Justification, Anthropology and Human Capabilities Ricardo Parellada (The European University of Madrid)

Abstract The language of human capabilities raises the question of their justification and the conception of the person they entail. In this paper, I examine Martha Nussbaums contention that her capabilities approach does not rest on metaphysical presuppositions. First, I consider her endorsement of Rawls political liberalism. I focus on the distinction between comprehensive and political liberalism, and between a metaphysical and a political conception of the person. I consider Rawls and Nussbaums arguments that the political conception can be the object of an overlapping consensus of different comprehensive understandings of life and the good. Second, I argue that Rawlsian political liberalism is an inadequate framework for capability theory. The capability approach is a powerful attempt to balance an acknowledgement of basic universal values and respect for pluralism. Nussbaum offers important arguments for cross-cultural norms. I contend that her resort to dignity and personhood is not morally freestanding. Dignity is also the central value of the Universal Declaration of Human Rights. The justification of capabilities and the foundation of human rights are similar philosophical problems. I argue that they cannot be tackled in purely political terms, abstaining from metaphysics and philosophical anthropology.

1. The conception of the person of capability theory The list of human capabilities offered by Martha Nussbaum is intended to be both specific and open. The list is specific so it can work as criterion and foundation for constitutional guarantees. The language of abstract freedoms and capabilities gives up 1

the objective of finding general norms and criteria about basic values. These basic values are indispensable when we want to criticize unjust positive law. The list is also open. Whereas the equality of rights and liberties is nonnegotiable, affiliation of individuals and forms of social and personal interaction, for instance, may present different forms and call for protection of quite different institutions. According to Nussbaum, Rawls political liberalism is a convenient framework for the conception of the person of capability theory.1 Thus, basic capabilities are independent of particular metaphysical, religious and ethical doctrines. The conception of the person is freestanding, that is, independent of these general outlooks. Each comprehensive doctrine about value and life offers a different explanation or foundation for the common capabilities. These can be, thus, the object of an overlapping consensus of comprehensive doctrines. The distinction between a political and a metaphysical conception of the person proposed by Rawls and endorsed by Nussbaum responds to the desire to respect different conceptions of value and life. Rawls starts from what he calls reasonable pluralism, which corresponds to Charles Larmores notion of reasonable disagreement.2 Larmore also defends a form of political liberalism intended to be fully respectful of disagreement. According to Rawls, reasonable people are those who have a sense of justice and a capacity for a conception of the good.3 Reasonable doctrines and peoples are, essentially, those who respect human rights and certain democratic forms, even if they have some undemocratic turns, such as, for example, privileges for a certain religion when electing political representatives.4 Outside of the shared terrain, reasonable peoples have divergent ideas about the value of different activities or about religious matters. In order to assess the conception of the person of capability theory, it is necessary to see with greater detail which things and activities are evaluated differently by different reasonable doctrines. Contrary to what could be expected, Nussbaum does not go sufficiently into this question, which is crucial for a precise account of the relation between capabilities and political liberalism. Lets see some examples. In her recent book Hiding from Humanity, Nussbaum points out that people have reasonable
1 2 3 4

John Rawls, Political Liberalism. New York: Columbia University Press. 2 ed. 1996. Charles Larmore, The Morals of Modernity. New York: Cambridge University Press, 1996. John Rawls, Political Liberalism. Columbia University Press, 1996. John Rawls, The Law of Peoples. Harvard University Press, 1999.

diagreements about matters of ultimate value (matters, for example, such as the immortality of the soul, and the particular content of a list of personal virtues).5 Elsewhere in the same book, she says that to reasonable disagreement belong all claims about god and religion; other slated metaphysical doctrines, such as the immortality of the person or the nature and existence of the soul; and ethical, aesthetic, and psychological doctrines that lie outside of the political core.6 And, in an article dealing specifically with political objectivity, diagreement takes place about the nature of death and the soul, about what human nature is, about the ultimate sources of knowledge and value, about freedom and determinism, about liberty and equality.7 According to Nussbaum, because of these disagreements, the conception of the person of capability theory must abstain from metaphsics and theology, and be limited to political notions such as free and equal citizens of political liberalism. In my opinion, when they go from general to specific questions regarding disagreements, Rawls and Nussbaum actually resort to two kinds of issues: (i) religious matters, and (ii) personal tastes and choices. In my opinion, these disagreements do not suffice to make sense of the distinction between metaphysical and political conceptions of the person. Rawls and Nussbaum do not sufficiently explain this distinction. When they refer to disagreement, they do not adequately distinguish philosophical and religious matters, as the texts quoted above show. The existence of God and the immortality of the soul are religious matters, the authentic terrain for respect, tolerance and pluralism. Philosophical or psicological controversies like freedom of the will do not concern the distinction we are considering. Virtues and plans of life mentioned by both authors are not relevant either. The distinction between political and metaphysical conceptions of the person and the justification of capabilities demand a closer look.

2. Justification and consensus about human capabilities Human capabilities and human rights work as moral criteria for dealing with persons. When we resort to capabilities and rights, the question arises about the rationale for

5 6 7

Martha Nussbaum, Hiding from Humanity. Princeton University Press, 2004, 60. Hiding from Humanity, 328. Political Objectivity, New Literary History 32 (2001), 890.

these criteria. For instance, where does the norm come from, that all persons are to be treated equally regardless their race, sex, religion, etc. Before this question, there are two main possible answers: actual consensus or justification independently of such consensus. When commenting on this, Rawls affirms that these rights come from the democratic culture of modern liberal societies. Rawls resorts to fundamental rights and liberties as criteria for reasonableness and decency of peoples. Rawls does not take them to rely on other valid reasons. They come from the democratic culture and they can be the object of consensus among reasonable doctrines. These doctrines can differ widely in their understandings of the good.8 Now, not even Rawls can take this to be correct. Rawls makes room for consensus independent norms and values through the intuition of considered judgments. Rawls himself takes some norms to be valid before they have been widely so regarded, such as equality of civil and political rights independently of race and gender. To say that these come from democratic culture, in which they have found space little by little, is a weak way of avoiding a theoretical problem. In times when these values were little by little being acknowledged, they could not be found in democratic culture yet. They were rather intended to criticize that culture. They were presented as morally superior criteria, which deserved space in democratic culture. The second way of justifying capabilities understands them as an anthropological ideal, which deserves to be protected by constitutions. The justification of capabilities cannot stem primarily from consensus; rather, basic capabilities deserve consensus if they have been well thought out. Nussbaums version of the capability approach goes in this direction up to the point when the problem of justification has to be made explicit. Nussbaum wants to offer basic capabilities and, at the same time, to avoid dogmatism and fully respect pluralism. According to her, the best way to do it is resorting to Rawlsian political liberalism, and arguing that the conception of the person of the theory of capabilities is freestanding. Now, despite deepest respect for historical and present experiences, Nussbaum herself brings out cases in which mutual enlightenment, experience and dialogue cannot give a final answer. For instance, if the majority of people in India decided to restrict political rights to Hindu citizens, then we ought to say: What the majority desires here

Rawls, Political Liberalism, 13.

is wrong.9 In Women and Human Development, Nussbaum presents a forceful treatment of adaptive preferences, a point often made by Sen. For instance, widows often complain less than widowers, even when their situation is clearly worse. We can criticize the consensus achieved by both regarding the situation of conformist widows. Where do we criticize from? From an idea of a life with dignity and value, which does not rely on majority or consensus. In the same line, the important survey of the World Poor showed a close similarity in items most valued by deprived people all over the world. However, one item is strikingly absent from the goods valued by deprived people: education and knowledge.10 What kind of authority do we grant this empirical result? Overlapping consensus entails the conclusion that understanding and knowledge do not have value in themselves. If we want to say that they do, as much as health, security and employment opportunities, we have to take this value from somewhere else. As Nussbaum herself puts it: the primary weight of justification reamins with the intuitive conception of truly human functioning and what that entails:11 The discussions and consensus about the list help to justify it in an acillary way. Lets see the way Nussbaum conceives of her own method of arguing for capabilites: The aim of the project [capability theory] as a whole is to provide the philosophical underpinning for an account of basic constitutional principles that should be respected and implemented by the governments of all nations, as a bare minimum of what respect for human dignity requires [] I shall argue that the best approach to this idea of a basic social minimum is provided by an approach that focuses on human capabilities, that is, what people are actually able to do and to be in a way informed by an intuitive idea of a life that is worthy of the dignity of the human being.12 In her more recent writings, Nussbaum points out the intuition of the dignity and unconditioned value of human beings as the central notion articulating capabilities. What kind of philosophical argument or rationale corresponds to this? I shall argue that
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Nussbaum, Reply to Okin, Philosophy and Public Affairs (2004), 200. Alkire, Valuing Freedoms. Oxford University Press, 2002. Women and Human Development, 76. Women and Human Development, 5.

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it is incompatible with a Rawlsian political conception of the person. The political conception and the fundamental criteria of the reasonable come from the political culture, whereas the intuition and reflection about dingnity and value allow criticizing the proposals of political culture.

3. Dignity, metaphysics and capabilities In her recent Reply to Okin, Nussbaum goes back to the vexed question of the justification of capabilities. She tries to make more explicit the way of proceeding in this justificatory task. How do I argue for the ten capabilities?says NussbaumLike Rawls, I view my arguments as essentially Socratic in character: I appeal to the interlocutor to ponder what is implicit in the notion of human dignity and of a life in accordance with it. I ask the interlocutor to consider that certain ways of life that human beings are forced to lead are not fully human, in the sense of their not being worthy of the dignity of the human being, I believe that this intuitive starting point offers definite, albeit highly general, guidance. Marx's vivid descriptions of forms of labor that allow a continued life, but not a fully human life, resonate the world over. The notion of a life in accordance with human dignity is one of the most fertile ideas used in worldwide constitutional jurisprudence. So, I argue in a very general and intuitive way, moving through various areas of life influenced by public policy, that the protection of these ten basic entitlements is an essential requirement of life with human dignity.13 In earlier writings, Nussbaum did not resort so clearly to the intuition of human dignity when inquiring into capabilities. She used an Aristotelian language of truly human functioning and a conception of internal essentialism. Essentialism so as to be able to make transcultural judgments, such as: The erraditation of smallpox is good, despite ruining the traditional cult of a godesss, because it allows people to live healthier lives. Internal in order to avoid dogmatism and paternalism. Thus the idea of a thick vague
13

Reply to Okin, 197.

conception of the good.14 Thick in order to hang on to central human functions. Vague so as to allow not only different ways of specifying these functions, but also particular values and norms, so far they respect the central functions. Later on, Nussbaum has endorsed Rawls political liberalism out of concern for pluralism. But there is continuity in her inquiry into basic capabilities. Something is emphatically common to all her discussions about the nature of universal capabilities and the method of their justification: the rejection of metaphysics. Now, to my knowledge, Rawls and Nussbaum do not give an account of what they understand by metaphysics in regard to their conceptions of the person. In this paper, I cannot deal explicitly with Rawls ideas. I present below a minimal working characterization of metaphysical knowledge and I argue that such an approach is needed to make sense of the procedure of determining basic capabilities. This task cannot be accomplished by the political liberal idea of an overlapping consensus of comprehensive doctrines. The conception of overlapping consensus in Rawls political liberalism has indeed arisen controversy. In an early exchange, Joshua Cohen presented a sympathetic account of the work done by this kind of consensus, whereas Jean Hampton pointed out that such consensus cannot function as a method of justification.15 Hampton rejected political liberalism and pleaded for an objectivist understanding of liberalism, the core values of which should be defended with good reasons. In pages devoted to the methodology of capabilities before endorsing Rawls political liberalism, Nussbaum refers to this exchange. She speaks of a mere overlap (Cohen) and a normative (Hampton) view of consensus. Nussbaum concurs with Hampton, but she does not enter into Hamptons point that the core values of liberalism demand an objectivist approach and cannot be fully conceived of without metaphysics.16 As we have seen, the main move when we face the need to contradict a consensus seems to be an intuitive appeal to the dignity of the human being, the value of equality, the importance of justice, the activities that are truly worthwhile, etc. This is the way we can hold on to the value of instruction and understanding or reject a change of the Indian constitution restricting voting to Hindus. In fact, Rawls needs something of this sort when he relies on considered judgments as intuitions that can keep their
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Human Capabilities, Female Human Beings, 74. Cohen and Hampton in David Copp, Jean Hampton and John Roemer, The Idea of Democracy. See also Gerald Gaus, Justificatory Liberalism, 1996.

Cambridge University Press, 1993.

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authority in the teeth of an opposing majority. In the end, this is the way he argues against slavery or for the equality of civil rights, for example. Rawls and Nussbaum affirm that these are metaphysically abstemious political procedures, and that each comprehensive doctrine can have its own reasons to back basic values or capabilities. In order to assess these claims, we need an understanding of metaphysical knowledge. Nussbaum characterizes metaphysical knowledge as deriving from a source external to the actual self-interpretations and self-evaluations of human beings in history.17 She opposes this ahistorical correspondence to a historial and experiential approach to capabilities. According to Nussbaum, her account is not metaphysical because it does not rely on an idea of the human being independent of historical experiences and dialogue between cultures and individuals. In my opinion, this is an insufficient characterization of metaphysics for the purposes of political liberalism and the justification of capabilities. Even if we agree that experience and historical sensitivity are crucial, at some points we have to argue against majorities or resort to dignity or intuition in a way left unaccounted for by dialogue and a consensus of reasonable doctrines. Let me resort to an idea of metaphysical knowledge shared by very different philosophical outlooks: logical positivism and phenomenological realism. Logical positivists take metaphysics to be nonsense, whereas phenomenological realists argue that we can have metaphysical knowledge of foundational issues in different philosophical disciplines. But they share a notion of metaphysics, which they oppose both to empirical and to formal (mathematical and logical) knowledge. These contrary philosophical outlooks agree to oppose metaphysical to empirical and to formal a priori knowledge about ideal objects and laws of mathematics and logic. According to logical positivists, all knowledge is empirical or analytic (including mathematics and logic). The rest is nonsense, that is, metaphysics. If we call synthetic a priori the knowledge that is neither, logical positivism can be characterized by the rejection of synthetic a priori or metaphysical knowledge.18 According to the school of phenomenological realism, there are material a priori fundamentals that can be investigated in different domains: values by Max Scheler, law by Adolf Reinach. Metaphysics deals with conceptual fundamentals that are not purely definitional or analytic.

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Human Functioning and Social Justice, 215. This definition was proposed by Moritz Schlick.

The intuition of considered judgments against slavery, the rejection of restricting democratic rights to the followers of a particular religion, the assumption of the intrinsic value of knowledge despite the contrary opinion of the world poor are no empirical judgments. Of course, public discussion, experience and history are crucial. The point, however, is that these are not the last authority. As Nussbaum herself says, consensus is ancillary to justification. The keys are reflection and intuition about truly human functioning, dignity, value. This is no empirical or descriptive resort, but what we need and use willy-nilly to evaluate and criticize given judgments. On the other hand, these intuitions and reflections are not formal nor a matter of definition. They fall in the third category recognized by logical positivists and phenomenological realists. We dwell in rich ideas and resort to some kind of intuitive authority. We hope others can also recognize these judgments. Where do they stand? This is a difficult issue, but this difficulty is not a good reason for calling these judgments what they are not. Judgments, intuitions and reflection about dignity or value are not empirical, nor formal, nor definitional: they are metaphysical. I believe this issue to be avoided systematically by Rawls and Nussbaum. Nussbaum describes what she does using the notions of dignity, value, intuition. But, in my opinion, her political liberal account of justification does not suffice. The language of an objectivist liberalism, such as Hamptons, or a metaphysics of the core liberal values seems to me on a better track. But Hampton does not investigate the kind of authority we can ascribe to intuitions about dignity and the criteria we apply and we hope others will agree with. Needless to say, we need historical information, experience and dialogue. But the crucial issues of justification also demand a thorough treatment of value, objectivity, intuitionism, apriorism. Theses topics are absent from many debates about liberalism, the foundations of human rights or the justifications of capabilities. In my opinion, some of these debates spin around the same issues again and again, without going into crucial topics that must be investigated if we want to make philosophical progress.