State Constitutional Law: Another Approach to Natural Rights

 Reading Why reading Martha C Nussbaum’s philosophy is pure pleasure (Aeon Essays) led to thinking again about the natural rights provisions in state constitutions. It may put meat on the bone of "pursuit of happiness."

When stated baldly, the capabilities approach (CA) might seem simple – plain common sense. In fact, it is a subtle and far-reaching theory that changes the way we think about human needs. But let me start by stating it baldly: the CA says that it is the task of governments (or other bodies that make policy and distribute resources) to provide all citizens equally with the capabilities needed to lead a flourishing life. (The goal of flourishing, of course, reflects the influence of Aristotle, who held that it’s the primary goal of all organisms to flourish according to their nature.)

The CA could be described as the outcome of three propositions:

• All human beings have the right to flourish.
• Human flourishing can be broadly defined in universal terms.
• It is the task of governments to provide citizens with capabilities to flourish.

Let’s specify what the CA is not. It is not a call for governments to give citizens what they say they need. For citizens may not know what they need. The CA arose in part as a response to the problem of adaptive preferences. A well-known example is the sour grapes phenomenon. The fox claims he didn’t want the grapes because they were green and unripe; but only because he couldn’t reach them. In the same way, people who lead deprived or impoverished lives may suffer from deformation of their preferences.

It’s therefore up to governments (or other appropriate bodies) to put capabilities in place. (Nussbaum has tended to focus on the need to do this for women in particular – not because women are more deserving but because, in many parts of the world, for women the capabilities are in shorter supply.) But what are capabilities? I give Nussbaum’s full list below, but to put the point in general terms, a capability is the opportunity (a genuine, realisable opportunity, not just a formal permission in a published document) to achieve a function required for wellbeing – such as the capability to be adequately nourished, or to be educated, or to choose one’s own partner, or follow the religion of one’s choice.

And so let me know what you think.

sch 3/14