The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach

TODD SHAW Oklahoma State University

The capabilities approach has emerged as a legitimate alternative to the Rawlsian social primary goods approach within the field of human development theory. Martha Nussbaums brand of the capabilities approach has recently attracted criticism from Robert Sugden, who asserts that the capabilities lists treatment of adaptive preferences can lead to illiberal restrictions on individual desire. While Sugdens central concern for individual autonomy is relevant in weighing the merits of any human development theory, his interpretation of Nussbaums capabilities list is too narrowly construed. Consequently, Sugden does not view the capabilities approach as allowing people to act on their own desires if they do not harm others. Nussbaum, however, frames her capabilities list within a Millian perspective and places it in the context of Mills Harm Principle. Nevertheless, Sugdens critique is a valuable guide in weighing the merits of future developments of the capabilities approach.

Introduction In determining ideal political arrangements at domestic and international levels, political philosophers, development economists, and other scholars continue to debate what constitutes the proper metric of justice. This conversation seeks to establish a yardstick with which to compare differing states of affairs within nations in order to determine their relative level of justice. Ideally, this metric would aid in crafting legislation and public institutions in such a way to ensure optimal levels of justice for both the individual and society as a whole. As a recent essay notes, this conversation has included evaluating the distribution of happiness, wealth, life chances, and additional combinations of these and other factors.1 Two approaches in determining an appropriate metric of justice have emerged within the past several decades: the Rawlsian social primary goods approach and the capability approach. The latter approach continues to gain international momentum, most recently in its influence in developing the United Nations Human Development Index.2 Accordingly, the capabilities approach has recently invited both praise and criticism from scholars across a variety of fields.

H. Brighouse and I. Robeyn, Introduction," Measuring Justice: Primary Goods and Capabilities (Cambridge, 2010). 2 Ibid., p. 11. Specifically, Brighouse & Robeyn note the functionings and capabilities approach as the foundation for the UNs annual Human Development Reports. In addition, hundreds of localized Development Reports have

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British behavioral economist and philosopher Robert Sugden has published a range of essays which argue against the normative approach behind the capabilities theory. In particular, Sugden asserts that Amartya Sens approach towards the capabilities theory might lead to restrictions on individuals opportunities to pursue their desires. Sugden takes aim at Martha Nussbaums capabilities list as an example of a way in which collective judgments of the few even within the constraints of democratic institutions could lead to restrictions on individual autonomy. To explain his objection, Sugden discusses the phenomenon known as the adaptation problem. In doing so, he presents Nussbaums approach as well as a Millian approach, favoring the latter. While Sugdens initial concerns with the normative approach of Nussbaums project to the adaptation problem are well-founded, he fails to recognize that Nussbaum herself shares his sentiment. In particular, Nussbaum frames here solution to the adaptation problem within a Millian perspective sensitive to the Harm Principle. This paper seeks to further explore the legitimacy of Sugdens objections to Nussbaums approach, including his treatment of the adaptation problem. This will include a discussion of whether Nussbaum too hastily assumes that her solution to the adaptation problem has an overlapping consensus, or universalist perspective. The Capabilities Approach As noted, recent scholarship has produced two principal approaches to determining metrics of justice. These again include John Rawls social primary goods approach and Sen and Nussbaums capabilities approach. The first of these focuses on what Rawls identifies as things that every rational man is presumed to want resources including income and wealth, the social basis of self-respect, and freedom of movement.3 This approach aims to compare individual holdings of these resources and presents a method to allocate them to promote justice across social and economic strata. In response to Rawls method, Sen presents an approach that moves away from a determination of what resources each individual possesses. The capability approach asks what particular functionings each individual is able to achieve. Here, the proper metric of justice is not only the possession of social primary goods, but the opportunity one has to choose a life one has reason to value.4 Sen thus shifts from Rawls approach when he explains that
[a just] account would have to be taken not only of the primary goods the persons respectively hold, but also of the relevant personal characteristics that govern the conversion of primary goods into the persons ability to promote her ends. What matters to people is that they are able to achieve actual functionings, that is the actual living that people manage to achieve.5

And so the capabilities approach departs from an analysis of the holdings of primary goods to one that examines how individuals are actually able to convert these primary goods into their own beings and doings. Building on Sens movement away from a Rawlsian approach, Martha Nussbaum expanded the capabilities approach to encompass a definitive list of capabilities. While Sugden focuses primarily on Sens normative approach to the adaptation problem, he uses
been published since the early 1990s. Furthermore, Germany and Britain have operationalized the capabilities theory in several approaches to their own policies. 3 John Rawls, A Theory of Justice (Cambridge 1971), p. 54. 4 Amartya Sen, Equality of What?, Tanner Lectures in Human Values, ed. S. McMurrin (Cambridge, 1980) and reprinted in Amartya Sen, Choice, Welfare and Measurement (Oxford, 1982). 5 Amartya Sen, Development as Freedom, (Oxford, 1999).

The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach Martha Nussbaums capabilities theory to operationalize his critique of the capabilities theory in general. Thus, Nussbaums project will be further elaborated, including a more comprehensive description in the following section. Nussbaums Capabilities Theory Martha Nussbaums project is largely an attempt to give the capabilities approach teeth in order to underpin a set of constitutional guarantees in all nations. Thus, while retaining a large degree of Sens original work in the capabilities approach, Nussbaums approach is of a distinct variety. In assessing a states quality of life, Nussbaum examines the deficiencies in three common approaches in international development work. These include assessing quality of life by examining GNP per capita, measuring the total utility of the population, and looking at the distribution of basic resources to identify a fair social and political allocation. Nussbaum explains all of these as inadequate approaches in assessing the quality of life in any given state. For example, the GNP approach fails to identify the distribution of wealth and income and cant be said to be a proper assessment of how each person in that state is actually doing. The utilitarian approach also ignores each person in their own right, instead focusing on an aggregate number that represents a collective utility rather than that of each individual. While more promising, Nussbaum argues that Rawls distributive approach also proves inadequate. This approach embraces the idea of a just distribution of goods, but fails to acknowledge that each individual may not be able to convert these goods into actual capabilities. In addition, many citizens in every state need more of one particular resource than another, and some citizens may not need resources that others do. So even if these resources are distributed to all, certain inequalities still may not be catered to. As Nussbaum explains, if we operate only with an index of resources, we will frequently reinforce inequalities that are relevant to well-being. For example, a pregnant or lactating woman needs more nutrients than a nonpregnant woman. A person whose limbs work well needs few resources to be mobile, whereas a person with paralyzed limbs needs many more resources to achieve the same level of mobility.6 As these traditional approaches prove unsatisfactory, Nussbaum advocates an approach that respects each persons inequalities and treats each as an end that has worth in their own right. But rather than ends in their own right, women globally are often treated merely as a means to anothers end. As a feminist in political philosophy, it is this group of people that Nussbaums capabilities theory has in mind (although not to the exclusion of other groups of people). The inattention of laws and institutions to disparities in womens social and political circumstances results in lives unable to achieve basic human capabilities. Womens economic security is continually thwarted, as gender inequality in labor markets manifests occupational segregation and gender-based wage gaps. Indeed, over 60% of the worlds working poor is women. Other gender inequalities continue, resulting in unequal social and political circumstances. While a phenomenon almost exclusive to developing countries, over 70% of the worlds illiterate adults are women. Other factors work against womens capabilities, including disparities in political representation, legal status and property rights. This dearth of political representation, legal status and property rights is an excellent way to perceive of capabilities: are women in nation x capable of representing themselves politically?; are they capable of retaining a minimal status in the law?; are they capable of maintaining property rights?; and so on. In her book, Women and
6

Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge 2000), p. 69.

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Human Development: the Capabilities Approach, Nussbaum seeks to establish a project that provides a philosophical framework for detailing basic constitutional guarantees that all governments should respect and implement. Nussbaums study focuses primarily on the lives of women in developing countries, yet includes all humans in its approach of establishing basic capabilities. So while the approach to social and political problems is primarily feminist, Nussbaum grounds it in a universalist account of human dignity, and more generally, political liberalism. This approach seeks to establish a normative philosophical theory of humans as ends in their own right, justified in demanding basic human capabilities from their governments. This normative theory provides the underpinning in providing constitutional principles whose purpose is to protect these capabilities. Protecting these capabilities serves as a way to shape public policy, and in turn solve urgent problems of social and global justice. In establishing a truly workable theory, Nussbaum concedes that normative concepts that cross cultural, religion, and racial boundaries are needed. These universal concepts of human dignity are more than beneficial in comparing capabilities nation to nation, and determining these nations successes in promoting basic human capabilities. Nussbaum argues for this normative framework, stating that certain universal norms of human capability should be central for political purposes, so that these norms can provide the underpinning for a set of constitutional guarantees in all nations.7 But this task is burdened with intellectual and political troubles across several fronts, and often persuades a variety of critics to argue against establishing a normative framework. Before developing the capabilities approach further, Nussbaum considers these critics charges against universal values. The majority of criticism preceded Sugdens own, and understandably takes a slightly different tone in their objections. The first of these criticisms asserts that uses of a universal language of justice are inherently Western, and that implementation of such a normative framework is a concession to Western culture and bygones of colonial power. When feminists and other political and social movers advocate ideas including basic human capabilities, these critics accuse them of Westernizing. The body of a nation struggling for social and political liberty, then, concedes to fads of foreign ideas and shows disrespect for their cultural traditions. But, as Nussbaum displays, these critics seem to act as if those struggling nations were always happy, never enduring human suffering. This critique presumes of no fundamental rights or political liberties, construing them as alien colonial ideas. This charge of Westernization appears tenuous, and an argument from culture is next examined. The argument from culture asserts that a universalist account of values is insensitive to cultural norms, and that we should not assume without argument that those are bad norms, incapable of constructing good and flourishing lives for women.8 But if one moves beyond alleged assumptions, certain cultural norms are demonstrably damaging to human capabilities and subject women to substandard lives, in many cases devoid of any dignity. So it seems that an argument from culture fails to legitimize a critique against universal values. A second argument advocates the good of diversity, reminding us of the richness of our world because of every cultures distinctive beauty. If a universalist (and primarily American) approach is taken, the world would lose its diversity. Nussbaum responds, demonstrating that it is possible to preserve
7 8

Ibid., p. 35. Ibid., p. 41.

The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach distinct aspects of every culture without holding on to inhumane acts: We could think that Cornish or Breton should be preserved, without thinking the same about domestic violence, or absolute monarchy, or genital mutilation.9 And so Nussbaum turns towards an argument from paternalism. The argument from paternalism states that setting universal norms infringes on fundamental notions of political liberty, denying people autonomy as free agents. By telling people what is good for them, we disallow them to exercise their own free will. Yet arguments from paternalism ignore the compatibility of universal values and the respect of peoples choices. A universalist account takes central human dignity, and fervently advocates human autonomy by resting its theory on political liberal notions. Arguments from paternalism further ignore the necessity of a political system actually having to take a stand for human capabilities. Simply stating capabilities and notions of political liberalism arent enough: any state that is taken serious must take a stand on policies including the distribution of wealth, property rights, and some interference with activities that some would choose. How else could one exercise those rights proponents of paternal arguments advocate without the state being in a position to protect and promote those rights? As Sugdens primary objections are underscored with paternalistic tones, Nussbaums own responses to such arguments will be further examined. At last the capabilities approach is elaborated on, said to be a good guidance in addressing concerns for every person. The capabilities approach as developed by Nussbaum is recommended to underpin the writing of constitutional guarantees to establish basic political principles. Central to this approach is the idea that a threshold level of capabilities is available to every citizen. This threshold is a necessary condition for a just political arrangement. When this threshold of human capabilities is not met, human dignity is not protected, and it cant truly be said that each person can be identified as a true human being. And so this approach is different from others, as the capabilities sought are sought for each and every person, not, in the [previous] instance[s], for groups or families or states or other corporate bodies.10 The ultimate goal, then, is to promote the capabilities of each person, so that they may be treated as an end in their own right. Sugden on Nussbaum In a recent essay comparing Sen and John Stuart Mills approach to freedom and well-being, Robert Sugden levels several criticisms at Sens normative approach to economic and political prescriptions11. In doing so, he evaluates both Amartya Sen and John Stuart Mills accounts of desire, preference, and well-being. Without disagreeing that Mills prescriptions would produce any recognizable differences, Sugden nevertheless argues that Mills contractarian approach to policy offers a distinct advantage. Sugdens primary concern is that the capabilities approach could justify illiberal restrictions on liberty. Conversely, Sugden argues that Mills normative approach (in which individuals are given wide latitude in determining their own desires, rather than as Sen and Nussbaums approach favors a collective judgment regarding individual desires) shuts the door to restrictions on liberty. With the Harm Principle at the center of a
Ibid., p. 50. Ibid., p. 74. 11 Robert Sugden, What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on the Value of Opportunity (Cambridge 2006).
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normative approach, Sugden explains that the opportunity for these restrictions to arise does not present itself. It is true that both Nussbaum and Sens approaches are not entirely similar. Both readily acknowledge this fact throughout their scholarship the last several decades. Most recently, Nussbaum notes that her approach departs from Sens in several significant ways. These differences include Sens lack of justification for universal norms, the distinction between Nussbaums capabilities (basic, internal, combined), and Nussbaums conception of rights as understood as supplying side-constraints.12 Yet despite Sugdens criticism primarily aiming at Sens normative approach, his comments are applicable to Nussbaum as well. Sugdens central concern that Sens approach in collectively determining individual desires13 might not necessarily promote the desires individually possess resonates consistently with Nussbaum. Indeed, Sugdens criticism may be more relevant to Nussbaums flavor of the capabilities approach in that Sen, unlike Nussbaum, fails to produce an actual list of capabilities. Because of this, Sugdens argument against Sens approach can be seen as an argument against Nussbaums own approach. Thus, Sugdens argument accurately reflects concerns with Nussbaums capabilities theory as well. Sugden seeks to explain a fundamental distinction between the normative approach of Sen and through association Nussbaum and Mill make in their approaches to policy creation. Sugdens primary concern is that a particular list of capabilities will render the individuals desires irrelevant. Because the capabilities list is presumably underpinned in constitutions via collective determinations (through democratic instruments, as Nussbaum expresses) rather than individual ones, there may be instances in which the desire of individuals does not square with their alleged desires as predetermined in the capabilities list. Sugdens critique of the normative account of the capabilities theory begins with a discussion of several commitments shared by Nussbaum and Mill. These commitments are said to reflect the tone of Nussbaum and Mills accounts of human well-being. The first of these is the idea that freedom is one of the most important components of well-being. In addition, each share a second commitment that the satisfaction and/or dissatisfaction of desires a criticism of hard-line utilitarian approaches to comparing states of affairs - is not a good indicator of well-being. This is the case because processes of social and psychological adaptation can erode a persons desire for what, in reality, will give her wellbeing.14 As British philosopher-economist Mozaffar Qizilbash reemphasizes, these shared commitments produce a tension which Nussbaums capabilities theory seeks to solve:
There 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 paternalismBentham [and Mills] position[s] [are] attractive in providing an uncompromising defense of a certain kind of individual freedom the freedom to act on ones own preferences without being required to justify them to anyone.15

Nussbaum, Women and Human Development: The Capabilities Approach, pp. 12-14. Sen explains his proposal as the basic concernis with our capability to lead the kind of lives we have reason to value. See Sens Development as Freedom, p. 285. 14 Sugden, What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on the Value of Opportunity, p. 34 15 Ibid,. original print. Restated in Mozaffar Qizilbashs, Sugdens Critique of the Capability Approach, (Cambridge 2011), p. 33.
13

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The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach As a contractarian, Sugden is concerned with Nussbaums capabilities theory and its absolute rejection of a utilitarian preference-based approach to political principles. His fear is that individuals preferences will eventually have no relevance in determining which actions may or may not be lawful. It appears that Sugden reduces the capabilities theory to what Nussbaum categorizes as Platonism the view in which peoples desires or preferences lose all application. According to this view, desires and preferences have no applicability due to our knowledge of their unreliability as guides to what is actually just. Sugden insists that a Millian approach rather than an approach from capabilities would not need to provide an argument for the objective value of the relevant state of affairs that is independent of the fact that people desire or prefer it.16 Thus, both Sens reason to value formula and Nussbaums universalist approach to what constitutes well-being are said to justify making even radical departures from peoples actual wants. In addition, Sugden criticizes the method in which Nussbaum establishes objective preferences or desires. Nussbaum explains that certain universal normsshould be central for political purposes17 and that, indeed, universal norms have already been established. In what she calls an overlapping consensus, Nussbaum argues that while a plurality of existing cultures results in a near infinite amount of desires and preferences certain desires and preferences overlap across cultures. This consensus results in a defense of a universal account of desires and preferences. Nevertheless, Sugden argues that she does not tell us who participated in the discussion, how they were chosen, or how it was determined what the consensus of the discussion was.18 Here, Sugdens worry is that Nussbaum has predetermined an overlapping consensus of desires and preferences and used the alleged consensus to craft a political philosophy that might prohibit individual actions that fall outside of the scope of the consensus. Sugdens concern of the moral-observer position of Nussbaums capabilities theory seems to agree with certain moral intuition. His uneasiness with a list of capabilities reflecting a collective judgment regarding what an individual ought to desire and prefer is appealing. There is a palpable tension in the idea of a collective body, whether democratic or not, constitutionally underpinning a set of political principles which public institutions and the various branches of government are to respect and enforce. Most significantly, Sugden argues that Nussbaum too hastily concludes that an overlapping consensus exists regarding capabilities. As he discusses, Nussbaum assumes that universal rights exist that cross local, national, and transnational political boundaries. But do these rights truly enjoy such public regard as Nussbaum claims they do? After consideration, it seems that some just might. While certain capabilities might require more justification than others (e.g. the capability to enjoy recreational activities and the capability to live with concern for plants), an overlapping consensus of particular capabilities can be easily observed across a variety of cultures. These include being able to participate in political choices, protections of free speech, and the ability to hold property. The burden is on Sugden to explain the normative problems that arise when democratic institutions codify the individuals right not to be killed, not to be raped, etc. These basic capabilities are precisely what Mill has in mind when he articulates the notion
16 17

Nussbaum, Women and Human Development: The Capabilities Approach, p. 117. Ibid., p. 35. 18 Sugden, What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on the Value of Opportunity, p. 50.

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that the only actions for which man might be restricted are those that impinge on others autonomous actions. Even though a Millian approach takes no particular stance on individual preferences (unlike Nussbaums overlapping consensus, or Sens reason to value standard), Mills political prescriptions would result in capabilities not entirely dissimilar to Nussbaums.19 Indeed, the political process already has determined certain particular capabilities to be desired by every individual in society. It doesnt seem altogether reprehensible that laws have been created which codify particular capabilities. In particular, the capability to possess bodily integrity forbids assault, battery, and rape, and the capability to possess life forbids the intentional killing of fellow humans. While the inclusion of these various capabilities does not at first glance justify their normative existence, they at least give pause to Sugdens critique that capabilities in particular Nussbaums capabilities theory - give rise to illiberal restrictions on individual autonomy. Another rejoinder would note that Sugdens critique (that the codification of particular capabilities in constitutional documents) would actually reverberate particularly well with his Millian sentiments. Nussbaums project is designed in a way to ensure the flourishing of all humans within society, regardless of their particular desires. Her position simply maintains that there are innate/universal desires which precede all others. Is this claim of opportunity of freedom truly as crucially different as Sugden suggests? Sugden notes that his attraction to Mills approach is based on general rules which allow each individual as much freedom as possible to choose between alternative ways good, bad, or inefficient of living her own life. One might ask, with this in mind, why he isnt equally attracted to Nussbaums approach. The codification of general rules to allow individuals freedom to pursue their own desires is the central goal of Nussbaums project. While Sugden has great reservation in normative assumptions about individual desire, he himself assumes that an innate desire of humanity is to be able to choose their own desires without interference. What about this assumption is crucially different than Nussbaums? Sugdens normative account of humanity that humans ought to be able to pursue their own desires, within certain constraints is shared by Nussbaum. The distinction between Nussbaum and Sugden is Nussbaums insistence on including a particular list of capabilities within constitutional documents, rather than a vague recognition of them with a single principle (Harm Principle).

The Adaptation Problem and Sugdens Critique Nussbaums recent work is replete with examples of instances in which individuals desires and preferences stand in stark contrast to objective accounts of what constitutes well-being. Her work in India highlights three females whose preferences had contorted into such a way that they were not an accurate reflection of the level of their own well-being. As Nussbaum explains, entrenched preferences can clash with universal norms even at the level of basic nutrition and health.20 These instances represent the brunt of criticism against Rawlsian approaches in determining appropriate metrics of justice: applying the metric of utility derived from an
19

It ought to be noted that Nussbaum herself admits that there are particular instances in which functionings, rather than capabilities, ought to be established. This is outside of the capabilities argument, and is indeed subject to paternalistic objections. 20 Nussbaum, Women and Human Development: The Capabilities Approach, p. 113.

The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach individuals happiness, desires, or preferences is not always a suitable basis with which to evaluate well-being or advantage. Indeed, this phenomenon, referred to by Mozaffar Qizilbash as the adaptation problem, is Nussbaums primary impetus in pursuing the capabilities approach in developing nations. Instances abound in which individual preferences adapt to what outside observers can recognize as deplorable situations. These contorted desires are known as adaptive preferences and lead to inaccurate representations of individual states of affairs if taken at face value. What makes adaptive preferences an adaptation problem is the tension Sugden notes, mentioned earlier herein. Another method in understanding the adaptation problem is Jon Elsters close identification of adaptive preferences with another phenomenon: sour grapes.21 As La Fontaines version of the tale goes, the fox who, dying of hunger believes to see what he thinks are ripe grapes decides to abstain from eating the grapes because he decides that they are too green. As Qizilbash notes, this fox and grapes example highlights the way in which preferences may not be independent of the set of feasible options.22 This example demonstrates the weakness in assessing well-being in a purely utilitarian fashion. Elster explains this point, noting that there would be no welfare loss if the fox were excluded from the consumption of the grapes, since he thought them sour anyway.23 In other words, the fox, having desired the grapes and seeing that he cant get them, judges that they are sour. Nussbaum comments that Elsters account of adaptive preferences accurately reflect the idea that such preferences are formed without ones control or awareness, by a casual mechanism that isnt of ones own choosing.24 The fox-and-grapes tale illustrates the real problem of adaptive preferences in determining outcomes that will leave one the most well off. Perhaps more illustrating is the example in which, in 1944, the All-India Institute of Hygiene and Public Health surveyed widows near Calcutta, India. As Nussbaum notes, a mere 2.5% of widows ranked their health as ill, while none ranked their health as indifferent. Of course, by any objective medical standard the widows health was quite worse than the widows themselves determined. Here, adaptive preferences led to less than ideal outcomes (or in Nussbaums language, a lack of knowledge about what constitutes the universal threshold of available capabilities) which resulted in grossly inaccurate appraisals of self-well-being. An immediate reaction would be to elevate these widows from their entrenched state. Nevertheless, a genuine concern for adjusting these widows cultural preferences, regardless of these preferences being adaptive or not, without their consent led to no increase in their capabilities. This, then, is a perfect illustration of the tension posed by adaptive preferences: real concern for changing individuals adaptive preferences into objective accounts of what is universally preferred, without coercing those individuals into changing their own behavior should they not want to. Thus, political philosophers, development economists, and others working in the larger field of social philosophy are confronted between the respect for the freedom or autonomy of the individual and the desire to raise those suffering from adaptive preferences out of their entrenched position. The goal, of course, is to establish a state of affairs in which a threshold, or
21 22

For a full discussion, see Jon Elsters Sour Grapes: Studies in the Subversion of Reality (Cambridge, 1983). Mozaffar Qizilbash, The Adaptation Problem, Evolution, and Normative Economics (Jena, 2007-2008), p. 4. 23 Elster, Sour Grapes: Studies in the Subversion of Reality. 24 Nussbaum, Women and Human Development: The Capabilities Approach, p. 137.

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bare-minimum of well-being is established. In this state, regardless of adaptive preferences, individuals would be able to pursue a life with a reasonable value of well-being. The ultimate challenge to those working in the development field, then, is to preserve individual autonomy while addressing the adaptation problem, without falling into charges of paternalism. With this objective in mind, Nussbaum explains that the capabilities theory rejects the utilitarian preference-based approach because it fails to recognize the instances in which individuals fall into the adaptation problem. Rather, Nussbaum favors the capabilities theory because of its ability to provide critical scrutiny into situations in which peoples seemingly autonomous choices are actually mired, leading to a life below any objective measure of well-being. As she describes, the approach from functioning and capability reveals the many ways in which habit, fear, low expectations, and unjust background conditions deform peoples choices and even their wishes for their own lives.25 As a result, her approach to the adaptation problem recognizes that individual preference and desire are not fool-proof metrics of justice. Because of this, her project of establishing an overlapping consensus, or universal recognition of basic preferences and desires, is needed. Nussbaums method in solving the adaptation problem without falling into charges of paternalism is to establish a non-exhaustive list of central human functional capabilities. These include but are not necessarily limited to the following: life, bodily health, bodily integrity, senses, imagination & thought, emotions, practical reason, affiliation, relation to other species, play, and control over ones political & material environment. These capabilities are phrased in such a way to provide the opportunity or ability to act on them, within reason. Nussbaum certainly recognizes the concept of Mills Harm Principle, and advocates that ones capability to act in such a way has specific parameters. These parameters are the capabilities of other persons. Ideally constitutionally underpinned as political principles (and enforced proactively), Nussbaums solution to the adaptation problem is complete.26 This approach to the adaptation problem has invited several objections from Robert Sugden. Concerning Nussbaums capabilities theorys response to the adaptation problem, Sugden poses three principal objections. The first of these that the capabilities approach assumes that an overlapping consensus, or universal account of what people desires exists has been discussed. Sugdens second critique states that in some cases, the capabilities approach in effect decides which opportunities are to be promoted even when some people (who are adapted or illinformed) do not see them as valuable or desirable. Finally, Sugden asserts that the capabilities approach leads to restrictions of the satisfaction of adaptive preferences by telling people what they can and cannot do. Sugdens primary worry with Nussbaums approach to the adaptation problem is that individual autonomy will not receive an appropriate level of respect if the capabilities approach were adopted. If it can be observed that one is acting in such a way that runs contrary to an overlapping consensus of desires one ought to have reason to value, they can be questioned and in some extreme cases perhaps overridden. Perhaps one finds utility in actions that one ought not to have reason to value. Drinking, smoking, and other unhealthy habits are an objectively poor
Ibid., p. 114. See Nussbaums discussion of the current state of affairs in India: quite poor despite a comparatively liberal constitution. She blames this on poor constitutional recognition throughout the nation.
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The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach decision. These decisions can result from a lack of relevant health information, but an adaptation of preferences seems more relevant an explanation. Nevertheless, these decisions can and do fulfill the desires of millions of seemingly fully-autonomous individuals. Qizilbash puts it simply, explaining that a disadvantaged person may have learnt to find pleasures in small mercies, and the enjoyment of smoking may be one of the consolations of a difficult life.27 Sugden worries that in these instances the capabilities theory can devalue and ultimately override the satisfaction of these desires:
these are not the sort of activities that are likely to appear on a philosophers list of valuable functionings Indeed, they seem to be just the sort of that that Nussbaum has in mind when she says that [t]o use ones senses in a way not infused by the characteristically human use of thought and reason is to use them in an incompletely human manner.28

Instead of a normative approach that might allow restrictions on the satisfaction of desires in such instances, Sugden advocates a Millian approach. Sugden is very particular in advocating for political prescriptions that make absolutely no objective account of what one ought to have reason to value. Instead of establishing an overlapping consensus, he calls for a normative approach that gives one the opportunity to act on any desire they might have, regardless if they have reason to value it or not. These prescriptions acknowledge the idea that man ought to have the ability to extend himself and his abilities as far into the universe as possible, so long as those extensions do not impinge on others abilities to do the same. Sugden argues that this sentiment would result in neither Sens reason to value formula nor Nussbaums list of capabilities. Sugdens various objections to Nussbaums approach to adaptive preferences seem to ignore several components of Nussbaums normative account. For example, Nussbaum explicitly acknowledges and respects the governments choice to permit actions in which no harm is done to others. In fact, it is hard (if not entirely impossible) to conceive of instances in which the satisfaction of ones desire without harming others would run afoul with the actual capabilities on Nussbaums list. Codifying in some way the capability to live, to possess good health, to move freely from place to place, to use the senses in a truly human way, to love those who care for us, to affiliate with others, and the remaining capabilities do not seem to impinge on ones opportunity to satisfy their adaptive preferences. Nussbaums solution to adaptive preferences is not one of denying the opportunity to satisfy these preferences. This is an important point that Sugden does not acknowledge. Accordingly, it would seem incompatible with Nussbaums normative approach to restrict the satisfaction of individual desires (again, with the caveat that these satisfactions concern only the individual). What Nussbaums list fulfills is the opportunity for one to be free from instances in which they could not pursue these capabilities. This point acknowledges the idea that virtually any law poses at least some restriction on individual freedom. But this point gives no antecedent reason for asserting that these restrictions are illiberal in a Millian sense. It appears that Sugden is arguing that it very well may. Yet Nussbaum freely admits that it might be paternalistic to state that, sorry that [action] is unacceptable.29 She acknowledges that this tells people how to conduct
27 28

Qizilbash, Sugdens Critique of the Capability Approach, p. 42. Sugden, What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on the Value of Opportunity, p. 44, citing Nussbaums Women and Human Development: The Capabilities Approach, p. 82. 29 Nussbaum, Women and Human Development: The Capabilities Approach, p. 53.

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their lives with one another, in a way that may run counter to actual desires.30 Most importantly, she states that if preventing harm to others demands such admonitions, then any bill of rights is paternalistic vis--vis families, or groups or practicesif paternalism means simply telling people that they cannot behave in some way that they have traditionally behaved and want to behave.31 Sugdens critique that the capabilities list decides which opportunities are to be promoted can be granted. Insofar as Nussbaums approach lists actual capabilities, Sugden is correct on his first objection. He seems to claim that this point in some way leads to restrictions on ones freedom to do whatever they may choose. However, the decision to promote particular capabilities over others does not necessarily lead to the conclusion that individual preferences will be forbidden. Nussbaum is careful to explain that the list is non-exhaustive and open for this very reason. Sugdens final objection that the capabilities list could lead to restrictions on the satisfaction of adaptive preferences by telling people what they can and cannot do is rather tenuous. If the list of capabilities actually told people what to do, the satisfaction of adaptive preferences would be restricted. But the list doesnt tell individuals what they can and cannot do it simply gives them the capability to do those particular things. This response to Sugdens critique is made clear through Nussbaums clear distinction between functioning and capability. This distinction pulls us away from Sugdens claim that the capabilities approach enforces an objective account of desires that could lead to illiberal restrictions on individual desires. Nussbaum takes time in distinguishing between the capability to do or to be and actual functionings. For example, she states that the capabilities theory is not designed to push individuals into the function: once the stage is fully set, the choice is up to them.32 To the adaptive preferences of enjoying smoke or drink in excess (and again the majority of instances which do not harm others), Nussbaums approach would not forbid them. It is fundamental to recognize that her goal is capability and not functioning. If one has through a constitutional guarantee via the capabilities theory the capability to have the social basis of self-respect and non-humiliation, their preference for selfdisrespectful or humiliating actions would not be forbidden .33 Additional examples abound. For example, the mere fact that one has the capability to be able to have good health does not result in the conclusion that a person must refrain from activities that dont lead to healthy outcomes.34 Sugdens narrow interpretation of capabilities would seem to interpret the opportunity for sexual satisfaction no differently than a decree requiring sexual satisfaction. This is so because he fails to make a real distinction between capability and functioning. But this distinction is paramount to understanding Nussbaums sensitivity to paternalism. This sensitivity results in her sentiment that citizens must be left free to determine their own course.35 Thus, she answers in the negative to the question of whether her approach instructs the government to nudge or push people into functioning of the requisite sort, no matter what they prefer.36 As a result, the general sentiment behind Sugdens objection s to Nussbaums approach to adaptive preferences is problematic.
30 31

Ibid., p. 53 Ibid., p. 53 32 Nussbaum, Women and Human Development: The Capabilities Approach, p. 88. 33 See Nussbaums capability 7.B., Women and Human Development: The Capabilities Approach, p. 79. 34 See Nussbaums capability 2, Women and Human Development: The Capabilities Approach, p. 78. 35 Nussbaum, Women and Human Development: The Capabilities Approach, p. 87. 36 Ibid., p. 87.

The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaums Capabilities Approach

Conclusion In large part, this article is concerned with addressing Sugdens concerns with Sen and Nussbaums normative approach to the capabilities theory framed within the context of the adaptation problem. In regards to Sugdens worry that such an approach can lead to illiberal restriction on individual desire, he can rest assured that a capabilities list as prescribed by Nussbaum would generally stay within the boundaries of his and Mills respect for autonomy. 37 An important question posed by Mozaffar Qizilbash asks if more general lessons can be learnt about how vulnerable current and future variants of Nussbaums specific approach are to Sugdens critique. With any human development theory, it is crucial to emphasize the autonomy of the individual. When collective determinations of desire, opportunity, and capability are made that violate individual autonomy, charges of paternalism and illiberalism are relevant and require immediate justification.

Such a list would again, generally, not run afoul of Sugdens primary worry. Nevertheless, Sugden might take issue with Nussbaums assertion that there are instances in which functionings ought to be mandated by the government. For example, Nussbaum states that meaningful capabilities as an adult requires actual function in childhood. This would permit the government to enforce certain compulsory actions and would certainly restrict the scope of individual choices in some situations. However, these situations are restricted to children, and adults who are incapable of full mental power. An example of the former is a requirement for primary and secondary education.

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References Brighouse, Harry, and Ingrid Robeyns. "Introduction." Measuring Justice: Primary Goods and Capabilities. Cambridge, England: Cambridge UP, 2010. Print.

Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge UP, 2000. Print. Qizilbash, Mozaffar. "Sugden's Critique of the Capability Approach." Utilitas 23.1 (2011). Print.

Qizilbash, Mozaffar. "The Adaptation Problem, Evolution and Normative Economics." Max Planck Institute of Economics, Evolutionary Economics Group (2007-2008). Print.

Rawls, John. A Theory of Justice. Cambridge, MA: Belknap of Harvard UP, 1971. Print.

Sen, Amartya. Development as Freedom. New York: Anchor, 2000. Print.

Sen, Amartya. "Equality of What?" The Tanner Lecture on Human Values. Stanford University, Palo Alto. 22 May 1979. Lecture.

Sugden, Robert. "What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on the Value of Opportunity." Utilitas 18.1 (2006). Print