Jay Carlson Rawls and the Capabilities Approach: a Response to Sen and Nussbaum One prominent research program

in contemporary political philosophy is the capabilities approach. Proponents of this program see the central index for evaluating the justice of a political or social arrangement is how well it develops individual citizens capacities to realize the ends that they have reason to value. Prominent capability approach advocates like Amartya Sen and Martha Nussbaum see the development of this approach as a very fruitful way of answering political philosophy questions in a way that other approaches are not. In particular, Sen and Nussbaum see the capabilities approach as distinct from alternatives that evaluate a social arrangement in terms of how it provides all-purpose means to its citizens, the most prominent advocate being John Rawls. Sen and Nussbaum claim that Rawls focus on primary goods themselves ignores the facts about how people are able to use those means to achieve their conception of the good. As such it is insufficient to properly evaluate the justice of arrangements. In this paper, I hope to show why it is unclear that the Rawlsian resource-approach is inadequate for developing the capabilities approach, and that the distance Sen and Nussbaum claim to be from Rawls is minimal. Amartya Sen claims that political philosophies concerned about questions of social justice have to define what kind of information is relevant for evaluating particular social arrangements. It is generally admitted that societies should strive for some level of equality among its citizens, but which kind of equality is usually where the disagreement begins. In his 1979 Tanner Lecture Equality of What? he surveys several possible kinds of information that political philosophers have used to make these evaluations. One approach measures an arrangement by how well off the individuals are within it,

Carlson 2 with the evaluation being measured in terms of an homogenous unit known like happiness, satisfaction, or utility. The ideal on this approach is to maximize the amount of utility within the society. This goal of maximized utility is famously ambiguous, as one could attempt to maximize the utility of several different areas of society. Just to give two examples, one could strive to maximize the total sum of utility in an entire society or maximize the mean utility of a member in society (Sen 1979, 200). How one would go about making a principled choice between these two utilitarian alternatives is a perplexing question for utilitarian theorists. But even if one puts aside the issue of how to decide which utilitarian index is appropriate to use, questions remain for all of them. One of the most well known criticisms of utilitarian metrics is the problem of the distribution of utility among individuals (Sen 1979, 202). A society with either high total utility or high mean utility might still have outliers on the lower bound whose abject misery happens to be counterbalanced by the utility that other people enjoy. If doing something for those lower boundary cases does not increase ones index of utility, then it is not something to be done. Sen notes that some utilitarians like R.M. Hare and J.C. Harsanyi deny that their approach has this inegalitarian distribution problem. Much the opposite, they claim that if one starts with an egalitarian principlelike equal weight should be given to equal interests or equally urgent needs should receive equal treatmentthen one is lead to adopt a utilitarian conclusion (Sen 1979, 199). Sens response is that Harsanyi and Hare both assume two very tendentious claims. First, they assume that interpersonal utility comparisons are readily reducible to a single monolithic unit like utility. So, for example, the utility that Jane gets from picking apples should in principle be

Carlson 3 commensurable with the utility that Jack gets from studying philosophy. But it is not at all clear that the utility these individuals get from their respective goods is reducible to a single unit of utility such that we can easily compare, say, one hour of apple-picking and one hour of philosophizing. Egalitarian utilitarians must also assume that the welfare functions of the individuals in question are equal, such that they are capable of being satisfied with the same amount of the respective things they value (Sen 1979, 201). But it is implausible to think so: Jane might be easy to please, but Jack not so much. But if there are different welfare functions in the case of Jack and Jane, then more resources would have to be given to Jack to bring him up to the same level of utility that Jane has. Thus, aiming for an equality of utility seems to require that we give more resources to one group than another. It is difficult, then, given the pluralism both of the things that could be valued and the functions by which individuals value them, to think that measuring how utility individuals in a society have is a viable project (Sen 1979, 202). A second problem with measuring the justice of a society by the utility its individuals have is that it is focusing solely on the utility outcome that is produced. This is problematic, Sen thinks, because it might elide the fact that two people who achieve an equal level of utility might have started out from very unequal starting points, where one person had to overcome tremendous obstacles to get to that level of utility, while the other had to show little effort at all. Sen thus concludes that evaluating a society by the utility it gives individuals would hide the fact that the process by which that equal level of utility is achieved is far from equal (Sen 2009, 236). Such consequences of focusing on utility seem hard to square with the general thrust of egalitarianism.

Carlson 4 Sen then considers a second approach, one that measures justice not in terms of equal utility but rather by the citizens having equal means to pursue whatever reasonable good they might want. This approach, most prominently developed by John Rawls, evaluates justice of a society by how well it provides access to a stock of entities, what Rawls calls primary social goods that any rational person would need to pursue the sort of life they choose. Rawls claims that this collection of meanswhich include not only basic liberties and rights, but also access to educational and vocational opportunities (Rawls 1999, 54)provide the resources that any reasonable individual would need to pursue their own conception of the good life. These goods are all-purpose in the sense that they would facilitate any persons opportunity to pursue their conception of the good, regardless of the specific content of that conception. For example, having access to adequate levels of education gives a person a chance to become literate, which in turn facilitates whatever vocational or educational path they happen to choose from there. Likewise, religious liberty facilitates the opportunities of the religious devotee and the secular person to pursue their respective conceptions of the good. Voting and political rights allow one to participate in political and legislative endeavors. Sen thinks Rawls approach has several virtues to it. In contrast with utilitarian approach, Rawls metric is a heterogeneous collection of entities, with no presumption that one item in the collection is directly commensurable with the others. In evaluating means rather than utility outcomes, Rawls is emphasizing that the equality of procedures and the opportunities that a society provides are in fact more important than the outcomes of those procedures being equal (Sen 2009, 64). Sen also notes that the value in the list

Carlson 5 of primary goods that Rawls presents highlights the importance of giving people the opportunity to do what they would like with their own lives (Sen 2009, 64). Having given some praises to Rawls account of justice in terms of equality of primary goods, Sen ultimately finds it insufficient. Sen takes Rawls to say that primary goods are the embodiment of advantage (Sen 1979, 216), that to have a sufficient amount of primary goods is constitutive of what social advantage is. Rawls measures peoples opportunities, Sen claims, by the means that they possess that can facilitate their achieving their ends (Sen 2009, 66). A persons expectations of the life they can expect seems to be simply in terms of the primary goods that are made available (Rawls 1999, 79). As Rawls says in Justice as Fairness: A Restatement, the mission of the institutions of the basic structure of society is to put in the hands of citizenssufficient productive means for them to be fully cooperating member of society on a footing of equality (Rawls 2001, 140). On this understanding, if two people have an equal amount of primary goods at their disposal, then they have equal amount of advantage and equal prospects for achieving their conception of the good. Now Rawls acknowledges that of course these two citizens are almost certainly not equally advantaged in the most comprehensive sense. There are certainly factors which Rawls calls primary natural goodstheir talents, health, intelligencewhich are not equally distributed among society. An individual who is in good health or has socially desirable talent has an advantage over another person who does suffer from a disease or lacks any socially desirable talent. Rawls points out that these sorts of natural goods fall outside the direct control of the basic structure (Rawls 1999, 54). But Rawls maintains that even two people with unequal

Carlson 6 natural goods are equally advantaged at least with regard to what society can make available to them in the form of primary goods like rights, liberties, and opportunities. But Sen wants to point out that if one is concerned about fair equality of opportunity, as Rawls clearly is, then one cannot neglect the fact that lacking natural goods can negatively influence what an individual is capable of achieving, even if provided their fair, equal share of primary social goods. Sen notes that the relationships between resources like primary social goods and the opportunity for flourishing those goods normally facilitate are contingent on several factors, contingencies which Rawls focus on primary goods alone seems to ignore (Sen 2009, 255). First, as mentioned above there are personal disparities in characteristics like age, gender, and health status that require some people to need more resources to achieve the same level of opportunity as others. Nutritional requirements vary significantly by age, as do medical concerns generally. Supplementing Sens case against Rawls, Nussbaum notes that pregnant women need more resources than the average non-pregnant person (Nussbaum 1999, 401). Second, there are heterogeneous physical environments where some people have to divert some of their scarce resources to fend off the destruction of natural disasters and inclement weather patterns. Third, there are heterogeneous social conditions that affect peoples ability to convert primary goods into a flourishing life. This can include being subject to violence or destruction of property, having inadequate access to healthcare facilities or educational opportunities. Social arrangements can also aggravate personal heterogeneities like gender. For example, Nussbaum notes that women often have to overcome obstacles inherent to male-dominated hierarchies to which men are usually not subject. Traditional familial structures, for example, are often set up to advance the

Carlson 7 interests of males but not females in those groups. Finally, there are relational disparities: one can be poor in ones society, even if one is wealthy in more absolute terms. Even if one lives in a place with plenty of wealth and opportunity theoretically available, it often costs more to acquire an adequate level of social functioning and opportunity there. These relative deprivations can significantly affect ones capacities for being able to lead a flourishing existence (Sen 2009, 256). For Sen and Nussbaum, these factors put significant distance between primary social goods as Rawls has outlined and the opportunity for a good life that they are supposed to make possible. Even if someone is given her fair share of primary social goods, her situation might make it such that she is still in a disadvantaged state. Sen and Nussbaum conclude from these cases that the amount of primary social goods themselves cannot be the single metric by which we measure the justice of a society. Sen and Nussbaum conclude that an adequate account of justice should focus not so much on the primary goods themselves, but on peoples real opportunities: their capabilities of converting means into whatever they have reason to value (Sen 2009, 371). This requires acknowledgment that peoples needs and converting capabilities vary greatly (Sen 2009, 232), and that socially disadvantaged people require more resources to overcome the obstacles inherent to their situation. In contrast to the utilitarians question, How well off are people in this society? and the Rawlsian question, How much resources does this society provide its citizens? the central question that Sen and Nussbaum want to answer is What are people in this society able to do and be? (Nussbaum 1999, 404).

Carlson 8 Nussbaum and Sen each give distinctive ways of fleshing out what must obtain to facilitate the full capabilities1 of individuals in a society. Nussbaum, drawing from historical work in Aristotle and Karl Marx, gives a very robust account of what a person needs in order to be fully capable of living a full-flourishing human existence. This list includes, among other things, not only the capability to be free from handicapping diseases, violence and oppression from others, but also the opportunity to develop ones emotional, intellectual, and artistic capacities and to be able to develop relationships with others, including those of other species (Nussbaum 1999, 411). Contrasted with Rawlsian primary goods, this list of capabilities are not just instruments toward some other end, but have value in themselves as well (Nussbaum 1999, 407). Sen, on the other hand, is less concerned with producing a hard and fast list of which capabilities need to be developed by a society. A more foreground concern for Sen is dealing with the sort of capability-inhibiting handicaps mentioned earlier that leave many individuals incapable of pursuing anything approaching a good life. These sorts of handicaps include not only physical and psychological handicaps, but also various incapacitations that poverty brings. This latter concern with poverty is not just with raising the income of those in financial poverty, but also with setting the development of political and economic institutions that prevent citizens from being subject to incapacitating2 forces. For instance, Sen is famous for his claim that famines have never

Nussbaum notes that the capabilities approach is not committed to developing every human capability, such as the capability to be cruel toward others. Rather, the set of capabilities that Nussbaum think should be developed are ones that are valuable from an ethical standpoint in a way that, e.g. capacity to harm others, would not qualify (Nussbaum 1999, 44). 2 While the word incapacitate and its cognates usually connotes full prevention of normal functioning, I will use it in a less comprehensive sense to describe any factor
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Carlson 9 taken place in a democratic country with a free press, as free press are able to report when disasters happen and elected officials have an incentive to provide for potential voting citizens (Sen 2009, 349). Providing political rights is thus an essential part of a society giving its citizen the ability to exercise their full capacity as human beings. He points to how democratic movements in India have mitigated problems of hunger and sectarian violence as evidence for his claim that institutions that incentivize adequately competent governing provides a protective power over citizens from various sorts of incapacitating forces (Sen 2009, 353-4). These above suggestions notwithstanding, Sen does not think that the capabilities approach is committed to any specifically detailed policies (Sen 2009, 232). Furthermore, he wants to leave how these questions are to be decided to the exercise of argument and public reason3, rather than present some theoretical, abstract list (Sen 2009, 242-3). Nussbaum, it should be noted, agrees that how capabilities are to be specifically addressed should not be decided by fiat, as though her list of ten capabilities were delivered on stone tablets. Instead, the constellation of capacities should be shaped according to public discussion and ultimately established by some kind of overlapping consensus consisting of individuals with a plurality of comprehensive views about the world (Nussbaum 1999, 408). Note that Nussbaum claims that her list of capabilities is a free standing moral idea and thus not necessarily tied to any metaphysical or teleological point of view (Nussbaum 1999, 414). This point presumably is to avoid the Rawlsian objection that the capabilities approach as she has presented it is a that limits the capabilities of an individual. It is effectively a synonym for handicap. 3 This would, of course, require the necessary structures and information distributions to facilitate an adequate discourse.

Carlson 10 comprehensive doctrine that could not be reasonably accepted in the kind of discourse that she and Sen suggest should shape it. Interestingly enough, Nussbaum thinks that the core of this list is, mutatis mutandis, translatable into various religious and philosophical understandings of human nature (Nussbaum 1999, 409) and thus capable of producing widespread consent on its content. The issue of needing an overlapping consensus relates to the general heterogeneous nature of the capacities in question. Like Rawls primary goods, the capability indices Sen and Nussbaum are developing are not homogenous entities like utility or gross domestic product that makes of one kind of thing readily comparable with another. Sen insists that the capabilities he is addressing are not readily commensurable with each other such that we could easily compare trade-offs among them. As a result, the ways of shaping these capabilitiesand balancing them where they conflictis not going to be a straight-forward accounting of which one generates more of a stipulated unit, but rather which ones are more important (Sen 2009, 241). Questions about importance can only be reasonably adjudicated in giving arguments for why some capacity matters such that it should be developed in a particular way. How might Rawls respond to the charges that Sen and Nussbaum level against him? In Political Liberalism, Rawls addresses Sens objection that he ignores the fact that people have a wide range of capabilities that affects how they can use primary goods. Rawls outlines four different kinds of variations4 that arise among individuals: variations

Rawls denies that he has assumed people to have equal capacities in the sort of way in which Sen is interested; rather, for the purposes of establishing what fair terms of cooperation would be, he as assumed at least some shared minimum level of capacities such that they can participate in these cooperations (Rawls 2005, 183). Rawls is not assuming, therefore, that no handicaps exist among individuals in
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Carlson 11 of moral and intellectual capacity, physical abilities, conceptions of the good, and tastes or preferences (Rawls 2005, 184). All of these variations, Rawls claims, can be accommodated within his framework. For the purposes of discussing Sens criticisms of capabilities, we can focus specifically on the first two categories of variations. Rawls agrees that unequal distribution of natural goods like intellectual and physical capabilities is not something that can be distributed by the basic structure of a society. But though the basic structure cannot directly control the distribution of natural goods, they can still influence it (Rawls 1999, 54). The basic structure can do this by securing what Rawls calls the background conditions for justice. The background conditions of justice are those conditions that ensure that the fair equality of opportunity established at the beginning of a period is maintained over time (Rawls 2001, 52). Rawls is under no delusion that even a basic structure constituted by a perfectly just system of rules set up according to perfect principles of justice and fully complied with would necessarily be stable over time in securing equality of opportunity. Suppose that one started with an exactly equal distribution of primary goods, including things like educational opportunities (Rawls 1999, 243). As individual citizens are free to pursue their life as they choose, goods like income and wealth will naturally accumulate in some areas of society. If left untended, this would threaten the equality of opportunity that the characterized the initial situation, as some people would have more primary goods like wealth at their disposal than others. To correct for these inequalities, Rawls claims that society; he is only presuming for the purposes at hand that there are no handicaps that prevent one from relatively normal functioning in society. While it is an interesting question about how to deal with those with such severe handicaps that they cannot participate in society, that is the simply not the question Rawls is considering at the moment.

Carlson 12 there will need to be periodic recalibrations and transfers to preserve and reestablish that equality of opportunity from the initial sequence. Rawls general claim is that people lacking income would be periodically compensated by the basic structure in order to provide fair equality of opportunity (Rawls 2005, 184). It seems plausible that a similar recalibration story can be told about inequalities that result from handicaps as well. On this account, the basic structure could ensure that a handicap of an intellectual or physical nature does not determinatively limit that citizens capabilities for living a reasonably good life. For example, special education teachers or tutors could provide intellectually challenged individuals with some of the resources that could help them realize some of their potential that their condition currently hinders. In A Restatement Rawls points out that natural goods like intelligence and talents are not fixed assets but require social conditions for them to arise and be maintained (Rawls 2001, 57). Equally intellectual handicaps are not fixed liabilities either, as they are seemingly correctable given some adequate social structures and conditions. It seems, then, that Rawls account of background justice providing, among others, the primary social good of adequate educational opportunities is a suitable framework for addressing the sort of intellectual and moral handicaps that could limit a persons capabilities and life prospects. The basic structure would presumably also deal with the issues of physical and psychological handicaps in a similar way, as the basic structure plausibly includes provisions for adequate healthcare that would provide individuals with the resources to control their conditions. (Rawls 2005, 184). But Sen and Nussbaum are correct to point out that capacity limitations from handicaps are not fully addressed just by providing

Carlson 13 adequate medical treatment. Handicapped people might have mobility trouble or social problems in school. Pregnant women might have risk losing their job to stay with their child in its early months. Providing for equality of fair opportunity would require in addition to adequate healthcare that one mitigate these sorts of extra-medical limitations that physical and psychological handicaps bring. Elevators and wheelchair ramps might be required to facilitate those with mobility problems. Maternity leave and childcare might be required for women after giving birth to facilitate them resuming their normal occupational endeavors. Resource and special education teachers might facilitate children with learning disabilities. It seems plausible that the sort of limitations handicaps place on people are tractably dealt within the scope of what the basic structure providing fair equality of opportunity. Discussion of how Rawls accommodates these handicaps raises the issue of the scope of the basic structure. In Political Liberalism, Rawls notes that the basic structure, and its operative principles of justice, extend to the coercive institutions of society but do not apply to the internal operations of private associations (Rawls 2005, 468). Nussbaum and other feminist critics of Rawls have pointed out that women face limited opportunities within traditionally patriarchal social situations. One example of such a situation is the nuclear family, where women are usually considered to be responsible for the majority of the domestic tasks and as a result have little opportunity to pursue other activities outside of their domestic life. This is to say nothing of the literal and metaphorical incapacitations women face from the physical and psychological abuse endemic to said situations. If Rawls is correct that the basic structure does not extend to

Carlson 14 the individual associations like the family, then Rawls framework is helpless to provide fair equality of opportunity to women in these sorts of situations. Rawls response to the feminist critique notes that while the basic structure does not address the internal operations of private associations, it does place constraints on what burdens can be placed on individuals within those associations. The fact that each member of an association is a citizen entails that they are due all the rights and liberties due to them qua citizen (Rawls 2005, 469). Included in these rights that the basic structure guarantees are a right to integrity of person, which includes freedom from psychological and physical oppression, and freedom of association (Rawls 1999, 53). In other words, women qua citizens have the right to not be subject to abuse of any kind, and should have the ability to freely exit if they no longer comply with the terms of the association. Anyone who is subjecting a woman to opportunity-limiting responsibilities that she is not willing to agree to herself therefore violates the rights guaranteed her through the basic structure, a violation that would require intervention and prevention. On the grounds of the rights, the basic structure still seems to have the resources to extend opportunity and freedom from capability hindrances that Nussbaum and other feminists have noted. As noted earlier, the basic structure has the mechanism of the transfer branch that periodically corrects inequalities that interfere with the fair equality of opportunity of the society going forward. And it seems plausible that correction for handicaps could very well be accommodated as one kind of recalibration. But part of Sen's concern with a Rawlsian means-focused basic structure seems to come down to why handicaps should have to wait to be corrected. As Sen sees Rawls, while certain capability-relevant factors

Carlson 15 like income distribution are accounted for in the very initial constitutional stage of setting up of the basic structure, other equally incapacitating factors like handicaps only get addressed through the legislative stageonce the basic structure is set up. Sen thinks it is problematic that the basic structure does not already include at the constitutional stage the information about how people are able to convert primary goods into a good life. Incapacitating handicaps should not have to wait around to get sorted out, but should be addressed at the same time that things like income distribution are addressed. But how significant is this problem if handicaps will be addressed in the legislative stage? If we have reason to think that the various kinds of handicaps will be addressed in the execution of the basic structureas I have endeavored to show that we do abovewhy is it problematic that they are not addressed initially? Part of the reason why I am less concerned about various handicaps being addressed later in the sequence of the basic structure is I think there is an explanation as to why handicaps are not addressed sooner. The situation of the constitutional stage is such that the constitution is constructed with only a very minimal amount of information coming through the veil of ignorance. It is only once the constitution is settled and the veil of ignorance is lifted that the full scope of all the social facts becomes available (Rawls 1999, 174). It seems that the limitation of opportunities that certain handicaps place on people is a least partly a function of some of these social facts. For instance, if one were in a society that had neither the architectural concept of stair nor any mutlistory buildings, then the need for wheelchair ramps and elevators is obviated. Similarly, if one is in a society where the father takes care of the child soon after birth, then the need

Carlson 16 for maternity leave and childcare noted above is likewise dissolved.5 It would seem difficult for agents to make any sort of provision about opportunity limiting handicaps like these without knowledge of these facts that the veil of ignorance has temporarily denied them. But if what I have outlined in this paper is correct, then the basic structure that Rawls thinks is constitutionally enshrined in the constitutional stage already has the sufficient materials to accommodate the variety of incapacitating conditions that might affect citizens prospects and opportunities. In conclusion, I am left wondering how distinctive6 Sen and Nussbaums proposed alternative of justice is from the Rawlsian framework. Sen qualifies his break with Rawls by noting that Rawls is concerned with people having real opportunity to actualize their conception of the good life (Sen 2009, 64). While Sen obviously agrees with this, he thinks that Rawls answer to that question ultimately will not secure real opportunity in many cases. As a result, though, Sen sees the move from primary goods to capabilities as not a foundational departure from a Rawlsian program, but only an adjustment of the strategy by which the goal of fair opportunity is achieved (Sen 2009, 66). What I have argued in this paper is that we have reason to think that the In this case, it might well be that paternity leave would become necessary, but that necessity might also be contingent on some other social facts about that society. 6 I think part of the reason Sen and those sympathetic with him see some departure from Rawls is that Rawls is to varying degrees engaged in the enterprise of ideal theory, i.e. explicating what the ideal of justice is. Sen has no time for the ideal theorizing project: striving to depict in exact detail the features of an idealized conception of justice is neither necessary nor sufficient for what Sen thinks is the real task of political philosophy, namely making comparative evaluations about the opportunities that respective actually realizable political arrangements afford its citizens (Sen 2009, 96). If we strip away the idealizing within Rawls, however, and reorient it toward doing the sort of comparative evaluations that Sen and Nussbaum want political philosophers to do, the break between the capabilities approach and Rawls seems minimal.
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Carlson 17 readjustment of Rawls philosophy that the capabilities approach is supposed to offer is already present in Rawls account. As Rawls notes in Restatement, the capabilities that citizens have in virtue of being free and equal personsand the rights and liberty thereby entailedare what enable us to be fully cooperating members of society (Rawls 2001, 169).

Works Cited Nussbaum, Martha C. "In defense of universal values." Idaho L. Rev. 36 (1999): 380443. Rawls, John. Theory of Justice. Revised edition. Cambridge: Harvard University Press, 1999. ---. Justice as Fairness: A Restatement. Ed. Erin Kelly. Cambridge: Harvard University Press, 2001. ---. Political Liberalism. Expanded Edition. New York: Columbia University Press, 2005. Sen, Amartya. Equality of what? Liberty, Equality, and Law: Selected Tanner Lectures on Moral Philosophy. Ed. John Rawls & Sterling M. McMurrin. Salt Lake City: University of Utah Press, 1979. 197-220. ---. The Idea of Justice. Cambridge: Harvard University Press, 2009.