Ages ago, at my first-year law school orientation, my classmates were told "If you only know the law, then you do not know the law at all." I took the words to heart as I made my way through law school, through law practice and, now, into law teaching. The Cosmopolitan Lawyer lists readings, many non-law, which are influencing my thinking about law. It is my effort to be, and to encourage others to be, more cosmopolitan--and, thus, less parochial--in thinking about law.
April 7, 2011
CAPABILITIES APPROACH TO HUMAN DEVELOPMENT
Martha C. Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, Massachusetts, & London, England: Belknap/Harvard U. Press, 2011) ("The Capabilities Approach can be provisionally defined as an approach to comparative quality-of-life assessment and to theorizing about basic social justice. It holds that the key question to ask, when comparing societies and assessing them for their basic decency or justice , is, 'What is each person able to do and to be?' In other words, the approach takes each person as an end, asking not just about the total or average well-being but about the opportunities available to each person. It is focused on choice or freedom, holding that the crucial good societies should be promoting for their people is a set of opportunities, or substantial freedoms, which people then may or may not exercise in action: the choice is theirs. It thus commits itself to respect for people's powers of self-definition. The approach is resolutely pluralist about value: it holds that the capability achievement that are central for people are different in quality, not just in quantity; that they cannot without distortion be reduced to a single numerical scale; and that a fundamental part of understanding and producing them is understanding the specific nature of each. Finally, the approach is concerned with entrenched social injustice and inequality, especially capability failures that are the result of discrimination or marginalization. It ascribes an urgent task to government and public policy--namely, to improve the quality of life for all people as defined by their capabilities." "These are the essential elements of the approach. It has (at least) two version, in part because it has been used for two different purposes. My own version, which puts the approach to work in constructing a theory of basic social justice, add s other notions in the process (those of human dignity, the threshold, political liberalism)." Id. at 18-19. "[A] decent political order must secure to all citizens at least a threshold level of these ten Central Capabilities: 1. Life. . . . 2. Bodily health. . . . 3. Bodily integrity. . . . 4. Senses, imagination, and thought. . . . 5. Emotions. . . . 6. Practical reason. . . . 7. Affiliation. . . . 8. Other species. Being able to live with concern for and in relation to animals, plants, and the world of nature. 9. Play. . . . 10. Control over one's environment. . . ." Id. at 33-34. "Any approach based on the idea of promoting capabilities will need to make a fundamental decision: Whose capabilities count? Virtually every proponent of the approach holds that all human beings count, and count as equals. Beyond this, there are five basic positions one may take: 1. Only human capabilities count as ends in themselves, although other capabilities may turn out to be instrumentally valuable in the promotion of human capabilities. 2. Human capabilities are the primary focus, but since human beings form relationships with nonhuman creatures, these creatures may enter into the description of the goal to be promoted, not simply as means, but as members of intrinsically valuable relationships. 3. The capabilities of all sentient creatures count as ends in themselves, and all should attain capabilities above some specified threshold. 4. The capabilities o all living organisms, including plants, should count, but as individual entities, not as part of ecosystems. 5. The individualism of 1-4 is dropped; the capabilities of systems (ecosystems in particular, but also species0 count as ends in themselves." Id. at 157-158. Thoughtfully written, deserving of a thoughtful reading.).