Wellbeing, Freedom and Social Justice The Capability Approach Re-Examined, 2017a

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3. Clarifications 163 human rights, that is, what kinds of harms or abuses should they protect us from? What kind of rights are human rights — are they moral claims, or legal claims, or political claims, or something else? The question of justification asks: on what grounds can we say that people have human rights? Is it because humans have rational capacities or agency? If so, does that mean that newborn babies do not have human rights? All these questions are studied in the vast philosophical literature on human rights. Note that while the relationship between normative political philosophy, justice and human rights is not entirely disputed, the dominant view in the contemporary literature is that the domain of human rights is a subset of the domain of justice, which in turn is a subset of the domain of morality. The reason is that “[n]ot everything that is desirable to be realized in politics is a matter of human rights, and not everything that is a matter of justice is a matter of human rights. Human rights constitute the most urgent demand of basic global justice” (Gilabert 2009, 676). Legal scholars are interested in questions related to the treaties and constitutions in which human rights are codified. The idea of human rights gained momentum with the 1948 adoption of the Universal Declaration of Human Rights (UDHR), which over time received a canonical status in legal and political debates. The UDHR subsequently served as a template for human rights instruments that are legally binding, such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, the American Convention on Human Rights and the African Charter of Human and People’s Rights. One question this raises is to what extent national constitutions are consistent with those legally binding treaties, or with the UDHR. Another question frequently asked by legal scholars is to what extent national jurisprudence can be in tension with — and violate — a human right that is part of an international treaty to which that particular nation signed up. For example, in the famous ‘Lautsi case’, the question emerged whether the Italian state’s policy to have a compulsory crucifix in the classroom of public schools was in violation of the human right to the freedom of religion as codified in the European Convention on Human Rights (Weiler 2010; Pierik 2012; Pierik and van der Burg 2011).
164 Wellbeing, Freedom and Social Justice In the social sciences and international relations, questions are asked about what role human rights play in politics. How do countries differ in the degree in which they protect human rights? What are the effective instruments that support human rights in countries in which they are not violated? Is it effective to condemn human rights violations in other countries, or is silent support for grassroots human rights activists a more effective strategy? Of course, human rights are hugely important for human right activists, who are working on actual human rights protections. Other activists, such as those focusing on the empowerment of disadvantaged groups, often take a more instrumental attitude towards human rights, and ask whether such rights are effective instruments to reach their goals of inclusion, development and combatting forms of injustice and oppression. After this brief sketch of the huge literature on human rights, we can now explore the relation between human rights and capabilities. The first question that needs to be asked is: why would we be at all interested in a capabilities-based theory of human rights? What could be gained by theorizing human rights, or trying to protect human rights, by referring to capabilities? The first reason is philosophical, and concerns the justification of human rights. Human rights are norms or instruments to protect certain valuable things (which are called ‘the objects of human rights’). But every time we claim an object is so important its protection must be enshrined as a human right, we must argue why that object has this special importance. Part of the philosophical literature on capabilities does precisely that — to justify why we need to protect certain valuable personal states. Both Sen (2004b, 2005) and Nussbaum (1997, 2011a) have argued that human rights can be seen as entitlements to certain capabilities. However, Sen’s views are more qualified, since he has argued that the object of some but not necessarily all human rights can be viewed as capabilities. There are plausibly also other objects of human rights, such as process freedoms and liberties. The second reason builds on the first. If some human rights can be understood in terms of capabilities, and poverty can also be
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Contents Acknowledgements 3 1. Intr
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3. Clarifications 89 3.1 Introducti
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4.7 What about power and political
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Acknowledgements In 1998, when I st
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Acknowledgements 5 the capability a
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1. Introduction Many people who en
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1. Introduction 9 capability approa
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1. Introduction 11 Moreover, it bri
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1. Introduction 13 Countries Outsi
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1. Introduction 15 capabilities of
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1. Introduction 17 their collaborat
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1. Introduction 19 This book has a
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Index abortion 15, 145 advantage 25
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Index 253 Fleurbaey, Marc 154 flour
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Index 255 political institutions 14
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