The Yale Law Journal


The Capabilities Approach and Ethical Cosmopolitanism: A Response to Noah Feldman

30 Oct 2007

In a world filled with unjust inequalities, it is fitting that theorists should be turning their attention to the ethical ideal known as “cosmopolitanism,” a view that holds that our loyalties and our ethical duties ought to transcend the local and even the national, focusing on the needs of human beings everywhere. In a world in which reasonable people differ about religious and secular values, however, this new theoretical attention will prove productive for the practical political debate only if we insist on the distinction between cosmopolitanism, the comprehensive ethical doctrine, and a set of basic political principles for a minimally just and decent world.

I. Cosmopolitanism and Political Liberalism

Cosmopolitanism, as I understand it (and I believe Anthony Appiah does not differ) is an overall ethical doctrine about how people should organize their loyalties in a world where we have many types of local attachment, and in which strangers at a distance also seem to demand our ethical concern. I have written relatively little on this ethical doctrine: the very brief essay in the volume For Love of Country (to which Noah Feldman makes reference), a later introduction to the revised edition of that same book, and a much fuller development of my ideas in an article entitled, Compassion and Terror, to which Feldman does not give much analytical weight. Compassion and Terror, indeed, is my only academic publication dedicated to that topic.

Because I have long been persuaded by the arguments of John Rawls in Political Liberalism, I believe that a doctrine of basic political entitlements should not be based on any comprehensive ethical doctrine. All modern societies contain a plurality of reasonable religious and secular comprehensive doctrines, and political principles must show respect to citizens by not biasing the account of political principles in favor of any particular such doctrine. Political principles, therefore, ought to be justified by an argument that does not presuppose the acceptance of any particular comprehensive ethical doctrine. Political principles must and should have an ethical content, but the way I think of this content is similar to Rawls’s way: namely, the moral content is not comprehensive, and thus people with different comprehensive doctrines can attach it to the rest of their comprehensive doctrines.The political is a place of “overlapping consensus,” meaning that people who otherwise differ (both religious and secular) can agree in affirming the political principles and the argument for them. They could not arrive at such a consensus if the argument presupposed one particular comprehensive doctrine. (Such ideas were around before Rawls: the framers of the Universal Declaration of Human Rights also saw the list of rights as a political doctrine that people from different parts of the world and different backgrounds could all affirm, while differing on many other things.)

Thus my capabilities approach, as I have developed it in two books and numerous articles, is not and could not be a form of cosmopolitanism. It could be at most a part of cosmopolitanism, and I think it is in the sense that someone whose comprehensive ethical doctrine is cosmopolitanism can endorse the political principles contained in the capabilities approach. But so, too, could many people who reject my form of cosmopolitanism as too demanding, or as not demanding enough. Or so I hope. The capabilities approach is a doctrine concerning a social minimum, deliberately agnostic about how we treat inequalities above a rather ample threshold; thus, it does not state that we should always think of loyalty to humanity as our primary loyalty. In keeping with my philosophical commitments, I have tried to develop the capabilities approach without any reference to cosmopolitanism. My arguments in its favor deal, instead, with a notion of basic human dignity and what is required in order for people to live a life in a manner worthy of their human dignity.

It is consequently very difficult to compare my two books on capabilities with Appiah’s book on cosmopolitanism: it is rather like comparing apples and oranges. Appiah does not propose a doctrine of basic political entitlements; he focuses on ethical requirements. I do not propose a comprehensive ethical doctrine, for the reasons I gave: I focus on political principles. (Appiah does not make the mistake of comparing his ethical doctrine with my political doctrine: he refers to my ethical writing, as he should.) Of course, as I said, the capabilities doctrine ought to be one part of the ethical doctrine of cosmopolitanism, as I also hope it can be seen as one part of Roman Catholicism, Judaism, and many other comprehensive doctrines. But naturally, all the subtlety and detail of the ethical doctrine would be deliberately left out, since I am seeking a political consensus on some basic political principles. Thus Feldman’s remark that Appiah’s book is “more fine-grained and subtle than Nussbaum’s,” though accurate, is not pertinent as a criticism of what I am attempting, since I am deliberately prescinding from subtleties and fine-grained details that would divide people along the lines of their different comprehensive doctrines.

Concerning my comprehensive ethical doctrine, one really cannot make much progress on the basis of the very brief newspaper article that ultimately appeared in the popular book For Love of Country. My more detailed academic presentation of my ideas in Compassion and Terror makes it clear that I envisage a complicated dialogue between local attachments and loyalty to humanity. I spend a lot of time on the extreme Stoic version of cosmopolitanism and argue that it is profoundly flawed. Among the arguments I bring forward against the Stoic view, the most pertinent for our purposes is that it does not give real human beings sufficient basis to go on living: love of the near and dear, I argue, is an essential ingredient in a meaningful life. So I argue that we ought to retain our local attachments, or at least many of them, but that we also should consider what we owe to people at a distance, and try to constrain our local attachments by a commitment to fostering dignified lives for people everywhere. I don’t think that my views are significantly different from Appiah’s. Feldman thinks that we differ, but that is in large part because he does not discuss this article, the major statement I make on ethical cosmopolitanism. (I believe that the article does not contradict anything I say in For Love of Country, but I say very little there.)

It will by now be evident how this ethical doctrine links up with my political doctrine: one of the tenets of my ethical doctrine is the obligation to support something like the political doctrine. That, however, is only one of the tenets of my ethical view, which also contains statements about love of family and locality that are not part of the political doctrine. The political doctrine, as I have stated, is also compatible with many other ethical views, including extreme Stoic cosmopolitanism, which I reject.

II. The Capabilities Approach

My book Frontiers of Justice, then, is not about cosmopolitanism, but about the political doctrine that I call the “capabilities approach.” Put very briefly, this view states that any minimally just society will make available to all citizens a threshold level of ten central capabilities, as core political entitlements.

Three corrections to Feldman’s formulations are in order. First, Feldman declares that the central capabilities are “universal capacities of everyone everywhere.” If by this claim Feldman means that all people have all the capabilities, he is wrong. Indeed, I would venture to say that very few people anywhere have all ten of them. They are political goals, quite ambitious ones, such as having adequate health care, having adequate free public education, having sufficient protection for one’s bodily integrity; and it is a good bet that most of the world’s people do not have the whole list, if, indeed, they have any of them. I do argue that without a threshold level of all ten one cannot live a life worthy of human dignity. But what I think is that most of the world’s people have not been given the conditions of a life worthy of human dignity. Second, Feldman says “she wants everyone everywhere to be entitled to all the capabilities on her list.” Besides being inconsistent with the earlier statement I cited (which ascribes to me the view that everyone everywhere already has all the capabilities), it is inaccurate: what I say is, that in virtue of their equal human dignity all human beings are already entitled to those ten capabilities. They don’t have them, but they are entitled to them. That is why their failure to have them is a problem of justice. Third, Feldman describes my view as “consequentialist.” I do call it “outcome-oriented” in order to contrast the view with the Rawlsian procedural approach to justice, but it is quite important that the view is not a form of consequentialism, since consequentialism, as philosophers standardly define it, is a comprehensive ethical doctrine that proposes an overall test for all ethical choices.

Briefly put, my view of political justification parallels Rawls’s view, as he announces it in A Theory of Justice: we work through the major theoretical views known to us in the philosophical tradition, holding them up against our considered judgments of justice and trying to achieve the best overall coherence and fit. We go on doing this until we achieve what Rawls calls “reflective equilibrium.” In Women and Human Development I executed one part of this task, holding my view up against preference-based utilitarian views and arguing that my view fits better with our considered judgments of justice. In Frontiers of Justice I now take the next step, confronting my view with a much more subtle opponent, the classical doctrine of the social contract.

Although I spend some time on Locke and Kant, I choose to focus on Rawls’s theory because I believe that it is the strongest and most appealing form of the social contract doctrine that we have. Thus Feldman’s remark that I focus on Rawls but am “after even bigger game” expresses his view of the philosophers, not mine.

I argue that Rawls was correct when he stated that his own theory would have difficulty dealing with three problems: the entitlements of people with disabilities, the entitlements of animals, and justice across national boundaries. These three problems are the “frontiers” of my title. What they all have in common is that there is a great asymmetry of power among the parties, who cannot without gross distortion be imagined as roughly equal in physical and mental capacities. Thus it is quite important that the book is not solely or even primarily about justice across national boundaries. It is about a philosophical problem: justice in situations of asymmetrical power. The three specific problems must be seen as instances of this more general philosophical question, since it is in dealing with asymmetrical power that I locate the weakness of the social contract doctrine. The book argues that wherever this asymmetry obtains, the classical doctrine of the social contract will not produce good results, since it begins by assuming a rough equality of power among the parties, and it argues that in this situation of rough equality of power, a contract will be to the mutual advantage of the parties. What I am trying to show is that in order to find a workable account of justice in asymmetrical situations, we must give up the assumption of rough equality and the associated goal of mutual advantage. Most of this argumentative work is done in chapters one and two of the book, and is thus more or less complete, in outline at least, before we turn to the question of justice between nations. A focus merely on chapters four and five cannot, then, give a very accurate sense of what my project is or how I argue.

Where international justice is concerned, one consequence of my general line of argument is that I greatly prefer the Pogge/Beitz approach to justice across national boundaries (where the contract concerns all individual people in the world) to the Rawlsian approach, since it takes the entitlements of individuals much more seriously than does Rawls’s nation-focused approach. Feldman says that I “[b]racke[t] the possibility that the social contract should exist among all persons regardless of their states,” but that is not so, as his later allusion to my longish section dealing with Beitz and Pogge makes clear. It is not right, however, that my “main criticism of them relate to their vagueness.” For, while I do hold that Pogge’s view has some unfortunate areas of vagueness, I argue that the main problem for both Beitz and Pogge is the individual people of the world are not rough equals in power even when considered as individuals (rather than members of nations), since differences in nutrition, education, and so forth, create great asymmetries in basic power at the level of the person. People are not equal even before birth, since differences in maternal nutrition, exposure to the HIV virus, and other such things make the individuals of the world grossly unequal in power even before they come into the world. That is my main worry about Beitz and Pogge.

As for practical and legal consequences, I do argue for ten practical proposals for global governance, and I would be curious to know what Feldman thinks about them. On one issue, however, I want to insist firmly: my reason for opposing the creation of a monolithic world state has to do with my defense of national sovereignty and with my argument that the nation-state is the largest unit we have yet seen that is decently responsive to people and their voices. So that is why I think that any coercive structure over and above the nations ought to remain thin and decentralized.

I am grateful to Feldman for his interest in my book. The critical nature of these remarks, inevitable in such a brief reply, does not do justice to all that is interesting in his constructive proposals.

Martha C. Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics in the Philosophy Department, Law School, and Divinity School at the University of Chicago. Her most recent book is The Clash Within: Democracy, Religious Violence, and India’s Future.

Preferred Citation: Martha C. Nussbaum, The Capabilities Approach and Ethical Cosmopolitanism: A Response to Noah Feldman, 117 Yale L.J. Pocket Part 123 (2007),