Given the rise of the mantra of globalization and more flexible and competitive labor markets that have so dominated contemporary discourse in the West, advocates of social justice desperately need carefully formulated and rigorous theories that can point the way to a better world of equality and dignity. We need visions of social transformation that are at once broad in scope yet sufficiently detailed to be credible.
One such effort is Martha C. Nussbaum’s ambitious new volume, Frontiers of Justice: Disability, Nationality, Species Membership (2006), which raises many deep philosophical, legal and political questions about the meaning of equality and social justice. A prominent philosopher and legal scholar at the University of Chicago, Nussbaum examines the implications of equality for three specific and disparate dilemmas which she argues lie at the frontiers of contemporary justice: equality for people with disabilities, equality for people regardless of their nationality, and animal rights. What links these themes for Nussbaum is their neglect by John Rawls in his influential Theory of Justice (1971).1 Nussbaum argues that a Capabilities approach, which evaluates how a particular individual or society measures across a diverse range of specified criteria, can make possible a richer theory of equality.
While I have some reservations about Nussbaum’s interpretation of the Capabilities approach, I believe that advocates of working-class democracy can use and adapt the concept for our own purposes. I will explore the usefulness and limitations of this approach for the empowerment of people with disabilities, an issue long ignored and marginalized on the political left. I then consider its relevance for understanding issues related to global poverty. In order to fully understand the potential of the approach, however, it is first necessary to consider the limitations of Rawls’s contractarian theory of “justice as fairness.”
Understanding the Capabilities Approach
In his Theory of Justice, Rawls, seeking a counterpoint to the once dominant utilitarian tradition, imagines a society where free, equal and independent parties would develop principles of justice. Mutually disinterested contracting parties would make their decisions behind a veil of ignorance with respect to characteristics such as their socio-economic position, race, gender and disability status (Rawls 1971: 126-30; Dworkin 1975: 46f; Malhotra 2006b: 74). They would also not be aware of any particular conception of the good life nor the details of any specific life plan. Under such conditions (what Rawls calls the Original Position), the parties would produce two principles of justice. Under the first principle, each person has an equal right to the most extensive total system of liberties that is compatible with a similar system of liberty for all. Under the second principle, also known as the Difference Principle, social and economic inequalities are to be arranged so that they are (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of equality (1971: 302).
Nussbaum argues that people with disabilities, citizens of developing countries, and animals cannot achieve equality under the Rawlsian framework because, inter alia, (i) the types of relationships that would form between “standard” individuals and members of these three groups could not be characterized as generating the same mutual advantages, and (ii) members of these groups inherently do not meet the criteria of being free, independent and equal (2006: 87-90). She therefore articulates the Capabilities approach that she and others, including the noted economist Amartya Sen, developed in the course of complex debates spawned by Rawls’s work (Nussbaum 2006: 69; Hubbard 2004: 1012-17). She argues that, although closely related to Rawls’s paradigm, the Capabilities approach is better suited than Rawlsian “justice as fairness” to achieve equality for the three marginalized groups. Such an approach would critically evaluate how the individual in question was faring in accordance with a long list of capabilities quite similar to the rights contained in many international human rights conventions, such as the capability of living a full life, the capability of bodily health and freedom of movement, and the capability of affiliation. It also includes some more abstract capabilities such as the capability of practical reason and the capability of senses, imagination and thought (Nussbaum 2006: 76).
How would the Capabilities approach make a difference in practice? Traditionally, one’s standard of living was measured by one’s ability to purchase a basket of commodities. Sen referred to this as the Opulence approach. Another typical measure was to evaluate standard of living by the maximization of desired utility, whether this is expressed in terms of happiness or some other preferred utility function. Capability, in contrast, can be regarded as a combination of an individual’s personal characteristics (such as age or physiological impairment), the basket of purchasable goods, and the individual’s environment in the broadest sense (Mitra 2006: 237f). Consistent with Marx’s 1844 Economic and Philosophical Manuscripts, the Capabilities approach would encompass “truly human functioning” and thereby provide a richer sense of equality (Nussbaum 2006: 74). It allows one to get beyond the stultifying debates about identical treatment and equality of opportunity by recognizing that the cost of translating a given basket of goods into capabilities varies dramatically depending on an individual’s environment. It clearly provides a more accurate picture of well-being than one would get by simply examining income, because even an enormous income is irrelevant if one completely lacks the capacity to transform it into capabilities that one can use (Mitra 2006: 241).
While a full account of what some have called the “Equality of What” debate (Callinicos 2000: 52f) would be beyond the scope of this essay, it is important to acknowledge that the Capabilities model developed by Nussbaum and Sen has made a real contribution to social theory. The Capabilities approach provides a richer sense of equality that better enables marginalized groups, including people with disabilities, to advance their claims. By providing a multi-dimensional approach to equality that thoroughly assesses how an individual is faring with respect to so many different variables, it acknowledges that an identical share of resources may benefit two different people in dramatically disparate ways (Callinicos 2000: 56). The Capabilities approach not only raises the threshold of a truly just society, but also allows for a more coherent and finely tuned set of demands to be raised in the short run. Time and again, real reforms that have ameliorated the effects of capitalism on the working class have been found to be wanting with respect to particular segments of society. Esping-Andersen’s (1999) vivid account of how certain types of welfare states empower women‘s participation in a polity while others seriously harm their interests is one illustration.
Thus, a given allotment of food may be adequate nutrition for a 45-year-old male who works in an office but may be entirely insufficient for a pregnant female or for a man who performs heavy physical labor on a daily basis (Nussbaum 1997: 284). Sen’s research on capabilities has even led the United Nations Development Program to develop more complex indicators to more accurately measure wealth in developing countries than the crude and often misleading statistics contained in Gross National Product data (Callinicos 2000: 59). In acknowledging the profound effect of the environment on a human’s ability to flourish, the Capabilities approach parallels the scholarship of disability rights theorists who maintain that one must critically examine the structural barriers in society – such as a lack of wheelchair ramps, or of informational materials accessible to those with visual impairments – that handicap people with disabilities and leave many of them living in poverty and unemployment. This notion of disability as social construct, widely known as the social model of disablement, has become the unifying principle of a disparate collection of activists and theorists who seek to empower people with disabilities in every sphere of life (Fleischer & Zames 2001).
Although there is clearly no single social model of disablement and although disability theorists themselves disagree on the relative weight to assign to structural factors (Mitra 2006: 237f), the important point to grasp is the primary role that structural barriers play. In many respects, the emergence and articulation of the social model of disablement was pivotal for the social movements that fought tenaciously, including through weeks-long sit-ins at government offices, for major reforms such as the 1977 release of the regulations pursuant to section 504 of the Rehabilitation Act and eventually for the historic Americans with Disabilities Act (ADA) of 1990 (Shapiro 1993: 64-69).
The Disability Rights Movement
To fully appreciate the significance of the social model of disablement and the need for a Capabilities approach, it is necessary to take a step back and more closely examine the history of discrimination against people with disabilities. This is a crucial first step because issues of disablement are often not even perceived as political issues but dismissed as technical problems to be handled by the medical rehabilitation system. It is even rarer to find scholarly accounts of disablement that employ a basic understanding of political economy from a materialist perspective. The medical model of disablement has focused on treating and, where possible, curing the impairment of the disabled person rather than examining structural barriers. I suggest that the emergence of the medical model was, in fact, originally a revolutionary advance of the Enlightenment. In medieval times, the birth of people with disabilities was often attributed to the mother’s support for satanic beliefs or seen as a symbol of witchcraft (Barnes 1991: 12f). The development of a body of scientific knowledge and medicine that could explain the causes of various disabilities constituted a landmark achievement.
Nevertheless, over time the hegemony of the medical model has contributed to a number of dysfunctional policies that have been deeply harmful to people with disabilities. As famously described by Karl Marx in Volume I of Capital, there was a massive growth of factories where workers were expected to complete physical tasks according to a rigid schedule as the capitalist sought to both lengthen the working day and maximize the productivity of each minute of paid labor (ch. 10). This imposition of a specific requirement of strength, agility and dexterity inevitably excluded those whose disabilities prevented compliance with the onerous regime. People with disabilities who had, notwithstanding the prevalence of religious superstition, participated in labor markets in feudal times were now either confined to the margins of the labor market or completely driven out simply because they failed to comply with the standard body required for capitalist production (Russell & Malhotra 2001: 212f). Institutionalization of many people with disabilities in a variety of coercive settings, including workhouses, asylums and hospitals, became more common. Sexual and physical abuse was unfortunately often a feature of life in such settings (Sobsey 1994: 94-96).
Simultaneously, the intellectual influence of Social Darwinism and the popularity of eugenics also played a significant role in shaping disability policy in the 19th and early 20th centuries. Advocates of eugenics sought to create an optimal human race and were terrified at the menacing prospect of people with disabilities living freely in the community who would reduce the quality of the race through reproduction of descendants with disabilities, particularly intellectual disabilities (Weber 2004: 157-60). The idea that intellectual disability posed a threat to the efficiency and well-being of capitalist society by reducing its “mental hygiene” and increasing the risk of juvenile delinquency and prostitution led to a number of reactionary policies, including the institutionalization of many people with intellectual disabilities, the introduction of questionable intelligence testing in public schools to exclude those who were labeled “mentally retarded,” and the sterilization of many people with disabilities (Watkins 1995). In the United States, thirty-three states enacted sterilization laws and the Supreme Court infamously upheld a Virginia statute authorizing compulsory sterilization in the decision of Buck v. Bell (1927). Eventually tens of thousands of people with intellectual disabilities were sterilized (Russell & Malhotra 2001: 213).
The racist and xenophobic overtones of eugenics were unmistakable. This was particularly evident in the screening of immigrants with disabilities to ensure that such “undesirables” did not reduce the quality of the race. In fact, steamship companies employed their own screening systems because they were liable for the expense of returning immigrants who were rejected by inspectors on medical grounds (Weber 2004: 156f; Baynton 2000: 404-06). Even a President of the American Federation of Labor advocated immigration restrictions because of concerns that immigrants with physical and mental disabilities would undermine American productivity (Baynton 2000: 405). Eugenics was ultimately discredited in the aftermath of the Holocaust, in which large numbers of people with disabilities were systematically murdered (Russell.1998: 22-27). But overwhelming barriers remained in the areas of housing, transportation and employment, as policy continued to focus on curing individual impairment.
One overlapping theory that has also been deeply problematic is what some have called the economic model of disablement. This posits that disablement is best regarded as representing human capital deficits that need to be fixed in the most cost-efficient manner (Scotch & Shriner 1997: 154). Disability therefore becomes an administrative category that signifies a boundary between some people with disabilities who are streamed to work and others who are deemed unfit to work and consigned to a life on welfare. An entire bureaucracy has sprung up with endlessly complicated rules to govern welfare provision for people with disabilities (Oliver 1990: 40). Unfortunately, the economic model has premised its policy interventions almost entirely on altering the disabled person to better fit the existing labor market. It too marginalizes most people with disabilities and simply reinforces the emphasis of the medical model on ameliorating impairment. And of course its theoretical edifice is constructed entirely around neo-classical economics.
It was in this context of systemic discrimination in multiple spheres of life that disability activists began, after World War II, to grope toward a conception of disability rights. It is here that the Capabilities approach has the opportunity to make a vital contribution. Just as second-wave feminist activists and scholars had to create an entirely new language to understand the world from a feminist standpoint and problematize aspects of patriarchy such as sexual harassment and the need for childcare services (Fraser 1997: 81), disability rights activists had to challenge existing notions of equality to raise issues of physical access to public buildings, transportation systems and housing. The conception of capability as a richer vision of equality ties into resolute insistence by disability rights activists that a building which is equally open to all is utterly irrelevant unless it contains suitable wheelchair access. Restaurants, museums, hotels and other public services eventually accepted the notion of reasonable accommodation up to the point of undue hardship, and this was codified in the ADA.
Similarly, disability rights advocates have argued that one must reconceptualize the very notion of independence in order to accord dignity and respect to people with disabilities. For example, people with disabilities have challenged the idea that the inability to dress, bathe, and eat independently consigns them to a life of institutionalization where such assistance is only provided in exchange for what amounts to imprisonment in a nursing home (Fleischer & Zames 2001: 33-48; Russell & Malhotra 2001: 215f). The rigid rules of nursing homes are particularly inappropriate and oppressive for working-age people (Hirsch 2000: 420f). Instead, people with disabilities have sought the right to hire and fire their own attendants who would provide the necessary physical assistance in their own homes (Malhotra 2006a).
While largely unknown on the left, disability rights activism has encompassed every sort of political action from lobbying and letter-writing campaigns to vigorous and confrontational protests. Disability rights advocates in the United States have long been forceful in mobilizing on the streets. They have used highly creative tactics, including civil disobedience, to pressure decision-makers on a variety of transportation issues, such as assuring that buses be made accessible to wheelchair users (Shapiro 1993). Consciousness, albeit often incomplete and fragmented, toward a disability identity that recognizes disabled people as systematically oppressed and seeks to transform an inaccessible society, is actively shaped by the spirit of solidarity that emerges from disability rights activism. It is also a complex process forged by the political struggles of the day as well as the contingencies of particular social institutions, race, gender, sexual identity and many other factors (Charlton 1998: 28f).
There is little doubt that the general political upheaval in the United States during the 1960s and 1970s against the Vietnam War shaped the distinctive role played by disabled veterans returning from combat and facilitated contact among radical healthcare workers who were providing public healthcare as an alternative to military service (Fleischer & Zames 2001: 38). It spawned the growth of dynamic movements such as the Independent Living Movement, which has advocated globally for the rights of people with disabilities to control their own destiny through access to services directed by people with disabilities (33-48).
The disability rights movement remains vibrant if largely invisible to this day even as the ADA, like civil rights laws that came before it, has failed to change the unemployment and poverty experienced by people with disabilities. As specific struggles are gradually won, disability rights activists seek out new areas that require redress and have continued to mobilize. One example is the 2003 march from Philadelphia to Washington DC. Largely ignored by both mainstream and left media, the march was organized by disability rights activists in the militant and creative group ADAPT to protest the confinement in nursing homes, often in highly degrading conditions, of disabled people who could easily live independently in their own homes with the assistance of personal attendant services for activities of daily living (Taylor 2004). At the time of this writing, disability rights activists in ADAPT have mobilized hundreds of wheelchair users in Chicago to protest the continuing role of the American Medical Association in confining people with disabilities in nursing homes.
The Capabilities Approach and the Disability Rights Movement
One of the great strengths of the Capabilities approach is that it allows us to consider the barriers and discrimination experienced by people with mental disabilities. By focusing on central human capabilities that each person is entitled to develop, it gives activists and policy makers alike an easy and verifiable way to measure whether an individual’s capabilities are being maximized across key human categories. It does not depend on tedious definitions of what qualifies as a disability or fine-grained distinctions between different types of disability. Unfortunately, this has been a problem that has repeatedly plagued court rulings decided under the ADA, in which obviously disabled plaintiffs time and again have been found not to have a disability that substantially limits a major life activity (Feldblum 2000). One study found that employers have prevailed in employment discrimination claims in trial courts under the ADA in the overwhelming majority of cases, relegating employees with disabilities to the same success rate in litigation as prisoners (Colker 1999: 100, 108). As the disability rights movement has primarily focused on the empowerment of people with physical disabilities and because courts have so misinterpreted the ADA, the potential for a more inclusive theory through the Capabilities approach warrants close attention. This is evident because empowering central human capabilities does not depend on deciding whether a particular person’s disability is physical or mental. Thus a much broader group of people can be accorded rights and dignity through a Capabilities approach.
The Capabilities approach would also mark an advance in understanding how to theorize equality for people with disabilities. Currently not only do court decisions define disability too narrowly, but the very notions of reasonable accommodation and undue hardship that are stipulated by the ADA are too often falsely distinguished from conventional anti-discrimination law relating to racial minorities and women (Bagenstos 2003). Wedded rigidly to the concept that equality must mean identical treatment, the American judiciary has by and large been incapable of grasping notions of reasonable accommodation as simply providing what is necessary to enable people with disabilities to function as equals. Instead, requests for disability accommodation have been regarded as illegitimate.
Yet the baseline from which one makes such judgments – a barrier-filled environment that is highly inaccessible for many with physical disabilities – is not natural but artificial. Moreover, productivity-enhancing accommodations are often wrongly regarded as far more expensive than they actually are (Stein 2003: 130-37). For example, in the not so distant past, both blue-collar workplaces such as the mining industry and white-collar professional settings, such as courthouses, only had employee washrooms available for male miners and attorneys, because they were the only workers. The original construction of female washrooms in these workplaces, although entirely parallel in budgetary terms to making a washroom wheelchair-accessible, was regarded by advocates of social justice simply as a matter of gender equality and a right, rather than as an accommodation that must be subjected to cost-benefit analysis.
The fact that courts in the United States have repeatedly misunderstood the nature of disability equality and are committed to a dysfunctional hierarchy of rights2 should not mean that advocates for social justice reproduce the error. In fact, Nussbaum acknowledges that certain accommodations for women such as maternity leave may in fact be expensive (2006: 118, n. 37). Yet other jurisdictions, such as Canada, have creatively applied a broad and flexible duty to accommodate workers which has not significantly distinguished between the accommodation of pregnant workers, workers with disabilities and, indeed, even workers seeking accommodation of their religious beliefs such as shift changes to celebrate religious holidays (Malhotra 2007). It is imperative that advocates for social justice accept that there is, to a very significant extent, symmetry between physical-disability discrimination and discrimination on the basis of race, gender or sexual orientation. The Capabilities approach naturally avoids these traps since its presumption is to empower every individual to live a full life in each of the specified areas.
A particular merit of the Capabilities approach, as I noted earlier, is that by setting out central human capabilities that must be met, it facilitates the formulation of a theory of justice applicable to people with physical and mental disabilities alike. Yet Nussbaum’s interpretation of the Capabilities approach fails to achieve this. She comments that the life of a woman with cerebral palsy is “extremely unfortunate” and claims that her model of a just society would mean that, if it were possible, the woman’s disabilities would be eliminated and fetal surgery would even be performed to ensure that future babies with such disabilities had less impairment. She contrasts this with disabilities such as blindness, deafness or Down’s syndrome in which cases she would not necessarily apply the same ideas (2006: 192f). This seems to reflect a poor understanding of the disability rights movement, which aspires for equality and empowerment by transforming the structural barriers that marginalize people with disabilities. Moreover, the distinction that she makes among disabilities seems rather arbitrary. She does not explain why a just society would seek to eradicate disabilities in some cases and not in others. I maintain instead that a more expansive reading of the Capabilities approach would make possible the empowerment of all people with disabilities.
It is certainly true that there will always be some individuals with significant intellectual disabilities who do not possess an independent capacity to fully engage in many of the activities that constitute public life today, such as working and attending school. A society which aspires to social justice and economic egalitarianism must do its utmost to ensure that their rights and their inherent dignity are fully protected regardless of their contribution to the economy. A robust interpretation of the Capabilities approach suggests how people with severe mental disabilities might be systematically empowered at the grassroots level. What would be crucial is to ensure that the voices of people with intellectual disabilities are, to the maximum possible extent, included in any deliberative discussions that would set out principles flowing from the Capabilities approach. As others have pointed out, by establishing minimum standards as a prerequisite to recognition of the right to have one’s capabilities acknowledged, Nussbaum is doing harm to a large subset of people with intellectual disabilities (Stein 2007: 101-06; Silvers & Stein 2007). The Capabilities approach has important insights for disability equality, but its specific application by Nussbaum leaves much to be desired.
Capabilities, Global Inequality and International Law
A second important issue that is fruitfully interpreted through the Capabilities paradigm is global inequality and poverty, one of the great issues of our time. A Capabilities approach permits a far more sophisticated understanding than is found in the work of theorists such as Rawls. Tracing her arguments back to the classic works of Grotius and Pufendorf, Nussbaum correctly suggests that Rawls’s work on the topic fails to address how social contracts could meaningfully take place between very affluent societies such as the United States and Canada, and relatively impoverished states such as Bangladesh and South Africa (2006: 248f). This is a clear recognition of the importance of substantive economic rights and not simply those classical rights that protect solely negative liberty. Furthermore, I think that she is right in suggesting that we need to develop a universal set of capabilities or human rights that would apply to all nations and not concede moral principles to some notion of group rights (Mutua 1996; Peerenboom 2005). Mutua, for instance, has written passionately about the importance of community life in African societies, as opposed to Western conceptions of the individual, even while acknowledging the centrality of many ideas contained in the Enlightenment conception of rights (1996: 640-46). Nevertheless, a commitment to universal rights contrasts favorably with Rawls’s idea that one may distinguish between standards developed for democracies and those for “outlaw states” which do not respect human rights (Nussbaum 2006: 247).
In the era of globalization, a Capabilities paradigm could also address the relative growth of corporations and international agencies or NGOs vis-à-vis the traditional locus of power and analysis in international law, the state (Nussbaum 2006: 272). It would allow for the entrenchment of principles that would encourage global economic equality, such as responsibility at the level of the domestic states, respect for national sovereignty except when intervention to promote human capabilities is justified, a commitment on the part of richer countries to provide aid, responsibilities for multinational corporations, and a focus on ameliorating the circumstances of the disadvantaged in each nation (Nussbaum 2006: 315-24).
However, for all its strengths, I would argue that a Capabilities approach cannot address issues of global economic inequality without carefully considering the nature of interstate relations in a capitalist system beholden to corporate interests. This has very real implications for implementing the Capabilities paradigm at the global level. For instance, the question of humanitarian intervention needs to be fully addressed by proponents of a Capabilities paradigm. While I endorse the genuinely radical impulse behind a Capabilities approach, I would be most skeptical of humanitarian intervention rationalized by failure to meet an ethical standard. Nussbaum argues that the complete exclusion of women from political processes would provide “a moral case for economic sanctions or some other form of coercion” (2006: 260). While such exclusion should of course be morally condemned, I find the risks that humanitarian intervention will be misused and abused are grave. One only has to take a cursory look at the recent tragic history of Iraq, Yugoslavia and elsewhere to demonstrate how humanitarian intervention may well generate greater horrors and chaos than the one the intervening state purported to correct (Ali 2006). Frequently, international humanitarian missions are incompetently implemented even on their own terms. The International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia, for instance, have both been massively underfunded (Peerenboom 2005: 910). At the same time, one cannot lightly dismiss the importance of addressing exactly how human rights are to be protected.
Two alternative conceptions are provided by Amy Bartholomew and China Miéville. I believe that each opens up possibilities for social justice that can transform the Capabilities paradigm to take into account the brutal realities of international relations. Amy Bartholomew, a Canadian legal scholar, argues that one can look to the work of philosopher Jürgen Habermas for a process of cross-cultural, intersubjective deliberation and contestation. This would allow one to democratically determine through mutual dialogue the content of controversial issues such as the scope of international human rights, including tense conflicts between religious rights and gender equality. She suggests that this would provide greater legitimacy and public justification to processes that too often break down over painful questions of cultural bias and multiculturalism (Bartholomew 2003: 43-45). By enabling such dialogue, she argues that informal public spheres, where voluntary organizations, social movements and the media hold influence and may articulate their interests, and more formal strong public spheres, which are governed by democratic procedures, can together shape and legitimate public opinion and public policy on issues such as international human rights (49f).
To be sure, the Habermasian paradigm is not without its critics, many of whom worry that domination of the public sphere by economic elites will distort the common citizens’ ability to control their environment (Marsh 2001). But I remain convinced that Bartholomew’s emphasis on democratic deliberation and institutional rigor are tremendously important contributions that can only strengthen the Capabilities paradigm. When one is faced with arguments in favor of humanitarian intervention such as those that have been made by Christopher Hitchens and Norman Geras, it is no answer to simply dismiss the argument as having no merit. Bartholomew’s approach would intelligently supplement a Capabilities approach by encouraging dialogue about what international human rights actually mean and finding solutions that do not involve war. Just as I argued that deliberative dialogue was critical in determining the capabilities of people with intellectual disabilities, so international dialogue on human rights would clarify the substantive content of human rights and capabilities. Such dialogue would attempt to create priorities in articulating each of the capabilities in light of a consensus among international human rights activists, grassroots organizations and others.
A far more radical interpretation and challenge to a Capabilities paradigm is provided by the brilliant British legal scholar and novelist, China Miéville (Miéville 2004, 2005). Miéville develops a landmark commodity-form theory of international law that seeks to integrate insights of classical Marxism, including the arguments of Evgenii Pashukanis, with more recent postmodern scholarship by Martti Koskenniemi and others to deconstruct traditional international law theory. He argues that, as with Marx himself, Pashukanis sought to move from the abstract to the concrete, in contrast to the neo-Kantian legal theorists such as Kelsen who remained entirely on the plane of abstract theory (Miéville 2005: 79f). Therefore, Pashukanis regarded the legal form as “the form of the relations that inhere between the necessarily abstract and isolated bearers of commodities” (92). This reflects the underlying contradiction that class relations under capitalist wage-labor are exploitative, while at the same time, one has formal equality and freedom between the legal parties to an exchange. Furthermore, it also reflects the fact that violence and coercion lie at the heart of commodity form, notwithstanding the formally legal relationship between the parties (93-95).3 Miéville suggests that in a context such as international law where there is no effective world state or regulatory body to regulate the use of force, the violence and coercion inherent in law are embedded in the participants. As he remarks, “the morphological proximity of the legal subject and the armed unit is nowhere more clear than in international law” (136). However, the power of the participants, state parties, is far from equal, just as private parties to a contract governed by domestic law typically are asymmetrical in their power relations (Kessler 1943). As Miéville bluntly remarks, it is not that international law has spread throughout the world as a result of colonialism. Rather, “international law is colonialism” (169).
Leading capitalist powers, such as the United States, regularly ignore judicial rulings by the International Court of Justice that they have violated international law, even while assuming the discourse of human rights where it serves their purposes (298). Moreover, this is by no means a problem confined to the second Bush Administration but has been a longstanding theme in American foreign policy.4 Miéville is particularly scathing in his critique of liberal cosmopolitanism, an increasingly popular school of thought. Liberal cosmopolitanists generally are enthusiastic about promoting Western liberal-democratic values globally, and many, like Nussbaum, express great concern for issues of social justice and wealth distribution on a global scale. Yet they frustratingly end up promoting, albeit with reservations, international institutions which are deeply implicated in the marginalization of developing countries and their peoples. In some cases, the liberal cosmopolitanists position leads to support for humanitarian intervention, with potentially disastrous consequences (Miéville 2005: 304-08). Even linking foreign aid to political objectives, a policy that Nussbaum endorses in certain contexts (Nussbaum 2006: 260f) is ultimately a tool that enables great powers to influence the policy objectives of weak, impoverished states.
What are the implications for the Capabilities approach? I still believe that the multi-dimensional methodology of this approach has enormous potential for systematically reducing global inequality. Bartholomew’s insights on deliberative dialogue are a real contribution. However, Miéville’s arguments suggest, in my view, that a Capabilities approach cannot reach fruition globally until we have a radically transformed system of relations between states. Where a truly counter-hegemonic movement has significant influence, such as perhaps in Chávez’s Venezuela,5 a Capabilities approach may be tremendously helpful at the local level. In order to truly have global potential, one would require a reordering of the current power imbalance of North-South relations.
The Capabilities approach has attracted significant attention among philosophers, economists and others in recent years. Its detailed and systematic approach to equality has clear advantages compared with more abstract theories articulated by earlier theorists of equality such as John Rawls. The dynamic potential of the Capabilities approach in two important areas, disability rights and global inequality, is evident. However, the full potential of the approach cannot be sustained unless it is accompanied, in both these dimensions, by activist movements on the ground. Building such movements remains a vital task for advocates of social justice.
*I thank my diligent research assistant, Alanna Twohey, for her help.
1. Despite some tentative reflections (Rawls 1993) on how his theory of justice might apply internationally, Rawls himself recognized that his theory largely failed to address these questions.
2. See, e.g., the US Supreme Court decision in Board of Trustees of the University of Alabama v. Garrett (2001), where the 5-judge majority concluded, despite considerable evidence indicating otherwise, that there was insufficient documentation of a pattern of state discrimination against people with disabilities to allow workers with disabilities, such as Garrett (a nurse with breast cancer) to sue states to recover money damages and override their sovereign immunity pursuant to the Eleventh Amendment through the Fourteenth Amendment. Consequently, the Court found that Title I of the Americans with Disabilities Act, which prohibits employment discrimination, was unconstitutional with respect to states. Without a doubt, the conservative majority simply did not grasp the goals of the disability rights movement and saw states that were unwilling to accommodate disabled workers as acting rationally.
3. That commodity production and the rise of capitalism involve great violence and coercion was elucidated in Karl Polanyi’s magisterial work, The Great Transformation (1944).
4. One of numerous examples that might be cited was the United Nations General Assembly’s condemnation of the American bombing of Libya, justified on the grounds of reprisal for terrorist attacks in Western Europe. See Maogoto (2006, 422-23).
5. This does not imply uncritical support for Chávez’s regime, as I do believe one must focus on grassroots activists.
Ali, Tariq. 2006. “Mid-Point in the Middle East?” New Left Review 38, 5-19.
____. 2003. “‘Rational Discrimination,’ Accommodation and the Politics of (Disability) Civil Rights.” Virginia Law Review 89, 825-923.
Barnes, Colin. 1991. Disabled People in Britain and Discrimination: A Case for Anti-Discrimination Legislation. London: Hurst & Co.
Bartholomew, Amy. 2003. “Human Rights and Post-Imperialism: Arguing for a Deliberative Legitimation of Human Rights.” Buffalo Human Rights Law Review 9, 25-73.
Baynton, Douglas. 2000. “Bodies and Environments: The Cultural Construction of Disability.” In Employment, Disability and the Americans with Disabilities Act: Issues in Law, Public Policy and Research, edited by Peter D. Blanck, 387-411. Evanston: Northwestern University Press.
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
Callinicos, Alex. 2000. Equality. Cambridge: Polity Press.
Charlton, James I. 1998. Nothing About Us Without Us: Disability Oppression and Empowerment. Berkeley: University of California.
Colker, Ruth. 1999. “The Americans with Disabilities Act: A Windfall for Defendants.” Harvard Civil Rights-Civil Liberties Law Review 34, 99-162.
Dworkin, Ronald. 1975. “The Original Position.” In Reading Rawls: Critical Studies on Rawls’ A Theory of Justice, edited by Norman Daniels, 16-53. Oxford: Basil Blackwell.
Esping-Andersen, Gosta. 1999. Social Foundations of Postindustrial Economies. Oxford: Oxford University Press.
Feldblum, Chai R. 2000. “Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?” Berkeley Journal of Employment and Labor Law 21, 91-165.
Fleischer, Doris Zames and Frieda Zames. 2001. The Disability Rights Movement: From Charity to Confrontation. Philadelphia: Temple University Press.
Fraser, Nancy. 1997. Justice Interruptus: Critical Reflections on the “Postsocialist” Condition. New York: Routledge.
Hirsch, Karen. 2000. “From Colonization to Civil Rights: People with Disabilities and Gainful Employment.:” In Employment, Disability and the Americans with Disabilities Act: Issues in Law, Public Policy and Research, edited by Peter D. Blanck, 412-431. Evanston: Northwestern University Press.
Hubbard, Ann. 2004. “Meaningful Lives and Major Life Activities.” Alabama Law Review 55, 997-1042.
Kessler, Friedrich. 1943. “Contracts of Adhesion – Some Thoughts about Freedom of Contract.” Columbia Law Review 43, 629-42.
Malhotra, Ravi A. 2007. “The Legal Genealogy of the Duty to Accommodate American and Canadian Workers with Disabilities: A Comparative Perspective.” Washington University Journal of Law & Policy 23, 1-32.
____. 2006a. “Empowering People with Disabilities.” New Politics 11:1, 55-59.
____. 2006b. “Justice as Fairness in Accommodating Workers with Disabilities and Critical Theory: The Limitations of a Rawlsian Framework for Empowering People with Disabilities in Canada.” In Critical Disability Theory: Essays in Philosophy, Politics, Policy and Law. Ed. Dianne Pothier & Richard Devlin, 70-86. Vancouver: University of British Columbia Press.
Maogoto, Jackson N. 2006. “Walking an International Law Tightrope: Use of Military Force to Counter Terrorism–Willing the Ends.” Brooklyn Journal of International Law 31, 405-61.
Marsh, James L. 2001. Unjust Legality: A Critique of Habermas’s Philosophy of Law. Lanham, Maryland: Rowman & Littlefield.
Marx, Karl. 1976. Capital, vol. 1. London: Penguin Books.
Miéville, China. 2005. Between Equal Rights: A Marxist Theory of International Law. Leiden, The Netherlands: Brill.
____ . 2004. “The Commodity-Form Theory of International Law: An
Introduction.” Leiden Journal of International Law 17, 271-302.
Mitra, Sophie. 2006. “The Capability Approach and Disability.” Journal of Disability Policy Studies 16, 236-47.
Mutua, Makau wa. 1996. “The Ideology of Human Rights.” Virginia Journal of International Law 36, 589-657.
Nussbaum, Martha C. 2006. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge: Harvard University Press.
____. 1997. “Human Rights Theory: Capabilities and Human Rights.” Fordham Law Review 273-300.
Obiora, L. Amede. 2003. “Affirmations and Ambiguities: Some Thoughts on Women and Agency.” Albany Law Review 67, 629-35.
Oliver, Michael. 1990. The Politics of Disablement. London: Macmillan.
Peerenboom, Randall. 2005. “Human Rights and the Rule of Law: What’s the Relationship?” Georgetown Journal of International Law 36, 809-945.
Polanyi, Karl. 1944. The Great Transformation. Boston: Beacon Press.
Rawls, John. 1993. “The Law of Peoples.” Critical Inquiry 20, 36-68.
_____. 1971. A Theory of Justice. Cambridge: Harvard University Press.
Russell, Marta. 1998. Beyond Ramps: Disability at the End of the Social Contract. Monroe, Maine: Common Courage Press.
Russell, Marta and Ravi Malhotra. 2001. “Capitalism and Disability.” In A World of Contradictions: Socialist Register 2002, edited by Leo Panitch and Colin Leys, 211-28. London: Merlin Press.
Scotch, Richard K. and Kay Shriner. 1997. “Disability as Human Variation: Implications for Policy.” Annals of the American Academy of Political and Social Science 549, 148-59.
Shapiro, Joseph P. 1993. No Pity: People with Disabilities Forging a New Civil Rights Movement. New York: Times Books.
Silvers, Anita and Michael A. Stein. 2007. Forthcoming. “Disability and the Social Contract.” University of Chicago Law Review 74.
Sobsey, Dick. 1994. Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? Baltimore: Paul H. Brookes.
Stein, Michael A. 2007. “Disability Human Rights.” California Law Review 95, 75-121.
_____. 2003. “The Law and Economics of Disability Accommodations.” Duke Law Journal 53, 79-191.
Taylor, Sunny. 2004. “The Right Not to Work.” Monthly Review 55:10, 30-44.
Watkins, Chris. 1995. Comment. “Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded.” California Law Review 83, 1415-75.
Weber, Mark. 2004. “Opening the Golden Door: Disability and the Law of Immigration.” Journal of Gender, Race & Justice 8, 153-75.