In his influential work A Theory of Justice (1971), John Rawls revisits the social contract theory—as found in Hobbes, Locke, and Rousseau—and elevates it to a higher level of abstraction. In his critique of utilitarianism and his emphasis on the imperatives of human dignity and inviolability, the theory of justice as fairness emerges as the most influential perspective on liberal justice today. Rawls incorporates far more of Kantian ethics into his political theory than Kant himself did: the person as an end in themselves is a central idea of the entire Rawlsian framework. Nevertheless, the rules of justice emerge as an institutional arrangement designed to serve an idealized rationality among a specific group of free men—equal in capacity and capable of productive activities—who, to escape the state of nature, devise a scheme of cooperation for mutual benefit. People with physical and mental disabilities are excluded from this pact and end up hidden away in institutions or abandoned. Because they have no representatives in the design of the principle of justice, they ultimately are not provided with measures that address their specific needs. The paradox is that even people with “normal” needs—who are covered by social contract theory—also go through periods in their lives when they require assistance from others, such as during childhood and old age. Occasionally, this asymmetrical dependence results from an accident, or a crisis and depression can render a person temporarily or permanently unable to work, requiring special care.
In contrast, several other Enlightenment theorists adopted comparative approaches focused on social achievements. That is, they compared societies that already existed with those that might emerge. The primary aim of such comparisons was to eliminate the evident injustices in the world as they saw it (Smith, Bentham, Marx, Stuart Mill). These substantive theories do not inquire into what perfectly just institutions would look like, but rather “how justice would be promoted” in the society in which they live, in order to prevent and mitigate incapacities. This is a vision of justice focused on achievements and outcomes rather than on institutional arrangements, since justice cannot be indifferent to the lives that people actually lead. Among this list of thinkers, more recent figures include Amartya Sen and Martha C. Nussbaum. We will devote more space to her, paying tribute to her work titled Frontiers of Justice (Trans. Susana de Castro, Martins Fontes, São Paulo, 2013).
Building on the Aristotelian conception of the human being as a social and political being who finds fulfillment through relationships with others, and of virtue as the ability to instill proper attitudes in people that will support broad changes in the distribution of existing goods, Martha Nussbaum presents the capabilities approach—as a kind of human rights approach—as far more suited to determining what justice is due to people with serious and unusual impairments than Rawls’s procedural theory of justice. For Rawls, the choice of the best principles of justice depends solely on determining a fair procedure for selection. In this “transcendental institutionalism,” the primary subjects of justice are the very same individuals who choose the principles. For Nussbaum, however, it is not the procedure but rather the consequences to be achieved that should guide the choice of principles. This is a results-oriented theory, a necessary complement to the not always “transparent” language of human rights, in which the inclusion of people with special needs requires principles that take into account what they have in common with all other human beings—namely, the desire to flourish by making appropriate use of their human capacities.
Starting from the basic principle that every person is an end in themselves, Nussbaum follows the human capabilities approach to explain what people are actually capable of doing and being taught. By rejecting political conceptions of the person grounded in an idealized rationality, she provides the philosophical foundation for the core human guarantees that must be implemented by any government as a basic social minimum required by respect for human dignity. In pluralistic liberal societies, “capabilities” foster a consensus among people who hold very different, broad conceptions of the good. Even while acknowledging this inherent diversity, there is a minimum threshold for each capability, below which it is believed that citizens are not being afforded a truly human way of life. To paraphrase Marx (Economic and Philosophical Manuscripts, 1844), a life that possesses “truly human functions” requires a rich plurality of vital activities and capabilities to which all people are entitled, and rationality is not the only aspect relevant to the notion of true human functionality.
With this as her starting point, Nussbaum justifies an open-ended list—subject to continuous revision—of an overlapping consensus of ten capabilities as central requirements for a life of dignity, with room for diverse possibilities of fulfillment: 1) Life. Having the capacity to live to the end of a human life of normal duration; not dying prematurely or before one’s life is so diminished that it is no longer worth living; 2) Physical health. Being able to enjoy good health, including reproductive health; to receive adequate nutrition and have a suitable place to live; 3) Physical integrity. Being able to move freely from one place to another; being protected against violent attacks, including sexual assault and domestic violence; having opportunities for choice in matters of reproduction; 4) Senses, imagination, and thought. To do these things in a truly human way—an informed way, supported by an adequate education. To be able to use imagination and thought in connection with experience. To use one’s own mind in a way protected by guarantees of freedom of expression; 5) Emotions. To be able to maintain emotional relationships with things and people outside of ourselves. Not to have one’s emotional development blocked by fear and anxiety; 6) Practical Reason. To be able to form a conception of the good and to engage in critical reflection on the planning of one’s own life; 7) Affiliation. Being able to live with a focus on others, to recognize and show concern for other human beings. Having the social foundations of self-respect and being able to be treated as a dignified being whose value is equal to that of others. This includes a commitment to non-discrimination based on race, sex, sexual orientation, ethnicity, caste, religion, or national origin; 8) Other species. Being able to live in a close and respectful relationship with animals, plants, and the natural world; 9) Leisure. Being able to laugh, play, and enjoy recreational activities; 10) Control over one’s own environment, whether political—by effectively participating in the political choices that govern one’s own life—or material, by being able to own property, apply for jobs, and engage in meaningful relationships of mutual recognition with fellow workers.
The capabilities approach emphasizes an informational focus on individual advantage, assessed in terms of opportunity rather than a specific blueprint for how society should be organized. It focuses on human life rather than on the income or goods a person possesses. Primary goods are merely means to other ends, particularly to satisfy those ends and the substantive freedom to achieve them. It is not just about what a person actually ends up doing, but also what they are in fact capable of doing, whether or not they choose to take advantage of an opportunity. The capabilities metric is superior to the resources metric because it focuses on ends rather than means, better addressing discrimination against people with disabilities and being sensitive to individual variations in functioning. In short, a life with appropriate human dignity consists, at least in part, of possessing a minimum level for each of the 10 capabilities on the list, below which there is no decently dignified life. Once this lower limit has been identified, we seek a higher limit—one above which not only mere life but the good life becomes possible.
Thus, the capabilities approach explains cooperation as justice and inclusion as ends of intrinsic value, for which human beings unite through altruistic bonds rather than mutual advantage. We are needy and transient beings, and the good of others is not merely a limit on people’s pursuit of their own good: it is part of their own good. Thus, rather than being a matter restricted to individual conceptions of the good—as in Rawls’s theory—a strong commitment to the good of others is part of the shared public conception of the person. Non-symmetrical relationships can contain reciprocity and true human functionality. After all, we are not required to be productive in order to earn the respect of others, for society is united by a web of affections and commitments, only some of which pertain to productivity. Dignity is not defined prior to and independently of capabilities, but rather in a way that is intertwined with them and with their definitions.
“Capability is an aspect of freedom and focuses especially on substantive opportunities.” As Amartya Sen puts it, one person’s advantage is considered less than another’s if they have less capability—fewer real opportunities—to achieve the things they have reason to value. The idea of substantive freedom concerns being free to determine what we want, what we value, and, ultimately, what we decide to choose. The concept of capability is therefore closely linked to the aspect of freedom that pertains to opportunity. By proposing a fundamental shift in focus—from the means of livelihood to a person’s actual opportunities—the capabilities approach significantly alters the understanding of both the authors and recipients of public policies.
No constitution protects capabilities in the abstract. There must be a prior assessment to determine which capabilities are important and which are most central, since they are clearly involved in defining the minimum conditions for a dignified human life. This is where care comes in as a concept of justice. Conceiving of care as a primary social right means reflecting on a broad range of needs on the part of both the caregiver and the person being cared for. Good care for dependents—whether children, the elderly, or people with disabilities—places support for capabilities in the areas of life, health, and physical integrity at the center of attention. A good caregiver for a person with mental vulnerability—and good public policies that support individualized care—must understand and adapt to the specific nature of the person’s impairment, nurturing their need for cognitive stimulation and their interest in not being confined to a single physical environment.
A key point regarding impairments and disabilities arises from the following question: Should we promote only the capacity in each of the ten areas, or should we promote actual functionality? Functions and capacities are diverse because they address different aspects of our lives and our freedom. Perhaps forcing all citizens to perform these functions would be illiberal, even when it comes to appropriate social goals (such as political participation and religious activity). For personal reasons, someone may choose to forgo the specific function in question. On the other hand, it is appropriate for policy-making to promote effective health as a social goal. While it is not correct to exclude personal lifestyle choices involving risky activities—provided people are informed of the risks in advance—when it comes to people with mental disabilities, many of them will be unable to make choices about their health care, consent to sexual relations, or assess the danger of a job. Thus, there will be many areas for many of these individuals in which functionality—rather than capacity—should be the appropriate goal.
That is to say, will the list of capacities remain the same when we consider people with intellectual disabilities? And will the minimum social standard also remain the same? The answer is yes. We should all have the chance to develop the full range of human faculties to whatever extent our personal circumstances allow—not for the sake of social productivity, but because it is inherently good. Nevertheless, many people with extreme cognitive deficits will never be placed in a position where certain capacities reach a meaningful level. Despite the best efforts, some encounter extraordinary barriers to their fulfillment that will not always be removed by intelligent social action. Where the direct granting of power is not possible, society must provide the individual with the necessary capabilities through a system of supports. The type of support must be strictly tailored to meet the individual’s needs where assistance is required, in a way that encourages people to participate as much as possible in decision-making.
Unfortunately, the persistent tendency in all modern societies is to disparage the competence of people with impairments. Disabilities are “naturalized” by an economic calculation that rejects investment in public policies that would enable these individuals to achieve a high level of functioning in certain areas. The correct approach is to use the language of “human fulfillment” and provide care when people want and need it. For this reason, it is dangerous to use a different list of capabilities for people with impairments; a single list should be maintained as a non-negotiable set of fundamental rights, in order to bring everyone, as far as possible, up to the minimum capacity thresholds established for other citizens.
Perhaps one of the greatest merits of the capabilities approach is that it eliminates the philosophical disagreement within human rights theory regarding the concept of “human dignity.” It can plausibly be argued that the general premises underlying human rights theory already encompass much of the disability paradigm, but in practice they do not effectively enforce these standards. For Nussbaum, the effective possession of a set of basic capabilities is not based on each person’s individual talent, but rather on the fundamental fact of a person’s birth into a human community. This is why the capabilities approach understands the guarantee of a right as an affirmative task at the material and institutional levels, which lends greater effectiveness to its proposal—that is, it is not merely a matter of preventing state interference in a person’s life. Guaranteeing citizens the right to political participation and freedom of expression means placing them in a position where they are capable of acting and functioning in these areas, as something intrinsic to the human condition.
Paradoxically, the strength of Nussbaum’s thesis on the capabilities approach may also be its greatest weakness. The human rights paradigm emphasizes the equal dignity of people with disabilities and recognizes their autonomy to direct their own development, regardless of whether they achieve the species-typical levels of functioning required in each of Nussbaum’s ten core capabilities. The framework of disability, therefore, continues to focus on the role of personal dignity as a key element in human rights discourse, while Nussbaum’s capabilities approach makes the degree of their inclusion contingent on the functional capacity that sufficiently justifies their consideration. Furthermore, talents are more specific to the individual than capabilities and, by definition, are not universally shared. Thus, while Nussbaum focuses on capabilities that are common to human beings, a rights framework for people with disabilities addresses talents that are crucial for individual human flourishing rather than a general lack of capability measured against a functional baseline. The development of some talent is a moral imperative owed to every person, and for some it may be less than for others. Thus, the human rights perspective on disability is not “merely” about individual flourishing, but also about dignity, and therefore requires a broader view of all people who contribute to and are present in society.
Historically, people with disabilities have been among the most politically marginalized, economically impoverished, and least visible members of society. Many societies have viewed (and many continue to view) this social exclusion as a “natural” consequence of the disabilities inherent in people with disabilities and, therefore, as justified. Adopting a human rights model of disability and then extending it to other groups repositions disability as a universal and inclusive concept, shifting it from its outsider status to that of traditionally recognized groups. As human beings, each of us has strengths and weaknesses, abilities and limitations. A human rights framework for people with disabilities values potential over current function. It also recognizes the value of each individual for their own sake and assesses the effectiveness of human rights protection in light of exogenous factors that affect each person’s development. Doing so embraces disability as a universal human variation, rather than as an aberration.
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