A Revised List

for “capabilities-as-observance” since her account of dignity cannot be understood properly without articulating a set of fundamental entitlements.¹⁰

2.4 A Revised List

The transition from constructing a list of capabilities grounded in an Aristotelian theory of the good to one based on political liberalism and rooted in dignity has led to a slightly different list. I believe Nussbaum offers two main versions of her list, the first of

10 Despite Nussbaum’s commitment to capabilities over human rights, she believes their “very close”

relationship explains how capabilities is a “species” of human rights, that is, a kind of global moral theory that offers a set of universal values that must be guaranteed to each and every person. In an article contributing to a special issue on “human rights and capabilities,” Nussbaum offers the following three reasons in favor of the capabilities approach over human rights. See Special Issue: On Human Rights and Capabilities, Journal of Human Development and Capabilities 12 (1), 2011. First, the language of capabilities does not imply a Western imposition on colonized peoples, which she fears is embedded in rights-language. She mentions frequently that capabilities language is “down-to-earth” because it is common language used by people “all over the world…in their daily activities” (Nussbaum 2011a, 29).

Second, the rights tradition is rather unclear on state intervention for securing rights and often remains absent; however, the capabilities approach demands the “state has an affirmative task of securing capabilities” (32). Finally, human rights are divided frequently into first generation rights, civil and

political rights, second generation rights, and socio-economic rights. Meanwhile, Nussbaum argues that this distinction is problematic because it “suggests that the political and civil rights have no economic and social preconditions” (33). This is not the case since running for public office, for instance, may be a political right, however its realization is greatly hindered if one is extremely poor or lacks education.

It is beyond the scope of the project to assess each of the above claims in detail, but I should mention briefly that human rights advocates have responses to each of Nussbaum’s points. In regards to the first point, she would need to show in what ways human rights is any more of a Western imposition than capabilities. For instance, it cannot be a commitment to autonomy and individual freedom for human rights since those commitments are also shared with capabilities proponents. Not to mention, the language of capabilities is not as “common sense” as Nussbaum maintains. In fact, the term “capabilities” is understood differently amongst capabilities theorists. This discussion can be found in Robeyns (2005, 100-2).

Furthermore, Jack Donnelly (2003) argues against the second point by noting that securing rights is not merely a matter of state-absence since all “human rights require both positive action and restraint on the part of the state” (30). Other human rights theorists, such as Charles Bietz (2009) and James Nickel (2007) have made similar arguments. Finally, while it is certainly true that human rights have been traditionally divided into first, second, and even third generation rights, this does not imply that specific rights are not interconnected. It could be the case that in order to truly have a fair hearing one may need to have a proper amount of resources.

So, it is not clear that Nussbaum successfully defends the capabilities approach over human rights.

Nonetheless, I agree with Nussbaum’s (2011a) claim that the two theories should “march forward as allies in the combat against an exclusive focus on economic growth, and for an approach to development that focuses on people’s real needs and urgent entitlements” (37). To this end, Nussbaum offers a list of central capabilities, which best represents that of a dignified human life.

which can be found in section one. The second version of Nussbaum’s list of ten central capabilities (or fundamental entitlements) include¹¹:

1. Life – Being able to live the normal length of a human life; to not die prematurely or before one’s life is so reduced as to no longer be worth living.

2. Bodily Health – Being able to have good health, which includes reproductive health, adequate nourishment and shelter.

3. Bodily Integrity – Being able to move freely; to live free from assault, including sexual and domestic assault; to have the opportunity for sexual satisfaction and choice in reproductive matters.

4. Senses, Imagination, and Thought – Being able to use the senses to imagine, think, and reason in a “truly human way,” that is, one cultivated by an adequate education. Being able to use one’s mind in ways protected by artistic speech and freedom of religious exercise. Also, the ability to have pleasurable experiences and avoid non-beneficial pain.

5. Emotions – Being able to have attachments to things and people outside ourselves, love those who care for us, and express justified anger.

6. Practical Reason – Being able to form a conception of the good and critically reflect on it.

7. Affiliation

A. Being able to live with and towards others and engage in various social interactions.

11 This list can be found in the following major works of Nussbaum (1999, 41-2; 2000b, 78-80; 2006, 76-8;

2011b, 33-4).

B. To have the social bases for self-respect and non-humiliation, and to be treated as a dignified being worthy of equal respect.

8. Other Species – Being able to live with concern for and in relation to animals, plants, and the eco-system in general.

9. Play – Being able to laugh, play, and enjoy recreational activities.

10. Control over One’s Environment

A. Political – Being able to participate effectively in political choices that govern one’s life, including protections of free speech and association.

B. Material – Being able to hold property (land and movable goods) on an equal basis with others; and to have the right to seek employment equally to others. In work, being able to exercise practical reason and engage in meaningful relationships of mutual recognition with other workers.

These ten central capabilities are intentionally very abstract in order to create the space for them to be fulfilled in many ways. For example, the capability of senses, imagination, and thought allows people from not only different social strata, but even intra-household, to possess the capability in many ways. Furthermore, this list, like her flourishing version, is not fixed or static, but she claims it is always subject to revision.

She claims further, that because her list is open to change, it is able to accommodate cultural and religious pluralism. Finally, in order to live a dignified human life, one must be given the opportunity to acquire all central capabilities up to an adequate threshold level. If the threshold standard cannot be secured, then a state is not fully just.

I have discerned a few sub-capabilities from Nussbaum’s list. I present them here because she references them frequently throughout her works, despite the fact that they

do not appear on her list, and because some of my later criticisms target these sub-capabilities. Nussbaum never discusses the relationship between the vagueness of the central capabilities and the sub-capabilities, which can be derived from them except that her list must remain highly abstract so that it can be realized differently in various contexts.

The fourth capability, for example, entails that of political and artistic freedom of expression. Freedom of expression is not an explicit capability on the list, but when understood properly, the right to express oneself without fear of harm is included in the general capability of senses, imagination, and thought. The capability of education is also included in the fourth capability since thought entails having the proper training in basic math, literacy, and science. Another capability Nussbaum references often, but cannot be found directly on the list is “access to credit”. It is derived as follows. The capability of control over one’s environment has both a political and material component. Political control includes protections of free speech and association, and material control allows one to have the same opportunity as others to hold property. One important aspect of holding property is having access to credit; thus, Nussbaum endorses the important capability of “access to credit”.

There are some differences between the early and later lists. First, and most importantly, the early list represents functions based on shared experiences. For example, human beings seem to share their aversion to non-beneficial pain universally and

recognize their fate as mortal beings. On the other hand, the later list represents a list of capabilities compatible with a dignified life.

Second, some capabilities were retracted (e.g., early infant development) and others added (e.g., emotions and control over one’s environment). For instance, Nussbaum (1992) explained the capability of early infant development as babies who recognize their “helplessness, experiencing their alternating closeness and distance…on whom they depend” (218). The notion that human beings are dependent is never

abandoned, and indeed as I have shown, it plays a prominent role in her conception of dignity. Thus, to some degree, it is implicitly present in all capabilities on her list and, perhaps, this is a plausible reason why it no longer needs to be stated explicitly. I note this capability in particular to highlight what might appear as a difference between her two lists, but further examination reveals its presence in both. This shows that just as there are common strands between the types of essentialism found in the flourishing and dignity version of capabilities, so too with particular capabilities.

Another capability that is found on her previous list, but not the newer one is

“sexual desire”. It is not clear how sexual desire is a capability; it seems that in order for a capability to be central, it needs to be more than simply a desire. As I argued in Section 1.2, one could interpret the capability of sexual desire as providing a criticism of female genital cutting to the extent that it harmfully impacts a woman’s sexual experience. In that respect, it may be similar to the capability of “bodily integrity,” which is on the newer list, however, bodily integrity is much broader than sexual desire since it includes leading a life free from domestic and sexual assault and not merely creating the space to be capable of having sexual desires.

A capability shift from sexual desire to bodily integrity is more than a terminological change, but also a conceptual one. The flourishing version of the list

sought to identify experiences shared by everyone, which makes performing its function truly human. Because having sexual desires for Nussbaum is a feature shared by nearly all human beings, she included it on her list. A problem with the capability of sexual desire is that it merely describes a feature of human beings, but offers little to no

normative guidance. In contrast, the dignity version seeks capabilities that uphold what it means to live a life of dignity, which includes living free from sexual assault. However, one should not mistake the dignity version as telling us how we ought to live our lives since it is situated within a politically liberal framework. This allows an individual the option to fulfill a given capability from Nussbaum’s list, if she chooses. The important point is not whether she possesses the capability or not, but that she has the potential to do so.

Other capabilities appear to be jettisoned, but, upon closer examination they have in fact returned in a different guise. For example, the flourishing list included mortality, which cannot be found in the dignity version; however, it has been replaced with “life”

and “bodily integrity,” respectively. The capability of mortality/life entails being honest that human beings are not immortal, but despite this inevitability, we still grieve at the loss of a loved one. Nussbaum never explicitly says which capabilities can be discerned from mortality/life, but I would suggest two possible candidates, both of which are compatible with the revised list. First, human beings should be able to live their normal lifespan, and second, we should be given the opportunity to grieve properly at the loss of a loved one.

In Women and Human Development, Nussbaum offers a glimpse into a reason why changes were made to her list, which will be important when we consider her

methods of justifying the capabilities and her claim that she consulted a wide-range of diverse perspectives. She explains that after “discussions” with people from India, primary changes were made, which include “bodily integrity and control over one’s environment…and a new emphasis on dignity and non-humiliation” (Nussbaum 2000b, 78 n.82). She does not tell us the extent of these discussions and with whom they took place, but they had an impact on her. In Chapter 2, I will examine the plausibility of these discussions on the alterations and justifications of the list.