INTRODUCTION
Robert Sugden has recently made a number of critical claims about Amartya Sen's work on capability, well-being and freedom in the context of a comparison of Sen's ideas with those of John Stuart Mill.Footnote 1 The central thrust of Sugden's critique is that the application of Sen's work might be illiberal because it may involve society or theorists making judgements about what is best for people which may not coincide with their actual desires, opening the way to restrictions on liberty. In a robust response, Sen suggests that Sugden has (no doubt inadvertently) misrepresented his view.Footnote 2 Consequently, a first necessary step in evaluating Sugden's critique is clarificatory: we need to distinguish between different ways in which Sen's ‘capability approach’ can be, or has been, understood and developed. In particular, I argue that there are two distinctions now used in the literature on the capability approach which can help to make sense of the exchange between Sugden and Sen. Sugden's claims are best seen, I suggest, as interpreting Sen's views in a way which is quite different from that implicitly adopted in Sen's response. Given this difference of interpretation, I suggest that Sugden and Sen appear, at times, to be ‘talking past’ each other and indeed if the exchange is clarified there is common ground between them.
While some have hinted or claimed that Sen's position is paternalistic,Footnote 3 and Sugden himself does not explicitly accuse Sen of (objectionable) paternalism in developing his critique, his discussion is a close relative of this variety of objection. Its publication presents an opportunity to evaluate the objection, and to do so in the light of different interpretations of the capability approach. Clarifying these interpretations and distinct ways in which it can be developed also allows us to make precise some ways in which Sen's work differs from Martha Nussbaum's related ‘capabilities approach’. While Sugden's claims are primarily focused on Sen's approach, I argue that some of them are better seen as objections to Nussbaum's. Indeed, Nussbaum has explicitly argued that (what she terms) the ‘argument from paternalism’ does not compromise her approach. Since her approach is quite different from Sen's, her responses to this argument are also different from those Sen might make. They must for that reason be considered quite independently in relation to Sugden's critique. My main claims are that while Sen's and Nussbaum's approaches can – on a sympathetic reading – withstand much of the force of Sugden's critique, the unease which motivates Sugden's critique cannot be easily dismissed. In making these claims I comment in passing on what Sen and Sugden say about Mill, though the article is not chiefly aimed at clarifying Mill's work
1. INTERPRETING SEN'S CAPABILITY APPROACH
It is fairly uncontroversial that Amartya Sen's capability approach – in the variety of forms it has taken since his original Tanner lecture entitled ‘Equality of What?’ in which he first advanced the notions of capability and functioning in the context of egalitarian justiceFootnote 4 – involves one way of thinking about a range of issues, such as well-being, the quality of life, justice and development.Footnote 5 There are also subtly different ways of interpreting the approach. But on all of these a central distinction is that between what a person does and is, that person's ‘doings’ and ‘beings’ – or functionings – and the combinations (or n-tuples) of such functionings which constitute lives from which she can choose one. The combinations (or n-tuples) of such functionings a person can choose from is her capability.Footnote 6 There has also been a tendency in this literature to use the term ‘capability’ to refer to some specific ability – such as the ability to appear in public without shame or to participate in the life of the community – so that the approach is concerned with several ‘capabilities’ and some have listed specific abilities which might be of importance in evaluating the quality of life and development.Footnote 7 However, I shall, in general, assume that Sen's use of the term ‘capability’ refers to a range of lives from which a person can choose one, and that if one has to list things which make a life good these are best understood as (valuable) functionings. The capability approach – as I understand it – sees well-being in terms of an evaluation of functionings – and the quality of life is seen in terms of the freedom to choose between lives.Footnote 8 Development is seen as an expansion of capability, and egalitarian justice can be seen – at least in part – in terms of equality of capability.Footnote 9 To the degree that a person's capability captures the range of lives open to her it reflects her opportunity. Sen sometimes distinguishes one aspect of freedom – the ‘opportunity aspect’ or ‘opportunity freedom’ which he thinks is well captured by the notion of capabilityFootnote 10 – from another – the ‘process aspect’ or ‘process freedom’ – which relates primarily, in his terms, to autonomy (freedom to choose) or non-interference.Footnote 11 He admits that these two aspects of freedom can and do overlap.Footnote 12 It is tempting to interpret the distinction between opportunity and process freedom in terms of the classical distinction between ‘positive’ and ‘negative’ freedom – roughly, between ‘freedom to’ (act, choose, etc.) and ‘freedom from’ (interference etc.) and indeed in his earlier writings Sen does interpret capability in terms of positive freedom.Footnote 13 However, he uses the distinction between positive and negative freedom less in his more recent writings and suggests that his preferred use of the term ‘positive freedom’ (in these writings) is not that made familiar by Isaiah Berlin.Footnote 14 So the use of this distinction may be less helpful than one might expect in making sense of Sen's more recent versions of this approach. Nonetheless, I shall return to it in clarifying Sen's exchange with Sugden.
There are two ways of further distinguishing interpretations of the capability approach. The first of these distinguishes between two different views which the approach might embody: ‘thick’ and ‘thin’ views.Footnote 15 On a thin view, the approach merely articulates the case for seeing capability and functioning as important ‘evaluative spaces’ in terms of which one might judge advantage, equality and development, alongside other ‘spaces’ such as ‘utility’ (interpreted in various ways), ‘primary goods’ (or all purpose means) and resources.Footnote 16 A thin view of this sort need not specify the functionings which are relevant to evaluation of the quality of life, nor the weight that should be given to these. It need not, furthermore, specify (beyond some limited suggestions) how one might measure functionings or capability or even take any particular stance on their measurability. For example, the claim Sen often makes that judging the quality of life of a disabled person merely in terms of her holding of resources may be problematic because different people need different levels of resources to be able to do and be certain basic thingsFootnote 17 does not, in itself, rest on the measurability of capability or functionings, though both concepts are used in making the claim. It is a claim one can make – and Sen does make – in advancing the case for considering capability and functioning as important evaluative dimensions. One need not, furthermore, provide any list of the relevant basic things a person can do or be in making this claim, though Sen tends to mention some functionings which he thinks are not contentious in advancing the relevance or importance of capability and functioning. So, for example, in the case of impairment, Sen typically cites an example of a relevant functioning, such as ‘moving about’. And it is important to the persuasiveness of the thin view, that the value of the relevant functioning is uncontentious. In some contexts, such as criticism of a resource-based approach to egalitarian justice, this thin view has force.
However, some of those who adopt the capability approach are more ambitious. They wish to use the approach in specific contexts such as the measurement of well-being, the quality of life, equality or poverty inter alia for social evaluation. Often the underlying expectation is that the capability approach will do much of the work that modern utility theory has done (and continues to do) in mainstream welfare economics. In this context, issues relating to the selection and weighting of functionings and to the measurability of specific functionings, capability and freedom are central. And by now there are a number of applications of the approach which address these issues.Footnote 18 The thin view provides some, if limited, guidance on how to do so.Footnote 19 Indeed many of Sen's statements of the approach intentionally fall short in this respect. They are incomplete in the sense that they leave the approach open to different evaluative approaches including to different lists of valuable functionings, different ways of weighting functionings and of evaluating opportunity.Footnote 20
Sen has come under pressure to go beyond a thin view. One reason for this relates to the phenomenon of ‘adaptation’ which he himself cites in criticizing utilitarian approaches, and which I discuss in later sections. Over the years he has further developed his thoughts about how the capability approach might be applied. These thoughts, when seen in combination, constitute what might be termed his ‘thick view’. I cannot here give a full account of this view though I shall mention some of its salient features: most elements of it can be found in his Development as Freedom while others are scattered across some of his more recent writings including The Idea of Justice.Footnote 21 In short, the thick view remains incomplete inasmuch as it does not articulate any specific, all-purpose list of functionings or any set of weights attached to these. Furthermore, it suggests that in different contexts, and for distinct purposes, different lists might be relevant. But it gives central importance to ‘public reasoning’ – notably public discussion and debate – in decisions about any list or selection of functionings which is, or to weights which are, to be used in social decision-making. And it sees these sorts of evaluative decisions as matters of social choice – since different people endorse different values and weights while some specific set or range of these is needed for social evaluation. Theoretical reasoning on its own cannot, on this view, provide different societies with a list of functionings for purposes of public decision-making which would necessarily be acceptable to people with different views. Footnote 22 And even supposing one settled on one list in some context, the weight given to different functionings might change over the years as any society's priorities, or indeed the challenges it faces, might change.Footnote 23
Sen freely admits that – in specific contexts – such as the measurement of human development and related matters, he has worked on specific measures – like the Human Development Index (HDI) – which use an explicit list of functionings and weights.Footnote 24 However, the relevant functionings are here decided on in a particular context – in the case of the HDI, a collaborative enterprise at the United Nations Development Programme to arrive at a widely acceptable international measure of the quality of life – and the selection of functionings and weights is made explicit in relevant publications. The need for acceptability of the index across a wide range of countries (for the purpose of international comparisons of the quality of life) certainly would, in this case, influence the choices made. It may be for this reason that, as Sen notes, a very limited range of functionings is included in this measure.Footnote 25 Because those choices are made explicit they are subject to public discussion and criticism. It is not true that the HDI was itself the result of any large-scale exercise in public discussion and debate – its origins lie in a collaboration between a few experts. Rather its success has been the result of it being discussed and indeed used as an index of progress in public forums, where it is often seen as a sensible, easily understood and acceptable alternative to (per capita) national income.
Even if it is argued that public reasoning ought to enter in a different way into the process of evaluation, it is clear that Sen thinks the best way to apply the capability approach for public decision-making has a significant democratic or social choice dimension. Public decisions are here seen as being fundamentally different from private ones. In our own lives we may go for some specific notion of the good life and select or prioritize certain valuable functionings. There is no need for this selection or set of priorities to be acceptable to others. Sen's thick view seeks reasoned agreement and consensus across different people's evaluations with a view to arriving at acceptable public decisions, though it does not presume that unanimity will always be achieved.
Aside from the contrast between ‘thick’ and ‘thin’ views, one can also distinguish between ‘narrow’ and ‘broad’ interpretations of the capability approach. On one of these – the ‘narrow’ interpretation – the approach focuses primarily on information about functioning and capability. This is not identical to the ‘thin’ view – since even a thick view which makes suggestions about how to make capability or functioning-based evaluations – might narrowly focus on these spaces. One way in which a ‘broad’ interpretation is distinct is that it is also concerned with information on dimensions or valued objects other than capability and functioning.Footnote 26 On this reading, the capability perspective expands the informational space of evaluative judgements and it can include a concern with rights, process and so on. By contrast, the narrow interpretation of the approach does not go further to suggest that process also is important.Footnote 27 Rather, on the narrow interpretation, one key limitation of the capability approach is precisely its narrowness. Indeed, one can read some of Sen's texts in this way. He writes, for example, that: ‘[i]t is not claimed that the capability perspective exhausts all relevant concerns for evaluative purposes (we might, for example, attach importance to rules and procedures and not just freedoms and outcomes)’.Footnote 28 So focusing on capability alone might mean that one cannot capture other aspects of freedom, such as the process aspect.Footnote 29 And in some contexts, the process aspect of freedom might be seen as more important than the opportunity aspect. A justified criticism of this interpretation of the capability approach is that it cannot adequately or completely capture a range of concerns – such as those relating to a wide range of rights. Indeed, Sen himself has, in his later writings, argued that this is a weakness of the capability approach in the context of human rights.Footnote 30 A ‘broad’ reading of the capability approach might, by contrast, include both opportunity and process freedom in its remit. It might then also treat capability as capturing one aspect of freedom. On one way of developing this interpretation, Sen's work – and I think this approach is most plausibly seen as an interpretation of Sen's work taken as a broader whole – involves a range of different views including views of freedom, justice and social choice inter alia. The claims Sen makes about capability are, on this interpretation, best seen in the broader context of these other views. It is not clear that this interpretation of the approach is really a version of the capability approach. It can be more accurately seen as an amalgam of some of Sen's views and writings on freedom and social evaluation over many years. These can be seen as hanging together in some coherent whole, even if this falls well short of what would usually be seen as a fully worked out or ‘complete’ theory of justice or development (even if one accepts Sen's claim that a ‘complete theory of justice can yield incomplete rankings of justice’).Footnote 31
It is easy to see why some have interpreted Sen's writings on capability in this way – as an attempt to provide an alternative basis for, or ‘theory of’, social evaluation, which includes distinct kinds of objects of value (not merely functioning or capability), and offers an alternative to John Rawls's theory of justice or indeed utilitarianism.Footnote 32 For all Sen's protestations to the effect that he wishes his approach to be open to different views of evaluation, so that he does not wish to specify any list of functionings or to adopt particular principles but to leave these matters to public reasoning, his ‘capability approach’ is now often seen as being considerably more than merely an ‘approach’ or ‘perspective’. Others, by contrast, have ‘thickened’ Sen's writings on capability by incorporating elements from the works of others, and their own thoughts. Martha Nussbaum's approach, which was initially articulated as a reading of Aristotle, but then developed as a distinct if related approach, sharing some of the elements of Sen's approach, might be seen as one such extension.Footnote 33 But there are alternative ways of ‘thickening’ the approach which have been explored. With these distinctions in place we are better able to address Sugden's critique.
2. SUGDEN'S CRITIQUE
Sugden's critique begins by listing some views which J. S. Mill and Sen apparently hold in common.Footnote 34 These are: that freedom is ‘one of the most important components of well-being’; and that the satisfaction of desires is not a good measure of well-being, because ‘processes of social and psychological adaptation can erode a person's desire for what, in reality, will give her well-being’.Footnote 35 The second of these is a version of what I term the ‘adaptation problem’ and I return to and expand on it in the next section. As regards the two views he attributes to Mill and to Sen, Sugden thinks that:
[t]here is a tension between them. The idea that ‘we’ ethical theorists, can claim to know better than some particular individual what is good for her seems to open the door to restrictions on freedom. For many liberals, and particularly for liberal economists – one of the most attractive features of classical utilitarianism is its robust rejection of paternalism, famously expressed in Jeremy Bentham's remark that if pushpin furnishes more pleasure than music or poetry, it is more valuable than either of them. Bentham's position is attractive in providing an uncompromising defence of a certain kind of individual freedom – the freedom to act on one's own preferences without being required to justify them to anyone.Footnote 36
Sugden's essay is concerned with the different ways he thinks that Mill and Sen attempt to resolve the tension he identifies. He argues that Mill does so better than Sen.
Before discussing Sugden's critique in greater depth it is worth noting that prior to its publication Sugden had already written important articles criticizing Sen's views of both capability and rights – where the discussion of rights focuses on the so-called ‘Liberal Paradox’ captured in the well-known ‘impossibility of a Paretian Liberal’ result.Footnote 37 I make this point because it is hard to make sense of Sugden's recent paper in isolation from these earlier papers (and indeed in isolation from some of his other work)Footnote 38 and there is a need to clarify which interpretation of Sen's approach is the target of his recent critique.
Sugden's earlier critical work on Sen's paradox – where Sen uses a preference-based notion of ‘minimal liberty’ – is linked to one line of research which Sugden helped to initiate – the so-called ‘game form’ approach to rights. Sen's discussion of the paradox and the game form approach is usually categorized under the ‘process aspect of freedom’ when in his later writings, such as Development as Freedom and the ‘Arrow Lectures’ (published in Rationality and Freedom), he discusses the distinct aspects of freedom.Footnote 39 In a later and much-cited critical review of Sen's Inequality Re-examined Sugden directly criticizes the capability approach. In that critique Sugden raised a number of issues, one of which relates to whether the approach can be ‘operationalized’. He famously claims that given the wide range of possible valuable functionings and the problems associated with evaluating sets as regards the value of freedom or opportunity it is not clear that the capability approach is a viable alternative to standard welfare economics.Footnote 40 At this stage Sugden is taking one significant weakness of the capability approach to be its incompleteness and limited practical applicability.
One of the distinctive features of Sugden's more recent critique is that it is not any longer primarily concerned with scepticism about whether the approach can be applied. Virtually all the central worries raised are about how evaluative judgements about functionings might be made in some application of the approach and then imposed on people in a way that might constrain their freedom to do whatever they actually do or might desire. So the target is the thick view even if this is understood as a narrow interpretation of the approach. Put another way, the target is an approach which offers substantive guidance about application, while focusing on capability and functioning information as the basis of evaluation. But, at the same time, it also looks as if Sugden's critique targets the broad interpretation of the capability approach, since Sugden claims to be concerned with Sen's and Mill's ‘theories of well-being and freedom’ and, for Sen, freedom is clearly about more than capability. As regards Sen's ‘theory’ Sugden tells us that he is concerned with the ‘theory . . . presented in a series of works from 1985 onwards particularly in his books Commodities and Capabilities, Inequality Re-examined and Development as Freedom’.Footnote 41 Sugden readily accepts that Sen's position has changed somewhat over the years. However, his inclusion of, and repeated citations from, Development as Freedom suggest that Sugden is not concerned with a narrow interpretation of the capability approach since that book covers a very wide range of topics including the distinction between ‘process freedom’ and ‘opportunity freedom’.Footnote 42 Nonetheless, Sugden's actual text focuses almost entirely on Sen's project inasmuch as it pertains to capability as a space of evaluation of equality, progress and freedom. That suggests that Sugden is concerned with a narrow interpretation. If it were the case that Sugden was concerned with a broad version of the capability approach, he would take more notice of what Sen has to say about process freedom – about non-interference in the private domain and autonomy of choice. Noticeably, he only once refers to this aspect of Sen's writings in a footnote. In that note Sugden tells us that he has ‘intentionally excluded Sen's work on integrating the concept of liberty into social choice’. He admits that he has been a ‘long-standing critic of this analysis of liberty, but for reasons which apply only tangentially to Sen's more recent theory of capability’,Footnote 43 citing his related work which is critical of Sen's formulation of liberty in social choice. The implication I draw – and I believe that this is borne out by a reading of Sugden's article – is that he is indeed concerned with a narrow interpretation of the thick view – a reading of the approach which sees it as focused on functioning and capability information but includes some significant guidance about how that information might be used. Nonetheless, in this article I consider the force of Sugden's critique as it applies to both interpretations of the approach.
Sugden rightly argues that Sen sees the problem of evaluation of functionings and capability as a social choice exercise if this evaluation is carried out for public decision-making. The capability approach identifies the informational basis for certain normative judgements.Footnote 44 His chief worry is that if collective decisions are made on the basis of public reasoning, certain values will feature in the evaluation of opportunities or the quality of life – and it is those values which will be promoted. The values or desires which people have or might have will not necessarily be promoted in the application of the approach. Sugden goes further, suggesting that collective decisions might infringe people's freedom to do whatever they might or actually do desire and license interference in the personal realm. Sugden puts his worry as follows: ‘[m]y unease about Sen's proposal is that it licences collective decisions that override some individuals’ actual desires about how to live their own lives, in favour of other people's judgements about what people have reason to desire’.Footnote 45 This is the nub of his critique as it applies to Sen's approach.
Since it initially appears that Sugden is criticizing Sen's work on freedom and well-being seen as a whole or a broad interpretation of the capability approach it is easy to see how Sen must respond. He accuses Sugden of mischaracterizing his work on the grounds that it also gives importance to the protection of liberty, and indeed stresses that he has made that case in the context of majority rule.Footnote 46 What makes it especially easy for Sen to respond to Sugden's critique is not just that he has written about the priority of liberty,Footnote 47 but furthermore the specific way in which Sen incorporates liberty into social choice. In the relevant articles, rights are understood in terms of a person's preference over particular options in their own personal sphere being ‘decisive’ in the well-known condition of ‘minimal liberty’.Footnote 48 At least as regards liberty then, when it is understood as process freedom or non-interference in the personal sphere, Sen gives complete authority to personal preference (even though he allows for the different ways in which preference can be interpreted).Footnote 49 That blunts the force of the critique as it applies to his work.
Sugden claims that on Sen's account I am ‘not assured the opportunity to live whatever kind of life I desire’Footnote 50 subject to the constraints imposed by others being similarly able to do so. Here Sugden has in mind the familiar notion of ‘negative freedom’ in his reading of Mill's principle of liberty which incorporates the ‘harm principle’:Footnote 51 freedom from interference to live as one wishes as long as this does not harm others. This aspect of freedom, I earlier argued, is captured in Sen's writings under the term ‘process freedom’. We have already seen that the criticism that the capability approach cannot adequately allow for negative or process freedom can be levelled at a narrow version of the capability approach and indeed that Sen himself has made the same criticism. For Sen, this point illustrates the limitations of the capability approach. Sudgen and Sen would agree on this. But this argument obviously cannot be levelled against Sen's thought as a whole, or at a broad interpretation of the capability approach even if, as Sugden does, one thinks that Sen's characterization of the idea of liberty is flawed. What the criticism shows is the weakness of a narrow version of the capability approach even if it includes a democratic, public reasoning approach to evaluation. One must conclude that Sen's work may be more defensible in the face of Sugden's critique if interpreted in a broad way. There are genuine problems with the capability approach as a narrow view, if it is supposed that everything that is important can be captured within a narrow view. But there is no reason to suppose that Sen thinks everything can be. And it is for that reason that Sen's work on capability is usually referred to as an ‘approach’, or ‘perspective’ or ‘view’, rather than as a ‘theory’. It is for the same reason that Sen now regularly argues that the scope of the capability approach is quite restricted,Footnote 52 and that its claims are suitably modest. The term ‘theory’ is more appropriately applied to some close relations or developments of Sen's views, such as Martha Nussbaum's version of the approach.Footnote 53
The critique has – we have seen – limited force when applied to the broad interpretation of the capability approach. Suppose the approach remains narrow and its scope is restricted to the opportunity aspect of freedom along the lines suggested by Sen. Does Sugden's critique have no further relevance? It seems that it might. The obvious hint is found in a passage quoted above: Sugden is focusing on the opportunity to live as one desires, and yet conceiving this opportunity in terms of negative liberty. This implies an overlap between negative liberty and opportunity.
Sen's strategy is to distinguish the process and opportunity aspects, while noting that they can overlap. Consider an example that Sugden has used in discussing this issue: smoking.Footnote 54 Sugden takes it to be possible that following the capability approach society might restrict people's freedom to smoke on the basis of a reasoned consensus. Here it appears as if Sugden is conflating the opportunities promoted or equalized in a particular approach, and liberties protected by it. Since the capability approach is focused on opportunity it is primarily concerned with the first of these. However, Sen has also sometimes argued that there is a right to certain ‘basic capabilities’, such as the ability to achieve minimal nutritional standards. So, on his view, certain opportunities do constitute interests which should be protected.Footnote 55 His claim about the limitations of the capability approach in relation to rights is not that the capability approach cannot be the basis of any human rights; rather it is that it cannot be the foundation of all such rights.
If, as Sen admits, the process and opportunity aspects cannot be sharply distinguished, there may be a problem even for a narrow version of the capability approach. The lack of a sharp distinction between these aspects furthermore implies that the distinction between narrow and broad approaches is not sharp. For someone who values smoking and sees it as an enjoyable if unhealthy activity (or functioning), some specific society's reasoned judgement that it is not permitted in public spaces defines the limits of her autonomy, and may thereby restrict the opportunity to lead her conception of a good life (if smoking features heavily in it). It is, of course, not entirely clear that this example is the best available to Sugden. One reason smoking in public is restricted in some countries has to do with the effects of passive smoking. Given these effects, smoking might also be restricted on the basis of Mill's ‘harm principle’, because my exercise of the liberty to smoke in public might harm others and restrict their liberties (including the liberty to live in a smoke-free environment). But the smoking example is not crucial to this argument: one can make the same argument using examples such as alcohol consumption and other activities which are addictive and might damage a person's health, while not necessarily harming others.
This point is not directly answered by Sen, but one suspects that he would respond in much the same way as he would if this issue were raised in relation to his views of well-being and freedom more broadly.Footnote 56 He certainly could argue that the matter of how much liberty is restricted, or opportunities are promoted when the process and opportunity aspects overlap, so that restrictions on liberty and opportunities are hard to separate out, within a democratic society is a matter for society to decide on: it is not for theorists to give any definitive answer. Put another way, within a narrow version of the capability approach a specific functioning (such as smoking or drinking) would be evaluated in public reasoning. If the opportunity to smoke is not, after such reasoning, promoted, and it appears that public policy may instead restrict liberty, then again public reason would decide on the value of the opportunity to smoke as against other opportunities. Essentially, the issue becomes one of addressing, or making decisions when there are, conflicts of freedoms. Sugden's response would presumably be that these matters should not be left to public reasoning and democratic process. And yet how else is one to address such conflicts? When a society decides on any relevant trade-offs or conflicts in freedoms, the power it has coercively to restrict its members may not be best understood as ‘paternalistic’. Rather, it might be argued that society recognizes various distinct liberties and freedoms, but must decide which is more important in a particular context when they conflict. Whatever decision is taken some freedom must be sacrificed. Sen's point would be that the decision should be taken in a democratic way. On this response, there is a case for narrowing down those forms of restriction which are seen as genuinely ‘paternalistic’. It is perhaps for this reason that Sugden writes in discussing Sen's riposte to his critique that: ‘[g]iven Sen's emphasis on democratic judgement, it would be wrong to suggest that his concept of “reason to value” is paternalistic or elitist’.Footnote 57
Alternatively, the issue here may be about those sorts of restrictions on liberty which might sensibly fall under the category of ‘paternalistic’ but nonetheless be seen as ‘benign’ rather than objectionable. As Gerald Dworkin has argued, Mill's own work seems to license restrictions on liberty in cases where this would further the good – and especially the autonomy – of the individual. In such cases Dworkin explores ‘conditions which make it plausible to suppose that rational men could reach agreement to limit their liberty even when other men's interests are not affected’.Footnote 58 Sen's approach obviously also looks for reasoned agreement, though neither Sen nor Sugden discusses the question of whether certain sorts of paternalistic restrictions are ever acceptable. The extent to which Sen's approach is vulnerable here would depend on exactly how the critique is understood, and whether it treats as objectionable all freedom-promoting restrictions on liberty which are agreed on in a democratic society. If in a democratic society there is consensus on some restriction on liberty – such as compulsory vaccinations in some context – and this restriction (or the view of politics which leads to it) is objectionable on the critique, it is not obvious whether it is the critique or Sen's approach which should be rejected.
3. THE ADAPTATION PROBLEM AND SUGDEN'S CRITIQUE
It is clear – thus far – that Sen is primarily responding to Sugden's critique as a response to his broad view, or to his work on well-being and freedom taken as a whole, and it is clear why the confusion has arisen. Sugden is apparently looking for a single theory in Sen's disparate writings on well-being and freedom which he is comparing to his reading of Mill's writings. And yet he focuses narrowly on Sen's capability approach in doing this. Sugden is, nonetheless, also concerned with Sen's discussion of adaptation and this is, in some ways, a distinct aspect of his critique. Does this aspect have force?
In numerous contexts, Sen argues that if the deprived learn to live, and content themselves, with small mercies or cut back their desires to find happiness in the satisfaction of these in spite of their desperate conditions, that does not necessarily mean that they are well off. The metric of ‘utility’ – whether this is understood as happiness or desire satisfaction – might be misleading or ‘distorted’ by adaptation.Footnote 59 This is the ‘adaptation problem’ as it applies to ‘utility’-based views. In his thin view, this is as far as Sen needs to go: the main purpose of the argument is to raise worries about the metric of ‘utility’ understood as happiness or desire satisfaction as a suitable basis of an account of the quality of life or justice. That suffices to suggest that ‘utility’ as it is sometimes conceived does not contain all, sufficient, or even accurate information relevant to evaluating well-being or advantage. Sen does not take this argument to imply any need to specify some particular list of functionings or even any requirement to adopt a list in applying the capability approach. Nor – as already noted – does he endorse any single, specific, all-purpose list. Nussbaum raised this issue in her earliest article on capability. She argued that Sen's approach would face difficulties if – in the terms adopted here – it remained a thin view which did not endorse a list or any specific content about the quality of life. She wrote about the adaptation problem:
Sen seems on the whole to think that we remove the problem by moving from the utilitarian emphasis on desire to his own approach's emphasis on the valuation of capabilities. But the valuation procedure that is involved in capability selection seems to me, at least without further description, to be no more incorruptible than desire itself is. Just as people can be taught not to want or miss certain things their culture has taught them they should not or could not have, so too they can be taught not to value certain functionings as constituents of good living, where their culture has an interest in, or cannot avoid, denying them access to these functionings. Indeed, sometimes and in some ways the level of desire might be more resistant to corruption than the level of evaluation. . . . It seems to me, then, that Sen needs to be more radical than he has been so far in his criticisms of utilitarian accounts of well-being, by introducing an objective, normative account of human flourishing and by describing a procedure of objective evaluation by which functionings can be assessed for their contribution to a good human life.Footnote 60
For this reason Nussbaum argued that we need a ‘list of functionings that is, on the one hand, non-detached, but on the other, objective’. She went on to use her reading of Aristotle to articulate her own list.Footnote 61 The same argument is implicit and indeed further developed in Nussbaum's later work.Footnote 62 But it is important to note first that Nussbaum's argument suggests a problem with Sen's thin view, since it suggests that the adaptation problem applies as much to desires as it does to the evaluation of functionings or capability. It pushes those who adopt the capability approach in the direction of a ‘thicker’ view.
Sugden is worried about Sen's discussion of the adaptation problem because he thinks that people's desires will not receive the sort of attention or be treated with the sort of authority they deserve, if the capability approach is adopted. They can be questioned and potentially overridden on the grounds that they do not correctly reflect the person's interests. That worry also arises for most ‘informed’ and ‘rational’ desire accounts – which have been advanced, and adopted, by some utilitarians in both economics and philosophy.Footnote 63 And, of course, that can be said of Mill's own writings. That is a first response that Sen makes to Sugden about Mill himself (since Sugden is apparently favouring Mill's view over Sen's).Footnote 64 Is it enough of a response to Sugden? Sen's riposte implies that if his work is potentially freedom-restricting or paternalistic in an objectionable way here then so is Mill's. That undermines Sugden's claim that Mill addresses these issues better than Sen. And yet one might argue that both Mill and Sen are paternalistic. So it does not in itself constitute a response to the critique. It merely implies that its reach is broader.
The key issue here relates to the selection of functionings. In a well-known formula Sen talks of functionings we ‘value and have reason to value’.Footnote 65 There may be beings and doings one might value – such as smoking – but that one does not have reason to value because they lower life expectancy or damage health. There seem to be (at least) two motivations underlying the ‘value and have reason to value’ formula. One is that people may simply be ill-informed: they value smoking but do not know about its damaging effects. But adaptation may be relevant too. A disadvantaged person may have learnt to find pleasure in small mercies, and the enjoyment of smoking may be one of the consolations of a difficult life. For Sugden clearly the worry is that in these sorts of cases people's desires can be overridden on the grounds that they are ill-informed or adaptive, and their satisfaction does not promote their interests, as they are judged by society.
To apply Sen's approach one needs a view of what people do have reason to value. Where does that come from? The answer, in Sen's thick view, is: public reasoning. And, in his discussion of theories of justice, Sen explicitly suggests that such reasoning might address problems associated with the parochialism of local beliefs. By bringing in a range of voices, public reasoning might broaden the perspectives of those participating in it – including those whose views may have in some way been restricted or conditioned by their disadvantaged position. In this context, public reasoning might address the problem of adaptation since it might ‘raise the consciousness’ of those who might have previously adapted.Footnote 66
The key question is: does the use of the ‘value and have reason to value’ formula and public reasoning fall foul of Sugden's critique? In some cases, would society in effect decide on which opportunities to promote, or to equalize, or to protect, even if some people – who have adapted or are ill-informed – do not see them as valuable or desirable? The answer to this question seems to be ‘yes’. If that is all that Sugden wishes to claim, then he is right. Yet it does not follow that the capability approach – if it is modest in scope – will necessarily lead to any restrictions on freedom to do as one desires and thus fall foul of the critique. If the domain of liberty is – as it is in Sen's work – largely defined in terms of one's preferences in the personal sphere, it is not necessarily the case that it will be infringed. We are then left with the same residual issues discussed in the last section. It may be, for example, that while society does not promote opportunities to smoke, it protects the liberty to do so. Or to take another example, it may be that a society promotes opportunities for healthy eating in various ways while not restricting the liberty to eat unhealthy food. And as before, if the demands of liberty (freedom from interference in one's private sphere, for example) and the promotion of some specific opportunity clash, deciding on how to resolve the conflict would be a democratic decision on this approach. The issues raised at the end of the last section would again arise.
In responding to Sugden, Sen suggests that adaptation poses a ‘special problem’ which does not yield a general case for believing that ‘ethical theorists can claim to know better than some particular individual what is good for her. Any general ecumenical belief of that kind would, of course, be absurd.’Footnote 67 My feeling is that Sugden does not actually think that Sen claims or implies that theorists know any better than others what is good for her: it is society which is seen as arriving at relevant value judgements through public reasoning. In responding to Sen's riposte, Sugden recognizes that Sen sees adaptation as a special problem. He also accepts that Sen has no ‘general inclination to override an individual's own assessment in favour of the assessment of others’. In a conference paper, he adds the following helpful remarks (which were, I must add, deleted in the published version of the paper):
What is at issue here is not the whole corpus of Sen's convictions but the theory of capabilities as a strategy for representing the value of opportunity. Within that theory, there is a general mechanism by which individuals’ own assessments can be overridden, and it is only by means of that mechanism that the theory delivers its analysis of adaptation.Footnote 68
The relevant ‘mechanism’ is, presumably, public reasoning which provides judgements of what people have reason to value, since the ‘analysis of adaptation’ depends on a divergence between what people actually desire and have reason to value. But there is no reason why a ‘general mechanism’ might only lead to this sort of divergence in a limited number of cases. However, when there is a divergence it is not clear that Sen's capability approach, whether it is understood as a limited perspective or even as a thick view which stresses the importance of public reasoning, will in application necessarily be illiberal or paternalistic. In Sen's hands it is unlikely given his strong commitment to a preference-based view of liberty and to democracy. But Sugden is clearly not merely concerned with Sen's views as a whole: it seems clear here that he is concerned with a narrow interpretation of the capability approach. What Sugden has undoubtedly shown, I think, is that there is a danger that a narrow version of the approach might restrict freedom or be paternalistic in an objectionable way. That is especially the case because the capability perspective does not in itself provide a fully worked-out or ‘complete’ theory of justice or progress and on various interpretations it can be married with other views which might in combination make it illiberal or objectionable in application. That is, I think, the truth in Sugden's critique.
The obvious place to look in pursuing this point is to those who have developed related versions of the approach, some of which extend Sen's framework and on occasion supplement it with the views of others to make it more complete. Sugden treats Nussbaum's approach as one ‘development of Sen's approach’, though (as we have seen) Nussbaum's is in other ways a quite different approach.Footnote 69 There is not space here to summarize Nussbaum's rich corpus of work on capability. I shall restrict myself to explaining those elements of it which are relevant to adaptation and Sugden's critique. Nussbaum's writings on this subject have evolved over many years starting from a reading of Aristotle's writings. The initial list of functionings that Nussbaum articulated was largely derived from that reading. In her later writings, notably Women and Human Development: The Capabilities Approach and Frontiers of Justice: Disability, Nationality and Species Membership Nussbaum presents a modified version of her list. It is now proposed as an open-ended proposal which might be modified. The list is seen as vague so that it can be multiply specified by people with different views and in different contexts. She argues that the idea of a basic social minimum might take shape using a list of capabilities which is the basis for political principles which constitute constitutional guarantees in a liberal society. That society is, in turn, pluralistic in being made up of people with different conceptions of the good life. Nussbaum here incorporates elements of John Rawls's later writings, notably, Political Liberalism, and argues that the list can be the basis of an ‘overlapping consensus’ among people with different conceptions of the good who hold different moral doctrines. With few exceptions, the social goal on this approach is to get people up to a threshold level in terms of each capability, and in general it is capability rather than functioning that is the social goal.Footnote 70 Finally, the proposal is put forward as a partial theory of justice since it does not go beyond trying to guarantee a social minimum. Furthermore, it is put forward as what Rawls might call a ‘political conception’: one that is not based on any conception of the good or metaphysical beliefs.
Before turning to Sugden's detailed remarks about Nussbaum, it is worth outlining what Nussbaum herself has to say about what she calls the ‘argument from paternalism’ – which is a close relation to Sugden's critique – in relation to the defence of universal values. She writes that:
This argument says that when we use a set of universal norms as benchmarks for the world's various societies, telling people what is good for them, we show too little respect for people's freedom as agents (and, in a related way, their role as democratic citizens). People are the best judges of what is good for them, and if we prevent people from acting on their own choices, we treat them like children.Footnote 71
Her first response to this worry is that:
a commitment to respecting people's values hardly seems to be incompatible with the endorsement of universal values. Indeed, it appears to endorse explicitly at least one universal value, the value of having the opportunity to think and choose for oneself.Footnote 72
That, of course, does not conflict with the use of a list: it simply suggests that certain items should be on the list. In her response to the argument from paternalism, Nussbaum also distinguishes between the level of international law and the nation-state, and that of states and the individual.
First, she stresses the fact that her list is only supposed to be a ‘good idea’ which leaves a ‘lot of room for pluralism with regard to comprehensive conceptions of the good’.Footnote 73 And if other conceptions have a strong backing and people are not in agreement about the list, she suggests that: ‘[i]t can be used by international agencies and nongovernmental organizations to pursue programs within nations that have not yet embraced it’. It can thus become ‘the basis of international treaties and other documents that may be adopted by nations and incorporated in that way into national and international law’.Footnote 74
As regards the level of the state and the individual, Nussbaum gives the nation-state and democratic politics a central role in implementation. She also stresses the importance of a number of aspects of her theory aside from the multiple specifiability of the list, which allows people with different conceptions of the good to define the list in different ways. Her first point is that it is capability not functioning that is the social goal on her account. If one accepts the list as the basis of constitutional arrangements, for example, one need not insist on people voting, but only having the capability to do so. Second, because her proposal is put forward as a political conception, it does not impose any specific conception of the good on people.
The first of these two points gives Nussbaum's approach a libertarian flavour not dissimilar to some of Mill's views which Sugden cites. She writes, in response to a suggestionFootnote 75 that it is not the capability to choose a healthy life that is valuable, but rather health itself, that she does not ‘favour policies that would make unhealthy activities such as boxing, unsafe sex, football and smoking illegal, although education about risks seems highly appropriate, and the infliction of harm on others . . . could rightly be penalized’.Footnote 76 Reading Sugden's critique would lead one to think that Nussbaum and Mill were further apart here. He claims in relation to Mill's treatment of drunkenness and gambling that:
these are not the sorts of activities that are likely to appear on a philosopher's list of valuable functionings. Indeed, they seem to be just the sorts of thing that Nussbaum has in mind when she says that ‘[t]o use one's senses in a way not infused by the characteristically human use of thought and reason is to use them in an incompletely human manner’.Footnote 77
Mill recognized, on Sugden's reading, that these activities were bad for people, but argued that they should be free to pursue them as long as they did not harm others. Furthermore, the ability to use one's senses in a way ‘infused by the characteristically human use of thought and reason’ is one of the items on Nussbaum's list. If one allows for the distinction between functioning and capability, Nussbaum would indeed allow people to function in a way which uses their senses in an ‘incompletely human manner’, as long as they do not harm others.Footnote 78 She would, nonetheless, encourage governments to educate people about the damaging effects of alcoholism and the risks involved in gambling. There seems little here to differentiate Nussbaum and Mill, at least in their opposition to paternalism. Nussbaum does, however, qualify her view that capability rather than functioning should be the goal.Footnote 79 One set of qualifications is not controversial – the cases of children and people with certain sorts of disabilities. In Frontiers of Justice Nussbaum adds that in ‘only the area of self-respect and dignity do I think that actual functioning is the appropriate goal’.Footnote 80 There may thus be the basis within her theory for paternalistic restrictions on those who want to act in ways which undermine their own self-respect or dignity. However, Nussbaum does not say much about such cases.
There is another sense in which Nussbaum does admit that her proposal is ‘paternalistic’ in the way this might be defined in the argument from paternalism. She takes up this issue in the context of situations where, for example, women are not treated as equal to men under the law or treated like children. Here she admits that it is in one sense ‘paternalistic’ to respond to this sort of situation by saying ‘sorry that is unacceptable . . . That is to tell people how to conduct their lives with one another, in a way that may run counter to actual desires.’Footnote 81 If this is what paternalism demands then, Nussbaum argues, ‘any bill of rights is “paternalistic” vis-à-vis families, or groups or practices . . . if paternalism means simply telling people that they cannot behave in some way that they have traditionally behaved and want to behave’.Footnote 82 Indeed, Nussbaum goes on to cite Mill as a ‘strong opponent of paternalism with respect to private choices that do not harm others’ but who ‘countenanced state interference as soon as the conduct does harm to others; and Mill clearly thought that many forms of traditional sex hierarchy fell afoul of the “harm principle”’.Footnote 83 But this is again compatible with what Sugden says in his reading of Mill, since he also invokes the harm principle to define the limits of liberty. Here again Nussbaum and Mill are close and since Sugden's paper is a defence of Mill, Nussbaum and Sugden would presumably agree on a number of points.
There are other passages where Sugden raises worries about Nussbaum's view. In one case, Sugden worries that while proposing her list as one that might be the basis of an overlapping consensus, she writes as if it already is. He cites certain texts including the following:
[t]he list represents the result of years of cross-cultural discussion, and comparisons between earlier and later versions will show that the input of other voices has shaped its content in many ways. Thus it is already what it proposes: a type of overlapping consensus.Footnote 84
Sugden worries here and in other passages that Nussbaum is wrongly assuming that there is consensus, whereas in fact she has simply modified her list somewhat through discussion with certain people. I take this to imply that, for Sugden, Nussbaum is so convinced of the truth of her position and list that she is prematurely assuming that it will be, or imagining a world in which it has been, agreed on. She may then be guilty, on Sugden's view, of the sort of arrogance on the part of ‘ethical theorists’ that he warns against: of thinking one knows what is good for people and assuming that all ‘right-thinking’ people will or do agree.
In Nussbaum's defence, the relevant texts can be read in a more charitable way. In the first case, Nussbaum may, in part, be merely explaining how she understands the idea of an overlapping consensus: it is something that evolves over years through cross-cultural discussion with people who have different views. The question, perhaps, is whether her list is a good or plausible exemplar of such a consensus. And, if this is his concern, Sugden is not alone in worrying about Nussbaum's methodology here.Footnote 85 In the second case, where Nussbaum is imagining a world in which her proposal has been agreed on, one might read her as simply trying to work out how the proposal might work in practice. That would not assume that everyone has, in reality, already agreed with her current version of the list. Indeed, in various places (including one cited above) she explicitly supposes that people may not agree with her list.
The final context in which Sugden cites Nussbaum's writings relates to the problems of stability and justification: will her proposal serve as a basis of a stable overlapping consensus which can be justified? Here her main concern is that if the items on the list have no connection with desires, they could not be the basis of a stable overlapping consensus. In this context, Nussbaum considers the possibility that since the objects of informed desire might converge with the items on her list, use of an informed desire account may help to address the problem of stability. So the resort to desires is pragmatic. If the objects of informed desire conflict with the list – which they might – it is the latter which has precedence. Nonetheless, in this sort of case Nussbaum suggests that in practice the two approaches might converge over time because if, as a consequence of the adoption of the list, the capabilities on the list are guaranteed up to the relevant threshold, it is more likely that people will be educated and that their (informed) desires are more likely to fit with the list. It is not surprising that Sugden finds this worrying. It looks as if Nussbaum already thinks she has the right list against which she is judging certain people's desires. And she is especially concerned about cases where there may be a divergence due to adaptation, in relation to entrenched gender bias. It is in these sorts of cases that she suggests the possibility of education which might bring people up ‘to endorse a political conception which treats women as equal citizens’ and refers to ‘moral education’Footnote 86 – which Sugden finds troubling. The worry is that an apparently modest proposal is actually being treated as an object which all ‘right-thinking’ people – i.e. those who have been morally educated – will agree to. In fact, however, what Nussbaum seems to be doing in these passages is considering what would happen if the list were accepted as the object of an overlapping consensus and the stability of any consensus if items on the list were at odds with specific people's informed desires. That is quite different, and indeed the argument could be made for any list.
If one goes back to relevant passages in Nussbaum's text it is also clear that her arguments here are consistent with Mill's. She recalls:
I argued that the appropriate goal is capability and not functioning. This means that we leave a great deal of room for people to pursue their own desires, whatever they are, and however they are formed. I said that the reason for this way of conceiving the goal is a reason of respect: if we dragoon people into a total mode of functioning, we are not fully respectful of them.
But she accepts that ‘in justifying the political conception, we consult not all actual desires, but only some of them, desires formed under appropriate conditions; and even then we do not let desire have the last word’. She then asks herself: ‘Am I not in danger of just the kind of paternalism I set out to avoid . . .?’ and answers ‘no’. She argues that ‘to consult all actual desires, including the corrupt and the mistaken, when we justify the list of basic entitlements and opportunities itself would put the political conception on much too fragile a foundation’.Footnote 87 Nussbaum is allowing people considerable liberty to act according to any desires they might have, including the ‘corrupt and mistaken’, but restricting the use of desires in the justification of the list. Once this is clear one can accept that her approach would not – as Sugden fears it would – in general override people's liberty to act on adapted desires, as long as this does not harm others. Certainly when her remarks are read in a sympathetic way, and in the context of her general partial proposal, they do not obviously fall foul of Sugden's critique.
Sugden treats Nussbaum's approach as a development of Sen's in his article, and does not note the many differences between Nussbaum and Sen. But even when his remarks are seen in the context of Nussbaum's larger project, they are pertinent, and that is in part why Nussbaum is so careful in responding to the argument from paternalism. My reading of Sugden's remarks, in the light of a closer reading of the literature, suggests that they do not, in themselves, establish that Sen's and Nussbaum's works on capability are obviously illiberal or paternalistic in an objectionable way. However, they do confirm the suspicion that there is a danger that applications of these ideas might be illiberal. If Sugden's goal is to highlight that danger which is also the source of his unease about Sen's capability approach, this reading of the relevant texts suggests that the danger is very real.
In fact, that sense of unease can be found in Nussbaum's and Sen's own texts. For example, Nussbaum herself worries that if the ‘capabilities theory’ bypasses democratic politics in its implementation, it would be a ‘prescription for tyranny’.Footnote 88 And she is no doubt aware that there are other list views – such as what she terms ‘illiberal’ neo-Aristotelian views – which can (and have been) combined with ideas about capability and functioning and which might lead to precisely the form of restrictions on liberty that Sugden fears.Footnote 89 And in Sen's remarks about his reasons for not adopting a list of the sort that Nussbaum advances he worries that if such a list is ‘chosen without any general social discussion or public reasoning . . . emanating from pure theory’ that would ‘deny the possibility of fruitful public participation’.Footnote 90 The worry seems to be that the approach might be undemocratic and indeed potentially paternalistic in its implementation, if it adopts a list and does not allow many people's views of the good life a genuine voice in shaping it. The worry is similar to one expressed by those who have suggested that Nussbaum's list is not, in its current form, a good exemplar of an overlapping consensus. Of course, as we have seen, Nussbaum would not agree that Sen's concern would apply to her own list because she sees her list as the product of years of ‘cross-cultural discussion’. Nor would she accept that her list ‘emanates from pure theory’. What is clear is that both Nussbaum and Sen are concerned that their approach be applied in a way that is democratic and acknowledges (either implicitly or explicitly) the danger of paternalism. Their concern is compatible with the unease which drives Sugden's critique even if neither Nussbaum's position nor a broad interpretation of Sen's approach clearly falls foul of that critique.
CONCLUSIONS
Much of this article has been devoted to a detailed analysis of the claims made by Sugden about Sen and Nussbaum's distinct approaches. But are there more general lessons that can be learnt about how vulnerable these approaches or variants of them are to Sugden's critique? I think we can conclude as follows. Narrow versions of Sen's approach, to be defensible, should be modest in their scope. If they are not modest they fall foul of the critique. Protestations of such modesty are perhaps for this reason noticeable in Sen's recent writings. While this strategy works in limiting the bite of Sugden's critique it is clear that a narrow interpretation of the approach or one which is thin in the view it embodies can be used in conjunction with, or ‘broadened’ or ‘thickened’ with, the addition of other views which might make it illiberal and paternalistic (in an objectionable way). That is an important truth embodied in Sugden's critique. I have argued that those parts of Nussbaum's and Sen's writings which can be seen as constituting strategies which seek to thicken and broaden the approach by supplementing their writings on capability – in Nussbaum's case invoking Mill's harm principle or in Sen's invoking process freedom and public reasoning – go quite far in addressing this sort of worry. Sugden may not yet be convinced by these moves. But it is clear that in making them Sen and Nussbaum recognize the unease which motivates his critique.
