Overlapping Consensus

overlapping consensus—since it demands appeal from a wide range of comprehensive doctrines.

2.4 Overlapping Consensus

Reflective equilibrium for Nussbaum establishes “which principles are just” and overlapping consensus determines “whether or not the conception of justice containing those principles is stable” (Stark 2009, 370). Overlapping consensus, in brief, seeks convergence amongst reasonable citizens on a political doctrine, which in this case is Nussbaum’s list of central capabilities. Convergence need not exist currently, however, a theorizer must show that “over time it is plausible to imagine that it might become a reality” (Nussbaum 2011b, 79). Reasonable citizens, as discussed in Chapter 1, are those who, based on liberal principles, accept that rights ought to be guaranteed to everyone, even if they choose not to exercise them.

In order for Nussbaum to claim that the capabilities approach, and her list more specifically, is an object of overlapping consensus she must show that it at least has the potential for cross-cultural support. In 2000, she appeared rather confident that the list was gaining the support it needed. Nussbaum (2000b) claimed that because input from

“other voices has shaped its content in many ways,” the list represented a “type of overlapping consensus on the part of people with otherwise very different views of

human life” (76, her emphasis). She has not wavered from this belief as evidenced most recently in Creating Capabilities. Indeed, Nussbaum believes that her commitment to respecting religious and cultural diversity has made capabilities even more appealing.

The previous sections were meant to demonstrate that universal support for her list is far from being realized. However, as Nussbaum mentioned, her list needs only to be a plausible object of consensus. I fear this too is a bit far-fetched. I am in complete agreement with Clark when he says there are too “few references to the ways in which these ‘other voices’ have shaped the list” (Clark 2013, 176). To address this problem, Nussbaum must show that she has taken various criticisms of her list seriously and used them to revise her theory. If she cannot do this, then it will be even more difficult for Nussbaum to achieve the goal of her list becoming a plausible objective of overlapping consensus.

Furthermore, other than noting that her “discussions” with people (especially, women) from India helped reveal the importance of property rights and bodily integrity, no other references are mentioned as contributing to the rest of the list. Since generating a new and more comprehensive list in 2000, she has not made a single modification to it in spite of many critiques, some of which I have made explicit here.²⁴ Either Nussbaum believes the list is flawless as it stands, or she is not taking challenges to it seriously.

Specifically, if she believes the list is acceptable as it stands then she needs to defend it against criticisms, and if Nussbaum takes criticisms to her list seriously she must either offer a new method of justification that accommodates concerns that she is arbitrarily selecting other viewpoints to reinforce her own values, or explain why such a move is unnecessary despite these criticisms.

I am not convinced that simply because Nussbaum’s list may not become an object of overlapping consensus that all capabilities lists are subject to the same critique.

24 For further criticisms of Nussbaum’s recent list, see Clark (2002), Jaggar (2006), Okin (2003), Sen (2005), and Robeyns (2003).

We could, in principle, envision a list of capabilities that best represents, from a cross-cultural perspective, what it truly means for an individual to live a life compatible with dignity. The claim here is simply that Nussbaum has not provided adequate evidence to support her assertion that her list has received widespread agreement. Specifically, I am troubled by Nussbaum’s haphazard dismissal of worldviews and beliefs that do not match her own. Nussbaum is seeking to justify her list to all, and while we are all presumably subject to the list, only some of us have an opportunity to genuinely accept it insofar as it can be justified to us in a way that is acceptable. In order to gain the cross-cultural support she desires, Nussbaum must give a concerted effort to engage the critics, especially from those who are traditionally marginalized, and, at that point, a genuine convergence on her list will be possible. Until then, I would make the strong claim that her list does not have the potential to become an object of overlapping consensus.

Stark raises another ambiguity in Nussbaum’s use of overlapping consensus, which raises further concerns, namely, the ambiguity surrounding whether overlapping consensus is really consensus of the list or consensus of the justification for the list. She states,

If it turns out that legitimacy requires overlapping consensus on principles of justice and their justification, then establishing that the list of capabilities (or the principles derived from it) be the object of overlapping consensus cannot serve as a justification for the list, because the justification for the list must itself be the object of overlapping consensuses (Stark 2009, 375, her emphasis).

Stark suggests that convergence on the actual items from the list do not demonstrate a genuine justification since they can be interpreted in many ways. She argues that

Nussbaum should seek overlapping consensus on the justification for her list, that is, the reasons why those who are affected by the list should adopt them. The advantage to

demanding convergence on the justification (as opposed to the actual list) is that the items from the justification will be likely agreed upon since those affected by the list agreed to how the items are constructed and defended. Overlapping consensus on the justification for the list would then increase the likelihood that genuine consensus has been achieved.

However, even if overlapping consensus provides the justification itself, there would be more unanswered questions, such as how the capabilities on the list were generated and defended. This raises the broader concern as to how Nussbaum generates and defends the list, and as we have seen thus far, at best she provides only a vague account of it. Stark’s criticism calls into question the validity of Nussbaum’s use of overlapping consensus.

There is one further problem with Nussbaum’s attempt to make her list justifiable to all (or nearly all) through overlapping consensus. Keep in mind, as I noted in Chapter 1, overlapping consensus seeks convergence among “reasonable persons”. This

conception of the person precludes so-called unreasonable persons, such as those who are severely cognitively disabled, from participating in the political process. Thus, the

interests of severely cognitively disabled individuals will not necessarily be represented unless by the graces of non-cognitively disabled persons. Nussbaum rejects Rawlsian contractarianism for this very reason, that is, its lack of inclusivity. However, she is subject to the very same criticism. Either Nussbaum must accept the contractarian’s ideal citizen, which excludes those who have a severely cognitive disability, or jettison

overlapping consensus as a method for justifying her list to everyone. Her third option would be to revise her notion of reasonableness to be more inclusive.