3.14: Capabilities and human rights
Several capability theories are closely related to accounts of human rights. Within the capability literature, some scholars have developed capability theories that they regard as a human rights theory. In the human rights literature, scholars have examined to what extent the capability approach can help to develop stronger theories of human rights. The same topics (e.g. provision of or right to basic health or basic education) are defended based on both approaches, or are defended appealing both to human rights and capabilities (e.g. Osmani 2000). Amartya Sen has in several of his publications analysed the relationship between human rights and capabilities (e.g. Sen 2004b, 2005). In addition, Martha Nussbaum has claimed that her capabilities theory is a version of human rights theory, which has drawn much attention to the question about the relationship between capabilities and human rights.
It should not be surprising that there are so many scholars and practitioners interested in both the human rights framework and the capability approach, since they share some important aspects. First, they are both widely endorsed ethical frameworks. Second, they seem to share an underlying motivation, namely to protect and enhance people’s freedoms. Third, they are both used for global as well as domestic questions. Fourth, both frameworks want to build strong links between theory and practice: they are studied and used by scholars but also used by practitioners (political parties, activists, policy makers, etc.). Finally, both discourses are strongly interdisciplinary in nature.
All this raises some questions. What is the relationship between human rights and capabilities? Can we say that capabilities are the objects of human rights? If so, do human rights theories and analyses have something to gain by developing capabilities-based human rights theories? Can the capability approach deliver all that is important in human rights theories? And what should we make of the alleged disadvantages of using the capability approach in thinking about human rights?
3.14.1 What are human rights?
Human rights are rights each human being is entitled to in order to protect her from severe harms that could be inflicted by others — either by deliberate actions, or else by the failure to protect human rights caused by institutional design. They are norms aimed at protecting people from severe social, political and legal abuse (Nickel 2014, 1). Examples of human rights are the right to life, the right to food, the right to freedom of assembly, the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to privacy.
Human rights are not all the rights that people have. As Sen (2004b, 329) writes, “there have to be some ‘threshold conditions’ of (i) importance and (ii) social influenceability for a freedom to figure within the interpersonal and interactive spectrum of human rights”. Take the ‘importance threshold’ first. Here is an example of a right that is not a human right, because it does not meet the threshold condition of importance: the right to parental leave. In many European countries, parents who are employed have a right to paid parental leave upon the birth of their child or when they adopt a child. While many have argued that such a right would help meet our duties towards children and parents as well as advance gender justice (e.g. Gheaus and Robeyns 2011), it is not at all plausible to argue that this should be seen as a human right. It has a much weaker moral urgency than the right to a fair trial, let alone the right to life. Human rights thus correspond to a subset of the domain of justice, and focus on those questions that are of utter importance, the protection of which should have a greater urgency than the support of other normative claims. The second threshold — social influenceability — implies that even if something valuable is hugely important, as long as there is no or very limited social influenceability, its protection cannot be a human right. For example, it makes no sense to speak of a human right to be protected from volcano eruptions, or a human right to be protected from cancer. However, one can say that there is a human right to be warned about volcano eruptions if the government has the relevant information. To the extent that there is more social influenceability, the scope to speak coherently of human rights increases.
Human rights have corresponding duties. But on whom do those duties fall and what kind of duties are they? A broad, inclusive account of duties is given by Pablo Gilabert (2009, 673) who writes:
[Human rights impose] a duty of the highest priority for individuals and governments to identify ways to protect certain important interests through (a) specific rights and entitlements, but also, when these are insufficient or not presently feasible, through (b) urgent goals of institution-building.
Note that this definition does not limit the duty to protect human rights to governments only, and that it does include institution-building as an important path towards protecting human rights. 28
3.14.2 The interdisciplinary scholarship on human rights
The human rights literature is, just like the capability approach, deeply multidisciplinary and interdisciplinary. The philosophy of human rights “addresses questions about the existence, content, nature, universality, justification, and legal status of human rights” (Nickel 2014, 1). How can human rights exist in the first place? What should be the content of human rights, that is, what kinds of harms or abuses should they protect us from? What kind of rights are human rights — are they moral claims, or legal claims, or political claims, or something else? The question of justification asks: on what grounds can we say that people have human rights? Is it because humans have rational capacities or agency? If so, does that mean that newborn babies do not have human rights? All these questions are studied in the vast philosophical literature on human rights.
Note that while the relationship between normative political philosophy, justice and human rights is not entirely disputed, the dominant view in the contemporary literature is that the domain of human rights is a subset of the domain of justice, which in turn is a subset of the domain of morality. The reason is that “[n]ot everything that is desirable to be realized in politics is a matter of human rights, and not everything that is a matter of justice is a matter of human rights. Human rights constitute the most urgent demand of basic global justice” (Gilabert 2009, 676).
Legal scholars are interested in questions related to the treaties and constitutions in which human rights are codified. The idea of human rights gained momentum with the 1948 adoption of the Universal Declaration of Human Rights (UDHR), which over time received a canonical status in legal and political debates. The UDHR subsequently served as a template for human rights instruments that are legally binding, such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, the American Convention on Human Rights and the African Charter of Human and People’s Rights. One question this raises is to what extent national constitutions are consistent with those legally binding treaties, or with the UDHR. Another question frequently asked by legal scholars is to what extent national jurisprudence can be in tension with — and violate — a human right that is part of an international treaty to which that particular nation signed up. For example, in the famous ‘Lautsi case’, the question emerged whether the Italian state’s policy to have a compulsory crucifix in the classroom of public schools was in violation of the human right to the freedom of religion as codified in the European Convention on Human Rights (Weiler 2010; Pierik 2012; Pierik and van der Burg 2011).
In the social sciences and international relations, questions are asked about what role human rights play in politics. How do countries differ in the degree in which they protect human rights? What are the effective instruments that support human rights in countries in which they are not violated? Is it effective to condemn human rights violations in other countries, or is silent support for grassroots human rights activists a more effective strategy?
Of course, human rights are hugely important for human right activists, who are working on actual human rights protections. Other activists, such as those focusing on the empowerment of disadvantaged groups, often take a more instrumental attitude towards human rights, and ask whether such rights are effective instruments to reach their goals of inclusion, development and combatting forms of injustice and oppression.
3.14.3 Why a capability-based account of human rights?
After this brief sketch of the huge literature on human rights, we can now explore the relation between human rights and capabilities. The first question that needs to be asked is: why would we be at all interested in a capabilities-based theory of human rights? What could be gained by theorizing human rights, or trying to protect human rights, by referring to capabilities?
The first reason is philosophical, and concerns the justification of human rights. Human rights are norms or instruments to protect certain valuable things (which are called ‘the objects of human rights’). But every time we claim an object is so important its protection must be enshrined as a human right, we must argue why that object has this special importance. Part of the philosophical literature on capabilities does precisely that — to justify why we need to protect certain valuable personal states. Both Sen (2004b, 2005) and Nussbaum (1997, 2011a) have argued that human rights can be seen as entitlements to certain capabilities. However, Sen’s views are more qualified, since he has argued that the object of some but not necessarily all human rights can be viewed as capabilities. There are plausibly also other objects of human rights, such as process freedoms and liberties.
The second reason builds on the first. If some human rights can be understood in terms of capabilities, and poverty can also be conceptualized in terms of the denial of capabilities, then poverty can be conceptualized as a human rights violation (Osmani 2005). This is important for various reasons, including the strong rhetorical force that a human rights violation has in comparison with other claims, and also because socio-economic human rights have sometimes been regarded as more in need of conceptual foundations, in comparison with the civic and political human rights whose status as human rights has been less contested.
This relates to the third reason why it can be helpful to conceptualise human rights in terms of capabilities, which is the often-stated worry that the protection of human rights, especially social and economic rights, is infeasible (Gilabert 2009). To counter that pessimism, we need greater clarity on the chain of steps that are involved in socio-economic human rights protection. Capabilities are the objects of our rights, and we know, from our understanding of how capabilities relate to resources and social structures, which parameters can influence the capabilities that people enjoy (see the figure in section 2.12). Hence, if we want to protect human rights, in particular socio-economic rights, which sceptics believe cannot effectively be protected, the capability approach helps us see that “promoting socioeconomic rights may require attention to specific parameters that affect the capabilities of people” (Gilabert 2009, 666). In sum, the language of the capability approach helps us to respond and address the feasibility worry of socio-economic rights.
Fourthly, we are unsure whether some things we want to protect meet the threshold condition of importance that human rights should meet. If one is unsure about whether a certain freedom should be a right, let alone a human right, one could already start to protect or enhance it if one sees it as a capability. One does not need to wait until the discussion about the threshold is settled before one starts to protect something that everyone agrees is in any case important.
A final reason is more practical or political. In some countries, the terminology of ‘human rights’ is regarded with suspicion, as it is seen as stemming from a colonial era, and, as a consequence, is regarded as an instrument of western domination. This makes it hard for both local and global advocates of human rights to advance their cause. By using the terminology of capabilities, which is not linked to a particular colonial era or western power, instead of the language of human rights, these same valuable rights can be argued for.
3.14.4 Are capabilities sufficient to construct a theory of human rights?
There is quite a lot of interest among capability scholars and those working in the human development paradigm to try to bring the best of the capability approach and the human rights approach together (e.g. Vizard 2006, 2007; Vizard, Fukuda‐Parr and Elson 2011; Fukuda-Parr 2011; Gilabert 2009, 2013). One important question, though, is how much the capability approach can offer if one is interested in constructing a powerful human rights theory. Is the notion of capabilities sufficient for such a theory?
The answer clearly must be negative. A theory of human rights needs other elements, such as a discussion of the scope of, and, importantly, the justification for, human rights. Yet, by making use of the distinction between the capability approach and capability theories that was introduced in section 2.3, we can see that it is not at all an embarrassment for the capability approach that, by itself, it cannot deliver a theory of human rights. Instead, that should be the task of a specific capability theory, for which, in the various modules, additional elements that are needed for a human rights theory can be added.
This raises the next question: what would have to be added, then? One important thing that may need to be added (in A6 — other dimensions of ultimate value) are process freedoms. Sen (2004b) argues that we should make a distinction between freedoms as substantive opportunities and the process aspect of freedom (procedural aspects). Both are, in his view, relevant when thinking about human rights, but only the opportunity aspect of freedom is captured by the notion of ‘capabilities’. Linda Barclay (2016) makes a similar point, by saying that rights that concern equitable processes are very important for human rights, and cannot be captured by the notion of capabilities. Clearly, procedural characteristics, for example those that guarantee a free trial, may not necessarily best be understood as capabilities, but perhaps rather more as elements of institutional design. Yet as proposition A6 emphasizes, not everything that is of crucial importance is a capability. Recall that proposition A6 allows us to include other elements of ultimate value, and this could incorporate what Sen calls process freedoms. 29 In short, by seeing a capability-based human rights theory as a capability theory , for which various theoretical additions and choices are possible, it becomes clear that more is needed than the mere reference to ‘capabilities’.
Note also that we can, of course, ask the question the other way around — what is needed to make a capability theory? — and use the human rights framework as the theory of value that is used to make the selection of capabilities. This route has been developed by Polly Vizard, and has led to the “human rights based capability set” (Vizard 2006, 2007).
3.14.5 The disadvantages
Finally, we need to ask whether there are any disadvantages in using the capability approach to further our thinking, policy making and activism on human rights, and — ultimately — in letting a capabilities-based human rights theory compete with the existing human rights accounts.
The first thing to note is that there is a long-standing human rights discourse that is used by activists all over the world, and often very effectively so. Clearly there are costs involved for these activists to become familiarized with the capability language. If the human rights discourse delivers to them what they need, why would we change it?
Second, there is a worry about legitimacy. The current human rights declarations and treaties have been the result of actual political processes, and the treaties were drafted by a large number of people, drawn from all over the world. For the capability approach, this is different. Given the prominence of Amartya Sen and Martha Nussbaum, and also the many publications that (wrongly) reduce the capability approach to the work by, primarily, Sen and Nussbaum, 30 the capability approach is much more associated with specific individuals. A capability-based human rights theory that is the work of one thinker can never have the political leverage that the existing human rights framework has. For the various practices in which human rights are used (creating laws, making policy and activism) a capability-based human rights framework can therefore never replace the existing human rights framework.
However, there is, of course, a more fruitful relationship possible, and that is to see the two frameworks as complementary rather than competitive (Nussbaum 2011a). Note, however, that any merging of the two frameworks has to be between a particular capability theory and human rights thinking, rather than between the general capability approach and human rights thinking. 31 A good example of such practical work is the UK’s Equality and Human Rights Framework. Tania Burchardt and Polly Vizard (2011) used insights from both the capability approach and the existing work on human rights to create a framework that is used for the monitoring undertaken by the Equality and Human Rights Commission in order to meet its legal mandate. 32
28 This relates to a complex discussion in legal and political philosophy on whether human rights can be protected by so-called ‘imperfect duties’ or ‘imperfect obligations’ which is beyond the scope of this book. See, amongst others, Polly Vizard (2006, 84–91) and Frances Kamm (2011) for further discussion.
29 The example that Barclay gives is the right not to be discriminated against. Barclay believes that “to be protected from discrimination” is a very important human right, but cannot plausibly be conceptualized as a capability, since one does not have a choice to be discriminated against or not. However, not being discriminated against is a functioning, and it is a mistake to think that the capability approach holds that we should only focus on capabilities and never on functionings, as was argued in section 3.4.
30 Unfortunately, Nussbaum’s (2011c) account of the capability approach only adds to that reductive and misleading portrayal of the capability literature (Robeyns 2011, 2016b; Unterhalter 2013).
31 Hence, when Nussbaum (2011a, 24) writes “the CA is a type of human rights approach”, we should read this as “Martha Nussbaum’s capability theory is a type of human rights approach”. Many other capability theories are, evidently, not human rights approaches, and hence the capability approach, as the overarching framework, cannot be either.