Disability and Capability: Exploring the Usefulness of Martha Nussbaum's Capabilities Approach for the UN Disability Rights Convention

Sen A. , “Equality of What?” The Tanner Lectures on Human Values 1 (1979): 215–219, available at <http://tannerlectures.utah.edu/lecture-library.php#s> (last visited October 17, 2013).

United Nations Development Programme (UNDP), “Origins of the Approach,” 2010, available at <http://hdr.undp.org/en/humandev/origins/> (last visited October 3, 2013).

Rawls J. , Political Liberalism: Expanded Edition (New York: Columbia University Press, 2011): At 20, 182–186.

Craven Nussbaum M. , Frontiers of Justice (Cambridge/London: Harvard University Press, 2006): At 98.

Others argue that it is difficult to criticize Rawls' theory of justice in the way Nussbaum does. It is stated that Rawls' theory is an ideal theory of justice that aims primarily at truth-seeking whereas the capabilities approach falls in the category of non-ideal theories, which want to provide action-guidance. Given that their scope and theoretical aims are thus not the same, a comparison would prove hard. For an overview,

see Robeyns I. s.v., “The Capability Approach,” in Zalta E. N. , ed., The Stanford Encyclopedia of Philosophy, summer 2011, available at <http://plato.stanford.edu/archives/sum2011/entries/capability-approach/> (last visited October 3, 2013).

Nussbaum M. C. , Women and Human Development (Cambridge: Cambridge University Press, 2001): At 5.

Id., at 164–165.

In the justification of the capabilities approach, we find significant differences between the earlier Nussbaum in, for example, Nussbaum M. C. , “Aristotelian Social Democracy,” in Bruce Douglass R. Mara G. M. Richardson H. S. , eds., Liberalism and the Good (New York: Routledge, 1990): At 203–252.

See also the later Nussbaum work, Frontiers of Justice, supra note 4. For reasons of simplicity, I will only focus on the later Nussbaum assuming that she had good reasons to change her view.

Nussbaum's latest book on the capabilities approach, Creating Capabilities, aims to be an accessible introduction to the capabilities approach for undergraduates and general readers (Cambridge: Harvard University Press, 2011). It contains no new analysis besides a general classification of capabilities approaches, which does not fall in the range of this paper.

Therefore, reference to Nussbaum's capabilities approach mainly rely on Frontiers of Justice and Women and Human Development.

See Nussbaum , supra note 4, at 80.

Id., at 70.

Id., at 161.

Id., at 70. Here, earlier normative justifications only refer to Aristotle and his understanding of what human flourishing contains.

See also the section below entitled “Universal Relevance”.

Nussbaum M. C. , “Human Rights and Human Capabilities,” Harvard Human Rights Journal 20 (2007): 23–24.

This is another difference with Rawls' account where the scope is limited to democratic countries with a constitutional regime.

See Nussbaum , supra note 4, at 5.

Stein M. A. Stein P. , “Beyond Disability Civil Rights,” Hastings Law Journal 58, no. 6 (2006): 1216–1240.

Nevertheless, in earlier writings, Nussbaum developed an idea about how to lead a flourishing life. It is clear for her “that functionings, not simply capabilities, are what render a life fully human in the sense that if there were no functioning of any kind we could hardly applaud it.”

(See Women and Human Development, supra note 6, at 87.) Furthermore, there are actually some cases where functioning is the appropriate goal: In the area of self-respect and dignity and for children even in all areas

(see Frontiers of Justice, supra note 8, at 172.) The reason for this is that a functioning is crucial to attain and maintain other capabilities here

(see Women and Human Development, supra note 6, at 92). For instance, health care for children must be compulsory to enable them to have certain other capabilities later on in life.

One could of course argue that the choice for some capabilities instead of others is still to a certain extent paternalist.

See Nussbaum , supra note 4, at 186.

Nussbaum M. C. , “Capabilities as Fundamental Entitlements: Sen and Social Justice,” Feminist Economics 9, nos. 2–3 (2003): 33–59, at 40.

Example taken from Robeyns, “The Capability Approach,” supra note 5.

See Nussbaum , supra note 4, at 181.

Id., at 78.

See Nussbaum , supra note 6, at 97.

See Nussbaum , supra note 20, at 37.

See Nussbaum , supra note 4, at 70.

Given the different status of Rawls' theory in comparison with Nussbaum (see footnote 4), it is questionable whether this criticism is actually justified. One might argue that Rawls understands his conception of person as an ideal, not as a factual description. Here, for the sake of following Nussbaum's line of argument, I will simply assume that her criticism has a point.

Barclay L. , “Natural Deficiency or Social Oppression? The Capabilities Approach to Justice for People with Disabilities,” Journal of Moral Philosophy 9, no. 4 (January 1, 2012): 500–520, at 500.

See Robeyns , supra note 5.

See Nussbaum , supra note 13, at 24.

See Nussbaum , supra note 4, at 168.

Forexample, see Stein Stein , supra note 16;.

Stein M. S. , Distributive Justice & Disability: Utilitarianism Against Egalitarianism (New Haven: Yale University Press, 2006). Some argue that Rawls is actually more inclusive than Nussbaum.

See Wong S. , “The Moral Personhood of Individuals Labeled ‘Mentally Retarded’: A Rawlsian Response to Nussbaum,” Social Theory and Practice 33, no. 4 (October 1, 2007): 579–594;.

Richardson H. S. , “Rawlsian Social-contract Theory and the Severely Disabled,” Journal of Ethics 10, no. 4 (2006): 419–462.

See Nussbaum , supra note 4, at 187.

Id., at 193.

Id., at 90.

See Nussbaum , supra note 6, at 84.

Id.

Oliver M. , The Politics of Disablement: A Sociological Approach (London: Palgrave Macmillan, 1990).

For a detailed historical review and critique of models of disability, see Bickenbach J. E. , “Models of Disablement, Universalism and the International Classification of Impairments, Disabilities and Handicaps,” Social Science & Medicine 48, no. 9 (1999): 1173–1187.

Wasserman D. , s.v. “Disability: Definitions, Models, Experience,” Zalta E. N. , ed., The Stanford Encyclopedia of Philosophy, winter 2011, available at <http://plato.stanford.edu/archives/win2011/entries/disability/> (last visited October 3, 2013).

Silvers A. , ed., Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy (New York: Rowman & Littlefield Pub. Inc., 1998): At 75.

It is discussed how the interaction between an impairment and the environment can exactly be understood and what the role of these two elements precisely is. It is on the one hand argued that what constitutes an impairment also depends on social arrangements. See, for example, Amundson R. , “Against Normal Function,” Studies in History and Philosophy of Biology & Biomedical Science 31, no. 1 (2000): 33–53;.

and Tremain S. , “On the Government of Disability,” Social Theory and Practice 27, no. 4 (2001): 617–636.

On the other hand, it is also argued that impairments themselves are often limiting or difficult. See, for example, Shakespeare T. , Disability Rights and Wrongs (New York: Routledge, 2006); and Terzi L. , “The Social Model of Disability: A Philosophical Critique,” Journal of Applied Philosophy 21, no. 2 (2004): 141–157.

A similar interpretation of the capabilities approach provided by: Burchardt T. , “Capabilities and Disability: The Capabilities Framework and the Social Model of Disability,” Disability & Society 19, no. 7 (2004): 735–751;.

Mitra S. , “The Capability Approach and Disability,” Journal of Disability Policy Studies 16, no. 4 (2006): 236–247, at 236;.

Dubois J.-L. Trani J.-F. , “Extending the Capability Paradigm to Address the Complexity of Disability,” European Journal of Disability Research 3, no. 3 (2009): 192–218;.

and Anderson E. S. , “Justifying the Capabilities Approach to Justice,” in Brighouse H. Robeyns I. , Measuring Justice: Primary Goods and Capabilities (Cambridge University Press, 2010): At 81–100.

Degener T. Quinn G. , Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (New York/Geneva: United Nations, 2002): At 1;.

Kayess R. French P. , “Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities,” Human Rights Law Review 8, no. 1 (2008): 1–34, at 3.

Aichele V. , “Die UN-Behindertenrechtskonvention Und Ihr Fakultativprotokoll. Ein Beitrag Zur Ratifikationsdebatte,” (The UN Disability Rights Convention and Its Optional Protocol. A contribution to the Debate about Ratification) (Deutsches Institut für Menschenrechte [German Institute for Human Rights] Policy Paper Nr. 9, August 2008): 4.

See Nussbaum , supra note 13, at 21.

Nickel J. , s.v. “Human Rights,” in Zalta E. N. , ed., The Stanford Encyclopedia of Philosophy, 2010, available at <http://plato.stanford.edu/entries/rights-human/> (last visited October 3, 2013).

Flóvenz B. , “The Implementation of the UN Convention and the Development of Economical and Social Rights as Human Rights,” in Mjoll Arnardóttir O. Quinn G. , eds., The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden/Boston: Martinus Nijhoff Publishers, 2009): At 257;.

Kallehauge H. , “General Themes Relevant to the Implementation of the UN Disability Convention into Domestic Law: Who Is Responsible for the Implementation and How Should It Be Performed?” in Mjoll Arnardóttir O. Quinn G. , The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden/Boston: Martinus Nijhoff Publishers, 2009): At 204.

Id. (Flóvenz), at 257.

See Degener Quinn , supra note 44, at 19.

Shue H. , Basic Rights (Princeton: Princeton University Press, 1996): At 37.

Others assume a different distinction between positive and negative rights that avoids the confusion that is created here by making a conceptual distinction that carries with it a moral priority of negative rights as only requiring non-interference. Alan Gewirth, for example, argues that all rights, positive as well as negative ones, require government action. Here, negative rights are rights not to interfere with the right-holder's freedom and well-being (for example, to take active measures that no one will kill me) whereas positive rights are rights to the development of freedom and well-being.

See Gewirth A. , The Community of Rights (Chicago: University of Chicago Press, 1996): At 33–38.

Office of the High Commissioner of Human Rights, “Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors (Professional Training Series No. 17),” United Nations, 2010, at 5.

Mégret F. , “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” Human Rights Quarterly 30, no. 2 (May 2008): 494–516, at 516.

For a systematic analysis of the concepts and backgrounds of the CRPD and the transformation that it implies,

see Anderson J. Philips J. , eds., Disability and Universal Human Rights. Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities (Utrecht: SIM, 2012).

Graumann S. , Assistierte Freiheit. Von Einer Behindertenpolitik Der Wohltatigkeit Zu Einer Politik Der Menschenrechte (Frankfurt/New York: Campus Verlag, 2011): At 59.

Here, one could argue that this right is problematic as a human right, whether it concerns disabled persons or not. Should anyone have as many children as they like, and if they are not in a proper position to provide care, rely on society to take over? One could defend the position that no one has a right to have children, and hence, there is also no right to assistance in child-rearing. This depends on the question how rights in general are justified and to what extent having children falls under this justification. For a further discussion,

see Warnock M. , Making Babies: Is There a Right to Have Children? (New York: Oxford University Press, 2002). Furthermore, in the special case of disabled persons, it could be argued that in some cases like a severe cognitive disability, it is their impairment and not the society-created disability that makes child-rearing impossible for them. It could be suggested that they had an insufficient notion of what it takes to be a parent, and hence could not make the responsible decision to be a parent no matter how much support they receive from society. This position would be compatible with in general holding up right to have children, but would allow some exceptions. It hinges on the conceptual question of what it means to make a responsible decision to have children and the empirical question to what extent people with cognitive impairments do or do not fulfill this requirement. However, this problematic issue cannot be adequately covered at this place. Therefore, I will not follow up on this discussion and rather focus on the implications that this right has because it is already established in the CRPD.

For a more detailed discussion about the pros and cons of priority-setting in the implementation of the CRPD,

see Philips J. , “Human Rights, the CRPD, and Priority-Setting,” in Anderson J. Philips J. , eds., Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities (Utrecht: SIM, 2012): At 147–165.

United Nations, From Exclusion to Equality: Realizing the Rights of Persons with Disabilities: Handbook for Parliamentarians on the Convention of the Rights of Persons with Disabilities and Its Optional Protocol (New York/Geneva: United Nations, 2007): At 19–20.

See Nussbaum , supra note 20, at 40.

See Nussbaum , supra note 4, at 175.

See Nussbaum , supra note 6, at 37.

See Nussbaum , supra note 4, at 181.

See Nussbaum , supra note 6, at 82.

See Nussbaum , supra note 4, at 181.

Id.

Nussbaum M. C. , “Human Capabilities, Female Human Beings,” in Nussbaum M. C. Glover J. , eds., Women, Culture and Development: A Study of Human Capabilities (Oxford: Clarendon Press, 1995): At 82.

See Nussbaum , supra note 8, at 32.

See Nussbaum , supra note 4, at 83.

Id., at 355.

For a more detailed discussion of Nussbaum's justification of the capabilities approach – and Nussbaum's earlier employed justification method –

see Claassen R. Düwell M. , “The Foundations of Capability Theory: Comparing Nussbaum and Gewirth,” Ethical Theory and Moral Practice 16, no. 3 (2012): 493–510. For a discussion of several approaches to moral justification proposed by Martha Nussbaum,

see Jaggar A. M. , “Reasoning about Well-Being: Nussbaum's Methods of Justifying the Capabilities,” Journal of Political Philosophy 14, no. 3 (2006): 301–322.

Richard Arneson criticizes Nussbaum's account concerning the general setting of priorities in terms of Nussbaum's emphasis on sufficiency thresholds of capabilities that need to be secured for all human beings (see Arneson R. , “Distributive Justice and Basic Capability Equality. ‘Good Enough’ Is Not Good Enough,” in Kaufman A. , ed., Capabilities Equality: Basic Issues And Problems [New York: Routledge, 2006]: At 17–43. Arneson argues that due to the arbitrariness of picking a threshold, sufficiency thresholds should not have absolute priority, but this is what Nussbaum holds up. Therefore, one should abandon the whole idea of sufficientarianism.

Daniels N. , Just Health Care (New York: Cambridge University Press, 1985);

Daniels N. , Justice and Justification: Reflective Equilibrium in Theory and Practice (New York: Cambridge University Press, 1996);

Daniels N. , Just Health: Meeting Health Needs Fairly (New York: Cambridge University Press, 2008).

See Shue, supra note 51, at 19. Henry Shue proposes an original conception of basic rights that illuminates both the nature of moral rights generally and the determination of which specific rights are the basic ones.

Riddle C. A. , “Responsibility and Foundational Material Conditions,” American Journal of Bioethics 11, no. 7 (2011): 53–55, at 54.

Griffin J. , On Human Rights (New York: Oxford University Press, 2008): At 37.

Gewirth A. , Reason and Morality (Chicago: University of Chicago Press, 1978): At 340.