care, and other aspects of “Jugetms of capability failure, by contrast & ‘Af each person is doin; and spotlights dist e family. The Capability ‘Approach has come accounts take CO; rk, another key issue in assessi ugh income manding that in + * paid domestic wo! en's work on capability failure grew out of his Nobel Prize-win- ized that famine is not nn famines, in which he emphasi ‘caused simply by shortage of food but is a matter of | lacking oppor- of unemployment, 4 tunities to obtain the things one needs (because Viki example). Its remedy therefore cannot lie simply in food relief or | ware handouts. A genuine solution would require addressing the capabil- frobfet ity failures of the vulnerable populations, by providing employment and other sources of entitlement to vital commodities. This general point has become a part of uncontroversial mainstream analysis. ‘The further step of thinking about disadvantage more generally in terms of capability failure, though a natural next move, has not always been taken, partly because the attraction of models that ag- gregate across elements of lives remains strong, as does the attrac: tion of using income and wealth as proxies for the different Tife- VW opportiinities that people may or may not have. In Disadvantage, we: Jonathan Wolffand Avner De-Shalit argue vigorously against reduc- oy oS \’ ing all che elements of lives to a single numerical scale. They show we that a approach that aggregates across the diverse elements of oNcapabilities. In saretheend. ~— hrough income sehold; a focus s in nutrition, at poverty in focus on how nequalities in sertive in de- alue of un- lative disad- ‘I Prize-win- unine is not king oppor: nployment, od relief or he capabil- nployment his general nalysis. . generally e, has not s that ag- he attrac- rene Uife- ddvantage, st reduc- 1ey show nents of a eae ERAN SCC RO a gy ves ives is bound co miss things of vital importance when one tae ing to describe the situation Of disadvantaged groups and t 10 remp™ at sg ee aa ropose strategies to improve their situation, Disadvantage, they ar- gue is iereduibly Ptah. and is diferent aspects vaty toa signifi cqncextent independent of one another and of income and wealth This argument isin the spirit oF Sen’ views, buc itis more decrina and elaborate, and therefore may convince People who have not peen persuaded by Sen. Wolff and De-Shalit also show in further detail why income and wealth are nor good proxies for relative dis- advantage. In connection with this general analysis of disadvantage, Wolff Xand De-Shalit extend the approach in two ways. First, they propose ‘a focus not simply on the presence or absence of | key capabilities but on their security. People need to have not just a capability coday but a secure expectation that it will be there tomorrow. One salient as: pect of disadvantage is thar, even when a group may have access toa capability (employment opportunities, for example), that access is very insecure. Second, although Wolff and De-Shalit remain com- mitted to the separate importance of each capability, they recom- mend a study of how disadvantages cluster, with one disadvantage leading to another (corrosive disadvantages), and, correspondingly, of how specific capabilities may be particularly fertile in opening up others. ‘The fertility of a given capability, and the corrosiveness of a given capability failure, are empirical questions whose answers are likely tovary with time and place and with the particular problems of the disadvantaged group. Usually, however, the variation means only that some women, for example, already have capability security with tespect to the fertile capability, not that it is not fertile. For Vasanti and for many poor women, access to credit is particularly fertile, 145» opening access f° employment, bodily-integrity fed Pali ink that credit is not so inper Pas icipation. We might thi ool with a fuller educational background and a tree by ial employment, who may have fewer worties on that a fe actually, credit is 2 major issue for pray women, paticuly : . end of a marriage in which the wife has not had marker = ; ment, We can be sure thar domestic violence is corrosive al) Ploy, world, and that few if any women enjoy full capability an this regard. Wolff and De-Shalit find that aflition-haig , tn portive and mutually respectful relationships—is particule S in both of their’ countries, and we can predict that this is like true elsewhere: isolation makes it much harder to achieve 2ything CREATING cAPABILITIEg ‘ ak Sees. Febardss - Gender In the york of Sen and Nussbaum, the Capabilities Approach ja don the inequality of women. (Seeds of this emphasis cany found in some historical predecessors, such as the Stoics, Snig, Mill, and cube are two distinct reasons for this empha First, these problems are of huge intrinsic importance. Women a unequal in many respects all over the world, and this is an eno. mous problem of justice. It is also a development problem, becaus denial of opportunity to women holds back the productivity of many nations. Second, these problems are a theoretical litmus test, illustrating vividly why standard development approaches (the GNP approach utilitarian approaches) are die why the Capabilts Approach does better. Onighe si 4F philosophy, looking at these problems hows-some shortcomings of parts ofthe casi ibs! 146—z£ ae CAR OorLITIRS AN DICONT Rdg oN A Re Issues radition which has often i f the family as part of a “pri- vate sphere” off-limits to social justice. (As John Stuart Mill pointed out, this move was an inconsistency within classical liberalism, not its natural outgrowth, since liberalism at its core is committed to equal liberty and opportunity for all, Leaving the family uncriti- vt cized was leaving a little piece ee ay uncriticized, and fives ce subversive hierarchies based on birth or scatus.) eer oe y- My book Women and Human Development shows in detail how al- ternative approaches in the development sphere, particularly utili- inadequate in conftonting the inequality of women. It also ad- dresses the obstacles to women’s equality caused by uncritical ad- herence fo t (on. Religions are not always retrograde; when they are, it is Usually in alliance with longstanding cultural traditions. Nonetheless, because religion is a sphere of life thar deserves state protection and concern, itis often cha sous Gita dilemmas, as certain zeligious demands may run afoul of the demands of sex equality. (re book makes a theoretical proposal for the resolution of such dilemmas—arguing (as in Liberty of Conscience) that ample space be given for religious free exercise and even for religiously grounded “accommodation,” but that the protection of the Central Capabilities always be regarded as a “compelling state interest” that _/ would justify the imposition of a burden on the free exercise of reli- gion. The Indian constitution utterly forbids the practice of “un- touchability,” a central aspegt of traditional Hindu religion. This may be a burden to some, but that burden, as Gandhi argued, is am- ply justified by the or in eradicating discrimination. Sim- ilarly in the United States, Bob Jones University lost its tax-exempt 147CREATING CAPABILITIES status for forbidding interracial dating. The U.S. Supreme Court ar- f eradicating racism justi- gued that the compelling state interest Oo! : fied the imposition ofa financial burden on this evangelical group. Similar dilemmas are confronted in ee Even if we deny that there is any sphere of human life that is “pri- vate” in the sense of being immune To legal regulation, we should .d spaces for the rotection of also grant that free human lives nee intimate association and for parental decision-making with regard to children. Some issues are, oF should be, easy: we should all agree that domestic violence and child sexual abuse should be aggtessively policed by the state. We can grant that child marriage should be il- legal and that marital consent should be carefully protected. We can also grant that compulsory primary and secondary education are important ways in which the state limits parents’ autonomy (for ex- ample, the choice to use a child for wage labor). We can also proba- bly agree that education should teach girls a wide range of skills, giving chem exit options from traditional roles, and that their full equality as citizens should be firmly conveyed to them, along with the skills necessary for effective political activity. Other areasof free- dom are more difficult: how far to give parents latitude to choose homeschooling, for example, which may not fully convey the mes- sage of equality. In India, government support for women’s organi- zations that challenge traditional roles and convey a message of autonomy and equality seems amply justified by the political im- portance of the ae reason and affiliation (both friendship and political particfpation). mere work on Eel Sule is strongly linked to the ; i capabilities, particularly in thinking about the ways iv which discrimination on the basis of sexual orientation expresses stigma and reinforces a view that some people are not fully equal. 18CAPABILITIES AND CONTEMPORARY Issugs Thinking about sexual Orient list of capabilities makes us fair, tation through the lens of the whole seek policies that are not just formally treating similar People similarly, but that §0 deeper, seeking out the roots of hierarchy and stigma and Fefusing to approve of ar- tangents Ca OE germane appa of inequality. Laws agtinst miscegenaon appeared to sone be for- mally fair, because they treated both Taces similarly: blacks couldn’t marty whites, and whites couldn't marry blacks. But the U.S, Su- Preme Court understood that such Lay and inferiority. So, too, do laws forbiddi laws are sometimes defended as ley to regulate marriage~in much th their antimiscegenation laws, They are, however, unfair in a very similar way, conferring a message of stigma and inferiority. Nor does the remedy of civil unions 80 far enough. If states had offered “cransracial unions” as a Separate legal category but continued to deny marriage to interracial couples, we can see that, far from end- ing stigma and hierarchy, such an arrangement would have rein- forced it. fe way that states once defended bhai /Aging, and the Importance of Care An urgent problem of justice that is only now beginning to be con- fronted by modern societies is how to Promote the capabilities of People with a wide range of physical and mental disabilities, Includ- ing such people on a basis of equal respect requires not only practi- cal change but theoretical change as well. Just as the full inclusion of women as subjects of Politjcal justice tequired asking questions (about justice inside the fatilly) chat had not been asked before, so doing justice'to the claims of people with disablities requires call- 149=e. ing into question a very fundamental idea of Classical liberalism, namely, that the goal and raison d'éire of social cooperation is my. cu vantage, where advantage is understood in natrow economic pee whole idea of the social contract involves such a fiction, and for this reason theories in the social contract tradition had ‘© postpone the problem of Aiabiliy ta alae peine teak Point in the theo. retical structure, after society’s basic institutions had already been designed. People ie are, however, equals who need to be taken into account from the beginning in designing any scheme of social cooperation. It is a long and intricate matter to show that theories in the social contract tradition cannot answer this chal: lenge by some minor modification, and that task, which forms the primary substance of Frontiers of Justice, cannot be adequately sum- marized here. Suffice it to say that the task of fully including people with disabilities and supporting their human capabilites quires a \Hnewaccount of social cooperation and the human motives forit, an | yee account focused on benevolence and altruism, not just mutual ad- tage. i Now of course most theorists in the classical social contract tra- dition did not believe that people were primarily selfish. (Thomas Hobbes and his modern follower David Gauthier do believe this, but they are atypical.) The reason for assuming that mutual advan- tage is the goal of the parties to the contract is a reason of parsi- mony: if a just society can be generated out of weak assumptions (in other words, assuming not altruism or virtue but much less than that), that is itself interesting, and one should always choose the weakest premises ftom which one’s conclusion follows, rather than saddling the theory with thicker or more controversial premises. It is instructive to learn that the theory will work even if more de- manding conditions are not satisfied. Rawls explicitly says chat such 150CAPABILITIES AND CONTEMPORARY Issugs is his strategy, Locke, who ii of his theory, thus has in ‘one sense a weaker theory than Rawls’s: it will work only in special circumstances that May or may not Beas My theory in effect Tetutns to Locke’s ticher Starting point esrcd I believe that we need it to Teach a conclusion ‘normal” human beings experience as they age. As more Peoplélive longer, every country will face a burgeoning problem of disability, Sometimes the entire lifetime of a Petson with a disability is shorter than the period of. disability in the life of a “normal? adult. So the . problem of disability is vast! affecting vircually every family in every society. One aspect of this problem is that of. Supporting the capabilities of le with disabilities on a basis of equal respect: What social id economic support, what forms of work adjustment, what civil and political rights, would be tequired to treat such People as full equals? eae scholatship focuses on this set of ques- tions. The other key aspect is thinking about care work. Disability, like ildhood, requires a great human investment in care, Currently, a 800d deal of this work is being done by women) and much of it IstCREATING CAPABILITIES he natural result of love. Care labor is with a of gener based inca, SSE xe Ee capped in other areas of life by the work they are a in the fhome. Solving the problem has several aspect: pe ic sphere Tneeds to support family and medical leave and in-home nursing care, and nations’ health plans need to find some reasonable way : icky issue of care at the end of life, of addressing the politically er t Ws faces need to become more flexible, recognizing the demands Both women and men are facing at home: flexible scheduling, tele- commuting, and other forms of adjustment need to be confronted without panic. Finally, greater reciprosiey Between women and men needs to develop, and society new conceptions of masculinity unmanly such acts as washing the body ofan aged 4 Blteion ‘At the heart of the Capabilities Approach since its inception has been the importance, of education. Education (in schools, in the family, in programs for both child and adule development run by nongovernmental organizations) forms people's existing capacities into developed internal capabilities of many kinds. This formation is valuable in itself and a source of lifelong satisfaction. It is also piv- otal to the development and exercise of many other human capabil- ities: a “fertile kote of the highest importance in addressing disadvantage and inequality. People who have received even a basic h - eee education have greatly enhanced employment options, chances for political participation, and abilities to interact, productively with others in society, on a local, national, and even global level. For ex- ample, women who are literate are able to communicate politically that do not deem mother or father. 152the individual.” The United States has never given education the status of a fun- damental right at the national level, though some state constitu: tions have done so, Education does, however, enjoy a Privileged po- Sition in federal constitutional law, One key case, Plyler v. Doe— dealing with a law that denied education to the children of illegal immigrants—asserted the importance of education in terms that te- fer directly to human capabilities. The discussion of education be: 153CREATING CAPABILITIES tal assertion of the equality of persons: “The intended to work nothing less than the and invidious class-based legislation,» has a “pivotal role in gins with a fundament Equal Protection Clause was abolition of all caste-based Public education, the majority then wrote, maintaining the fabric of our society and in sustaining our politica] and cultural heritage.” Deprivation of education “takes an inestj. mable toll on the social, economic, intellectual, and psychologica} well-being of the individual, and poses an obstacle to individual achievement.” Later these points are elaborated. Education is “nec. essary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and in- dependence.” It is also crucial to individual opportunity and self. development: “Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic edu- cation each and every day of his life. The inestimable toll of thar deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the prin- ciple ofa status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.” In effect, the opinion sees the equal right to educational benefits as inherent in the equal dignity of persons, given the pivotal role of education in securing human development and opportunity. In both India and the United States, then, as in’many other na- tions, edyeation has been seen to be particularly central to human \ dion equi and opportunity. If these connections are plausi- ble, as they seem to be, then education deserves a key role in the Capabilities Approach. doonls werte stipe} ‘The measures that go into the Human Development Index ac- cordingly factor in education Seow urging all na- 154ye CAPABILITIES AND CONTEMPORARY ISSUES gions consider educational attainment one of the most crucial elements of their national success. Sen’s profound commitment to educational advancement is shown by the fact that he devoted the entirety of his Nobel Prize money to Setting up a trust (called the tichi Trust, named after his mother’s house in Santiniketan, the where Tagore founded his famous school) to study and ad- vance education in pest Bengal, his home state. The Pratichi Trust An research organization, not a branch of policy-making, but its scathing reports on educational shortfalls in the state shined a na- tional and international spotlight on the failures of local gov- ernment. In particular, its emphasis on such corrupt practices as teacher absenteeism and “private tuition” (teachers tutoring afflu- ent students for pay after school) has already generated some move- ment toward reform: the powerful and formerly indolent teachers’ union has now taken a stand against these Practices. Understandably, and to some extent rightly, the emphasis of these interventions has been on basic literacy and numeracy; and it is surely right to think that when these skills are absent many avenues of opportunity are closed. It is important, however, not to confine the analysis of education and capabilities to those skills. A true edu- cation for human development requires much more. Currently, _ most modern nations, anxious about national profit and eager to __ seize or keep a share in the global market, have focused increasingly on a narrow set of marketable skills that are seen as having the po- tential to generate short-term profit. The skills associated with the humanities and the.arts—critical thinking, the ability to imagine and to understand another person’s situation from within, and a 8tasp of world history and the current global economic order—are all essential for responsible democratic citizenship, as well as for a wide range of other capabilities that people might choose to exer- TSS———=— CREATING CAPABILITIES abilities Approach need to attend an life. Users of the Cap: cise in later li asking how both carefully to issues of both pedagogy and content, ; the substance of studies and the nature of classroom interactions (for example, the role given to critical thinking and PP imagining in daily study of material of many types) fulfill the aims inherent in the approach, particularly with regard to citizenship. (Of course ed- ucation for citizenship is not simply for people who are already citi- zens of the nation in which they reside: the children of legal and il- legal immigrants have a right to an education that prepares the same adult capabilities as those prepared for citizens.) Education is one area in which the usual deference to choice is relaxed: governments will be well advised to require functioning of children, not simply capability. Why is this case different from most? Ic is different only when we are thinking about children, whose choice capabilities are immature and who may face parental work rather than to study, since they are economically pressure to ptions. Education is dependent on their parents and have few exit 0] such a pivotal factor in opening up @ wide range of adult capabili- ties that making it compulsory in childhood is justified by the dra- matic expansion of capabilities in later life. Where children are con- cerned, then, the state’s commitment to the future capabilities of its citizens, together with its strong interest in having informed and capable citizens, justifies an aggressive approach: compulsory pri- mary and secondary education, up to at least the age of sixteen, plus ample support and encouragement for higher education, (Children are also treated asymmetrically in areas such as health and bodily integrity: we should tolerate less deference to individual—or paren- tal—choice here than’ in the case of adults.) When we are dealing with the education of adults who want more education than they have had, persuasion is the correct approach, } 156SRS ABSUITINS AND cRaS MPORARy 1Ssugs . education requires sensitiy: . req ‘NSitivity to Context, history, and cul- Good A lot of the based on the idea of a fundamental decision: y Proponent of the approach holds thar Promoting capabilities will need les count? Vircu- all human beings Beyond this, there are five basic posi- and count as equals. ne-aray take: ‘human capabilities count as ends in themselves, although capabilities may curn ouc tobe instrumentally valuable inthe n of human capabilities. capabilities are the primary focus, but since human beings relationships with nonhuman Creatures, those creatures may r into the description of the goal to be promoted, not simply as ns, but as members of intrinsically valuable relationships. capabilites of all sentient creatures count as ends in them- 7——O CREATING eat awn cartes selves, and all should artain capabilities above some specified threshold. 4. The capabilities ofall living organisms, including plants, should count, butas individual entities, not as parts of ecosystems. 5. The individualism of -4 is dropped: the capabilities of systems (ecosystems in particular, but also species) count as ends in them- selves. Capabilities ‘Approach may take any of these five positions, and time ought to produce a vigorous debate among them. Sen has taken no overall stance on these issues, al- though he is concerned with animal well-being and environmental quality. In Women and Human Development, I took position 2: rela- tionships with other species and the world of nature are a human capability, but one in which the other entities count strumentally but also as parts of that relationship. This position was an uncomfortable half-way point between position 1 (defended by many people who have intense concern for human suffering) and a position such as 3 or 4 (defended by many others who focus, as well, on the goos.of other creatures). \ ; is of Justice 1 defend position 3, at least where social jus- Concerned, I argue that the idea of social justice is inherently bound up with at least minimal sentience (the capacity to experi- ence pain, especially) and with the accompanying capacity for striv- ing and some type of agency. Intuitively, it seems to me that the idea of doirig injustice to an animal makes sense in much the way that the idea of doing injustice to a human being makes sense: both can experience pain and harm, and both are attempting to live and act, projects that can be wrongly thwarted. The notion of justice is con- ceptually bound up with the idea of experienced harm and thwart- People interested in the not merely in- 158 osCAPABILITING AND CONTEMPORARY Issugs ing, or so] believe. Thus it seer a tree can suffer injustice—al moral reasons, 'ms odd, at least to me, CO suggest that though of course there may be other oF Teasons of a nonmoral kind, that to damage a tree, Similarly, suffers injustice, although it ma suffe many types of damage, and although there m; “a ay be Teasons, both moral and nonmoral (intellectual, scientific, e about that damage. S ; uch intuitions are difficult to articulate, and only time and future debate wi intellectual, and other types of ethical significance. It seems inaccurate, however, to say that the extinction of a species is an injustice—apart from the fact that this extinction usually proceeds by way of wrongful harms to individual species members. The Capabilities Approach seems well suited to address the wrongs suffered by animals at the hands of humans, Utilitarians have made important contributions in this area, but the general shortcomings of their theory—its commitment to aggregation across lives and across elements of lives, its neglect of adaptive pref- erences—are handicaps in this area as well. Although committed utilitarians like Peter Singer usually insist that the utilitarian calcu- us will forbid us to inflict suffering on animals, this is an empirical Matter, since humans derive a lot of pleasure (and employment) from the food business. As with slavery, the whole matter of decent 159> CREATING CAPABILITIES rest on too fragile an empirical foundation, id permit horrendous cruelty to a small sake of human well-being. As for aggre. gation across lives: animals pursue not simply the avoidance of pain but lives with many distinct components, including movement, friendship, and honor or dignity. It seems important to retain a parate importance of each of these elements. Finally, tilicarian considers not av- treatment is made to Certainly the theory woul number of animals for the sense of the se] there is the problem of numbers. If the u erage but total utility, the theory can justify bringing large numbers of creatures into the world who have very miserable lives (but just above the level of not being worth living at all), since that is a way of Ps total well-being. But something like this is augmenting the world’ what the food industry does, and we object to this because we think thar it is wrong to inflict a painful life on any creature, even if chat life is just barely worth living. More generally, the Capabilities Approach sees animals as agents, not as receptacles of pleasure or pain. This deep conceptual differ- ence can help the approach develop a more pertinent sort of respect for animal striving and animal activity. The Capabilities Approach can thus recognize the very coura- geous contributions of Bentham, Mill, Peter Singer, and other utili- tarians to the animal-treatment debate, while insisting that a differ- ent theory does better. As for theories in the Kantian tradition: although Kant himself does not have very useful things to say about animal well-being (he thinks the only reason not to be cruel to ani- mals is that it will encourage us not to be cruel to humans), philos- opher Christine Korsgaard has recently shown that an approach rooted in the Kantian tradition can generate many of the same re- sults as does the Capabilities Approach. The idea is that, according to Kant, we have reasons to promote not simply our own agency but 160= CAPABILITING AWy “ONTEM MONARY Is Sues also those aspects of our Nimality that ate inh which we strive and act in the wor But if we show respect to those simply inconsistent, and a kind to which Kantians are especially toour fellow creatures, Korsgaar Nerent in the ways in tld: our animal nature, briefly pur. (animal) Aspects of Ourselves, it is of vicious self promoting of a sort PPosed, to refuse the same tespect d's approach is Still somewhat mote myself favor: According to Korsgaard, Ut Hs, and animals’ Tesemblance to 4s, spect, Not because of Something about itis because of Something abo that we should show them Tes What are those conclusions? First, ties Approach to make it Suitable for expanded notion of dignity, lives in accordance with hu worthy of the dignity of a expanded Kantian appros well as derivative from dut the Capabilities Appro: we must modify the Capabili- these purposes, We need an since we now need to talk not only about man dignity but also about lives that are Wide range of sentient creatures. Unlike aches, which see duties to treat animals ties to support our own human animality, ach regards each type of animal as having a dignity all its own; the duty to respect that dignity is not derivative from duties to ourselves, Although duties, as in the human case, are first and foremost duties to individuals, the species plays a role in Siving us a sense of a characteristic form of life thar ought colks Promoted. The capabilities list, suitably broadened, still contains the main items that we should favor, but we should be attentive to 161cmmaraaue CAPABILITIES ae er enhpp nity to live and act according to that species foEmio life. Although choice is favored wherever the creature has 2 ganecny for choice, a focus on functioning (akind of sensitive paternalism) will be more appropriate in this case than in the Boman case. ‘as for the idea that we should leave animals alone when they live in “the wild,” this naively romantic naturalism ought to be rejected for today’s world. There is no habitat chat is not pervasively affected by human action. Pretending that elephants in Africa are “in the wild? is just a way of avoiding the fact that their habitat has been encroached upon by human plans. Moreover, the only way to allow them to have a decent shor at living well is to continue intervening, but to do so wisely, not foolishly. (One form of intervention into nature that seems crucial is animal contraception. This will mean, for animals, modifying the capability list where reproductive choice is concerned. While the first priority must be the protection of habi- tats, even current habitats, well protected, cannot support expand- ing animal populations. The alternative to contraception, the intro- duction of predator species, seems much worse, from the point of view of animal capabilities, than enforced contraception.) The main conclusion of my approach is that all animals are enti- tled to a threshold level of opportunity for a life characteristic of their kind. Whether this means a total ban on the killing of animals for food may be debated. (Both Bentham and Singer have denied this.) The painless killing of an animal of a species that does not make plans extending into the furure may not be a harm: this de- pends on how we think about the harm of death, Therefore, some authors deeply committed: to animal well-being are prepared to countenance such painless killings, if the animal has had a decent ni ut ife of each species, and prom 162What is not Open for debate is the fact that the factory food in- should be ended, as should hunt- simulation, for example. (not veggie-burgers, can bea large contril Artificial meat is already being developed butmeat synthesized from stem cells); ibutor to a more just world, Slay to: presene Brrrmnynl? ronmental Quality this, too, No matter what Position we take on the five choices outlined above, the quality of the environment clearly plays a role in the Capabili- ties Approach. We do not need to move beyond position 1 to argue that the quality of the natural environment and the health of eco- Systems are crucial for human well-being, we think of human wel commitment re generations. That vital issue has been extensively addressed in lib- eral political the6ry (for example, by Rawls), but the Capabilities Approach has not yet exhaustively pursued the topic. Getting clear about how to count the interests of, subsequent generations of hu- mans is of the highest importance for future work if the approach is . This is particularly true if 163CREATING CAP AB ELE TEES to be a serious playet in the environmental arena, especially since the question of counting and discounting has been so well explored in studies of risk and uncertainty, as well as related areas of environ. al quality would be important even Environment the capabilities of people currently es much more powerful when fu. mental economics. if our only goal were to support living, bue the argument becom: awh ture generations are taken into account in some way. So it is impor- tant to determine the right way 0 do this-a challenge for future workers. Important recent work fronting the questions 0! iy, the Capabilities Approach offers distinct approaches currently favored in environmental economics—in large part because it encourages d wide range of effects on different parts of human lives. For example, considering impacts on health separately from impacts on the econ- omy is important, since a single-minded focus on economic growth might lead to the choice of policies that somewhat reduce average by Breena Holland has shown that in con- f environmental quality and sustainabil- advantages over other he disaggregated consideration of a health status. 191) 60 9 i | Holland’s isa purely anthropocentric approach, treating environ- mental quality as instrumental to human life quality—not because she necessarily believes that this approach is a fully correct one, but because, in the context of public debate, it is useful to show that very strong conclusions can be generated from premises that are weak and uncontroversial, premises that most of the public can be “presumed to accept. At the other end of the spectrum of possible approaches, it is easy enough to see that a position that treats eco” systems as ends in themselves, apart from the individuals in them, could generate strong conclusions with respect to environmental protection, Few people hold those positions, however, so arguments 164“question of population control, That issue has CAPABIL ITIES AND CONTEMPORARY Issues of this sort are Not likely to have an imy The question of environmental quality is closely linked to the been at the forefront of Sen’s work for some time, Sen rejects the dire predictions of ‘Mal- thusians that we are facing an imminently impending food catas- trophe. He does, however, favor major efforts to curb population growth. This policy issue intersects with the theoretical core of the Capabilities Approach, because many proponents of population control have favored coercive Strategies that greatly reduce human freedom of choice. China, and India under Indira Gandhi, moved aggressively in this direction. Is this a tragic dilemma, in which life and health are pitted against areas of freedom to choose? Sen doubts that this is so, because he is (tentatively) convinced by the evidence that empowering women (through education, employment options, credit, and so on) is more effective in reducing population than are Coercive strategies. At any rate, even if coercive strategies were simi- Jar in effect, the intrinsic worth of freedom should tilt our choice in 165CREATING cog) wendy HALIETT IPEDS del. Sen observes that the In. aged population control very effectively empowerment, and that this model is thinese model and ethically rection of the empowerment mo ja has mani and bably) than the C the dil dian state of Keral: by relying 07 education both more efficient (prol superior. C Fonal Law and Political Structure ities are central to the idea of a -apabil a conception of and once we accept (its basic political principles em) as in- Once we argue that certain ¢: life worthy of human dignity, the task of society's “basic structure together with the institutional structure that embodies th volving at least the securing of a minimum level of the Central Ca- pabilities, it js natural to ask how a political structure can indeed secure them: Sen’s work on the Capabilities Approach makes little reference to law and to institutional structures within democracy, although it suggests some obvious directions for public policy. For my work, focused as it has been on the question of minimal social law and political structure have been central from the be- he account of Central Capabilities and of the threshold as a source of political principles that can be translated into a set of (minimally) just political institutions. I have particu- larly connected the capabilities list to the part of a nation’s written constitution (or of its unwritten ‘constitutional principles, if it has no written constitution) that elaborates citizens’ fundamental en- titlements. Many nations by now enumerate entitlements in a way that connects them to the idea of a life worthy of human dignity: the constitutional traditions of India and South Africa are particu- arly ineeresting to study in this respect) "6 86" © Recently, I have been engaged in work that makes the connection justice, ginning. I envisage ¢ 166 —-uld require detailed i rete a nt human capability, as law has Specified it through both con- stitutional text and an ongoii ea nts, then there is a duty to secure them, even ifit is difficult to say towhom the duty belongs. I argue that the whole world is under a collective obligation to secure the capabilities to all world citizgns, even if there is no worldwide Political organization. How to, sign the duties to specific groups and individuals is a difficul® matter, and one requiring interdisci- plinary theoretical cooperation, since history and political science offer important insights about changing global structures. The dif- ficulty is greatest in the global context, where there is no state and no good reasons to think that we ought to have asingle overarching state, Even here, many of the duties to secure human capabilities are assigned to nations; but some belong, as well, to NGOs, to corpora- tions, to international organizations, and to individuals, In that sense the duties are ethical rather than political: they do not require a state enforcement mechanism to be morally binding. _ Nonetheless, rights (or the Central Capabilities) have no concep- 167CREATING CAPABTEITIES ty sanecion to government action. A long tradition, begining ‘Ache West at least with Aristotle, has argued thata key task of yoy, ernment, and a reason for the existence of government, is to seciire to, i central entitlements. As the U.S. Declaration of Independence puts it, recapitulating a long tradition of argument, “¢o secure these rights, Governments are instituted among Men, de. riving their just powers from the consent of the governed”~and any government that fails to secure basic entitlements has failed in its most essential task. If a capability really belongs on the list, then governments have the obligation to protect and secure it, using law and public policy to achieve this end. The world context is unique, because there is no overarching state, and thus none that can be shown unjust because ic fails to perform this task, although it would be right to say that the collective structure of world institutions has produced injustice and should be changed. When we are thinking of a specific nation-state, however, we ate entitled to ask whether it has secured the Central Capabilities to its people. If it has nor, it is not even minimally just. i Sen attempts to avoid granting a conceptual connection between capabilities’ and ‘government by citing’ examples of capabilities (rights) that should’not be legally enforced; such as the right of a family member to’ be consulted in all family decisions. Of this ex- ample I would say: either such conduct is required by a notion of a life worthy of human dignity or it is not: If it is, then it ought to be legally enforced (just as we legally enforce prohibitions on child abuse and domestic violence). If it is not, then it does not belong on a list of Central Capabilities or human rights: If we do put some- thing on that list we connect it, both practically and conceptually, to the idea of the purposes for which“governments were instituted Ipsoftn’) ala 30) 2adgn, peal 168,OS CAPABILITIES AND CONTEMPORARY Is SuEs among men,” My own View is that family members to be consulted jy in decision-makin is a concerning which citizens may reasonably re given a ences in their comprehensive doctrines, religious and ethical. So religious and ethical views emphasize fam; oe the tight he Mentions—that of Py exist, consultation (the policy of just one group of religious and ethical views) should not be coer- ten capabilities, then) are Soals.that Fulfill or correspond to iple’s prepolitical entitlements: thus we say of People that they are entitled to the ten capabilities on the list{ In the context of a na- tion, it then becomes thie job of gover lent to secure them, if that government is to be even minimally jus t.fin effect, then, the pres- ence of entitlements gives governments afob to do, and acentral job abilities to people. The exis- tence of human and animal lives gives a reason for governments to exist and generates obligations of'a distinctly political kind. When, in the case'of the whole world, we decide that an ‘overarching sin- gle government might not be the best way of solving problems of capability-failure in poorer nations, government still plays a major tole in securing them: the government of the poorer nations, in the first place, and, in the second place, the governments of ticher na- tions, which have obligations to assist the poorer. Giving people of government will be to secure the cap 169c)R BpAKTDNIGE ICIAP ALBA WL ITET RIS, what they are entitled to have, by virtue of their humanity, is a ma. jor reason for governments to exist, and a major job they have once they do. ; When a given capability has been recognized as a fundamental entitlement in a nation’s constitution (usually at a somewhat ab. stract level), much more work needs to be done. The capability will need further elaboration or specification, and the threshold will have to be correctly set. Let us briefly consider just one major capa- bility, in order to see how a constitutional tradition performs such a task. The history of the U.S. constitutional tradition regarding the “free exercise of religion” provides a nice example of how a Central Human Capability, abstractly specified at the outset, can be im- plemented through constitutional law over time, with a deepening and incrementally specific understanding of its requirements. At the time of the constitutional framing, the Framers considered sev- eral different sorts of language for what they wanted to protect un- der this heading, but they settled on the following wording: “Con- gtess shall make no law fespecting an establishment of religion, or prohibiting the free exercise thereof.” For:the present I shall leave our “Establishment Clause” to one side in order to focus on the “Pree Exercise Clause.” .»)) ) 2), ¢011 | : The problem the Framers knew well, by that time; was that reli- gious liberty is always at risk when a majority of citizens belong toa particular religion. Both belief and conduct, on the part of minori- ties, is likely to be infringed—sometimes maliciously, but sometimes also heedlessly, as when’a majority selects Sunday as'the day off from work, ignoring the predicament of those whose holy day is Saturday; or when a majority passes laws for compulsory military service, ignoring the fact that some religions enjoin pacifism; or 170 ™*—_ ee CAPABILITIES AND CONTEMPORARY ISsuES when a majority allows alcohol (associated with Christian ritual) to remain legal but restricts hallucinogenic drugs, ignoring the fact that hallucinogens are an important part of teligious ritual in some minority religions! In such cases, the idea of “free exercise” needs to be interpreted aciously~-this means not just striking down laws that penalize people for religious belief and practice but also looking at the prob- lem of unequal liberty, special burdens that minorities face because of their minority choices. Because the Free Exercise Clause was not held to apply to the actions of local and state governments—where most of the action is—until the twentieth century, we have relatively few cases interpteting the clause from the early period, but we do have plenty of evidence, from state constitutions and thei histories of interpretation; that the idea of religiously based “accommoda- tion” was a widely accepted norm. That is to say, when a law gener- ally applicable to all imposes a special burden on minority religious belief or practice, the minority in question may have a dispensation from that law unless some “compelling state interest” exists on the other side. For example; when policies involving work days burden people whose holy day is not that of the majority, the state:is re- quired to make adjustments. Policies involving drug use—for exam- ple, the use of hallucinogens’ in: Native American. and. other reli- gions—also appear to give grounds for a dispensation from general laws, although there continues to be dispute about that question. The classic compelling governmental interest that may be invoked to justify a “substantial burden” is an interest in peace and safety, though other’ state’interests, such as education, have at times been tecognized as justifying a burden on religious practice, Administra- tive burdens must be extreme to constitute a compelling state inter- est, but the refusal of a Native American family to allow their child 17CREATING CAPABILITIES to have a Social Security number a falls to a such a weighty state interest. Ending racial Snes ee hela — be a compelling interest in the case in ne a pures University | lost its tax-exempt status for its ban on Ce eooey One canonical statement of the accommodation aoe can be found in a letter from George Washington, our first preside Pp the Quakers about their refusal to perform peieeuygscrvices “Tas. sure you very explicitly, that in my opinion the conscientious scru- ples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as exten- sively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.” Wash- | ington did not ask the Quakers to perform military service; nor did he expect them, as John Locke would have, to pay a legal penalty for ; their disobedience. (See Liberty of Conscience, chapter 2, fora contrast ' between Locke’s view and that of Roger Williams, who favored am- \ ple accommodations for the sake of conscience.) : ‘ ; In the mid-twentieth century, this general idea began to be turned into the legal framework we now use to understand what it is to f ' implement this all-important capability in a way that Tespects the equal worth of all citizens. Adell Sherbert was @ good worker in a | textile factory in South Carolina In the 1950s, I] sixth work day, and Saturday was the chosen. workers were Christians. Mrs, Sherbert, | Adventist, for whom Saturday is the ho she refused to come to wotk on Saui het employer added a day, since almost all however, was a Seventh-Day ly day. She was fired because itday, and she could riot findig that the unempl icy vi ant , oyment pol; her religious free exercise, In 1963 the Us, Supreme en A és Sherbert v. Verner, thar the denial of benefits by the state was a rig ht to the free exercise of her religion: ing Someone for Saturday i a ty Worship. The state, they said, is'not constitutionally tequired to give a. ment benefits at all; once it does so, however, it May not make those benefits conditional on a Person’s violation: of religious scruple. They then articulated a general theoretical framework for the imple- mentation of “free exercise”: no law or policy may impose a-“sub- stantial burden” on'a person’s religious exercise without a “compel- ling state interest.” Those notions are still highly abstract: The case made it clear that denying benefits to someone in a’case like this was a “substantial burden,” but it offeredino definition of “substantial burden,” The , Court also rejected South Carolina’s contention that the adminis- trative difficulty of dealing with the claims of religious minotities constituted a “compelling state interest,” but it offered no general “account of that notion. That is the way our constitutional system works: incrementally, as the Court gradually builds a set of railroad ‘tracks, ptogressively elaborating the conditions for implementing the capability in question, and gradually articulating the contours of 4 right. Following the full history of such cases would show us how/éach of those notions has been successively, and more specifi- cally, interpreted as new cases come along. It would also show how New questions about the boundaries of this capability come forward with new cases: For éxample, does the free-exercise principle give parents the right to risk the health or life of their children? a think about Jehovah’s Witnesses and blood transfusions) Can it be a “substantial burden” when the government is simply doing some- 173CREATING CAPABILITIES such as building a road (thus preventing land, ain sorts of ritual use of bes from making certs west Indian Cemetery, the Court found al burden, even though the road dis- ‘tual purposes~because the govern- owned.) And, on thing with its own Native American tril the land)? (In Lyng # North thar there was no substanti rupted the use of the land for ri ed the land, and was just using what ic le: Is administrative burdensome- if the burden is very great? Is st, and, if so, what sort and ment ownt the compelling state interest sid ness ever a compelling state interest, education a compelling state interes education? As such questions are answered, one case ata amount of ecome clearer, the railroad time, the contours of the capability bi tracks more extensive. This image should not suggest that there is always progress: a good tradition may be rejected. It is relatively dif- ficult to do so, however, in'a system that respects precedent. As this example makes clear, judicial implementation of a cen- tral, constitutionally recognized capability has several characteris tics that we should notice in developing the approach further, since they appear to be valuable in delivering an adequate specification of aoe to people. In this sense it has a particular affinity with Capabilities Approach: First; the capability in question is treated separately, as something of importance in its own right, Although at times the Court will look across to other rights, expressing a view that protection in one area is necessary for protection in another, this isa relatively rare occurrence. ‘The Free Exercise and Establish- ment Clauses do have an interlocking history of implementation, but that is because these are understood to form part of a single set of guarantees in the area of religion. Even the Free Speech Clause of the me amendment has a more or less completely separate inter- pretive history. « nt 1 Itis certainly true that cap: ebibatte WI ys FLL fs form an interlocking set of en- 7%you servein the army, for so doing.” In Peop! a , in the confes- sional was not told, “Answer, and we'll make it Up to you by giving a nice donation to your oa he-was told that “the mild and just principles” of th¢t4w would never put someone in “such a horrible dilemma” by forcing him to choose between violating his religious scraples and going to prison: “The only course is, for the court to declare that he shall not testify... at all.” We can see why: the priest was being asked to violate his conscience, and it was held that this violation was tantamount to abolishing the sacrament of the confessional. This problem would not have gone away had the Priest, or his church, received a handsome cash donation. It just doesn’t work to say, “Confess your secrets to your priest, secure in the knowledge that, should he have to divulge them in court, church will get'a handsome cash donation.” The second feature of judicial implementation that these exam- ples illustrate is its cautious incrementalism, building up a structure through the years, as one case advances upon, or confitms and deep- ens the insights of, another case, Often the contours of an abstractly Specified right are exceedingly unclear at the outset. (The U.S. Free Speech principle, for example, was long understood in such a‘ a as Not to protect the speech of dissidents during wartime:) As time your 175