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Responsible Pluralism, Capabilities, and

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Journal of Human Development and Capabilities Vol. 12, No. 1, February 2011

ISSN 1945-2829 print/ISSN 1945-2837 online/11/010039-23 © 2011 United Nations Development Programme

DOI: 10.1080/19452829.2011.541734

Responsible Pluralism, Capabilities, andHuman Rights

JAY DRYDYK

Jay Drydyk is Professor of Philosophy at Carleton University in Ottawa,

CanadaTaylor and FrancisCJHD_A_541734.sgm10.1080/19452829.2011.541734Journal of Human Development and Capabilities1945-2829 (print)/1945-2837 (online)Original Article2011Taylor & Francis121000000February 2011JayDrydyk [email protected]

Abstract For their effective realization, human rights need to be perceived

as culturally legitimate, and this in turn requires that they be justifiablepluralistically, engaging all reliable moral discourses. In so far as a humanright calls for a specific capability to be respected, protected, and fulfilled,the capability approach can contribute to this task of pluralistic justificationin two ways. First, it abstracts from particular goods to valuable functioningsand capabilities in a way that affirms the particular conceptions of the goodthat value them. However, the model of justification adopted by Nussbaum—Rawls’s reflective equilibrium—needs to be replaced by anchoring thisdiscussion in knowledge of care and neglect. Second, Nussbaum proposesthat equal entitlement to central capabilities can be justified on grounds of

equal human dignity, which, as I read it, means that everyone’s striving (or atleast responsiveness) towards living well in the company of others matters,and matters equally. This affirmation of equal dignity, however, will beundermined if it is treated (as Nussbaum does) as a ‘purely political’ ideaexcluding public support from particular moral discourses. An alternativeapproach, responsible pluralism, enables us to enlist the support of allreliable moral discourses in support of equal dignity, rather than confiningthem to the background culture or the private realm.

Key words: Human rights, Capability approach, Care, Dignity, Pluralism

Introduction

Intercultural communication and agreement are clearly essential for thesustained realization of human rights. If it cannot be shown that human rightshave genuinely intercultural support, there are human rights deniers who areready to paint them as cultural or political impositions. Consequently, under-standing the nature of such intercultural support, including its logic and epis-temology, is far from an idle occupation. The more we know about how wecan know what our human rights are, the better able we will be to promote

the kinds of discussions in which human rights come to be known and valued. Can the capability approach (CA) contribute to this task? One would



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expect that it should, given how prominent the CA has been as a championof intercultural communication and agreement in matters of social policy andsocial philosophy (Nussbaum, 1995, 2000a, 2000b, 2000c, 2007; Sen, 1993,1996, 1997a, 1997b, 1999, 2000a, 2000b, 2003, 2006). Here I will focus on

Martha Nussbaum’s contribution, which, I will argue, is very promising,although it needs to be freed of some inherited Rawlsian errors.My contention is that advocates of the CA would do well to adopt an

approach that I will call ‘responsible pluralism.’ This is an approach to publicreason in which we commit ourselves to doing two things. The first is torecognize that there are other moral discourses, which, while you or I may not agree with them, nevertheless reliably lead their adherents to moral andnormative political judgments that seem correct. Thus humanists and theists(as well as Kantians and utilitarians) who took this approach would committo recognizing that, while they disagree on some issues, the other party does

very often reach the right moral or political conclusions. This is the commit-ment to pluralism. The second commitment is for each of us to screen outconclusions from our preferred moral discourse that lead to avoidably unequal harm or neglect. Doing this kind of screening is exercising a kind of good judgment. It is a commitment to this kind of good judgment thatrenders our pluralism responsible. For three reasons, responsible pluralism isindispensable for anyone who wishes to use the CA for advocating humanrights. First, it offers a better foundation than Rawlsian reflective equilibriumfor justifying which capabilities deserve protection by human rights. Second,it offers a more robustly pluralistic basis than overlapping consensus for affirming the equal dignity of all, so as to warrant the universality of human

rights. Third, it offers a better ‘foreign policy’ towards people who supportdignity and human rights, but think of them in different ways—a better way of crediting our philosophically, morally, and political diverse allies as know-ers, even though we may not accept all of their premises.

In order to make these arguments, I must bring out their context: first,regarding pluralism and human rights justification; and, second, regardingthe meaning of ‘human right’ and its interpretation within the CA.

Justifiability and the dilemma of pluralism

Justifiability is uniquely important for human rights. For other social practicesand institutions, justifiability on moral or ethical grounds may rightly bedemanded, but human rights begin their existence as ‘moral guarantees’(Nickel, 2007, 1992). While a right is being advocated, prior to being recog-nized or implemented, it exists in no sense other than that it is justified.Similarly, in cases of human rights breakdown, such as genocide, failed states,or repression, we continue to insist that human rights are violated, eventhough these rights, in so far as people can actually exercise and enjoy them,are no longer in effect. Many people would say that where you can no longer safely exercise your right to free speech, it no longer exists. Yet saying that



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their right to free speech is violated presupposes that this right does exist. What can it mean to say that a violated right exists? Only, I think, to affirmthat this right is justified and ought to be effective.

Like other social practices and institutions, success or failure in realizing

human rights is also affected by their perceived justifiability. But in thisregard, too, human rights are beset with a unique problem. While humanrights are universal, the values and normative ideas of people who areexpected to recognize and realize them are diverse. Must their human rightsbe justified on the basis of values and ideas that they actually hold andbelieve? If so, then what reason do we have to expect that, from diversemoral premises, the same conclusions will result? If not, then what reason do

we have to expect that people whose values are not invoked in justifyinghuman rights will be motivated to uphold them?

Let me tease out this dilemma somewhat more carefully.Consider the kinds of differences in moral thinking that we recognize

when we acknowledge that a society is morally pluralistic. We are talkingabout differences not so much in the moral rules that people follow, but inthe broader conceptions they would use to explain, support, and interpretthose rules. For instance, the focus is not so much on the idea that it is wrongto kill human beings, but rather on why: perhaps it is that people should liveas long as God wants, not as long as other humans want, or perhaps it is thatno one could want a rule permitting homicide to be applied to themselves,or perhaps it is that we should not do gratuitous harm to any living beings.

To capture this specific kind of moral diversity, it may be helpful tothink of moral discourses in the following way. Linguists think of a discourse

as a string of sentences. Moral discourses string together sentences for partic-ular purposes, namely working out boundaries between right and wrong inconduct and character, and moreover avoiding errors in doing so. We tendto differentiate between moral discourses of different kinds, marked by distinctive ideas or procedures (e.g. golden rule, compassion), by traditionsfrom which they descend (e.g. Cree, Akan, Jain), by exemplary figures (Jesus,Buddha), or by founding intellectual figures (Aristotle, Kant). Some kinds aremore familiar than others, and we may also find that some are more plausiblethan others. If we do find that one kind of moral discourse is more plausiblethan others, we may still find that others are more or less reliable at avoiding

erroneous conclusions. Some people, whose affinity with a particular kind of moral discourse is especially strong, may regard it as an aspect of their personal identity or group identity.

What constitutes the kind of pluralism I have in mind is, first, that people who accept any one kind of moral discourse may see little reason why they should use any of the others. They may think that the others are, overall, lessplausible, or they may simply prefer keeping to what is most familiar to them.Second, pluralism—as I will understand it—does not entail that different moraldiscourses give incompatible prescriptions for how we ought to act. It couldstill be that adherents of one discourse (for instance, Confucianism) could

consider another other (for instance, Kantianism) to be lacking in credibility,



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even though they prescribe exactly the same moral rules, interpretations, andconclusions. Third, adherents of any one kind of moral discourse may still findthat others are reliable, more often than not leading to the same moral conclu-sions. (For a review of the many meanings of ‘reliable’ and ‘reliabilism’ in epis-

temology, see Goldman [2008] or Goldman [1992].) A pluralistic world poses a dilemma for the justifiability of human rights.Should we expect human rights to be pluralistically justifiable? This wouldmean that any human right should be justifiable within any reliable moraldiscourse, hence any entitlement that is not so justifiable is not a humanright. Either way, there are worrisome consequences.

Suppose we say yes, a human right must be justifiable within any reliablemoral discourse. What reason is there to have any confidence that, fromdiverse moral premises, the same conclusions will follow? The worry is notmerely that some moral discourses may be hostile to human rights, but that

within moral discourse many broad kinds contain both pro-human-rights andanti-human-rights tendencies, so that instead of overlapping consensus wemay have dissenting overlaps. (For examples we need not look beyond the

West, where some liberal discourses and some Christian discourses would jointly support social, economic and cultural rights, while other liberal andChristian discourses would oppose them.)

The other horn of the dilemma is the option that human rights do notneed to be justified within all of the reliable moral discourses that peopleactually use. This option also poses difficulties. If human rights have to be

justified on the basis of moral ideas that are foreign to some parts of a popu-lation, then we can expect motivation for supporting those rights to be

mixed, at best. In a culture whose moral discourses are unsupportive of them, human rights will be perceived as lacking cultural legitimacy (An-Na’im, 1992, p. 20; 1990). In so far as identities are bound up with shared

values and moral discourses—who you are being shaped by shared ideas of what it is to be a good person—then we may also expect conflicts betweenthose identities and human rights. Simply put, if people cannot see how tobe who they are while supporting human rights, we can expect motivationfor supporting human rights to be mixed at best. And in so far as culturalliberty (described aptly in a recent Human Development Report [UnitedNations Development Programme, 2004] as the freedom to be who you are

and who you want to be) is central to human rights thinking, these difficul-ties are compounded.It may be objected: why should we care that a culture may need to adopt

new concepts and premises, as long as we are confident that those premisesare true? By analogy, no popular culture had a concept of antibiotics prior tothe nineteenth century, yet these were introduced everywhere without diffi-culty. Why should human rights concepts and justifications be any different?

What is different is that, in the latter case, the justifying power of the moraldiscourses that people actually use is brought into question. If group identity is at all defined in terms of these discourses, then excluding these discourses

means that people from these groups cannot contribute to the understanding




43

of human rights while being themselves. Later I will argue that this imposesan epistemic stigma on the group, as though to say that they are not compe-tent as knowers of human rights. (See below, p. 57)

The dilemma, then, is this. If pluralistic justification (which may be inter-

cultural) is required for human rights, then what reason is there to expectconvergence in support of human rights to result from the plurality of moraldiscourses that people use and trust? Or, if pluralistic justification is notrequired, can the resulting problems of motivation, identity, and culturalliberty be resolved? A successful theoretical account of human rights needsto resolve this dilemma, and this challenge now faces the CA.

Human rights as justified entitlements to specific capabilities

Initially the CA was devised as an approach to identifying the specific inequal-

ities that should matter to anyone who is concerned with social justice (Sen,1992, pp. 12–30). Since it was not devised initially to account for humanrights, further work was required for it to do so. How, broadly, might the CA make a contribution to this discussion? A certain analysis of human rightsopens the door. That to which a human right entitles us is sometimes calledthe ‘scope’ or ‘object’ of a human right (Nickel, 2007, p. 23; Vincent, 1991,p. 8; Orend, 2002, pp. 28–30) or its ‘substance’ (Shue, 1980, p. 15). By assert-ing a human right to something, we mean in part—to use J. S. Mill’s phrase—that everyone ought to be ‘protected in the possession of it’ (Mill, 1863/1972,p. 55). Besides protection, other interventions are also required. The 1998Maastricht Guidelines, for instance, add requirements to respect and fufilhuman rights (International Commission of Jurists et al., 1998). Accordingly,a human right to x entails not only that people’s possession of it ought to berespected (not violated, undermined or interfered with) and protectedagainst violation by third parties, but also fulfilled by provision of all neces-sary means and appropriate policies for its full realization. So asserting ahuman right to x means in part that in relation to x some kinds of respect,protection, and fulfillment are morally mandatory. The relevance of the CA here springs from the suggestion that the object of a human right—what it isa right to—can be understood as a capability. So if there is a right to educa-tion, it is the capability to become educated that must be respected,

protected, and fulfilled. The thought is: if there is a human right to x, then x is a capability. I take it that this was Nussbaum’s thought in saying:

to secure a right to citizens in these areas [i.e., political participa-tion, religious freedom, free speech] is to put them in a position of capability to function in that area. If that is so, then the rationale for protecting them would rest in part on the importance of these capa-bilities for people’s lives. (Nussbaum, 2003, p. 37)

For some (although not all) human rights, Sen concurs: ‘There are many humanrights that can be seen as rights to particular capabilities’ (2005, p. 151).



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The specific capabilities that could take this role are capabilities definedin terms of specific functionings that everyone has reason to value aselements of a good life. As is well known, Nussbaum has proposed a list of 10 such capabilities: life, health, bodily integrity, sense/imagination/thought,

emotion, practical reason, affiliation, living with concern for other species,play, and control (political and material) over one’s environment. The obvi-ous question here is how this list is to line up with lists of recognized humanrights, which do not include a right to play, a right to live with concern for other species, a right to affiliation, a right to practical reason, a right toemotion, or a right to use of senses, imagination, and thought. One solutionis suggested by Brian Orend’s proposal (Orend, 2002, pp. 117–126) that thereare two levels of specification for objects of human rights, replacing with capabilities his candidates for the first level (security, subsistence, liberty,equality, and recognition). Orend proposes that the step from first to secondspecification should rely upon four types of ‘reflection’ (on the meaning of the object, identity of the right-holder, social context, and reasonable correl-ative duties); while the CA could well accept these, it would also interpretthis ‘reflection’ as relying appropriately on social science. Our view of which more specific capabilities are required to sustain the capability to keephealthy should be evidence based. Although liberal tradition dictates that thecapability to control one’s environment specifically requires free speech,elected government, free association, and equality under law, and indeed itseems unlikely that evidence will show these are not necessary, there is alsoample evidence (indeed, common knowledge) that these provisions do notempower everyone equally, and so, in specifying how to specify the first-level

political capability, tradition needs to be supplemented by empirical study. A final step involves allocating duties and responsibilities sufficient for

respecting, protecting and fulfilling the capabilities specified at the secondlevel. The first of these is a moral, non-institutional duty falling upon every-one who is plausibly in a position to contribute to specifying and realizingthe right in question. As Sen observes, this must be regarded as an imperfectduty, since there may be many other duties and moral considerations thatlimit how and when this contribution is made, and yet the duty to contributeto the realization of rights is not vacuous (Sen, 2004, p. 340). The moreformal and institutional allocation of responsibilities that results can be

assessed first by whether it succeeds in realizing the second-level capabilities;for example, whether a particular allocation of duties in the education systemsucceeds in providing access to schools. In addition, it can also be assessedby how well the corresponding first-level capabilities are thereby respected,protected and fulfilled; for example, whether the schools in question providethe learning opportunities that the local people and communities need. Thefirst-level right can be regarded, as Sen has proposed, as a ‘meta-right’ tothe more specific second-level rights (Sen, 1982, pp. 343–360; Vizard, 2006,pp. 80–81).

This two-level structuring of capabilities as the objects of human rights

may help to resolve three difficulties:



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and second levels, which Vizard does not, we discover some reasons for caution regarding her proposal. In her favor, the demanding nature of thedeliberations that result in human rights declarations would suggest that

what survives this process, to be recognized as a human right, could very

well be something we do all have reason to value. But it would be amistake to place these capabilities at the first level, since many of them(like the ability to receive a fair trial) are not plausibly constituents of agood life. Moreover, we need to know which aspects of a good life theserights do protect, and we deprive ourselves of the critical logical spaceto consider this if we write them in as valuable capabilities of the firstlevel. The proportion of people who believe that life without politicalactivity would not be worth living is, thankfully, small. For the rest of us,

what we have reason to value as part of a good life will not be politics per se, but perhaps, rather, a degree of empowerment (Drydyk, 2008) or control over our social environment sufficient to protect and expand our

well-being and agency freedom.

In this way, first-level objects of human rights and their second-levelspecifications can be treated as capabilities that ought to be respected,protected, and fulfilled. How, then, does this help with the justification of those rights? If we are considering a human right to x , where x is a capability,there are two distinct questions to be answered: first, whether x is a capabil-ity to function in ways that everyone has reason to value; and second,

whether it should therefore be respected, protected, and fulfilled for every-one. The problems of pluralistic justification differ somewhat in each case.

I will therefore treat them separately in the next two sections.

Which capabilities?

What, then, justifies the claim that some specific capability is one that every-one has reason to value as part of a good life?

In various ways, the framing of the question facilitates pluralistic justifi-cation. To answer this question, we do not need to agree upon a singleconception of a good life, identical in all specific qualities or goals. Concep-tions of a good life can vary considerably, as long as there is agreement on

some core ways of functioning that belong to any good life. (1) Typically these can be valued either for themselves or as means, so agreement is possi-ble between those who value education intrinsically and having an occupa-tion instrumentally, and those who conversely value an occupation for itself and education as an indispensable means. (2) Similarly, there can be somedisagreement on the weighting of different capabilities, as long as there isstrong agreement that all are important elements of a good life. (3) Mostimportantly, the discussion can abstract from goods to the functionings thatmake them valuable to us (Nussbaum, 2003, p. 38). We do not need to agreethat living well means eating chapattis, or rye bread, because we know why

it is good to eat chapattis or rye bread; namely that, by doing so, we nourish




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ourselves in a way that satisfies the tastes that we have acquired and share with others. Eating well (in this double sense) is what chapattis are for, andit is also what rye bread is for. Notice what happens when agreement of thiskind is reached. On one hand, we reach agreement on the single specific

functioning that gives value to many diverse particular objects and actions. Yet agreeing on the single specific functioning does not require us to deny the value of the various particulars; on the contrary, it affirms the value of those particulars. When conceptions of a good life differ in particulars, any agreement on the specific functionings that give these particulars value willreveal what these different conceptions have in common, without requiringthem to abandon their particularity. This is sometimes described as the‘multiple realizability’ of capabilities (Nussbaum, 2000c, pp. 77 and 105;2006, pp. 78 and 296).

So these are three ways in which people can avoid disagreement about valuable capabilities in any of their ways of life, without abandoning what isparticular to their various conceptions of a good life. But two further andessential questions remain unanswered: first, when and how are such agree-ments justified? The second question pertains to disagreements, includingdissenting overlaps in which one group agrees to affirm the value of a capa-bility which another group agrees to deny. In that case, is there any basis on

which to judge whether one position is less credible than the other?Nussbaum has consistently held that questions like these can be answered

adequately if the discussion aims for what Rawls called ‘reflective equilibrium’(Nussbaum, 2000c, pp. 101–103; 2006, pp. 5–6 and 299). This follows her general inclination to make use of Rawlsian insights except where they are

unserviceable. Unfortunately the Rawlsian reflective equilibrium approach to justification (RRE) is in a number of ways unfit for the task at hand.

Rawls presented RRE in A Theory of Justice as a criterion for confirma-tion of moral theory, and, in particular, for confirming the social contractassumptions he used for modeling justice as fairness (Rawls, 1971, pp. 48–51). An account of confirmation usually purports to tell us what sorts of expe-riences or data, or more complex findings or beliefs (e.g. experimentalresults), can confirm a kind of theory, and what relation they must bear tosuch a theory, in order to be confirming. Rawls asked these questions aboutnormative theories of social justice. The findings that were to do the confirm-

ing he identified as ‘considered judgments.’ The confirmation relation, heproposed, should be one of ‘reflective equilibrium’ between the theory andour considered judgments. Reflective equilibrium occurs when the theory has been adjusted as well as it can be to account for all of our considered

judgments, and no further adjustment will result in any better fit betweenthem and the theory. If there remain outlying judgments that cannot bereconciled with the theory, then, in light of the great number of considered

judgments that the theory does account for, the outlying judgments may be‘duly pruned away’ (Rawls, 1971, p. 20).

Rawls’s conception of considered judgments had been developed 20

years earlier (Rawls, 1951). These are to be judgments made by ‘competent



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judges,’ for which Rawls enumerated a number of qualifications: they mustbe normally intelligent, with adequate knowledge of the world and the casesbeing considered, and amenable to reasons. One final qualification, to which I will return later, is that competent judges must have a ‘sympathetic knowl-

edge of … conflicting cases’ (Rawls, 1951, pp. 178–180). Considered judg-ments must be stable ‘over the class of considered judgments and over their judgments at different times’ (Rawls, 1951, p. 182). Rawls stipulated sixfurther criteria, which are not salient for present purposes, except for one:these are judgments about conflicting interests. In Rawls’s own words: ‘thetypical form of a considered judgment is this: since A, B, C,…, and M, N,O,…, are facts of the case and the interests in conflict, M is to be given pref-erence over N, O, …’ (Rawls, 1951, p. 186). For instance, in the circum-stances of American slavery, which was to be preferred: the interest of slavesin being emancipated, or the interest of slave-owners in retaining their ownership?

For a number of reasons, judgments like these would distort the discus-sion of which capabilities to value. Recall that this discussion abstracts fromparticular goods to identify ways of functioning that we all have reason to valueas parts of a good life. Capability discussion is about what is good; Rawlsianconsidered judgments are about what is just. The CA proposes first to addressthe good, in order to determine which inequalities matter most; further argu-ment is then to show why these inequalities ought to be reduced or eliminatedfor everyone. Acting justly means working to eliminate such inequalities, anda society (local or global) could be considered unjust to the extent that it hasnot eliminated them as well as it could have done, within other constraints

of morality and justice. Starting from considered judgments about justice would undermine this way of proceeding by introducing considerations of justice (which the CA proposes to derive as conclusions) too early (aspremises). Although living justly may indeed be a component of living well,there is more to living a good life than to living a just life. Moreover, reachingconclusions about justice by means of assumptions about justice would becircular.

But that is not the worst of it. What reason do we have to expect that allcompetent judges will render the same judgments of similar cases? Rawlsclassed this among questions that ‘are far beyond our reach. … I shall not

even ask whether the principles that characterize one person’s considered judgments are the same as those that characterize another’s’ (Rawls, 1971,p. 50). At times he represents reflective equilibrium as articulating our senseof justice. This could be interpreted to suggest a kind of faculty psychology:if we all have a sense of justice, and if the sense of justice is invoked inmaking considered judgments, then any divergence or error can beexplained by judges’ lack of competence or some other error in the manner in which cases are considered. With these assumptions, we would havereason to expect that competent judges, considering cases in the right ways,

will render the same judgment in similar cases. The weak point here is the

assumption of a common sense of justice. It is unclear whether there is any




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such sense that can anchor considered judgments and reflective equilibriumfor anyone, much less everyone.

The RRE model is confounded even by changes in moral outlook expe-rienced by individuals. Joseph Raz has raised the example of someone who

in youth was a ‘romantic perfectionist’ (e.g. a Nietzchean) but in middle ageshuffled into utilitarianism (Raz, 1982). Let us assume this was a highly thoughtful person who diligently and conscientiously tested his theory against his considered judgments. At some time during his Nietzchean phase,he could not imagine any further adjustment of his principles that couldbetter account for his considered judgments. But the same would be true atsome later time, in his utilitarian phase. If he had gotten equally close toreflective equilibrium in both phases, and if he had been equally assiduous inthinking through the matches and mismatches between his principles and hisconsidered judgments in both, what confidence could he have that his utili-tarianism was more justified than his earlier Nietzscheanism, if Rawlsianreflective equilibrium is the criterion for justification? If peoples’ considered

judgments can change along with their theories, then achieving coherencebetween them may have little to do with justification, for in this example theconsequence is that two incompatible theories would be equally justified.

One possible reply is that, while the Raz objection goes through againstRawlsian reflective equilibrium over justice, it cannot go through if thesubject is not justice but the good. For it is a central principle of liberalismthat every person’s conception of the good should be autonomously chosen;therefore, in examples like this one from Raz, even radical changes in aperson’s conception of the good must be regarded as unobjectionable.

However, this would make RRE even more unreliable regarding the goodthan it is regarding justice. If the value of autonomy warrants any change inconception of the good as unobjectionable, and with some changes inconception of the good there will be concomitant changes in considered

judgments, then considered judgments are bound not to cohere but toconflict, as long as autonomy is valued in this way. As an extreme case, wecan imagine someone driven by bitter life experience to become a nihilist,

whose idea of living well came to be predicated on the view that that humanlife offers nothing of value. The nihilist, looking back on his pre-nihilist

views, would find few of his former considered judgments to credit; nor

would he credit those judgments as expressed by other people. If he recallsan equally good fit, then and now, between his considered judgments and hisconception of living well, then neither his past outlook nor his present onecould be any better justified than the other. Hence RRE is indecisive.

Rawls’s discussion of competent judges suggests a way out of thisimpasse, although the escape route is not one that Rawls chose to follow.Recall that we are dealing with judgments between conflicting interests—for instance, in the circumstances of slavery in the Americas, which is to bepreferred: the interest of the slaves in emancipation or the interest of slave-owners in maintaining slave ownership? The competent judge is expected to

apply ‘sympathetic knowledge’; that is, to lay before himself in imagination



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all the interests in conflict, together with the relevant facts of the case, andto bestow upon the appraisal of each the same care he would give to it if thatinterest were his own. The appraisal consists in judging which claim is stron-ger, but ‘it does not provide reasons for the decision.’ Rather, ‘It simply states

the felt preference in view of the facts and the interests competing therein.’One route that Rawls does not follow would interpret these as appraisals of comparative harm and neglect. The slavery question would then be: isemancipation worse for the slave-owners than continued enslavement is for the slaves? We have no little experience that can brought to bear on ques-tions like this, so, if considered judgments are judgments of comparativeharm and neglect, they will anchor principles of justice in human experienceof the various harms that can befall human beings. But this is the path nottaken by Rawls. Instead he called upon the competent judge ‘to render his

judgment on the case as he feels his sense of justice requires’ (Rawls, 1951,p. 180; emphasis added).

The alternative path opens the prospect that questions of which func-tionings and capabilities we all have reason to value can be settled on thebasis of experience. This cognitive base includes personal experience thatpeople may develop through taking care of themselves and taking care of each other, but it can also include results of science, in so far as thesebecome known to a wider public. This cognitive base very much needs to bebetter understood, both empirically and epistemologically, but we can beginto understand it by relying on some related analysis by care ethicist SaraRuddick. What I take from her is the idea that taking care of ourselves andeach other invokes a cognitive discipline that searches and mobilizes what

we happen to know about ourselves, other people, and the wider world toserve three goals: preservation of vulnerable lives, human growth in all itsdimensions, and enjoying social respect and acceptance. Ruddick is inter-ested particularly in how this cognitive discipline is exercised by mothers for the preservation, growth, and social acceptance of their children (Ruddick,1989, pp. 13–27). While it is clear enough that mothers have contributedmore than others to developing this cognitive discipline, it is not essentially or necessarily gendered, and surely everyone has something to learn from it.So I will use somewhat different terminology: every culture must cultivate

what I will call ‘knowledge of care and neglect.’ This refers not to a body of

knowledge, but to a cognitive discipline. So, for instance, what we know about how to keep people alive changes, but the goal of mobilizing what isknown, in order to keep people alive, is constant. Moreover, the goal moti-

vates us to regard our actual beliefs as corrigible and to replace any that areless worthy of belief with others that are more so.

I take it that our thinking about valuable functionings and capabilitiescan be tested against knowledge of care and neglect in several ways. Our sense of the importance of keeping healthy is anchored in experience of how life can go badly due to poor health. In part this is a judgment of itsinstrumental value (how we cannot live well in other ways when unhealthy),

but in part it is a judgment of intrinsic value: being less healthy is living less




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well, and it is a cause of concern about anyone who is in our care, or anyonefor whose well-being we take or feel any responsibility. (It may be objectedthat there could be rational dissenters to this; for instance, people who valuesports that put their health at risk. But even for these people, it is instrumen-

tally valuable to remain healthy enough to engage in these sports, and both they and others who care for them must value health well enough to believeit would be wrong to engage in their risky sports recklessly.) In addition,conceptions of living well can also be shaped by consideration of harmfulimpacts on others. So, for instance, if some men’s conceptions of living with honor are in practice damaging to the lives of women, our knowledge of care and neglect sorts out the conflicting claims of these men and women by finding that continued damage to the women is worse for them than anadjustment of the men’s sense of honor would be for them. Hence the unre-formed conception of living with honor is not one that we all have reason to

value.If this is right, then discussion of which capabilities are important can be

pluralistic without being indecisive. This discussion abstracts from culturalparticularities without denying them. Instead, it aims for the more abstractgood-making functionings; for example, keeping healthy, in virtue of which specific practices ranging from surgery to yoga are valuable. It is not surgery or yoga that is an element of anyone’s good life, but rather keeping healthy.This by itself will not settle all differences of opinion about living well;however, some proposals can be rejected if they are inimical to what can beknown about how to take care of ourselves and each other. What is notcompatible with our knowledge of care and neglect is not realizable as part

of a good life, and so, for practical purposes, it is not part of a good life, within the bounds of our knowledge. In working out what are and what arenot the elements of a good life, we must live within our epistemic means, andthese limits are set by what we can know of care and neglect.

This procedure provides an approach to justification that is more deci-sive and less subject to stalemate than Rawlsian reflective equilibrium. The

justification for thinking that slavery does not belong in a good life does notrest on the judgments of slaves and slavers as to whether slavery or abolitionmost closely matches their sense of justice. Rather the test is whether slavery or abolition results in the greater harm or neglect. My contention here is that,

in order to avoid the indecisiveness of Rawls’s version of reflective equilib-rium, the CA should include a commitment to apply the test of comparativeharm and neglect at this level. But notice that this is one of the two commit-ments that defines what I have called ‘responsible pluralism.’ Here, then, isthe first of my reasons for thinking that advocates of the CA should embraceresponsible pluralism: compared with RRE, it provides a more robust anddecisive approach to working out which functionings are justifiable aselements of living well.

Still, this is still only half as much justification as is needed; for even if we can justify a set of most valuable capabilities in this way, it remains to be

shown why they must be respected, protected, and fulfilled for everyone.



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Why entitle everyone?

In Frontiers of Justice, Martha Nussbaum has offered us a new apparatus for taking this next step. It is an adapted version of Rawlsian public reason. LikeRawls, she proposes that satisfactory agreement can be achieved as an over-

lapping consensus. However, the central values that are to guide that consen-sus are different. Rawls proposed that reasonable citizens would be willingto be guided by the values that they share as free and equal citizens. Compre-hensive doctrines, conceptions of the good, and metaphysical doctrinescould be given an auxiliary role, supporting the central political values wherepossible but in a non-public way, for the simple reason that these doctrines,although reasonable, divide the society, in the sense that those people whofollow any one doctrine and conception of the good will not accept theothers. None will accept to be ruled by the doctrines or conceptions of thegood of others. Indeed, it is this fact of division that motivates reciprocal

acceptance of each other’s equality as citizens. Intuitively, the central idea isthat reasonable comprehensive doctrines (which are not inclined to domi-nate or repress others) should be held free from such domination or repres-sion themselves. Everyone whose doctrines and conception of the good arein this sense reasonable has an interest in a reciprocal commitment of thiskind (Rawls, 1993, pp. 60–62).

Nussbaum argues that this Rawlsian conception of public reason is notrobust enough to function well at what she calls the ‘frontiers of justice’; thatis, in achieving justice for disabled people, for people of different countries,and for other species. For this reason (among others), she gives to the value

of dignity the guiding role in public reason that Rawls had given to the valuesof free and equal citizenship.

Regarding entitlements to capabilities, three results can be expected of public reason guided by the value of equal human dignity. First, the capabil-ities to function in ways that everyone has reason to value as elements of agood life—which she calls the ‘central human capabilities’—will be recog-nized as requirements for a life worthy of human dignity. Second, each person’s entitlement to these capabilities will be regarded as equal and inde-pendent, not subordinate or contingent. Third, threshold levels will be recog-nized for each central capability, levels required for each to have a life

worthy of human dignity life (Nussbaum, 2006, pp. 70–71).It must be said that there are many conceptions of dignity held through-out the world that could never guide public reason to these conclusions. Insome wealthy countries it is apparently an offense against dignity to beconstrained from insulting people with defamatory cartoons. In some devel-oping countries, dignity requires a riding on four wheels (motorized) rather than three or two (motorized or not). And there is no country on Earth, rich or poor, in which some people would not find it unworthy of their dignity tohave the wrong kinds of people as neighbors. Some of these popular concep-tions of dignity, far from reliably guiding public reason towards recognizinghuman rights, would seem to be morally toxic.




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Of course Nussbaum’s conception of dignity is quite different fromthese. One of its subtleties is that it presupposes a conception of humanassociation that goes beyond the more standard contractarian idea of inter-acting for mutual advantage. The presupposition of social contract theory—

that we must have a reason for remaining within society—implausibly ignores the reality of human association: it is in our nature, it is not a cab wecan get in and out of at will. Since living apart from others is unnatural for us, we should rather concern ourselves with living well in the company of others (Nussbaum, 2006, pp. 37 and 158–159).

In Aristotelian traditions, what one would expect next is an account of the nature of living well for humans, in human society. What Nussbaumprovides towards this is quite careful and actually rather parsimonious.Following Marx (who in turn was following earlier political economists), shesimply observes that humans’ conceptions of living well are influenced signif-icantly by our use of practical reason and by our sociability and our affinities

with others human beings. On one hand, we characteristically want to think for ourselves about what is good. On the other hand, we also characteristi-cally seek to share our appreciation of good things with others, especially those about whom we care and with whom we have personal relationships.Still, we are not entirely free to invent goods, because we also have needsthat must be met. What is specific to human valuing and human goods is thatthey are shaped by all of these influences: agency, autonomy and practicalreason on one hand, sociability and affinity for another, and finally also our needs (Nussbaum, 2006, pp. 159–160).

People have human dignity insofar as they are striving (or at least are

responsive) towards lives aiming for characteristically human goods likethese. Citing Seneca’s example of a father ordered to kill his children by atyrant, she notes the conflict wracking Seneca’s Stoicism, which holds that‘the father’s response should be that such things do not matter greatly,’

while, on the other hand, ‘to Seneca the Roman politician, the Stoic responseof detachment seems despicable and intolerable’ (Nussbaum, 1998, p. 276).Dignity is not exhibited by withdrawing from the human endeavor to live

well in the company of others—even when it is as futile as it is in this case.Dignity is revealed, rather, by engagement.

However, an important qualification must be borne in mind. In some

cases, ‘striving’ is too demanding. Cognitive disabilities can limit the extentto which some people can strive at all. Still, even where striving is absentthere can be a certain responsiveness to goods determined by the practicalreason and sociability of others. Even those who need full-time care may stillenjoy eating the foods of their families—or, as I have witnessed on one occa-sion, they may enjoy hearing their families sing, even without grasping much of the meaning of the songs. Dignity, then, can also inhere in this sort of responsiveness; and so it is not restricted to those who can strive.

Now, recognizing dignity when it is exhibited by human striving is onething, and affirming equal dignity—which will warrant the universality of

human rights—is something different. It is in this context, however, that



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Nussbaum situates this affirmation, as I read her. To be more precise, both anaffirmation and a denial are involved. The affirmation generically endorses thestruggles of all socially embedded humans to live well in the company of others.

What is denied is that some persons and their struggles matter less than others

(Nussbaum, 2006, pp. 70–71). Everyone’s struggle to live well in the company of others is valuable, and none is privileged; each matters, and matters equally.If in public reason we affirm each other’s equal dignity in this sense,

then we have strong reason to respect, and fulfill each other’s central capa-bilities. These are the capabilities to function in ways that we all have reasonto value as elements of a good life, despite having somewhat differentconceptions of living well. To excuse or tolerate shortfalls in these centralcapabilities for some people would therefore discount those people’s strug-gles to live well in the company of others.

Justification for the universality of human rights entitlements is in one way parallel to justification of the valuable capabilities that are to be theobjects of human rights. We arrive at these capabilities by abstracting fromparticular goods to identify what those goods are for, the functionings that

we all have reason to value, as dimensions of a good life. Hence we value thecapabilities to function in these ways. In public reason, recognition of dignity involves a similar abstraction, not from particular goods but from particular conceptions of the good—conceptions of living well in the company of others. Recognizing each other’s dignity means abstracting from the particu-larities of these conceptions, affirming the value of everyone’s endeavor tolive well in the company of others, without having to endorse their particular ideas about how that is best done. Secondly, recognizing dignity means deny-

ing that some of us matter less in this endeavor than others. In the firstrespect, recognition of dignity commits us valuing a common, shared enter-prise; in the second respect, it commits us to valuing each individual.

Does the question of justification simply end here? Can there be further reasons for making these commitments, or is dignity simply a foundational

value? Nussbaum’s answer, I take it, would parallel the Rawlsian idea that, inpublic reason, all participants have reason to affirm the values of free andequal citizens, so as to remain free to pursue their own conceptions of thegood without fearing political imposition of other people’s conceptions of the good (Rawls, 1993, pp. 133–140). Hence they have reason to extend the

protection of those values to their fellow citizens, on the assumption that thesame protection will be extended, reciprocally, to them. Nussbaum couldmake similar claims about reciprocal recognition of dignity. By pursuing any conception of the good, people are implicitly striving to live well (accordingto that conception) in the company of others. The value of that striving,generically considered, does not depend on any particular conception of thegood. Nor does it depend on whose striving it is. That is why dignity can offer a rationale for mutual support that is, on one hand, universal, yet, on theother hand, commodiously open to diverse conceptions of the good.

Of course, people will generally understand and interpret dignity within

their own conceptions and traditions. This raises a problem that parallels a




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central worry of Rawls. Even if ideas such as dignity or the values of free andequal citizens are themselves acceptable to advocates of incompatible moraldoctrines, they will become unacceptable to others if they are formulated in

ways that draw upon those doctrines. Hence the ideas to which we ask each

other to assent must be ‘freestanding and expounded apart from, and with-out reference to, any such wider background’ (Rawls, 1993, p. 12). So inpublic reason, Rawls contended, those additional formulations, with particu-lar moral conceptions embedded in them, should as a rule not be admitted.

Apart from exceptional circumstances, only proper political formulations,free-standing and not dependent on any metaphysical, religious, sectarian, or comprehensive normative doctrines, should be introduced into publicreason (Rawls, 1993, pp. 247–252). Generally speaking, only in a provisional

way may the latter sorts of ideas be introduced, for purposes of illustrating tofellow citizens that a group’s particular doctrines are not unfriendly to the

values of free and equal citizens. Once this has been done, however, they must be replaced by ‘proper political’ ideas (Rawls, 1999, pp. 152–156).

On this point Nussbaum has wavered somewhat. In Women and Human Development she portrayed overlapping consensus invitingly asconverging on equality rights from diverse religious traditions, adding, ‘it isto be expected that holders of different views in those areas will even inter-pret the moral core of the political conception to some extent differently, inkeeping with their different starting points’ (Nussbaum, 2000c, p. 76). In Frontiers of Justice she more clearly follows Rawls in wishing to see diver-sity outside political reason, but not within, and a ‘consensus that allowsmetaphysical matters to remain on the outside of the political, a part of each

person’s comprehensive doctrine’ (Nussbaum, 2006, p. 305). So, while wemust rely upon our recognition of each other’s dignity to justify our entitle-ments and their universality, Nussbaum insists that we must recognize itonly via one restricted, purely political sense. This is an extraordinary restriction, comparable with banning all reference to the morning star or the evening star, insisting that it may only be called ‘Venus.’ Is it warranted?Is it even necessary? Is it a help or a hindrance to resolving the pluralisticdilemma?

It seems odd to call this a restriction to ‘purely political’ reasons. Whatactual politics requires that everyone acts for the same reasons? Generally

people who join in collective action do have at least some reasons that arenot held in common. Someone speaking on behalf of such a group would say ‘Our reasons include X, Y, and Z,’ and it is perfectly compatible with this thatthose who accept any one such reason might still reject some of the others.

Why should a community value dignity any differently? What is the impedi-ment to saying an account of dignity like the following is among the reasonsfor which our community (whatever that might be) supports a human rightto subsistence?

As Kwasi Wiredu has shown, within the tradition of the West African Akan people, there is a conception of the person that would be supportive

of human rights. Central to this is recognition of dignity.



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… a person is the result of the union of three elements … There isthe life principle ( okra ), the blood principle ( mogya ), and whatmight be called the personality principle ( sunsum ). The first, theokra, … is supposed to be an actual speck of God that he gives out

of himself as a gift of life …

By virtue of possessing an okra, a divine element, every person hasan intrinsic value, the same in each, which he does not owe to any earthly circumstance. Associated with this value is a concept of human dignity, which implies that every human being is entitled inan equal measure to a certain basic respect….

[Birth] is the time when there is the greatest need for the care andprotection of others and also, to the Akan mind, the time of thegreatest right to that help; but this right never deserts a humanbeing, for one is seen at all times as insufficient unto oneself. Thelogic of this right may be simply phrased: a genuine human needcarries the right to satisfaction. (Wiredu, 1990, pp. 244–245)

No one is suggesting that only this conception of dignity should support welfare rights; no one is demanding that atheists accept that their humanrights depend on specks of god. So there is little threat that introducing such ideas will be divisive and block agreement within public reason.

Arguably it is not out of place to fear that agreement could be blockedby rogue conceptions of dignity that would in effect damage the attempts of

others to live well in the company of others, in the same way that someconceptions of honor can. But if, as we have seen, our knowledge of care andneglect enables us to judge conflicts between some people’s lost honor andharm to the well-being of others, then rogue conceptions of dignity can behandled in the same way.

If these are the only two reasons why public reason should excludeideas of dignity and entitlement like those of the Akan, then that exclusion isgroundless.

Moreover, in order to resolve the dilemma of pluralism, ideas like thoseof the Akan must be invoked in public discourse by their believers. Otherwise

the public justification of human rights for many groups will once again bereduced to accepting a justification on the testimony of others. This raises therisk that people will be undermotivated to realize and uphold human rightseither due to lack of conviction or because they see no connection betweenhuman rights values and the values that inform their group identity.

Some might argue that these two last two effects can be avoided to theextent that people invoke their own values privately, outside the scrutiny of public reason, to affirm dignity and human rights. Hence overlapping consen-sus would suffice after all as a vehicle for including affirmations of dignity andhuman rights that depend on particular metaphysical, religious, or ethical

theories.




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If this is what Martha Nussbaum believes, I think she is following Rawlstoo closely. Relegating these ‘not properly political’ reasons to the privaterealm or the background culture is in several ways a bad idea. First, it isessentially to say that some people’s support for equal dignity and human

rights is not good enough to appear in public; that is, in public reason.Second, this exclusion is entirely gratuitous. As I have shown, any rogueconceptions that would result in unequal and avoidable harm can bescreened out by reflective equilibrium anchored in knowledge of care andneglect. Nowhere else in politics are allies required not only to work towards agreed goals, but to do so for the same reasons. Third, as I have alsoshown earlier on, valuing dignity means affirming the value of striving to live

well in the company of others and denying that any one person’s strivingmatters less than any other’s. Surely there is a tension between this anddiscounting some people’s efforts to justify equal human dignity, since striv-ing to justify dignity is surely part of striving to live well in the company of others. Fourth, unnecessarily excluding from public reason a way of thinkingthat may otherwise be ethically reliable delivers an epistemic kind of insultto the believers: it is as if to say that they are less capable of knowing humanrights, compared with non-believers. Any or all of these four factors couldeasily contribute to diminishing people’s motivation to realize and upholdhuman rights.

I draw special attention to a fifth point: instead of excluding thesebeliefs, we ought to be inviting them in to public reason, where they can beexposed to the fresh air of public scrutiny and, where necessary, criticism. Itmay be objected: if we do that, public reason will degenerate into a metaphys-

ical and theological battleground that will be stalemated because none of theparties is capable of accepting the premises of the other. I would reply thatthis could result, but it is not inevitable, especially if public reason proceeds

within appropriate constraints. In particular, we should approach each other’s moral thinking from a perspective of epistemological externalism(Goldman, 1986; 1992, pp. 433–436; BonJour, 1992, pp. 132–136; Kornblith,2001, pp. 1–9), which is to say that rather than dismissing other people’sconclusions as unjustified if we do not consider them derived from the rightreasons, we should ask whether their moral discourse is of a kind that is reli-able, generating conclusions consistent with good judgment. Both explicitly,

in introducing what I mean by ‘responsible pluralism,’ and implicitly, in my discussion of reflective equilibrium and knowledge of care and neglect,I have introduced a criterion for good judgment; namely that good judgmentconstrains us from prescribing courses of action that would cause unequaland avoidable harm or neglect. Thus responsible pluralism is able to inviteeveryone to begin from the values and other premises in which they placegreatest trust and credence, as long as they are willing to exercise good judg-ment in applying them to cases, problems, and policies under discussion

within public reason. In this way everyone is also obliged to constrain their own beliefs, avoiding applications that would cause or permit avoidable

unequal harm and neglect.



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These five considerations together provide a second set of reasons why advocates of the CA should adopt responsible pluralism, namely that respon-sible pluralism will provide stronger and more inclusive support for conver-gent belief in equal human dignity as a basis for the universality of human

rights.

Conclusions

There is also a third reason, which needs only to be touched on briefly. Firstlet us review the ground that has been covered in presenting the first two.

I have tried to show that, with suitable modifications, the CA canprovide strong and sound guidance as to how pluralistic justification for human rights can be achieved and widely understood. The first step consistsof abstracting from much-needed particular goods to understand what those

goods are for, what functionings they support, that we all have reason to value. This puts us in a position to identify at least some of the things thatought to be respected, protected, and fulfilled for everyone (i.e. as humanrights). While this understanding abstracts from particular goods, it supportsthe multiple realization of these capabilities in ways befitting various partic-ular conceptions of the good.

While this procedure is pluralistic, some other procedure is needed torender it decisive, in the face of possible disagreements about what a goodlife should include. Resolving all disagreements may not be possible, butreflective equilibrium can play a role if it is anchored in our knowledge of

care and neglect. This would effectively discredit claims to function in waysthat are harmful to others, such as honor-based claims that disguise or excusethe maltreatment of others. This path, however, is one that Rawls explicitly rejected, and so if Nussbaum wishes to join us on it, she will have to distanceherself in this respect from Rawls. What this ‘anchoring’ of the discussion of

valuable capabilities does is to adopt, at the core of the CA, one of thecommitments that defines ‘responsible pluralism’, namely the commitmentto exclude proposals that would cause or permit avoidable and unequal harmor neglect. Here, then, lies a first reason why capability theorists shouldadopt responsible pluralism.

The next step is to achieve pluralistic agreement that these capabilitiesought to be respected, protected, and fulfilled for every human being.Nussbaum has proposed that we begin this step by recognizing the dignity of every human being. I have added the interpretation that by doing so weaffirm the value of everyone’s striving or responsiveness to live well in thecompany of others and deny that the striving of any one person matters lessthan that of any other. Since the valuable capabilities are capabilities to func-tion in ways that we all have reason to value, and since our grasp on them is

vulnerable, it follows that they require respect, protection, and fulfillment.Since no one’s striving is to be discounted, these entitlements must beuniversal, which is to say they are human rights.




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Adapting Rawls, Nussbaum has proposed that pluralistic agreementconcerning equal human dignity can be achieved as an overlapping consen-sus within public reason. I, on the contrary, find it highly problematic to put,at the centre of an effort to mobilize pluralistic support for human rights,

conceptions of public reason and overlapping consensus that are averse topluralism. What is needed in public reason is not an overlapping consensusthat privileges ‘proper political’ considerations and relegates people’s partic-ular beliefs and values to the private realm or background culture. What weneed is convergence in which, as a group, we begin with a plurality of reasons, possibly none of which is accepted by everyone; then, each adopt-ing the constraints of good judgment, we see how far we can work fromthese diverse premises towards agreement on conclusions. We have here themeans of resolving the pluralistic dilemma. What is needed, for justifyinghuman rights publicly and effectively, is to introduce and insist upon respon-sible pluralism.

Of course, there are other approaches to human rights, and some of thempropose justifications of human rights that are purely philosophical or theo-retical. A utilitarian or Kantian might claim that their way of knowing which human rights are justified is entirely independent of public reason. How should capability theorists respond? I have tried to show why, in attemptingto steer through the pluralistic dilemma, there are advantages in makingpublic reason central. These are advantages that might not accrue to anattempt to derive human rights directly from an ethical theory. Nevertheless,it would seem inconsistent to apply responsible pluralism internally, to fortify a CA to human rights, while failing to apply it externally, towards theoretical

derivations of human rights. This suggests a third reason why capability theo-rists should adopt responsible pluralism: it offers them a better ‘foreignpolicy’ with which to understand such convergences as may emerge betweenthe capabilities approach and utilitarian, Kantian, and other ethical theories.

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