© Koninklijke Brill NV, Leiden, 2013 DOI 10.1163/17455243-4681031 Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 brill.com/jmp JOURNAL OF MORAL PHILOSOPHY Capabilities versus Resources J. Paul Kelleher* University of Wisconsin-Madison jkelleher@wisc.edu Abstract What is the correct metric of distributive justice? Proponents of the capability approach claim that distributive metrics should be articulated in terms of individuals' effective abilities to achieve important and worthwhile goals. Defenders of resourcism, by contrast, maintain that metrics should instead focus on the distribution of external resources. This debate is now more than three decades old, and it has produced a vast and still growing literature. The present paper aims to provide a fresh perspective on this protracted debate. It does so by defending capability metrics while also (1) criticizing the two most common arguments used to support them, and (2) sympathetically reconstructing the arguments for resourcism. I ultimately argue that while sweeping defenses of the capability approach do not succeed, capability theorists can indeed vindicate the justice-relevance of certain capabilities while still accommodating what is plausible in resourcism. Keywords capabilities; resources; metrics of justice; distributive justice; Sen; Pogge 1. Introduction The policy implications of many contemporary theories of distributive justice derive in large measure from the interplay between two kinds of theoretical component. Distributive metrics specify the types of good whose distribution matters from the perspective of justice. Distributive rules specify how these goods should be distributed throughout a population. Proponents of the so-called capability approach claim that distributive metrics should be articulated in terms of human capabilities. That is, they believe justice is fundamentally concerned with the distribution of * J. Paul Kelleher is Assistant Professor in the Department of Medical History & Bioethics at the University of Wisconsin-Madison. He also holds an appointment in the Department of Philosophy. He received a Ph.D in Philosophy from Cornell University, and was a postdoctoral fellow in the Program in Ethics & Health at Harvard University. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 2 DOI 10.1163/17455243-4681031 individuals' effective abilities to achieve important and worthwhile goals. (An effective ability to achieve an important and worthwhile goal is to be contrasted with the merely formal ability one has just in case no law prohibits the pursuit or achievement of the relevant goal.) A chief rival to the capability approach is resourcism, which holds that distributive justice should ignore the distribution of capabilities and focus instead on the distribution of external resources such as money, land, foodstuffs, etc.1 A key implication of the resourcist view, which resourcists openly acknowledge, is that it disregards the differences between individuals that render them differentially able to convert resources into achievements. To use a famous example of Amartya Sen's, a disabled person will likely find it harder to achieve important and worthwhile goals than will a nondisabled person, even assuming they have access to equivalent bundles of resources. Because resourcism counts the two individuals as equally advantaged (and equally disadvantaged), many political philosophers believe resourcist metrics should be rejected. As Sen put it when he first introduced the capability approach, "Judging advantage purely in terms of primary goods [i.e. resources] leads to a partially blind morality."2 Despite this powerful observation, the debate between resourcists and capability theorists rages on. Why? A main reason is that resourcists believe capability-sensitive theories of justice are either unreasonably demanding or intolerably imprecise (or both). My aim in this paper is to explain and evaluate this debate. I will begin in Section 2 by laying out the two most common arguments capability theorists use to defend their view, and I will explain why they are not decisive. I argue that the main point of disagreement between capability theorists and resourcists concerns where to draw the line between duties of justice and other moral duties. This is not, in other words, a debate about what ultimately matters in a human life, but rather a debate about what matters to justice. Building on this diagnosis of the debate, Section 3 argues that theories of distributive justice can in fact embrace capability metrics while still accommodating what is plausible in resourcism. In particular, I argue 1 Ronald Dworkin uses the term "resources" to refer to both external resources (e.g. income and wealth) and internal resources such as talent and ambition. As is noted in the text here, I shall use "resources" to refer to external resources only. Thus what Dworkin calls "equality of resources" is not a version of what I in this paper call "resourcism." See Ronald Dworkin, "Equality and Capability" in his Sovereign Virtue (Cambridge, MA: Harvard University Press, 2002), pp. 285-303. 2 Amartya Sen, "Equality of What?" in S. McMurrin (ed.), Tanner Lecture on Human Values, vol. 1 (Cambridge, UK: Cambridge University Press, 1980), pp. 195-220, p. 216. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 3 that capability theorists should adopt what I call supply-side sufficientarianism, which (I claim) closely resembles a view articulated and endorsed in at least one place by Sen. Section 4 shows that there is in fact a good deal of common ground between Sen and the leading resourcist, Thomas Pogge. Despite suggesting that something like supply-side sufficiency rules may offer a plausible way to incorporate capability metrics into a conception of distributive justice, Pogge maintains that resourcism is the superior framework. I show that Pogge's rationale for sticking with resourcism rests on a false dilemma that he himself elsewhere debunks. Section 5 concludes. 2. Two Common But Inconclusive Arguments for the Capability Approach In his 1979 Tanner Lectures, Amartya Sen introduced not only the capability approach itself, but also the two most common lines of argument used to defend it today. Sen's lecture "Equality of What?" opens with a comment on methodology in moral philosophy in which he describes two methods one can use to criticize a moral view. The first is the case-implication method, which uses thought experiments to show that the moral view generates intuitively problematic implications in particular cases. The second is what Sen calls the prior-principle method, which seeks to uncover inconsistencies between the moral view under investigation and some more basic (and perhaps more intuitively compelling) principle. Sen uses each method to construct two lines of argument against resourcist metrics. This section criticizes each of these lines of argument. Sen's Case-Implication Argument Sen's first argument for the capability approach exemplifies the caseimplication method. He notes (as I mentioned above) that a resourcist theory of distributive justice must say that two individuals who have equivalent bundles of resources are equally advantaged. This is so even if one person is disabled and lacks the use of her legs while the other is fully mobile. In Sen's view, this is problematic. The disabled person seems to be at a clear disadvantage, since she must use up a portion of her resources simply to achieve the mobility that the non-disabled person started with. According to Sen, the problem with resourcist metrics is that they ignore features of individuals' situations that affect what they can effectively do or be with a given bundle of resources. Capability metrics, by contrast, treat <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 4 DOI 10.1163/17455243-4681031 advantage or disadvantage as "a relationship between persons and goods": individuals with different abilities to convert the same bundle of resources into important and worthwhile achievements are classified as differentially advantaged by a theory of justice that employs capability metrics.3 This case-implication argument against resourcist metrics has obvious force. It is hard to deny that important differences between individuals will be ignored if (dis)advantage is defined in resourcist terms. However, it is important to see that proponents of resourcist metrics can and do concede that the disabled person faces a clear disadvantage. What resourcists deny is that this is a justice-relevant disadvantage. That is, they deny it is a disadvantage whose elimination or redress is required by distributive justice. Defenders of resourcist metrics can, then, readily acknowledge the fundamental moral importance of basic human capabilities. Their disagreement with capability theorists concerns the specific theoretical issue of metrics of justice, not the distinct issue of the determinants of human well-being and flourishing. For example, the leading resourcist Thomas Pogge openly admits that resourcism "seems committed to the callous (if not cruel) view that we, as a society, need do no more for persons whose health is poor through no fault of ours than for persons in good health."4 Pogge's view is that adopting a capability metric is not the only or best way to respond to this observation that resourcism severs the connection between individuals' specific needs and their social entitlements. An alternative way is to draw a distinction between obligations of justice and obligations of other kinds. As Pogge puts it, it is open to resourcists to "speak of duties of humanity or solidarity" that are "quite stringent" but which "do not correlate with rights."5 If such a move is in fact open to the resourcist, then the capability theorist must provide positive support for the claim that distributive justice itself requires the redress of certain deficits in capabilities. For the resourcist can fully agree that individuals or societies should care about capability deficits in some wider moral sense. 3 Ibid.; emphasis in original. 4 Thomas Pogge, "Responsibilities for Poverty-Related Ill Health," Ethics & International Affairs 16(2) (2002), pp. 71–81, p. 76. 5 Thomas Pogge, "A Critique of the Capability Approach," in Harry Brighouse and Ingrid Robeyns (eds.), Measuring Justice: Primary Goods and Capabilities (Cambridge University Press, 2010), pp. 17-60, p. 53. Other broadly Rawlsian theorists have taken a similar tack in their response to charges from capability theorists that resourcist views are unduly callous and austere. See Erin Kelly, "Equal Opportunity, Unequal Capability," in Brighouse and Robeyns (eds.), Measuring Justice: Primary Goods and Capabilities, op. cit., pp. 61-80, and Samuel Freeman, "Frontiers of Justice: The Capabilities Approach vs. Contractarianism," Texas Law Review 85(2) (2006), pp. 385-430. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 5 Theorists will of course differ on what it takes to show that a normative principle or duty is principle or duty of justice. According to Pogge, one hallmark of distributive justice is that it involves "a complementarity of relative gains and losses": In thinking about the just design of such institutional schemes, we must ask not merely whether we approve of the relative gains they bring to the "naturally disfavored," but also whether we can accept the relative losses they bring to others. And we must ask whether proposed compensation rules achieve equity among their beneficiaries with their diverse special needs, and equity also among their contributors. Thus ... capability theorists also face the difficult task of specifying a plausible such criterion of social justice in detail.6 Pogge here adopts the thesis that demands of justice must be precisely specifiable on account of the stringent and potentially burdensome obligations they impose on others. The idea is that justice is the set of normative rules that can be legitimately backed by sanctions and coercive threats. Yet in order to deploy these tools legitimately, there must be a good reason why this person (or this set of persons) has a stringent, coercively enforceable duty to act in this way or to make this sacrifice for others. If no such reason can be provided, then the putative duty of justice might have to be downgraded to a goal that individuals and societies can refuse to adopt without injustice. Interestingly, some proponents of the capability approach embrace key elements of Pogge's view of justice. For example, Elizabeth Anderson writes: Justice is fundamentally about second-personal normative claims: claims that morally considerable persons can make to others, holding them to account for their conduct toward others and its consequences for others. Justice embodies demands of particular persons that can, by right, be exacted from others. Other normative claims lack this second-personal quality ... Perhaps the world would be best if state P were realized. It does not follow that any individual has the standing to hold others to account for realizing P.7 Anderson also claims, however, that her own preferred capability approach to distributive justice can be justified independently from justifying principles of justice in taxation.8 This will not satisfy Pogge, since he believes 6 Pogge, "A Critique of the Capability Approach," op. cit., p. 49; emphasis added. 7 Elizabeth Anderson, "Justifying the Capability Approach to Justice," in Brighouse and Robeyns (eds.), Measuring Justice: Primary Goods and Capabilities, op. cit., pp. 81-100, p. 86; emphasis in original. 8 Ibid., p. 84. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 6 DOI 10.1163/17455243-4681031 that if we do not know whether the funds needed to redress maldistributions of capabilities can be exacted justly, then we do not know if justice genuinely requires redress in the first place. At a certain level of abstraction, Pogge and Anderson clearly agree here, as Anderson's "secondpersonal" approach to justice also blocks quick inferences from facts about what would make the world a better place to conclusions about what distributive justice requires. Standardly, it is only thoroughgoing consequentialists who reject the need to buffer individuals from the potentially insatiable demands of world-improvement.9 It is for related non-consequentialist reasons that Pogge insists that justice is not purely "recipient-oriented," and that genuine duties of justice must reflect an equitable balance between the valid claims of those in need, on the one hand, and the valid claims of those called upon to help, on the other.10 Now, I am certainly not in a position to settle the dispute between consequentialists and non-consequentialists. I do, however, share Pogge's dissatisfaction with non-consequentialist defenders of capability metrics who nevertheless separate the question of which metric is correct from questions about whether the resulting duties to promote capabilities can be assigned reasonably. I have already noted Anderson's claim that her capability-based theory can be justified without taking up questions about justice in taxation. Similarly, Martha Nussbaum states: My capabilities approach begins with outcomes: with a list of entitlements that have to be secured to citizens, if society is to be a minimally just one ... I believe it is wise to begin with human entitlements as our goal. We think what people are entitled to receive, and, even before we can say in detail who may have the duties, we conclude that there are such duties, and that we have a collective obligation to make sure people get what they are due.11 9 Indeed, it is remarkable that in arguing for a departure from thoroughgoing consequentialism in The Rejection of Consequentialism (Oxford University Press, 1982), Samuel Scheffler argued for prerogatives (i.e. for permissions to refrain from maximizing the good) while also arguing against restrictions (i.e. against rights or duties that would forbid maximizing the good). Scheffler's "hybrid" theory is of course controversial, but it nicely captures the force that so-called prerogatives have in many people's moral thinking. 10 Pogge critiques "recipient-oriented" conceptions of justice in "Relational Conceptions of Justice: Responsibilities for Health Outcomes," in Sudhir Anand, Fabienne Peter, and Amartya Sen (eds.), Public Health, Ethics, and Equity (Oxford University Press, 2006), pp. 135161; and in "Responsibilities for Poverty-Related Ill Health," Ethics & International Affairs 16(2) (2002), pp. 71–79. 11 Martha Nussbaum, "Beyond the Social Contract: Capabilities and Global Justice," in Gillian Brock and Harry Brighouse (eds.) The Political Philosophy of Cosmopolitanism (Cambridge University Press, 2005), pp. 196-218, p. 210. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 7 Nussbaum does concede that it would be a problem if "the injunction to promote human capabilities devoured people's lives."12 But she says this problem can be addressed by giving institutions, rather than individuals, the primary responsibility for redressing capability deficits. Institutions, Nussbaum claims, can protect individuals by "impos[ing] on all, in a fair way, the duty to support the capabilities of all, up to a minimum threshold."13 But this seems to assume what must be proved, which is that the action required to secure capability entitlements really can be reasonably and fairly exacted from those who will be ruled by capability-promoting political institutions. These qualms with Anderson's and Nussbaum's capability theories do not at all entail that capability theories are perforce committed to unreasonably demanding duties of justice. My claim is only that Pogge is correct to be skeptical of capability theorists who purport to vindicate their approach without first explaining why capability metrics will not yield unreasonably demanding duties. In the absence of such an explanation, Pogge's distinction between duties of justice and other kinds of moral obligation dulls the force of case-implication arguments for the capability approach. For while Sen is correct that resourcist metrics would drive a wedge between a disabled person's specific needs and her social entitlements, it is nevertheless not true that resourcist metrics lead "to a partially blind morality." This is because the sophisticated resourcist can claim that morally relevant capabilities are irrelevant only to the specific issue of distributive justice. I shall return to this issue in section 3. Sen's Prior-Principle Argument I now want to introduce a second common but flawed line of argument for the capability approach, since doing so will also help to articulate a key positive argument for resourcism. This second line of argument is of the prior-principle variety, and it too derives from Sen's original lecture. Recall that this method of argument aims to identify inconsistencies between the moral view at issue-i.e. resourcism-and some other principle that is presumably more basic or more intuitively compelling. Accordingly, Sen claims, "[I]t can be argued that there is, in fact, an element of 'fetishism' in the Rawlsian [resourcist] framework."14 This is a prior-principle argument because Sen believes it is a fundamental theoretical mistake to adopt a 12 Ibid., p. 213. 13 Ibid. 14 Amartya Sen, "Equality of What?," op. cit., p. 216. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 8 DOI 10.1163/17455243-4681031 metric of justice that exhibits a "fetishist handicap in being concerned with goods ... rather than with what these good things do to human beings."15 This line of argument is nowadays more commonly stated in terms of "means versus ends." For example, Elizabeth Anderson holds that "there is a presumption in favor of articulating principles of justice in terms of ends rather than means."16 Since both resourcists and capability theorists agree that external resources are merely instrumentally valuable means to intrinsically valuable human ends, this prior-principle argument accuses resourcists of being "fetishistic about means," thereby flouting a basic theoretical desideratum. As Madison Powers and Ruth Faden put it, "One of the most compelling insights of the capabilities approach is its shift of attention away from the means (e.g. resources) for achieving well-being to what persons 'can do and be.'"17 The problem with this line of argument can be illustrated with a thought experiment adapted from the Introduction to Sen's recent book The Idea of Justice. There Sen describes a parable in which three children are arguing about which of them should get to keep a certain flute.18 Anne proclaims 15 Ibid, p. 218; emphasis in original. 16 Elizabeth Anderson, "Justifying the Capability Approach to Justice," op. cit., pp. 87-88. 17 Madison Powers and Ruth Faden, Social Justice: The Moral Foundations of Public Health and Health Policy (Oxford University Press US, 2008), p. 37. Other proponents of this means/ ends argument include Martha Nussbaum, "Aristotelian Social Democracy," in R. Bruce Douglass, G. M. Mara, and H. S. Richardson (eds.), Liberalism and the Good (Routledge, 1990), pp. 203-252, p. 208 [quoted in Sandrine Berges, "Why the Capability Approach is Justified," Journal of Applied Philosophy 24 (2007), pp. 16–25, p. 22] ("The basic intuitive idea used by the Aristotelian conception to argue against this [resourcist view] is the idea that wealth, income, and possessions simply are not good in themselves."); Ingrid Robeyns, "The Capability Approach: A Theoretical Survey," Journal of Human Development 6(1) (2005), pp. 93-114, p.95 ("A key analytical distinction in the capability approach is that between means and the ends of well-being ... Only the ends have intrinsic importance, whereas means are instrumental to reach the goal of increased well-being..."); and Jennifer Prah Ruger, Health and Social Justice (Oxford University Press, 2010), p. 46 ("[R]esources, such as wealth, medical care, and income, do not constitute appropriate ends of political activity ... Instead, resources are merely a means to an end."). This same argument has actually been pressed against the capability approach itself, for example by Louis Kaplow. Kaplow argues that capabilities cannot be intrinsically valuable, since a capability is merely the ability to achieve some worthwhile end or other. As he puts it, "[E]xcept when fortuitously there is a perfect fit between means (such as primary goods or capabilities) and ends, deeming means of [human] fulfillment to be the ends of an ideal [political] theory is problematic. This proposition seems true on a priori grounds, because some of the posited means-for example, income-do not seem capable of justification as intrinsically good." See Louis Kaplow, "Primary Goods, Capabilities, ... or Well-Being?," The Philosophical Review 116 (2007), pp. 603-632, pp. 604-605. 18 Amartya Sen, The Idea of Justice (Harvard University Press, 2009), p. 13. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 9 that she is entitled to it because she is the only one of the three who knows how to play it. Bob points out that he is the only one who is so poor that he has no other toys to play with. And Carla notes that she "has been working diligently for many months to make the flute with her own labour (the others confirm this)." Sen uses the parable to illustrate the diverse moral considerations that he believes any theory of justice must accommodate. But now consider a slight variant (which I shall call the modified-flute example): suppose that it was not Carla alone who made the flute, but rather the three children working together over many months. Who should get the flute in this situation? Here is one appealing answer: the children should share the flute equally. If it is the product of their collective efforts, it is hard to see how Anne's aptitude or Bob's poverty warrants giving either of them complete ownership of the flute. Rather, it seems that each child's contribution generates an equal claim. Given that there is only one flute, it is plausible to say that the best way to respect the claims of each is to devise a joint custody arrangement. But then this clashes with the view that distributive justice is concerned with the distribution of capabilities, for what distributive justice seems to require here is a fair distribution of an instrumental good. Merely possessing a flute is not typically viewed as worthwhile in itself, and obviously different people have differential abilities to convert flute-time into worthwhile achievements. The modified flute example thus raises the question of whether there really is a presumption in favor of metrics that focus on intrinsic goods rather than instrumental goods. And indeed theorists who prefer resourcist metrics often do so precisely because they believe just regimes should focus exclusively on those instrumental goods whose production is the result of socio-economic cooperation. For example, Pogge suggests that: [T]he purpose of a social order is not to promote a good overall distribution of ... quality of life, but to do justice to, or to treat justly all those whose shared life is regulated by this order. Just treatment of participants requires a just allocation of the benefits and burdens of social cooperation, not promotion of the best attainable distribution...19 By "best attainable distribution," Pogge means the distribution that would be judged best or most fair if one were designing a society completely from scratch. For instance, Pogge agrees that a situation in which every person has one working kidney is better, "abstractly considered," than our current 19 Thomas Pogge, "Relational Conceptions of Justice: Responsibilities for Health Outcomes," op. cit., p. 154; emphasis in original. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 10 DOI 10.1163/17455243-4681031 situation in which some have two and some have none.20 And the former would surely be the "best attainable distribution" if the number of kidneys were fixed and if government were legitimately charged with (re)distributing them. But most people believe that individuals have entitlements over their kidneys, and they believe that this places constraints on what a just government can do to improve the current "suboptimal" distribution of kidneys. Similarly, Pogge maintains that participants in social and economic cooperation acquire entitlements to a fair share of the social output they help generate, just as each child acquired a claim to equal time-withthe-flute. In Pogge's view, this too places constraints on what a government can legitimately do to promote "the best attainable distribution" of human capabilities. He readily grants that individual well-being is a function of both the resources one possesses and one's abilities to use those resources effectively. But since government's role (in Pogge's view) is to fairly distribute the resources citizens jointly produce together, distributive justice is concerned with only one variable in the well-being equation. T.M. Scanlon suggests that a similar rationale may lie behind John Rawls' opposition to the capabilities approach: The fact that the claim to equal shares ... arises from the claims of contributors to a cooperative enterprise may help to explain why [Rawls] takes it to be a claim to equal resources ...: as contributors what they have a claim to is a share of what their cooperative activity produces.21 We might call this the "contributor-based" model of distributive justice. The resourcist can use this model to rebut Sen's case-implication argument as well. (Recall that this argument claims that a disabled person and a non-disabled person remain differentially advantaged even when they command equivalent bundles of external resources.) The resourcist can say that the contributor-based model explains why justice is not upset when individuals are differentially able to derive well-being from their fair share of social resources. The common thread here is a focus on cooperation and joint production, which, the resourcist says, supports the view that just societies should distribute resources, not capabilities, because it is resources that joint cooperation generates. I have argued in this section that the two most common lines of argument in favor of the capability approach are inconclusive. Neither establishes the superiority of capability metrics over resourcist metrics, because 20 Ibid., p. 148. 21 T.M. Scanlon, "When Does Equality Matter," unpublished manuscript, p. 10n5. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 11 each can be rebutted in a way that shifts the burden of argument back onto the capability theorist. To vindicate the capability approach, one must be able to address Pogge's worry that it threatens to impose vague or unreasonable demands upon those who would be called upon to redress maldistributions of capabilities. One must also explain why the contributor-based model is a bad (or at least incomplete) model for understanding distributive justice. These are not, however, insurmountable hurdles. Now that we have a clearer sense of what it takes to justify the capability approach, I will explain in the next section how the capability theorist can rise to the challenge. 3. How Justice Can Make Room for Capabilities Consider again one of Pogge's central claims: [W]e must ask whether proposed compensation rules achieve equity among their beneficiaries with their diverse special needs, and equity also among their contributors. Thus ... capability theorists also face the difficult task of specifying a plausible criterion of social justice in detail.22 I have said I agree with Pogge that capability theorists should be more willing to address the second issue of equity, i.e. equity among those called upon to help. In this section I provide the kind of discussion that I think is called for. What I will say is probably still too vague to satisfy Pogge's requirement that duties of justice be precisely specifiable, but I am not convinced that his requirement is warranted. Immediately after issuing it, Pogge writes: "Capability theorists usually leave such questions aside. You can read thousands of pages of their writings without finding any hint about how compensation is to be financed."23 I agree with Pogge that capability theorists must give more than a hint about who bears a duty to redress certain capability deficits and about why they bear it. Yet even if a capability theorist has a lot to say here, she may still be unable to supply the level of detail Pogge seems to demand. But is that demand reasonable? Why cannot justice come with shades of gray? Consider harm protection. Virtually everyone believes that a just society must, to some extent, protect citizens from standard threats of harm. But there is inevitable vagueness in what this requires. Where, for example, is the bright line between the real risks of harm one imposes on others when one drives one's car sober and the risks 22 Pogge, "A Critique of the Capability Approach," op. cit., p. 49. 23 Ibid. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 12 DOI 10.1163/17455243-4681031 one imposes when one drives drunk? The answer is that there is no bright line, and yet no one concludes that drunk driving prohibitions are not matters of justice. Instead, we do our best to deal with justice's ineluctable gray areas while always trying to avoid overreaching in its name. Some may think that extra traffic police or sobriety checkpoints are perfectly just and worth paying for, others will not; disagreement and vagueness about what is required in the interest of public safety seem inevitable. We face a similar predicament when, for example, we have to judge whether pollution regulations are adequate or whether banking disclosure forms are sufficiently comprehensible to the typical borrower. In short, we deal with normative vagueness all the time. Why should justice in general or distributive justice in particular be any different? Why should capability metrics of justice be rejected simply because they leave the outer limits of justice somewhat imprecise? It is hard to see how imprecision can be avoided or why it should be thought to discredit a principle of justice all on its own. Suppose Pogge agreed to lessen the importance he places on the precision of principles of justice. Still, he can reasonably insist that at least something be said to address the issue of whether certain capability-sensitive conceptions of justice are overly demanding. And Pogge seems to suggest that this is a hopeless task, claiming that "for all Sen has published on this topic, he has done little toward ruling out any candidates within the vast space of conceivable capability views. So far, what he has mainly proposed is a new language."24 Yet this charge is not completely fair, and I want now to show why it is not fair, since I think doing so can help the capability theorist respond to Pogge's concerns about demandingness. Thus, while it is true that Sen sometimes says it is fine if capability theorists remain agnostic about distributive rules,25 and while this is the kind of agnosticism about duties that Pogge finds problematic, Sen has at times been willing to say more. Consider, for instance, that in working out a capability-based theory of human rights, Sen draws a distinction between two ways in which one might interpret the duties that correlate with human rights. On the one hand, one might view them as obligations first "to give reasonable consideration" to meeting basic needs and then to exercise "discrimination in the way the obligation to give reasonable consideration [to the prospect of giving aid] may be followed upon by sensible choices of action."26 I interpret 24 Ibid., p. 51. 25 Amartya Sen, "The Place of Capability in a Theory of Justice," in Brighouse and Robeyns (eds.), Measuring Justice: Primary Goods and Capabilities, op. cit., pp. 239-253, p 248. 26 Amartya Sen, "Elements of a Theory of Human Rights," Philosophy & Public Affairs 32(4) (2004), pp. 315-356, p. 339. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 13 Sen's requirement that one "give reasonable consideration" to meeting basic needs as a requirement to be reasonably responsive to basic needs. A person's response is reasonable when it reflects a reasonable balance between the moral reasons to help others and the "other claims on the person's possible actions (involving other rights and freedoms, but also altogether different concerns that a person may, inter alia, sensibly have)."27 Sen contrasts this reasonable-responsiveness interpretation of the duties corresponding to human rights with an interpretation that views the duties as "compulsory actions," that is, as "an absolute obligation to undertake that action, no matter what other values one has and what other commitments one has reason to consider."28 He rejects the second interpretation in favor of the first, concluding that the "obligations in relation to rights and freedoms of all human beings need not, thus, be translated into preposterously demanding commands."29 I submit that Sen's interpretation of the duties correlative to human rights likely rules out capability views that simplistically demand equality of capabilities between all relevant individuals. It also probably rules out a view, such as Nussbaum's theory of human rights, that classifies several basic capabilities as all "urgent entitlements grounded in justice."30 Whereas Nussbaum says duties exist so long as the existing pattern of capabilities remains morally regrettable, Sen allows that all human rights duties can be fully discharged even if some morally pressing needs remain unmet. In this respect Sen's approach resembles Pogge's, for Sen too must operate with a distinction between (1) the responsiveness to needs that justice or human rights require and (2) the further moral reasons individuals may have to respond to residual deficits in important capabilities. The central difference between Sen's framework and Pogge's is, then, that Sen gives no reason to say capability deficits are irrelevant to justice, whereas Pogge's contributor-based view provides a rationale for making capability deficits relevant to morality but not to justice. What, then, should Sen say about the contributor-based model of distributive justice? In my view, he should acknowledge that it reflects important ideals of fairness and reciprocity, but he should also note that the argument underlying that model is not capable of ruling out the justicerelevance of other moral ideals and values. At most, that argument shifts the burden onto the capability theorist to explain why other ideals are 27 Ibid., pp. 339-40. 28 Ibid., p. 339. 29 Ibid., p. 340. 30 Martha Nussbaum, Frontiers of Justice (Cambridge, MA: Harvard University Press, 2007), p. 290. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 14 DOI 10.1163/17455243-4681031 important enough to be relevant to justice and how a conception of justice can take them into account. But that is a challenge the capability theorist should be willing to take up in any case. Sen takes a good first step by distinguishing between the duty to be reasonably responsive to key capability shortfalls and the duty fully to eliminate them. This distinction helps to address the question of how a conception of justice can incorporate ideals other than fairness and reciprocity. Of course, Sen's distinction, just like Pogge's distinction between duties of justice and duties of solidarity, is merely structural-it alone cannot explain why a given capability deficit is important enough to generate justice-based requirements to be responsive to it but not important enough to generate duties to eliminate it. Yet Sen's structural distinction is, I think, sufficient on its own to show that the case for the contributor-based model of distributive justice is itself incomplete. If the worry about over-demandingness can indeed be met by invoking the idea of reasonable responsiveness, then there might be no cogent objection to filing both contributor-based considerations and concerns about capabilities under the heading of justice. I have contrasted Sen's reasonable-responsiveness interpretation of capability-based duties of justice with Nussbaum's seemingly more demanding interpretation. Whereas Nussbaum adopts a distributive rule that grants everyone a justice-based entitlement to a robust minimum of key capabilities, Sen (at least in the article I am discussing) adopts a rule requiring only that people must be duly responsive to others' capability shortfalls. Nussbaum's distributive rule is commonly characterized as sufficientarian, since it guarantees to all a level of capability that is deemed to be sufficiently robust from the perspective of justice. However, the rule suggested by Sen's discussion can also be characterized in terms of sufficiency, for it requires that the bearers of justice-based duties must display sufficient concern for the individuals whose capabilities are threatened. Here "sufficient concern" means "the degree of concern required by justice."31 To distinguish these two types of sufficientarianism, let us say that Nussbaum endorses a demand-side sufficiency view, while Sen endorses a supply-side view.32 This distinction nicely harkens back to Pogge's distinction between 31 If the absolute degree of concern that one must display to each of several individuals happens to be the same (e.g. because there is no relevant difference between them), then sufficiency of concern will result in equality of concern. But equality of concern would here be a side-effect of the more central idea of showing each individual the degree of concern that she is owed. 32 The distinction between the supply side of obligation and the demand side of obligation is invoked by Loren Lomasky, "Liberty and Welfare Goods: Reflections on Clashing <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 15 equity for beneficiaries and equity for contributors. Nussbaum's theory focuses on the claims that individuals can make on others when those individuals fall below the threshold level of capabilities that she associates with a dignified human life. Sen's view, like Pogge's, looks beyond such recipient-oriented or demand-side considerations to highlight also the perspective of those who would be called upon to supply the aid needed to redress shortfalls in capabilities. Sen acknowledges that the demand side of rights is an important source of justice-relevant reasons, but he suggests that the duty correlative to human rights must be articulated in supply-side terms: The recognition of human rights is not an insistence that everyone everywhere rises to help prevent every violation of every human right no matter where it occurs ... It is still possible that other obligations or non-obligational concerns may overwhelm the [human rights] reason for the particular action in question, but that reason cannot be simply brushed away as being "none of one's business."33 Of course, it will often be uncertain how the supply-side idea of being reasonably responsive to justice-relevant reasons should be cashed out in a given context. But that, it seems to me, is once again a kind of imprecision we must learn to deal with. As Sen himself notes, "Loosely specified obligations must not be confused with no obligations at all."34 It is easy to see how the literature's more familiar demand-side sufficiency views can be converted into supply-side versions. Consider for example the plank of Anderson's sufficientarian theory of justice that says individuals are entitled to the capabilities they need to function as equal citizens in a democratic society. According to Anderson, this view requires that citizens be guaranteed "access to the basic conditions of human agency-knowledge of one's circumstances and options, the ability to deliberate about means and ends, the psychological conditions of autonomy, including the self-confidence to think and judge for oneself, freedom of thought and movement."35 Citizens must enjoy these capabilities if society is to be free from "oppression-that is, forms of social relationships by which some people dominate, exploit, marginalize, demean, and inflict violence upon others."36 In a democracy, citizens exert control over others' Liberalisms," The Journal of Ethics 4(1/2), pp. 99-113, p. 108; and by James Griffin, On Human Rights (Oxford University Press, 2009), p. 110. 33 Sen, "Elements of a Theory of Human Rights," op. cit., pp. 340-1. 34 Ibid., p. 341. 35 Elizabeth Anderson, "What is the Point of Equality?" Ethics 109(2) (1999), pp. 287-337, p. 317-18. 36 Ibid., p. 313. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 16 DOI 10.1163/17455243-4681031 lives through the laws they advocate, vote for, and willingly uphold. In light of this, a responsible citizen will want to ensure that such power is exercised with all due respect for the individuals whose lives she helps to shape and constrain. It arguably follows that there is a civic duty to promote and preserve educated autonomy among the populace. This duty would reflect the fact that fundamental political relationships must ultimately be ones of genuinely autonomous cooperation, if familiar forms of state coercion are to be justified. Now note that one can accept this account of why a political community must promote educated autonomy without concluding, as Anderson's sufficiency view does, that justice requires that everyone be brought up to some robust threshold of autonomy. After all, that may be impossible to do while simultaneously living up to all other civic responsibilities. Instead, the argument seems capable of showing only that there is a civic duty to display serious concern for others' ability to participate meaningfully in democratic self-governance. In that case, the resulting duty arguably entails only that citizens must display a due measure of concern for shortfalls in autonomy, not that they must seek every opportunity to mitigate or eliminate them. The relevant capability-based duty would then be a kind of supply-side sufficientarianism that first highlights a brand of capability shortfall that citizens must be concerned with and then requires a due measure of responsiveness to it. Unlike the more standard demand-side sufficientarian principles of justice, supply-side versions can easily let the required degree of responsiveness vary in light of other morally relevant factors that also place claims on a society's time, resources, and attention. As circumstances dictate, the duty could then be recast as a duty to display "significant" or "moderate" or even "minimal" concern for certain shortfalls in autonomy. The theoretical task would then be to determine how the required degree of responsiveness should be modulated in light of competing concerns-including the concerns about over-demandingness raised by resourcists like Pogge. Supply-side sufficientarianism enables a theory of justice to be sensitive to deficits in important capabilities without generating unreasonably demanding duties of redress. To illustrate this, I have used the example of educated autonomy, in part because that idea seems best articulated in terms of individuals' effective abilities (rather than in terms of the external resources at their disposal, as a resourcist metric would have it). Of course, most capability theorists wish to argue that justice is concerned with many more capabilities besides the capacity for political autonomy. But I will not explore those additional aspirations here. It is enough to see that specific <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 17 capabilities will require specific arguments in their favor, and that supplyside sufficiency rules can help keep those capabilities as part of the conversation about what distributive justice itself requires. 4. Pogge and Supply-Side Sufficiency I have argued that at least some principles of justice should be interpreted as requiring a sufficient measure of responsiveness to shortfalls in others' capabilities. I contrasted this "supply-side sufficientarianism" with the more familiar demand-side sufficiency views that impose duties to raise others up to independently specified threshold-levels of capability. By adopting a supply-side approach, capability theorists can avoid overdemandingness by first defending justice-based duties to redress deficits in important capabilities, and then by noting that it is possible to be sufficiently responsive to others' capability deficits without thereby being responsible for eliminating them. Ironically, one finds in Pogge's work at least some appreciation for this supply-side strategy. Consider a concession that comes in a footnote to a passage in which he forcefully criticizes the capability view. The forceful criticism maintains that the capability approach "commands indefinite increases in expenditures on those with the greatest capability shortfalls, provided only that such additional expenditures can still meaningfully improve the capabilities of at least one such person."37 But in the footnote Pogge adds: [T]his is true only so long as the debate is restricted to criteria of social justice whose [distributive rule] is equalitarian or prioritarian or sufficientarian or some hybrid of any two of these or of all three. Other [distributive rules] might achieve a more plausible trade-off between the interests of persons whose capabilities are very low and very expensive to raise and the interests of other participants [in the scheme of social cooperation and joint production].38 There are several claims here. One is that if a theory of justice guarantees equal capabilities to all, and if there are people whose capability deficits would be extremely burdensome to eliminate or to mitigate, then this is reason to reject that simplistically egalitarian theory.39 The same can 37 Pogge, "A Critique of the Capability Approach," op. cit., p. 53. 38 Ibid., p. 58n51. 39 It is assumed here that leveling down is not a morally permissible option. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 18 DOI 10.1163/17455243-4681031 be said, Pogge adds, about a theory (like Nussbaum's) that guarantees all individuals a level of capability judged to be sufficiently robust from the standpoint of justice. For again it may be impossible or exorbitantly expensive to bring the worst off individuals up to the specified level of capability. Finally, by a prioritarian distributive rule Pogge means either a rule requiring that worst off persons be made as well off as possible (i.e. lexical prioritarianism), or a rule on which justice requires the maximization of moral value, where a benefit generates more moral value the worse off its beneficiary is (call this view value prioritarianism). Pogge claims, plausibly, that pairing any one of these four distributive rules with a capability metric would generate burdensome demands upon those who would be called upon to improve an allegedly unjust distribution of capabilities, especially in contexts where some individuals suffer profound cognitive or physical disabilities.40 If this degree of demandingness is indeed theoretically undesirable, then there are two ways to avoid it. First, one can reject capability metrics in general and combine one of the four distributive rules (or some combination of them) with a resourcist metric instead. This is Pogge's choice. Alternatively, one can retain the capability metric, and then seek a different rule that "achieve[s] a more plausible trade-off between the interests of persons whose capabilities are very low and very expensive to raise and the interests of other participants" in the scheme of social cooperation and joint production. This is the option Pogge identifies in his footnote but does not recommend or explore further. It also nicely captures the motivation behind the supply-side sufficiency strategy I have articulated and ascribed to Sen. Even more surprising is that in his own recent work on the theory of human rights, Pogge seems to endorse something very close to a supplyside sufficiency principle. In a discussion of Henry Shue's theory of basic human rights, Pogge writes: Using the helpful differentiations Shue has introduced on the side of duties- distinguishing duties to avoid depriving, duties to protect from deprivation, and duties to aid the deprived-one might draw matching distinctions on the side of rights, between 40 The demandingness of what I am here calling "value prioritarianism" is reflected in Derek Parfit's remark that "This view naturally has universal scope. If it is more important to benefit one of two people, because this person is worse off, it is irrelevant whether these people are in the same community, or are aware of each other's existence. The greater urgency of benefitting this person does not depend on her relation to the other person, but only on her lower absolute level." See "Equality and Priority," Ratio 10, pp. 202-221, p. 214. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 19 I. general moral right not to be deprived of X II. distinct general moral rights to be protected against being deprived of X, and III. distinct general moral rights to be aided when one lacks access to X. One might then ask about each of these candidate rights whether it exists at all and, if so, against whom it is held, in what formulation, and with what stringency. This move helps avoid a false dichotomy. We are not forced either to deny a basic right to X or to accept extremely demanding duties ... toward those who suffer ... deprivations of X. Instead, we can disassemble Shue's basic right to X and then perhaps postulate very weighty moral rights, against every other agent, not to be deprived of X and perhaps less weighty and less wideranging moral rights to be protected against, and aided in the event of, deprivation of X.41 Pogge here claims that we can finesse the problem of a putative right's over-demandingness by modulating the right's stringency, rather than by saying that it is not a genuine right in the first place. Pogge's idea of a morally plausible level of "stringency" seems to me related to the idea of displaying a due measure of responsiveness to justice-relevant capability deficits. At bottom, each of these notions is connected to the idea of modulating the normative force of a demand of justice so that it harmonizes with competing normative considerations. Pogge is claiming here that it can be perfectly coherent to say that an individual has a positive right to X even if others lack all-things-considered duties to provide X to that person. This seems to me very similar to saying that the person's shortfall in X is directly relevant to justice, even though others are required only to display a due measure of responsiveness to that shortfall, rather than being required to provide X to her fully. Unfortunately, Pogge does not address whether his proposed framework for rights is consistent with his critique of the capability approach, in which he claims that duties to redress capability deficits "do not correlate with rights" precisely because "they do not prescribe that society make every feasible effort toward compensating natural disabilities."42 My view is that his proposed rights framework and his critique of the capability approach are clearly in tension with one another. By suggesting that rights can exist without thereby prescribing every feasible effort toward eliminating the 41 Thomas Pogge, "Shue on Rights and Duties," in Charles R. Beitz and Robert E. Goodin (eds.) Global Basic Rights (Oxford: Oxford University Press, 2009), pp. 113-130; emphasis in original. 42 Pogge, "A Critique of the Capability Approach," op. cit., p. 53. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) 20 DOI 10.1163/17455243-4681031 needs that give rise to them, Pogge-the-rights-theorist shows Poggethe -resourcist how to defend limited but nevertheless justice-based duties to redress deficits in capabilities. To adapt Pogge's own way of putting it, his discussion of rights shows that the capability theorist can avoid a false dichotomy: The capability theorist is not forced either to deny duties of justice to redress capability deficits or to accept extremely demanding duties toward those who suffer deprivations in key human capabilities. This is precisely the way of defending capability metrics that is opened up by supply-side sufficiency rules that require only due responsiveness to justice-relevant needs, not necessarily their elimination. 5. Conclusion After criticizing two common but inconclusive arguments for the capability approach, I explained how responsiveness to capability shortfalls can be required by distributive justice without giving rise to unreasonably demanding duties. This can be done by pairing a capability metric with what I called a supply-side sufficientarian distributive rule. This would, at least sometimes, make what citizens can effectively do and be a direct issue of justice. (It is also consistent with holding that resourcist metrics are nevertheless appropriate in certain spheres of public policy.) Pace Pogge's boldest claims, a capability-sensitive framework of distributive justice would not automatically command "indefinite increases in expenditures on those with the greatest capability shortfalls," since a duty to be responsive to capability shortfalls is not the same as a duty to eliminate them. Indeed, Pogge seems to acknowledge this very point in both his concessive footnote and in his discussion of Shue's theory of basic rights. Moreover, I argued that Sen essentially adopts the supply-side sufficiency approach in his own defense of a capability-based account of human rights. As Sen argues there, Even though the acknowledgement that certain freedoms [and capabilities] qualify as human rights already reflects an assessment of their general importance ..., a person has to go beyond these pervasive features into more specific circumstances in giving reasonable consideration to what he or she, in particular, should do in a specific case.43 Sen would surely say the same thing with regard to how a polity must decide how to respond to deficits in important capabilities. A commitment 43 Sen, "Elements of a Theory of Human Rights," op. cit., p. 339. <UN><UN> J.P. Kelleher / Journal of Moral Philosophy (2013) DOI 10.1163/17455243-4681031 21 to "reasonable consideration" of justice-relevant capabilities is, Sen notes, quite different from "an agreement to tie oneself up in hopeless knots."44 But it was the hopelessness of meaningfully redressing all problematic deficits in important capabilities that partly led Pogge to emphasize the distinction between what justice requires and what solidarity or humanitarian concern commends. Of course, it would take a great deal of work first to identify the full set of capability-related concerns that are relevant to justice and then to work out, even in broad strokes, the degree of responsiveness to those concerns that justice requires in specific circumstances. My goal has been to lay the foundations for that effort by explaining how capability metrics can be defended as central components of distributive justice. Some of what I have said is not new. But since both Pogge and Sen acknowledge something like the supply-side sufficiency approach I have articulated, I believe it is useful to distill the basis of that approach and to examine how it squares with other moves in this complicated debate. In the final analysis, the resourcist's distinction between duties of justice and other moral duties is surely important. But when it comes to resolving the debate between resourcists and capability theorists, the distinction between eliminating capability deficits and responding to them with a sufficient degree of concern may well carry the day for the capability approach.45 44 Ibid. 45 I have benefited from presenting versions (and precursors) of this paper to the Northwestern University Society for Ethical Theory and Political Philosophy, the Department of Philosophy at the University of Wisconsin-Madison, the Safra Center for Ethics at Harvard University, and the "Distributive Justice in Health Conference" at the University of Minho in Braga, Portugal. I am very grateful to participants for their helpful feedback. I also thank the journal's editor and anonymous referees for extremely valuable comments. Finally, for valuable conversations and advice at various stages, I thank Bill Gardner, Jon Garthoff, Andras Miklos, Lasse Nielsen, Walt Schalick, Michael Tiboris, and especially Dan Hausman. Any remaining errors are my own. <UN><UN>