Note: This is the fourth in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005). Comments are encouraged on parts or on the whole.
One might grant all these facts and their importance without being persuaded that there is any need for a capability-based approach in order to analyze them and make recommendations for progress. So, why capabilities? If we compare the capability approach to previously dominant approaches to development, the answer seems obvious. Thinking of development as the increase in Gross National Product per capita not only does not reach these problems, it positively distracts attention from them (see Nussbaum, 2003b). Approaches that conceive of development’s goal as the satisfaction of existing preferences do considerably better, since violence and the fear of violence inflict enormous pain and suffering. But they, too, fall short, for five reasons. First, because they aggregate the diverse elements of a person’s good, they are unable to give separate salience to the issue of violence; nor can they draw sufficient attention to the way in which it affects many diverse and heterogeneous components of a woman’s life. Second, because such approaches also aggregate across persons, they typically do not give enough salience to the special vulnerabilities certain groups and people face because of who they are; the problem of violence against women becomes simply a part of the whole calculus of satisfaction and dissatisfaction. Third, without importing some independent moral factors, preference-based approaches have no way of excluding from the social calculus the very considerable pleasure and profit men have always derived from using women in these ways. The pain suffered by men at the introduction of laws against marital rape, sexual harassment, and date rape is very intense, as debates in many nation show. A true Utilitarian will have to count it (see Nussbaum, 2000, ch. 2). (John Stuart Mill’s  failure even to mention this factor in The Subjection of Women is the clearest sign of his apostasy from Benthamite Utilitarianism, although one rarely mentioned by interpreters.) Fourth, as John Stuart Mill and Amartya Sen have both pointed out, women often exhibit ‘adaptive preferences’, preferences that adjust to their second-class status (Mill, 1869; Sen, 1995; and many other publications). Thus, even if they experience some pain at physical violence, they may not experience the additional pain of thinking that their rights have been violated; and some kinds of violence, sexual harassment for example, may not feel like violence at all to someone who has been thoroughly taught that this is women’s lot. Finally, an approach that takes the goal of development to be satisfaction shortchanges the element of agency that is so crucial in thinking about what violence takes away from women. What is wrong with rape is not just the pain and suffering it inflicts, it is the way in which it puts the whole capacity of practical reason and choice in disarray, requiring, as philosopher Susan Brison has memorably written in her book Aftermath, about her own rape and its consequence, the “remaking of a self” (Brison, 2002).
So much for preference-based approaches. But what of human rights approaches, which, obviously, have been in the forefront of attempts to describe and combat the problem of violence against women internationally? The capabilities approach as I have developed it is, in my view, one species of a human rights approach. Like other human rights approaches, it attaches intrinsic importance to the entitlements it specifies, and it considers them as plural and heterogeneous, non-commensurable, and all of central importance to basic justice. But the emphasis on seeing rights as capabilities has some consequences that are particularly helpful in this area, four in particular. First, the capabilities approach makes it clear that securing a right to someone requires making the person really capable of choosing that function. It thus invites inquiry into subtle impediments to women’s functioning and to the interlocking effects of various areas of functioning on one another. The analysis presented in the previous section informs us that a nation that gives women a nominal right to free speech, or political participation, but does nothing about the problem of violence, has failed to secure women these political rights in the sense of capabilities. Some human rights approaches treat rights as atomistic, or do not invite such connected inquiry.
Second, a related point, the capabilities approach, by foregrounding the actual ability to do or to be, makes it clear that all human rights have an economic and material aspect. It thus calls into question the often-used distinction between ‘first-generation’ and ‘second-generation’ rights. Political freedoms are seen as closely connected to issues of material and bodily security, prominently including security against violence, and both of these are seen as closely connected to economic empowerment. (Recall the story of Vasanti, in Nussbaum [2000, Introduction and passim] who could leave a physically abusive marriage only because of a Self- Employed Women’s Association (SEWA) loan; and it was only then that she was able to participate actively in politics.)
Third, some human rights approaches have reinforced the traditional distinction between private and public spheres, and this, I claim, is no accident. The discourse of human rights originated in Western societies that relied strongly on the private/public distinction; the sphere of rights was typically imagined as the public sphere, and the family was typically imagined as a private sphere to which the discourse of rights had no applicability. Indeed, this way of thinking of rights has been one of the major impediments to winning recognition for women’s rights as human rights. The concept of capabilities has no such baggage to jettison, and the idea of being able to do or be something is obviously applicable inside the family, as well as outside of it. From the beginning, in Sen’s fundamental work on gender and cooperative conflicts, the approach has been aimed at diagnosing and foregrounding inequalities that women suffer inside the family.
Finally, the capabilities approach does not rely on a distinction very traditional in the discourse of human rights, between state action and state inaction. As I have also observed (Nussbaum, 2003b), the notion of human rights developed in very close relation to the notion of ‘negative liberty’, or freedom from interfering state action. That is, the state that does nothing is taken to have secured human rights, and human rights are bulwarks only against an oppressive or interventionist state. Impediments supplied by the market, by local governments, or by private individuals are traditionally not seen as violative of human rights. The US Constitution provides a clear case: its all-important guarantees of freedom of speech, freedom of religion, and so on, are put in terms of what the Federal government may not do. Until after the Civil War, there was no barrier to the violation of those rights even by individual state governments, and indeed quite a few states had an established church. After the addition of the Fourteenth Amendment, the Bill of Rights was ‘incorporated’; that is, understood to apply to the states as well. But incorporation was a long and gradual process, and it never reached discrimination by private actors. Sexual harassment, for example, is illegal only because of legislative action, and not as a constitutional matter.
The capabilities approach rejects utterly the misleading notion of ‘negative liberty’: people, especially women, are not free if they are left alone by a lazy state. It also rejects the associated distinction between action and inaction. The state that does nothing has made its choice, namely to do nothing: and of course the protection of even a minimal set of liberties, such as my most radically libertarian colleagues approve, does require affirmative state action, protecting property, a system of contract, and the rule of law itself. The capabilities approach insists that all fundamental entitlements require and deserve state action for their protection, and that all must be supported, or else basic justice, minimal justice, has not been done. The benchmark is not absence of intervention, it is actual capability: people must be put in a position in which they can really do or be the thing in question.
The problem of violence against women makes this issue especially vivid. For violence, as I have argued, is a major area of unfreedom for women, affecting all of their other major capabilities. And yet relatively little of this violence is inflicted directly by the state. Strong and interventionist state action is needed to establish that rape, including rape within marriage, is a serious crime; to get the police to treat domestic violence seriously; to give women remedies for sexual harassment; to stop trafficking and forced prostitution; to end the scourge of sex-selective abortion. And indeed, as Gujarat showed, state action is needed to stop the mass torture and rape of women: for Gujarat was a crime of state negligence, not (at least not directly) of state tyranny. The major improvements reported by the Human Development Report 2000 and the Special Rapporteur in the area of violence against women are all in the direction of more state interference with private behavior: tougher laws against rape, laws against sexual harassment, more police intervention in the home, vigorous efforts against trafficking.
I do not mean to suggest that the particular type of human rights approach developed by the United Nations Development Programme and Sakiko Fukuda-Parr, and used in Human Development Report 2000, has the failings I mention (United Nations Development Programme, 2000). It clearly does not. But, given the international prominence of the American ‘negative-liberty’ approach and the private–public distinction that so often accompanies it, and given the historical linkage between the discourse of human rights and these baneful concepts, it is just as well to supplement (not replace) the language of human rights with the language of capabilities, spelling out these critical points explicitly and articulating a version of the state that is subtly different from the one contained in some eighteenth-century documents of great influence.