3.13: The capability approach and theories of justice

Discussions about inequality and justice are very important within the capability literature. In fact, they are so important that many philosophers studying the capability approach have made the mistake of believing that it is a theory of equality, or a theory of justice. But as the descriptions of the capability approach in chapter 2 have shown, that is not the case. Here, too, we need to make use of the distinction between the general capability approach and more specific capability theories: theorizing justice is only one among many different purposes that capability theories can have, that is, one of the possible choices we can make in module B1.¹⁹ Still, given that the capability approach offers a distinct view on interpersonal comparisons of advantage, it should not surprise us that the capability approach has been widely used in thinking about inequality and justice.

The literature that develops the relevance of the capability approach in theories of justice falls primarily within the domain of normative political philosophy, but there is some overlap with the work done by welfare economists and other scholars. In order to get a grip on what the capability approach does in the literature on distributive justice, or, vice versa, what thinking goes on about theories of distributive justice within the capability literature, let us start with a brief primer on the theoretical literature on justice in the next section. Then, in section 3.13.2, I pose the question of what is required for the construction of a complete capability theory of justice. The final section, 3.13.3, explores the implications of a capability-based approach to justice in practice.

3.13.1 A brief description of the literature on theories of justice

Justice is an essentially contested concept: there is no generally accepted definition of justice, and thus no consensus on what the appropriate subject matter of theories of justice is or should be. Of course, it does not follow that nothing at all can be said about the notion of justice. David Miller’s description of social justice is a good starting point. He claims that when arguing about justice, we are discussing:

how the good and bad things in life should be distributed among the members of a human society. When, more concretely, we attack some policy or some state of affairs as socially unjust, we are claiming that a person, or more usually a category of persons, enjoys fewer advantages than that person or group of persons ought to enjoy (or bears more of the burdens than they ought to bear), given how other members of the society in question are faring. (Miller 1999, 1)

Theories of justice do not cover the entire spectrum of moral issues. Social justice theorists generally agree that parts of morality fall outside the scope of justice. Charity is such a case: you may not have a duty of justice to help a frail, elderly neighbour, but you may nevertheless decide to help that person as an act of charity and compassion. Another example is morally laudable behaviour, such as being a volunteer for social activities in your neighbourhood. Such behaviour may be morally praiseworthy, but it may at the same time not be required as a matter of justice. Hence, justice is not all that matters, if we consider how to make the world morally better.

Can we describe justice, and theories of justice, by their properties, as philosophers often do? First, justice is a property that has been ascribed to both individuals and institutions: justice is a virtue of individuals in their interactions with others, and justice is also a virtue of social institutions (Barry and Matravers 2011). Thus, we can say that a certain society is more or less just, or we can say that the behaviour of some persons is just or unjust. Theorists of justice tend primarily to discuss the justice of social arrangements, that is, of social institutions broadly defined; justice as an individual virtue is sometimes regarded as a matter of ethics rather than of political philosophy (although not every political philosopher would agree with this way of demarcating justice from ethics). Moreover, an increasing number of theorists define social institutions more broadly so as to include societal structures related to class or caste, as well as social norms; under such broad definitions, conceptualising justice as a virtue of institutions touches upon many of the same aspects we would discuss if we were to see justice as a virtue of persons. For example, if a society has widely shared racist social norms, such as the disapproval of interracial love relationships, then a person who shows her disapproval of an interracial love relationship is acting upon an unjust social norm, but also showing non-virtuous behaviour.

Second, while sometimes the terms ‘social justice’ and ‘distributive justice’ are used as synonyms, it makes sense to understand ‘social justice’ as somewhat broader than ‘distributive justice’. Distributive justice always deals with an analysis of who gets what, whereas social justice may also relate to questions of respect or recognition, or the attitudes that a certain institution expresses. The capability approach is mainly discussed in theories of distributive justice, although it is to some extent able to integrate the concerns of theorists of recognition about what they conceive to be the narrow or mistaken focus of theories of distributive justice.²⁰

A third point to note about the literature on justice is that there are several different schools within social justice theories. According to Brian Barry and Matt Matravers, it is helpful to classify theories of social justice according to four types: conventionalism, teleology, justice as mutual advantage and egalitarian justice. Conventionalism is the view that issues of justice can be resolved by examining how local conventions, institutions, traditions and systems of law determine the divisions of burdens and benefits. Barry and Matravers rightly point out that this approach, which has been defended by Michael Walzer (1983), can lead to the acceptance of grossly unjust practices because they are generally endorsed by certain communities, even if they may be seen as unjust if judged on the basis of values and ideas not currently present (or dominant) in that society. Teleology is the view that social arrangements should be justified by referring to some good they are aiming for. Some examples are utilitarianism, natural law theory or Aquinas’ Christian philosophy. For teleological theories, what justice is follows from an account of the good, and thus the account of justice depends on the account of the social good itself. A criticism of teleological theories is that they necessarily rely on an external source (to specify what ‘the good’ is), such as utility, the natural law or God’s authority. Teleological accounts of justice therefore necessarily depend on notions of the ultimate good. However, in pluralistic societies characterised by a variety of religious and non-religious worldviews, it is hard to see how justice can be derived from notions of the good that are not endorsed by all. Many contemporary political philosophers therefore argue that teleological theories cannot be defended since people have competing ideas of the good, and we cannot call upon a generally-accepted external source that will tell us which idea of the good should be imposed on all.

The third and fourth schools of social justice, in comparison, share a commitment to some form of liberalism that recognizes the diversity of views of the good life, which a just society should respect. These schools experienced a major revival after the publication of John Rawls’s A Theory of Justice in 1971, which is generally regarded as the single most important work on social justice written in the last century.²¹ Rawls turned to the social contract tradition, in which justice is understood as the fair distribution of benefits of social cooperation. The core idea is that rules of justice are ultimately more beneficial to everyone than if each were to pursue their own advantage by themselves. Some of these theories (though not Rawls’s!) take the relative power or bargaining strength of every individual in society as given, and one may therefore question whether in situations of unequal bargaining power, justice will be done (Nussbaum 2006b). The other liberal school of justice is egalitarian justice, which is premised on the idea that people should be treated with equal respect and concern (Dworkin 2000). The most basic claim of those theories is that people are morally equal: each person should be treated as a being of equal moral worth. However, that general and abstract claim can be further developed in many different ways, and it is in specifying these further details that philosophers disagree. Distributive justice requires equality of something, but not necessarily equality of outcome in material terms (in fact, plain equality of resources is a claim very few theorists of justice would be willing to defend, since people have different needs, are confronted with different circumstances and, if given the same opportunities, are likely to make different use of them). Hence, Rawls’s theory of justice can be seen as an egalitarian theory of justice, but so are theories that come to very different substantive conclusions, such as Robert Nozick’s (1974) entitlement theory. Other major contemporary theorists of justice who can be labelled ‘liberal egalitarian’ are Brian Barry (1995), Philippe Van Parijs (1995), and Ronald Dworkin (2000), among many others.

Of those four schools, it is primarily liberal egalitarian theories that are discussed in relation to the capability approach. While there is internal diversity within this group of liberal egalitarian theories, these theories share the commitment to the principle that there should be considerable (although by no means absolute) scope for individuals to determine their own life plan and notion of the good, as well as a commitment to a notion of equal moral consideration, which is another way to put the principle of each person as an end, or normative individualism (see section 2.6.8).

Of the four schools of social justice, only the last two regard justice and equality as being closely related values. Under conventionalism, justice is guided by existing traditions, conventions and institutions, even if those existing practices do not treat people as equals in a plausible sense. Teleological theories also do not understand justice as entailing some notion of equality; instead, the idea of the good is more important, even if it implies that people are not treated as moral equals. In some theories of conventionalism and teleology, social justice could be consistent with a notion of equality, but this is not necessarily the case for all these theories. The social contract tradition and liberal egalitarianism, in contrast, derive their principles of social justice from a fundamental idea of people as moral equals. However, the notion of equal moral worth does not necessarily lead to the notion of equality of resources or another type of equality of outcome, as will be explained in what follows. Social justice and equality are related in these theories, but not always at the level of material inequality, but rather at a more fundamental level of treating people as moral equals or with equal respect and concern.

For a proper understanding of mainstream philosophical literature on theories of justice, it is helpful to know that the literature itself is highly abstract, and often rather detached from questions about policy design or political feasibility. Sen (2006, 2009c) has recently criticised such theories, and in particular Rawls’s work, for being overly “transcendental”. Such ideal theories give an account of the perfectly just society, but do not tell us what needs to be done to get closer to that very ideal, how we can make the world less unjust and which of two situations might be more unjust than the other. Another critique of contemporary theories of justice is that they are often based on so-called idealisations or strong assumptions, which may introduce significant biases or exclude certain groups of people from the theory. For example, Dworkin (2000) sets his egalitarian theory against a set of background assumptions that rule out racist and sexist attitudes and behaviours, as well as the adaptation of preferences to unfair circumstances (Pierik and Robeyns 2007). Certain assumptions and meta-theoretical as well as methodological choices also put philosophical theories of justice at risk of being too far removed from practical applicability. When we try to apply contemporary theories of justice to the actual reality of our chaotic and often messy world, there are all sorts of complications that need to be taken into account, such as trade-offs between different values, power imbalances between different social groups, unintended consequences of justice-enhancing interventions and policies, or interests of individuals and groups that may conflict with concerns for justice (e.g. a desire for re-election on the part of government administrations).

Debates about the practical relevance of contemporary philosophical theories of justice have gained momentum in the last decade. It remains unclear whether the outcome will change the way theories of justice are constructed in the future. It may well be that we will see a turn towards more non-ideal, empirically-informed, ‘directly useful’ theories that are easier to translate into practice. In any case, it is fair to say that most capability theorists working on justice are among those who strongly advocate this turn to make theories of justice more relevant to practice.

3.13.2 What do we need for a capability theory of justice?

In the previous section I gave a very brief account of the philosophical literature on theories of justice. What contribution can the capability approach make to this field? The first thing to note is that Martha Nussbaum has written at great length developing a capabilities theory of justice (e.g. Nussbaum 1988, 1992, Nussbaum 2000, 2002a; Nussbaum 2006b). Her capabilities theory is the most detailed capability theory of justice that has been developed up till now. Her theory is comprehensive, in the sense that it is not limited to an account of political justice, or to liberal democracies. Her account holds for all human beings on earth, independently of whether they are living in a liberal democratic regime, or of whether they are severely disabled. However, Nussbaum’s theory of social justice doesn’t amount to a full theory of social justice. The main demarcation of Nussbaum’s account is that it provides only “a partial and minimal account of social justice” (Nussbaum 2006b, 71) by specifying thresholds of a list of capabilities that governments in all nations should guarantee to their citizens. Nussbaum’s theory focuses on thresholds, but this does not imply that reaching these thresholds is all that matters for social justice; rather, her theory is partial and simply doesn’t discuss the question of what social justice requires once those thresholds are met. Not discussing certain things is not necessarily a flaw of a theory: this may be theoretical work that Nussbaum will do in the future, or it may be work that will be done by other scholars. Moreover, it is quite possible that Nussbaum’s account of partial justice is consistent with several accounts of what justice requires above the thresholds.

Yet, while Nussbaum’s theory of justice has been worked out in great detail and has received a lot of attention, it would be a grave mistake to think that there can be only one capability theory of justice. On the contrary, the open nature of the capability framework allows for the development of a family of capability theories of justice. This then prompts the question: what is needed if we want to create such a capability theory of justice?²²

First, a theory of justice needs to explain on what basis it justifies its principles or claims of justice. For example, Rawls uses the method of reflective equilibrium, including the thought experiment of the original position.²³ Dworkin’s egalitarian justice theory starts from the meta-principle of equal respect and concern, which he then develops in the principles that the distribution of burdens and benefits should be sensitive to the ambitions that people have but should not reflect the unequal natural endowments with which individuals are born (Dworkin 1981, 2000). One could also develop a capability theory of justice arguing that the ultimate driving force is a concern with agency (Claassen and Düwell 2013; Claassen 2016) or with human dignity (Nussbaum 2000; Nussbaum 2006b). If capability scholars want to develop a full theory of justice, they will also need to explain on what bases they justify their principles or claims. As mentioned earlier, Nussbaum starts from a notion of human dignity, whereas the Senian strand in the capability approach stresses the importance of what people have reason to value, hence an account of public reasoning. However, little work has been done so far to flesh out this embryonic idea of ‘having reason to value’, and it therefore remains unclear whether the capability approach has a solid unified rationale on the basis of which a full account of justice could be developed.

Second, as indicated above, in developing a capability theory of justice we must decide whether we want it to be an outcome or an opportunity theory; that is, whether we think that we should assess injustices in terms of functionings, or rather in terms of capabilities, or a mixture. At the level of theory and principles, most theorists of justice endorse the view that justice is done if all have equal genuine opportunities, or if all reach a minimal threshold of capability levels. Translated to the capability language, this would imply that at the level of theory and principles, capabilities are the relevant metric of justice, and not functionings. However, among theorists of justice, not everyone subscribes to this view. Anne Phillips (2004) has been a prominent voice arguing for equality of outcome, rather than opportunities. In the capability literature, Marc Fleurbaey (2002) has argued against an approach that takes only capabilities into account and has defended a focus on ‘refined functionings’ (being the combination of functionings and capabilities).

A third issue which needs to be solved if one hopes to develop a capability theory of justice is to decide and justify which capabilities matter the most. There are at least two ways of answering this question: either through procedural approaches, such as using criteria from which the relevant capabilities are derived, or by defending a specific list of capabilities. This selection of relevant capabilities for the purpose of justice can be done at the level of ideal theory (without taking issues of practical feasibility and implementation into account), at the level of abstract principles (Anderson 1999; Nussbaum 2006b; Claassen 2016) or at an applied theoretical level, which is useful for practical assessments of unjust inequalities (e.g. Robeyns 2003; Wolff and De-Shalit 2007).

Fourth, a capability theory of justice may need to engage in a comparison with other ‘metrics of justice’. In the literature on social justice there are several terms used to indicate what precisely we are assessing or measuring: the metric of advantage, the currency of justice, or the informational basis for the interpersonal comparisons for the purpose of justice. Within theories of justice, the main arguments are with Rawlsian²⁴ resourcists and with defenders of Dworkinian resourcism.²⁵ Other possible metrics are basic needs or the many different types of subjective welfare or preference satisfaction. A full capability theory of justice would need to show why it serves better as a metric of justice than these other metrics.

Fifth, a capability theory of justice needs to take a position on the “distributive rule” (Anderson 2010, 81) that it will endorse: will it argue for plain equality, or for sufficiency, or for prioritarianism, or for some other (mixed) distributive rule? Both Martha Nussbaum’s and Elizabeth Anderson’s theories are sufficiency accounts, but from this it does not follow, as one sometimes reads in the secondary literature, that the capability approach entails a sufficiency rule. Sen may have given the (wrong) impression of defending straight equality as a distributive rule, by asking the question “Equality of what?” (Sen 1980), though a careful reading shows that he was merely asking the question “If we want to be defending equality of something, then what would that be?” In fact, Sen has remained uncommitted to one single distributive rule, which probably can be explained by the fact that he is averse to building a well-defined theory of justice but rather prefers to investigate how real-life unjust situations can be turned into more just situations, even if perfect justice is unattainable (Sen 2006, 2009c). The capability approach clearly plays a role in Sen’s work on justice, since when assessing a situation, he will investigate inequalities in people’s capabilities and analyse the processes that led to those inequalities. Yet Sen has an eclectic approach to theorizing, and hence other notions and theories (such as human rights or more formal discussions on freedoms from social choice theory) also play a role in his work on justice. The presence and importance of the capability approach in Sen’s work is thus undeniable, but should not be seen as the only defining feature.

Sixth, a capability theory of justice needs to specify where the line between individual and collective responsibility is drawn, or how this will be decided, and by whom. There is a remarkable absence of any discussion about issues of responsibility in the capability literature, in sharp contrast to political philosophy and welfare economics where this is one of the most important lines of debate, certainly since the publication of Dworkin’s (1981, 2000) work on justice and equality which led to what Anderson (1999) has called “luck-egalitarianism”. Nevertheless, whether one wants to discuss it explicitly or not, any concrete capability policy proposal can be analysed in terms of the division between personal and collective responsibility, but this terminology is largely absent from the capability literature. In part, this might be explained by the fact that much of the work on capabilities deals with global poverty, where issues of individual responsibility seem to be less relevant since it would seem outrageous to suggest that the world’s most destitute people are personally responsible for the situation they are in. That doesn’t mean that the responsibility question is not important: it is indeed of utmost importance to ask who is responsible for global poverty reduction or the fulfilling of international development targets, such as the Sustainable Development Goals on which political philosophers have written a great deal (Singer 2004, 2010; Pogge 2008). The point is rather that philosophical puzzles, such as the issue of expensive tastes (for expensive wine, caviar, fast cars, or you name it), are simply beyond the radar of the child labourer or the poor peasant. However, while this may perhaps justify the absence of any discussion about personal responsibility among capability scholars concerned with poverty, it does not absolve theorists of justice who deal with justice in affluent societies (or affluent sections of poor societies) from discussing the just division between personal and collective responsibility (Pierik and Robeyns 2007, 148–49).

This brings us to a related issue: a theory of justice generally specifies rights, but also duties. However, capability theorists have remained largely silent on the question of whose duty it is to expand the selected capabilities. Nussbaum passionately advocates that all people all over the world should be entitled, as a matter of justice, to threshold levels of all the capabilities on her list, but apart from mentioning that it is the governments’ duty to guarantee these entitlements (Nussbaum 2006b, 70), she remains silent on the question of who precisely should bear the burdens and responsibilities for realizing these capabilities. Yet as Onora O’Neill (1996, 122–53) has argued, questions of obligations and responsibilities should be central to any account of justice.

This section makes clear that a capability theory of justice is theoretically much more demanding than the basic presupposition of the capability approach that ‘functionings’ and ‘capabilities’ are the best metric for most kinds of interpersonal evaluations. While much has been written on the capability approach in recent years by an increasing number of scholars, including philosophers, much of the philosophical work needed for turning the open-ended capability approach into a specific theory of justice remains to be done.

Note, however, that not all capability theorists working on issues of justice believe that such a fully worked-out theory is required. Sen (2009c) himself has argued at length that we don’t need a theory that describes a utopian ideal, but rather we need theorising to help us with making comparisons of injustice, and to guide us towards a less unjust society. Similarly, Jay Drydyk (2012) has argued that the capability approach to justice should focus on reducing capability shortfalls, for which a utopian account of perfect justice is not needed. Some capability theorists may want to work out a full theory of justice by addressing the various specifications outlined above, while others may want to change the very nature of theorising about justice, moving it more to applied, non-ideal or grounded theories (Watene and Drydyk 2016).

3.13.3 From theories of justice to just practices and policies

Before closing this section on capabilitarian theorizing about justice, let us briefly shift from theory to practice. Since theories of justice are mainly developed at a highly abstract level, often entailing ideals of perfect justice, we may wonder whether the capability approach to social justice and equality is of any use in telling us what justice-enhancing strategies and policies to develop. Indeed, this has sometimes been phrased as a serious concern, namely, that theories of justice are too abstract and do not help us with social justice struggles on the ground. One may well argue that we roughly know what is going wrong and we need political action rather than more and more detailed theorising. Moreover, some think that in the real world the subtleties of theories of justice are easily abused in order to justify gross inequalities, as may have been the case with philosophical discussions on individual responsibility. For example, Brian Barry’s (2005) later work exemplified this concern with the direct application of theories of justice to political change and the reform of the welfare state, rather than with further philosophical refinements of theories of justice. Related charges have been aimed at the capability approach as well. For instance, it has been argued that not enough attention has been paid to issues of social power in the capability writings on justice, and Feldman and Gellert (2006) have underscored the importance of recognising the struggles and negotiations by dominated and disadvantaged groups if social justice is ever to be realised. Such questions of power politics, effective social criticism, successful collective action, historical and cultural sensitivities, and the negotiation of competing interests are indeed largely absent from the philosophical literature on theories of justice. These ideal theories develop standards of a just society, but often do not tell us what institutions or policies are necessary if just societies are to be constructed, nor do they tell us what social and political processes will help advocates implement these social changes in concrete ways.

But the capability approach can be linked to more concrete justice-enhancing policy proposals that have been developed. For one thing, the Millennium Development Goals could be understood as being a practical (albeit specific and also limited) translation of the capability approach in practice, and their successors, the Sustainable Development Goals, can also be seen as influenced by the capability approach.²⁶ In fact, at the level of severe global poverty, any concrete poverty-reduction strategy which conceptualises poverty in a capability sense is, for most accounts of justice, a concrete justice-enhancing strategy, since these theories would include the absence of severe poverty as a principle of justice.

If we move from the area of poverty-reduction strategies to the question of just social policies in countries or regions with higher levels of affluence, we observe that there are much fewer actual examples of justice-enhancing policies that have been explicitly grounded in, or associated with, the capability approach. Yet many concrete policies and interventions could be interpreted as such, or are consistent with the capability perspective itself. One example relates to a policy of providing, regulating and/or subsidising child-care facilities. This can arguably be justified as a prerequisite for gender justice in capabilities since, due to gender norms, women will in effect not be able to develop themselves professionally if they are not supported in their need for decent quality-regulated (and possibly subsidised) child-care facilities. Mothers at home may be materially well-off if their husbands earn a good income but, if they do not have the genuine opportunity to hold jobs, then their capability sets are severely constrained and gender justice in capabilities cannot be achieved. An income metric which assumes equal sharing in the household may not detect any moral problem, but a capability metric will claim that women have more limited freedoms than men, since the provisions are not there to ensure that both parents can hold jobs, and gender norms and other gendered social mechanisms make it highly unlikely that men will volunteer to stay at home with their children. At the same time, men are also losing out since they have a very limited capability to spend time with their newborn babies.

A slightly different example concerns a justice-enhancing intervention that can be found in the form of adult volunteers who visit disadvantaged families to read to the children in order to enhance their language skills.²⁷ It is well-known that many children of immigrants are disadvantaged at school since they are very likely to enter school with weaker knowledge of the language of instruction than non-immigrant children. For this reason, in several cities there are networks of volunteers to read books to small immigrant children in their own homes. In this way, they effectively reduce the gap in educational opportunity between immigrant children and non-immigrant children. This example also illustrates that justice-enhancing strategies are not confined to public policy, but can also be initiated by persons and groups at the grassroots. The government is not the only agent of justice; we can all do our part.

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19 In particular, see the overview of different types of capability study in section 2.4.

20 It doesn’t follow that all concerns of theorists of recognition are best expressed by using the capability approach. I doubt that this is the case, but will not pursue this issue here further.

21 There is a large literature on the differences and complementarities between the capability approach to justice (that is, capabilitarian theories of justice) and Rawls’s theory of justice (see e.g. Sen 1980, 195–200; Rawls 1988; Sen 1992a, 82–83; Pogge 2002; Nussbaum 2006b; Robeyns 2008b, 2009; and the contributions to Brighouse and Robeyns 2010).

22 I have presented this overview of steps that need to be taken in earlier publications (e.g. Robeyns 2016d).

23 An accessible explanation of the method of reflective equilibrium can be found in Knight (2017).

24 An analysis of this comparison between social primary goods and capabilities was made by the various contributions to the volume edited by Brighouse and Robeyns (2010).

25 For comparisons of the capability view with Dworkin’s egalitarian theory, see Sen (1984b, 321–23, 2009c, 264–68); Dworkin (2000, 299–303); Williams (2002); Browne and Stears (2005); Kaufman (2006); Pierik and Robeyns (2007).

26 See http://www.un.org/sustainabledevelopment/sustainable-development-goals/

27 In the Netherlands, this volunteer organisation is called De Voorleesexpress (https://voorleesexpress.nl) but similar initiatives must exist around the world.