Rawls and capabilities: the current debate CLAUDIO D’AMATO, VIRGINIA TECH (2014)

The capability approach to justice was con- answer different questions in substantially differ- ceived as an alternative to the Rawlsian scholar- ent realms of inquiry and applicability. ship that became dominant in moral and political philosophy at the end of the XX century. Among I. Justice as fairness other issues, capability theorists have objected to Rawls’s identification of the currency of distribu- Rawls argues that the object of distributive jus- tive justice with primary goods and to the claim tice is the basic structure of society (1999a: 3); i.e., that the appropriate subject of distributive justice the political institutions that regulate the interac- is the basic structure of society. As Ingrid Robeyns tions of free and equal citizens in a democratic (2011) puts it, capability theorists argue that capa- “cooperative venture for mutual advantage” bility as a “metric of justice” does a better job than (1999a: 4). The subjects of distributive justice are Rawlsian primary goods at capturing what human the citizens themselves, whose representatives, beings seek in a social distributive scheme. How- while in an original position of initial fairness, ever, the relation between the two sides of the de- concur on a political conception of justice that all bate is not one of stark opposition, but rather one can endorse. Even if they privately endorse widely of productive exchange: all work within the liberal different comprehensive doctrines—religious, political tradition, and in the last few years there philosophical, traditional, historical, and moral— has been considerable mutual understanding, co- each doctrine, if it be reasonable, yet comprises operation, and a certain softening of the two sides’ the theoretical elements to support a public and original positions—pun intended. political conception of justice (2001: 183). Thus, when deciding the principles of justice for a socie- This paper surveys the main arguments in the ty, citizens must focus on this “overlapping con- debate and evaluates recent (2003-2013) contribu- sensus” and deemphasize their individual contin- tions to the literature that attempt to bridge the gap gencies, stashing them away behind a “veil of ig- between justice as fairness and the capability ap- norance,” lest they render the terms of the contract proach. I begin with a statement of Rawls’s argu- biased or unequal (1999a: 11). In a way, people ment on distributive justice, emphasizing the con- need not agree on anything except what they find tribution of the difference principle. Then I present themselves agreeing upon after a process of fair two strands of criticism from capability theorists bargaining. Those who hold strong considered that address the distributive lacunae of justice as convictions about freedom, democracy, and equal- fairness, and especially of the difference principle. ity will in fact also hold reasonable comprehensive I continue by showing how Rawlsians have rebut- doctrines that can support the political conception ted these objections and why capability theorists of justice (2001: §12-13). have found those rebuttals wanting. Finally, I re- view some arguments for either active cooperation The first principle chosen in the original posi- or mutual noninterference between the two theo- tion—in its final formulation in Justice As Fair- ries. I find merit with both options: justice as fair- ness: A Restatement (2001)—mandates “a scheme ness and the capability approach may be either of equal basic liberties [...] compatible with the integrated in a hybrid theory (alternatively sub- same scheme of liberties for all” (42). The second suming the principles of justice under the capabil- principle states that socioeconomic inequalities ity framework or the other way around) or left to must be equally accessible to all (Fair Equality of Rawls and Capabilities | 2

Opportunity) and be to the greatest benefit of the sentials are agreed-upon and justified by the same least-advantaged members of society (Difference); process by which the parties in the original posi- both principles address distribution, but of differ- tion choose the principles of justice. Indeed, this is ent social goods (2001: 42-43). Equal Basic Liber- the point of the ideas of reciprocity and publicity: ties distributes rights on a Kantian egalitarian view just as the parties in the original position are able of human persons as “possessing moral personality to agree on the principles of justice by remaining above a threshold level” that entitles them to a behind the veil of ignorance, the citizens of a soci- bare minimum of rights (Arneson 1999).Here the ety are able, using public reason, to justify to one currency of distributive justice is strictly political, another their support for the constitutional essen- granting certain rights to persons who are suffi- tials (Wenar 2012), while special and contingent ciently morally mature to choose them from the laws require less general agreement and less pub- original position as literally indispensible. Instead, licity. The principles of justice, thus, are neither Fair Equality of Opportunity distributes access, purely moral mandates nor mere policy sugges- limiting institutions from restricting privileged tions, but actually regulate the basic structure of offices on the basis of unearned (dis)advantages society at the legal level. This is easy to see for the like wealth, race, sex, and so forth. Finally, Differ- first principle, for basic equal liberties are often ence distributes resources and social goods so that, written into a constitution and legally guaranteed. given a fair distribution of inequalities arrived at The second principle, including both fair equality via the previous principle, they work to the benefit of opportunity and difference, is guaranteed legal- of everyone in society, especially the least well- ly both by nondiscrimination laws and by ar- off. Many kinds of goods and resources may be rangements that positively grant opportunity and the proper object of distribution according to Dif- help maintain opportunity fair, such as education ference; they may include portions of earned in- and some redistributions (Wenar 2012). Of course, come through taxation, incentive and motivation many laws do not correspond directly to any prin- for the poorest members of society, social benefits ciples of justice or constitutional essentials—such like recognition or entertainment, and others still. as age of consent or substance prohibition—and Consider two crucial features of Rawls’s ap- thus are not part of the basic structure, nor part of proach to distributive justice. First, the distributive Rawls’s views on distributive justice. scheme is institutionalized, as the theory applies to The second important feature of the theory is the basic structure of society and not to special that the institutionalized distributive scheme ap- groups or laws or to contingent arrangements. By plies equally to all persons with no regard for their “institutionalized” and “basic structure” Rawls individual contingencies, life paths, past histories, means law: the principles of justice must under- preferences, etc. That is the point of the veil of write the design, functioning, and legislation of ignorance and of the deontology after which it society’s fundamental institutions, including polit- takes. When individual contingencies are consid- ical offices, the legal system, the economy, and ered, the bargaining terms in the original position education. These are the legal essentials of a socie- are vulnerable to biases, and thus to discrimination ty. The choice of principles of justice in the origi- against individuals for unfair reasons. The Kantian nal position is the first of a three-stage legislative ideas of reciprocity and publicity reinforce this process, which continues with agreement on the even application of the principle, as does Rawls’s constitutional essentials inspired by the principles repeated emphasis that the citizens represented in of justice and ends with the design of special laws the original position are free and equal amongst (Stark 2007). The principles-constitution-laws ar- themselves (for example: 1999a: 10-12; 2001: 18- rangement is hierarchical. The constitutional es- 24). Rawls is less clear about whether a person Rawls and Capabilities | 3 must have satisfied the requirement of a degree of sensitivity and respect for diverse relationships. In “moral personality above the threshold” in order to time, Sen came to deploy the capability approach be guaranteed equal protection and entitlement as a tool for international studies to address the under the principles of justice. One might say no, deep impoverishment of Third World economies, for while a modicum of moral quality and intellec- in an attempt to move away from wealth-based tual prowess are required to assume the original views of development that made heavy use of position and deliberate on the principles, no such GDP and GNP figures. In “The concept of devel- skills are required in order to benefit from a cer- opment” (1988), he criticizes the claim that a rich tain right or opportunity. However, this problem is or industrialized society is a developed society. best understood as a discussion of what justice as Instead, he proposes, a more telling measure of a fairness mandates for those who are severely men- society’s development is the realistic availability tally or physically disabled, as lacking the suffi- of functionings to its citizens, where ‘functionings’ cient moral personality also usually entails a se- are defined as “the doings and beings of a per- vere disability (or childhood, but that is a special son”—that is, their capability. case to be assessed separately). Building on Sen’s work, first jointly (1993) and With these features in mind, I turn to two fami- then individually (1995; 1997), Martha Nussbaum lies of criticism from capability theorists that rest has developed a more fully structured, virtue- on the features I just outlined: one contesting inspired theory of justice that employs capabilities Rawls’s claim that a distributive scheme should as the main metric of interpersonal and social jus- apply (only) to the basic structure of society and tice. To this end, she proposes a list of ten areas of another objecting to his metaphysical requirement human life where capability must be guaranteed of sufficient moral personhood in order to qualify for justice to exist. These areas range from bodily as a legitimate participant in a distributive scheme. health and integrity to association and practical reason, comprising many factors that increase our quality of life and our ability to attain the goals II. Capability that we have set for ourselves. Like Sen, Nuss- It will be well, first, to briefly summarize the baum also emphasizes self-determination of life capability approach and its scheme of distributive prospects or functionings. Capability in the ten justice. The approach was first proposed by econ- areas is multiply realizable and each can be instan- omist Amartya Sen in his 1979 Tanner Lectures, tiated in a variety of ways depending on culture, whose arguments were published in “Equality of history, tradition, and socioeconomic status. They what?” (1980). Evidence of capability-like think- may be ranked differently, given different weighs, ing also appears in some of his earlier works, in- pursued by different entities at different times, cluding, interestingly, an economics paper criticiz- receive more or less cultural publicity, etc. (Here ing Rawls’s early statement of the difference prin- we should note that Nussbaum pluralizes “capabil- ciple (1976).The main goal of the capability ap- ity” to “capabilities,” which in my view does not proach was to provide “an alternative to normative fully capture the extent of Sen’s original concept. views that rely exclusively on mental states in Capability is the graduated measurement of the their evaluative exercises” (Robeyns 2011), focus- opportunity and realistic availability of life pro- ing instead on subjective and contingent moral spects, so there is only one capability, not many. judgments and evaluations. The latter are more There are, however, factors that positively con- consistent with the approach to ethics of virtue tribute to increasing capability, so to avoid confu- theory, sidelining its perfectionist strive toward sion I refer to what Nussbaum calls capabilities as personal excellence and emphasizing its context- capability enablers). Rawls and Capabilities | 4

Despite the broad theoretical overlap, Sen and lar barrier was to break down and the task of care Nussbaum criticize Rawls in two subtly but im- was allocated more evenly across genders, some- portantly different ways. The main object of Sen’s one would still have to care for those who cannot critique is that Rawlsian primary goods “seems to care for themselves, thus creating a class of per- take little note of the diversity of human beings” sons who require more and different accommoda- (1980: 215). While it is undoubtedly true that all tions than the non-caregivers. And even in the un- human beings are similar in some regards—we all likely case that most persons were caregivers in need air, water, food, shelter, etc—those regards some capacity, each case would be substantially are extremely basic. In fact, Sen restricts the different and generalizations would remain diffi- meaning of the word “primary” to “necessary for cult. Thus at the heart of Sen’s critique of the pri- biological survival.” Nearly all other goods are mary goods approach is the empirical realization context-specific, socially or even personally de- that human persons are in fact very different from termined, and very difficult if not impossible to one another, not merely mentally in their compre- theorize universally. This is for two reasons. For hensive moral doctrine, but also and especially one, keeping with Rawlsian terminology, one per- practically in their actual lived lives. son’s comprehensive moral doctrine may require Nussbaum’s critique of Rawls’s justice as fair- goods that another person’s does not, and there is ness follows a similar path, but it is both less radi- no non-arbitrary way to claim that these goods are cal and more rooted in normative ethics. The earli- more or less indispensible; that is, there exists a est clear statement of Nussbaum’s views is in basic incommensurabilityof certain crucially im- “Human Functioning and Social Justice” (1992), portant social goods: religious needs, honor, self- where she defends an Aristotelian essentialist improvement, social deportment, and gender roles “thick vague” theory of the Good that she explicit- come to mind (Sen 1980). ly juxtaposes to Rawls’s “thin theory of the good.” The second reason is that certain persons re- Rawls, says Nussbaum, quire more resources than others, different re- insists on confining the list of the “primary sources than others, or more or different manners goods” that will be used by the members of the of social or spiritual accommodation in order to Original Position to a group of allegedly all- live a fully realized, capability-driven existence. purpose means that have a role in any conception Institutionalized equality of opportunity, whether of the human good whatever. By contrast, my formal or fair, and a redistributive difference prin- Aristotelian conception is concerned with ends ciple geared to maintaining opportunity will do and with the overall shape and content of the little good to persons who are severely physically human form of life. (1992: 214-215) or mentally impaired, whose political or spiritual The “overall shape and content” includes not only needs drive them out of public life, or who are en- the minimal requirements to survive or participate trusted with caring for others—in short, the disa- in public life, but also what makes it “possible for bled, the outcast, and the burdened. Far from being citizens to function well” (1992: 214).Liberals like exceptions to the rule to be dealt with only as spe- Rawls focus almost exclusively on the distribution cial cases that special laws will take care of, these of quantifiable resources, such as wealth and in- persons make up sizable portions of each society come, positing both that more of these are always (Sen 1980). better independently of a person’s chosen concep- I think that this is especially true of the bur- tion of the Good and that inequalities in their dis- dened, which often include women, who have tribution are permitted only if they benefit the least been traditionally entrusted with the care for the well-off. Nussbaum disagrees first because young, elderly, and disabled. Even if that particu- Rawls and Capabilities | 5

“wealth and income are not good in their own capability approach too, for the capabilities them- right,” but only “insofar as they promote human selves are merely instrumental means to an end: functioning”; second, echoing Sen, because per- that of living a rewarding life according to the sons have “variable needs for resources”; and third “vague thick” conception of the Good (2002: 35- because “impediments to functioning” go deeper 36). For example, the capability theorist may ad- than scarcity of wealth and opportunity and often dress a severely disabled person in this way: encompass contingent social arrangements, mental “I understand that you have a lesser capacity to and physical endowments, and conceptions of the convert resources into valuable functionings. For Good (1992: 233). this reason, we will ensure that you get more re- sources than others as compensation for your disability. In doing so, our objective is that, by III. Rawlsian rejoinders and capability comebacks converting your larger bundle of resources, you In this section I review two rebuttals by will be able to reach roughly the same level of Rawlsian scholars and the respective responses capability as the rest of us […].” (2001: 31) from the capability camp. Sen’s and Nussbaum’s work has been discussed in some detail by both of Whereas the resourcist may say: the most prominent end-century Rawlsian schol- “I understand that the present organization of our ars, Samuel Freeman and Thomas Pogge. Before society is less appropriate to your mental and presenting their views I must recall that both au- physical constitution than to those of most of thors, especially Pogge, usually walk the fine line your fellow citizens. In this sense, our shared in- between defending justice as fairness and amend- stitutional order is not affording you genuinely equal treatment. To make up for the ways in ing it to meet important criticisms raised against it. which we are treating you worse than most oth- So while their views are generally sympathetic to ers, we propose to treat you better than them in Rawls and present some of the most convincing other respects. For example, to make up for the interpretations and apologies of his work, they are fact that traffic instructions are communicated also usually open to reworking the theory or pro- through visible but inaudible signals, we will posing alternatives that are sufficiently Rawls-like. provide free guide dogs to the blind.” (2001: 31) Freeman (2006) certainly takes this accommodat- ing approach in his review of Nussbaum, while Capability theorists counter that this argument Pogge (2002) rejects Sen’s argument more strong- misunderstands Sen in important ways. Lori ly. In both cases, I believe, there is room for theo- Keleher (2004) argues that Pogge’s characteriza- retical reconciliation. tion of the capability approach as merely requiring institutional distributions that take into account the Pogge deploys two arguments against the ob- capacity of people to convert resources into oppor- jection that justice as fairness is merely concerned tunities is limited and has the wrong emphasis: with a distribution of instrumental resources like “Pogge fails to realize that capabilities and wealth and income. First, he claims that even if the functionings have intrinsic value [...] as he at- proper currency of distribution is opportunities and tempts to assign an equivalent, merely instrumen- not wealth, the distribution of opportunities must tal value to capabilities” (4). Sen himself clearly be equitable “in the space of resources” (2002: argues that certain resources, like wealth, do re- 35), meaning that an equitable distribution of re- main crucial as means, for no other reason that one sources will go a long way toward granting equi- cannot achieve capability without, say, food and table distribution of opportunities. Second, he ar- shelter (1988: 162-164).In similar fashion, Ilse gues that if this were a problem for the Rawlsian Oosterlaken (2013) agrees with Keleher and adds (or “resourcist” as he says), it would plague the that Pogge himself “implicitly relies on some ca- Rawls and Capabilities | 6 pability concept” in his resourcist defense (211). of justice: Rawls places due emphasis on the natu- Consider the traffic example. The reliance of traf- ral duties of persons, which include the positive fic signals on visual cues, such as lights, are unjust duty to care for those who cannot care for them- to blind citizens because they provide insufficient selves and the negative duty not to harm or hinder street safety for them. Pogge claims that situations anyone(2006: 415-418). That is to say, justice as like these exemplify the differences between capa- fairness never claims that persons who lack practi- bility theorists and resourcists. However, says cal reason and the capacity for cooperative rela- Oosterlaken, in acknowledging that traffic signals tionships based on moral equality—such as the are unjustly ableist Pogge is already relying on a severely disabled lack—are in any way “lesser” or capability concept. Traffic lights are designed “inferior” and not included in the scheme of dis- without taking into account “the full range of di- tributive justice. They are merely not included in verse human needs and endowments”—but that the scheme of distribution of primary goods as can only be called “unjust” by making specific partitioned from the original position, but nothing reference to capability: in Rawls’s theory renders them second-class citi- There is nothing about traffic lights as mere ma- zens or moral inferiors to able-bodied persons terial artefacts in isolation that points in that di- (2006: 419). These remarks answer my question rection. The problem cannot be identified with- from section I. about whether the possession of a out at least implicitly using some concept of a minimally adequate moral capacity is required lack of capability or ‘access to functioning’ for only for deliberation from the original position or the blind person, resulting from the interplay be- also to benefit from the protection of the principles tween specific personal characteristics and de- of justice. Freeman seems to think that, on Rawls’s sign features of the institutional arrangement in account, the latter is the case: one is excluded from question. (Oosterlaken 2013: 212) deliberations in the original position but still reaps In other words, to call a resource distribution “un- the benefits of those deliberations. just” one must take into account the interplay be- One might rebut that the very exclusion from tween the personal endowments of its recipients the original position creates two classes of citi- and the institutional arrangements that make the zens; or that this result gives us good reason to distribution possible in the first place. That is what reject the idea of an original position in primis be- capability theorists suggest, and, for Oosterlaken, cause its admittance requirement is the arbitrarily that is what resourcists like Pogge implicitly do as chosen factors of practical reason and cooperative well. capacity, which rule out on purely procedural Freeman’s objection to capability is less radi- grounds certain persons who are moral equals in cal. In his analysis (2006) of Nussbaum’s book other regards—so much in fact that they are fully Frontiers of Justice he claims that capability and accepted as beneficiaries of the protections guar- justice as fairness are much closer than Nussbaum anteed by the principles. On the other hand, even appreciates, and that the capability approach can supposing that Freeman is right to charge Nuss- be used to integrate the lacunae of justice as fair- baum with exaggerating the non-aptness of justice ness as concerns persons with severe disabilities. as fairness, Freeman’s characterization of the ca- Freeman first notes that according to Nussbaum pability approach is also exaggerated. Nussbaum justice as fairness conceives of social cooperation does not argue that persons such as the severely too narrowly by focusing merely on primary goods disabled ought to be allowed into the original posi- (2006: 412). He replies that while Rawls does not tion. In fact, she could easily grant Freeman’s ar- address the severely disabled directly, on Rawls’s gument that justice as fairness recognizes their own account we still owe them the proper duties natural rights and duties and insist that that is still Rawls and Capabilities | 7 not good enough: natural rights and duties are no and Sen were trying to answer different questions” good if Rawls cannot countenance persons except (411); and, second, that despite this fact, or per- in terms of their “baseline” equalities. In other haps because of it, “it is possible to understand the words, Nussbaum could complain that when capa- capability approach and justice as fairness as com- bility theorists point out justice as fairness’s strict plementary theories” (412). Some hope for com- adherence to the moral equality of persons and its plementarity is to be found in the two theories’ inability to concern itself with actual, contingent, different real-world applicability. By Rawls’s own and deeply unequal arrangements, Rawlsians like intention, justice as fairness is ideal theory, and Freeman dig their heels in so deep that they resort Rawlsians have long attempted to bridge the gap to a yet more basic form of moral equality. That is, to non-ideal theory (see, for example, Simmons when it is pointed out that fair equality of oppor- 2010). The capability approach, instead, begins tunity and the difference principle are not good empirically and attempts to theorize and systema- enough for the severely disabled, Rawlsians retreat tize from the ground up. Thus not only are Rawls to equality of natural rights and duties, which is and Sen reconcilable, but they need each other even broader and, consequently, even less capable (Robeyns 2008: 417). of providing severely disabled persons with the Similarly—and specifically concerning the proper arrangements of justice to which they are question of persons with severe disabilities— entitled on Nussbaum’s view. If this is correct, Norman Daniels (2003) suggests that justice as Freeman all but makes Nussbaum’s point. fairness can be amended in ways that would be agreeable to capability theorists if we “include IV. Reconciliation and cooperation health status within the notion of opportunity” (259) and recognize that severe disabilities have This final section assesses reviews some posi- strong negative effects on a person’s “normal tive attempts to bridge the gap between justice as functioning” and “opportunity range” (257). Dan- fairness and the capability approach without dis- iels thus suggests that this simple amendment to missing or seriously amending either theory, and justice as fairness brings Sen and Rawls much concludes by pointing out three directions for fu- closer together, in fact bringing capability dis- ture research along “compatibilist” lines. To begin, courses within the same “space of justice” as jus- I must point out that there are at least two ways to tice as fairness.1 Cynthia A. Stark (2007) suggests be a compatibilist, in this and other debates. First, a similar way to include the needs of the severely one could insist that the points of contention on disabled within contractarian theories like Rawls’, both sides are in fact quite similar and there is less though without explicitly referring to capability in divide than some have argued. Second, one could the Sen-Nussbaum sense. She argues that at the claim that while the points of contention are irrec- deliberative stage in the original position there is oncilable, they also need not contend for the same nothing wrong with the supposition that ideal the- logical space at all: they could either coexist (for ory applies only to “fully cooperating” persons; example if they address separate realms of in- the problem only arises if we retain that supposi- quiry) or cooperate (if they address the same realm tion at the constitutional and legislative stages. but from different perspectives whose results are mutually intelligible or useful). My assessment of 1 Similarly, one may argue that the difference principle’s no- this debate surveys both of the latter options. tion of “least-advantaged” is best capturednot by a mere Ingrid Robeyns (2008) discusses a possibility distribution of goods and resources, but by an account of capability, especially as concerns the severely disabled. for cooperation by showing, first, that some of That is to say, by “least-advantaged” justice as fairness their features are incommensurable, for “Rawls could mean “those who are less capable of converting goods into opportunity.” Rawls and Capabilities | 8

The reason why is that while Rawls insists that the capability theorists individuate as the primary needs of citizens (including the severely disabled) weakness of justice as fairness is also one of its should be met by a “social minimum” of goods most attractive strengths: its ability to affect insti- and services, the social minimum is not decided tutions by imposing legal and procedural con- from the original position but is a constitutional straints. All capability enablers on Nussbaum’s list essential instead. Thus, at the constitutional stage, are more effective if they are made to bear on we should drop the assumption of fully cooperat- some institutions, but many of them, like “play” ing persons by simply imagining that we may be a and “emotions,” can hardly be attached to or legal- person whose needs require a much higher social ly guaranteed by institutions, let alone by basic minimum, though within the limits imposed by the ones (however, see Freeman 2007: 235-242 for a difference principle from the original position discussion of whether the family ought to be con- (2007: 137-9). A problem with Stark’s account, sidered part of the basic structure of socie- however, is its assumption that the needs of the ty).Justice as fairness can provide the theoretical severely disabled will be met by an increase in the basis for the institutionalization of some principles allocation of primary goods afforded to them, and leave the rest to the space of capability. which no doubt plays in the Rawlsians’ hand and These prospects for cooperation are promising, is likely to be met with disagreement from the ca- and so are the prospects for simple coexistence in pability camp. different logical spaces without any meaningful One could also follow the reverse approach as intersection. I end this paper by briefly describing Daniels’, attempting instead to subsume Rawls’s three such non-overlapping differences between principles of justice under the broader theoretical the two theories. framework of capability by considering them as For one, while Rawls was concerned with dis- enablers in Nussbaum’s list—the most important tributive justice within liberal democratic societies enablers, in fact. The capability-based objections and delayed treatment of international justice to to Rawls do not claim that the principles of justice The Law of Peoples, capability theory emerged are useless or wrongheaded, but merely that they from international political economy and devel- are insufficient to guarantee adequate capability by opment studies. Both theories are designed to ad- 2 themselves. But capability may still be increased dress pluralism, but in unlike ways. Justice as fair- by institutionally guaranteeing equal basic liber- ness is a theory of public consensus in a democrat- ties, something like fair equality of opportunity, ic society where citizens are politically free and and a redistributive scheme along the lines sug- equal despite endorsing widely different private gested by the difference principle. After all, what conceptions of the Good, and where citizens know that they are free and equal and openly endorse 2 Much literature criticizes the principles on their own ac- count, sometimes from the same normative moral prem- common liberal values like freedom and democra- ises that underwrite the capability approach. For exam- cy. The capability approach, instead, claims that a ple, Michael Sandel (1992) objects to the possibility and desirability of such “disembodied” selves as the original certain thick (if vague) conception of the Good is position requires, arguing instead for a particularist ac- in fact shared by virtually every human being on count of identity and a subjectivist moral theory along Earth. This empirical claim is central to Nuss- the lines of virtue. Charles Mills (1997) has contested the scope of application of the principles, claiming that the baum’s defense of the enablers, which she thinks supposed “freedom and equality” of citizens in the origi- can be individuated as “non-relative virtues” nal position ignores existing cultural arrangements where some groups are actually not free or equal, but subordi- through conversation and deliberation with people nated to others. None of these objections belong to the from all cultures and walks of life (1995: 70-71). capability side of the debate, and to some extent they So on one side Rawls posits procedural constraints criticize the entire liberal contractarian tradition, so I have not discussed them in this paper. for public deliberation given great normative dif- Rawls and Capabilities | 9 ference, and on another side Sen and especially chised groups as well. One reason why some per- Nussbaum posit a certain normative equality, sons find it much more difficult to convert goods though one that only concerns some life basics and into opportunities has less to do with the contrast does not go all the way down. of their individual contingencies with social insti- The previous non-overlapping difference points tutions (as in the case of severe disability) than to another, that of cosmopolitan applicability. Jus- with non-institutional social arrangements. For tice as fairness is notoriously unreliable as a theory example, the obstacles faced by certain racial mi- of global distributive justice: Rawls himself argues norities in the United States often result neither in The Law of Peoples that a “global original posi- from institutional injustice nor from the character- tion” is indefensible and that international justice istics of persons themselves, but from the cultural ought to be regulated by different principles of modes of recognition and treatment enforced by justice (1999b: §15). Conversely, the emphasis on the racially dominant groups. Being less tied to context-sensitivity of the capability approach institutions, the capability approach would seem makes it more likely to be successful in apportion- more capable of dealing with these problems, ing global justice among the complex relations of which would count as a strike against justice as diverse people and peoples. Of course, this by it- fairness. At the same time, justice as fairness never self does not mean that capability is certainly the does claim this as one of its primary concerns: better theory at this level. The debate between jus- Rawls, after all, faces the question of reparation tice and fairness and capability, and their underly- separately and as a case of special or contingent ing normative assumptions, replays at the global law. level in the debate among cosmopolitans, or be- tween cosmopolitans and communitarians. Demo- Bibliography cratic egalitarians like David Held (2001) defend cosmopolitan principles that are virtually indistin- Appiah, Kwame Anthony. 2007. Cosmopolitan- guishable from Rawls’s, even without an explicitly ism: Ethics in a World of Strangers. Norton. stated commitment to Kantian liberalism; while Arneson, Richard J. 1999. “What, if anything, ren- moderate or weak cosmopolitans like Kwame An- ders all humans morally equal?” In Peter thony Appiah (1997) and Charles Taylor (2008) Singer and His Critics. Edited by Dale Ja- recognize only very few principles for global in- mieson. Oxford: Blackwell. teraction and leave the rest to smaller communi- Barber, Benjamin. 2013. If Mayors Ruled the ties, regulated by something akin to capability. World: Dysfunctional Nations, Rising Cities. Similarly, communitarians like Craig Calhoun Yale University Press. (2002) and Benjamin Barber (2013) insist that on- Calhoun, Craig. 2002. “The class consciousness of ly societies that are sufficiently small can identify frequent travelers: toward a critique of actual- and properly fulfill the needs of their citizens, by ly existing cosmopolitanism.” The South At- being more sensitive to their metaphysical and lantic Quarterly 101 (4): 869-897. normative commitments and more capable to dis- Daniels, Norman. 2003. “Democratic equality: tribute resources according to needs and require- Rawls’s complex egalitarianism.” In The ments that might be blurred or flat-out denied at Cambridge Companion to Rawls. Edited by the cosmopolitan level. Samuel Freeman. Cambridge University Press. 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