Saturday, March 8, 2014

capabilities and the impossibility of justice

In my ongoing quest to grok justice, I read Martha Nussbaum's Frontiers of Justice and was duly impressed. The aim of the book is to extend justice to areas left out by other approaches. These areas include individuals with disabilities, individuals living beyond the borders of the nation of interest, and sentient non-human species. The book elaborates on the so-called "capabilities approach" to justice.

Before presenting the capabilities approach, Nussbaum offers several criticisms of formulations of justice based on social contract theory, which she views as the all-around best attempt at justice so far. The social contract theory (Rawls's is the one usually under her microscope) fails to grapple with these three areas of justice right from the assumptions. Whether you buy into the capabilities approach or not, Nussbaum's case that the neglect of these areas represents a critical failure of theory is--to me--compelling. 

The social contract theory assumes that principles of justice can be obtained by imagining idealized representatives of society, in a condition where their personal biases and knowledge of where they stand in society have been removed, sitting together to hash out what would be most advantageous to each of them. These representatives are assumed to be motivated by self-interest, and are stipulated to be roughly of equal powers and mental capacities.

There is an intuitive appeal to basing a theory of justice on self-interest. After all, if you can get a workable theory of justice assuming everyone is in it for themselves (and perhaps their kin and loved ones), then it seems somehow more robust. There is also elegance in the parsimony of this approach. Unfortunately, the appealing assumption doesn't fit the facts. I'm no expert, but my impression is that our current empirical understanding of moral psychology suggests that humans simply cannot be well-described as selfish maximizers. A theory of justice seems fundamentally flawed if it discards human nature right out of the assumptive gates. More troubling still, if it turns out that justice does demand unselfish regard for others, an assumption of self-interest in no way guarantees to move us in the right direction.

The stipulation that the folks negotiating the principles of justice are of equal powers is troubling if we want justice to work for the weak. The idea behind the assumption seems to be avoiding the problem of one person being able to just dominate the other negotiators at will. But this gets the cart before the horse: understanding justice would seem to include understanding why it would be unjust to abuse a position of power. Nussbaum's contractarian interlocutors aim to protect the weak by means alternative to justice, such as charity or humanitarianism. But this makes consideration for disabled persons, or sentient non-human animals, or desperately poor foreigners, supererogatory--certainly nice but not actually required.

Nussbaum also points out that the assumption of independence among the individuals at the bargaining table of justice isn't just worrisome for disabled individuals fundamentally incapable of looking after themselves. Even ignoring these people, we are left with temporarily disabled people, and even more dramatically the elderly and children, who require a great deal of care. It is clear that we can't just brush a few unfortunate disabled people off to the side and hope some theory of charity will suffice for them. Taking into account infancy, youth, and old age, every individual is extremely needy in different parts of his life. Human beings simply are needy creatures.

Nussbaum's capabilities approach differs from contractarianism in that it is outcome-oriented, in some sense evaluating what a just society would look like and then working backward to figure out what the principles should be. A just society consists of one in which each individual lives
a life that is worthy of ... dignity--a life that has available in it 'truly human functioning,' in the sense described by Marx ... Marx speaks of the human being as a being 'in need of a totality of human life-activities,' and the [capabilities] approach  also takes its bearing from this idea, insisting that the capabilities to which all citizens are entitled are many and not one, and are opportunities for activity, not simply quantities of resources.
Nussbaum lists these capabilities as the following:

1. Life. Being able to live to the end of a human life of normal length . . . ; not dying prematurely . . .2. Bodily health . . . Being able to have good health, including reproductive health; being adequately nourished . . . ; being able to have adequate shelter . . .
3. Bodily integrity. Being able to move freely from place to place; being able to be secure against violent assault, including sexual assault . . . ; having opportunities for sexual satisfaction and for choice in matters of reproduction
4. Senses, imagination, thought. Being able to use the senses; being able to imagine, to think, and to reason--and to do these things in . . . a way informed and cultivated by an adequate education . . . ; being able to use imagination and thought in connection with experiencing, and producing expressive works and events of one's own choice . . . ; being able to use one's mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech and freedom of religious exercise; being able to have pleasurable experiences and to avoid nonbeneficial pain
5. Emotions. Being able to have attachments to things and persons outside ourselves; being able to love those who love and care for us; being able to grieve at their absence, to experience longing, gratitude, and justified anger; not having one's emotional developing blighted by fear or anxiety. . . .
6. Practical reason. Being able to form a conception of the good and to engage in critical reflection about the planning of one's own life. (This entails protection for liberty of conscience.)
7. Affiliation. Being able to live for and in relation to others, to recognize and show concern for other human beings, to engage in various forms of social interaction; being able to imagine the situation of another and to have compassion for that situation; having the capability for both justice and friendship. . . . Being able to be treated as a dignified being whose worth is equal to that of others.
8. Other species. Being able to live with concern for and in relation to animals, plants, and the world of nature.
9. Play. Being able to laugh, to play, to enjoy recreational activities.
10. Control over one's environment. (A) Political: being able to participate effectively in political choices that govern one's life; having the rights of political participation, free speech and freedom of association . . . (B) Material: being able to hold property (both land and movable goods); having the right to seek employment on an equal basis with others . . .
This list is not complete, and indeed it is intrinsically open. All of these capabilities must be ensured to each individual sentient being to achieve full justice in the capabilities view. One capability can't be "bought" at the expense of another. In other words, a hypothetical authoritarian society somehow awash in material abundance cannot justify political oppression or thought control (4, 6, 10) by appealing to access to health and economic resources (1, 2, 9).

One concern that jumps out at me is the potential for conflict. Opportunities for sexual gratification, for example, require in most instances willing collaborators. But this can't be guaranteed in a way that respects the freedom and equality of other members of society. Of course, this is just an extreme example of the broader problem that social affiliation, economic commerce, access to medicine, and so on all require input from other individuals, all of whom must be respected as free and equal beings. This is just the old libertarian critique of positive rights, but the capabilities approach seems especially vulnerable to this critique due to the grand ambitions of the framework. But then, it's a jump to conclusions to think that capabilities must be enforced in some way, let alone enforced by the state.

Another potential concern is that capabilitarian justice is impossible to achieve. To the credit of the framers of the approach, it respects economic freedoms as well as other freedoms. Indeed it is to its immense credit that it makes no special differentiation between economic and other capabilities, in contrast to Rawls. But if this is the case, there will certainly be economic inequalities. Nussbaum doesn't make a big deal about this, but with technological progress, the economic elites of society will achieve new capabilities requisite for fully dignified human life before they are even understood to be core capabilities.

I have in mind those technological innovations that sweep over society and become basic necessities. I think it is reasonable to say that if an individual does not have access to electricity, she does not possess the full range of human capabilities. Internet access (I'll even go so far as to say high-speed access), mobile telephony, safe and efficient transportation, etc, all seem necessary for life as a modern human being. But these technologies didn't always exist, and they came into being gradually. Access to Internet-based social networks might not have been plausible as a core capability until a critical threshold of users is reached. Other core capabilities likely don't exist yet at all. If human immortality (or at least indefinitely delayed mortality from "natural" causes) is possible, then it seems like a straightforward derivation (1, 2, 4) that access to immortality-enabling technology must be secured for all sentient individuals as a matter of justice.

This might seem like it jettisons the capabilities approach from the sphere of reasonable ideas, but I don't think so. It's unclear to me that possibility is a defining quality of justice. And we've already seen that attempts to bridle justice with assumptions that make it easier to achieve (like the assumption of self-interested negotiators) risk limiting the concept so that it won't perform the work we want it to perform. Nussbaum concurs, "It may be true that in desperate conditions justice cannot be achieved; that does not mean, however, that it cannot be contemplated, and questions asked about how conditions arose that prevent justice from being realized." Here I would characterize "desperate conditions" as "life". The grand ambition is a feature, not a bug.

I am attracted to the capabilities approach because it is the closest idea I have yet come across at describing what it is I mean when I talk about human flourishing. This is the language I have been using lately when I think about what it is that I want society to do or to optimize. It isn't liberty and it isn't welfare, at least not narrowly conceived. But it's something that comprises both of these values, and more.

As an end note, I've been working off and on on this post for a couple months in my spare time. It's been on the perpetual back burner because of my other blogging commitments. What prompted me to finish it is the blog series on the capabilities approach that Ingrid Robeyns has recently embarked upon. It's off to a great start and if anyone finds this post interesting, I recommend heading there next.