The Capability Approach of Justice: Between Ethics of Good and Ethics of Just

1. The Capability Approach of Justice: Between Ethics of Good and Ethics of Just Jérôme Ballet, Jean-Luc Dubois and François-Régis Mahieu C3ED, IRD & University of Versailles, France Groningen, HDCA Conference 2006, September 1st , 11h00-13h00

2. Introduction • The Capability Approach is said by A.Sen to be a partial theory of Justice based on the reduction of the inequality of capability (with no aggregative, distributive processes, …) • One may ask if such limit would not be the result of the reference to the Ethics of Good, coming from Aristotle, and applied by Rawls through his principle of “freedom first”? • Therefore, would the Capability Approach of Justice be improved by the introduction of the Ethics of Just, as developed by Kant (categorical imperative, definition of the person, imperfect obligation,…) and referred to by Jonas, Levinas, Ricoeur and Honneth? • This may imply to reintroduce in the reasoning responsibility at the personal level as an other principle which could be combined with freedom through appropriate procedure

3. The content of the paper Such questioning defines the content of the three parts of our presentation: • (i) Rawls’ influence on Sen’s Capability Approach and the reference to the Ethics of Good • (ii) Introducing the Ethics of Just as an alternative or a supplementary view • (iii) What would then be the impact on the content of a Capability Approach of Justice in both conceptual terms and their application to policy design

4. 1. Ethics of Good: Rawls’ Influence on the Sen’s Capability Approach • Rawls builds his three principles of justice (fundamental freedom, difference, fair opportunity) in an objective way through the veil of ignorance of the members of a society • The first principle is based on freedom. This priority allows to make the link with the Ethics of Good : there is no self-constraint to the search for a good life (Aristotle) • The Leximin is the practical tool telling how to make within this “freedom framework” the redistribution towards the poorest (but is it not also a technical subterfuge?) • Who is the Subject of this freedom? (anthropological issue) Two different steps in Rawls’ thought: before and after 1971

5. Rawls’ Theory of Justice and the Leximin • The lexicographic order is a wonderful process: for a level of freedom, it begins to focus on the poorest of the poor. Even if there are difficulties to practically find the poorest. • However, this does not consider the moral obligation (imperfect obligation) that may be first priority in some societies. It is only a vision of rights related to freedom. • Therefore, one may consider this as a kind of subterfuge: it keeps the utilitarian reference. A way of ensuring justice by a technical process. (Kyoto : economics ranking may be more efficient than philosophical transcendental justice) • It is true that Rawls bring to Sen a fifth condition of equity in the social choice theory, but Sen only focuses his critics on the fetishism of primary goods not on the obligation issue

6. The Subject in Rawls’ view : from the Citizen to the Person • There are two periods in Rawls’ writings: • before 1971, the citizen is referred to as a fully cooperating member of the society. • after 1971, construction of the person able to recognize the others: this “reasonability” (ability to sociability and co-operation) is more important than rationality. • Sen refers to the first period considering mainly the individual or the agent. Recently (2001), he spoke of the person when considering sustainability issues. • For them, the Subject is rational (individual). He may be reasonable through his relation with the others (agent), but not personally responsible by being able to self-constraint himself to ensure his obligations as described Kant.

7. 2. Introducing The Ethics of the Just • In the classical radical philosophy of Bentham, Stuart Mill, etc., there is the dream of a non-alienated being, going out of authoritarianism, traditional and religious pressure… Then utilitarianism, hedonism were progressive thoughts. • Within this context, improving freedom, rights, the capability to choose one’s own life, agency, empowerment,…, remains a clear obligation at the individual and collective level. • Nowadays we are discovering the negative externalities, the perverse effects of freedom first, on the environment, on social relationships, on culture and political life. • In the mean time, everybody has a life embedded in social interactions where the obligations and personal responsibility towards them cannot be denied. The Subject becomes a Person.

8. The Ethics of Just vs. the Ethics of Good • The Ethics of Just give the priority of the Law (and its norms) to the Good. Economic rationality is a mean and the Person the end. • Kant (1780) remains the reference with his categorical imperative (golden rule): “every person is respectable because able to create his own law as a universal law”. • In that case, the personal freedom becomes an internal freedom (Arendt) with the person’s capability of freely self-constraining her freedom to satisfy her obligation towards the other. This leads to happiness. • Following Rawls, Sen only focuses on external freedom, do not consider negative freedom and refuses deontology (capability of self-constraint).

9. The Person and her Responsibility • Referring to the Ethics of Just brings responsibility besides freedom and a debate on their interaction. The Person becomes the Subject of this interaction • Sen refers to the consequentialism (cause and effect relationship) improved by agency (theory of action) but there no link with responsibility linked to obligations seen as a capability of self-constraint • Ricoeur’s work (2005) considers that the Person instead of the individual as able to impute herself a responsibility. Her capability or “pouvoir-faire” then becomes a strong version of the usual Sen’s capability • But such person, despite her capability set remains fragile, “fallible” vis-a-vis her obligations and responsibility, vulnerable

10. 3. Impact on the Current Capability Approach of Justice • Reference to the improvement of people’s freedom may not be sufficient: the abolishment of slavery generated strong poverty, poverty reduction generates inequality issues, … • In the current world the new social and environmental constraints imply to combine freedom with responsibility by searching appropriate processes. • Would it be possible to integrate responsibility in the lexicographic order and build a responsible leximin focusing on the ranking of a strong version of capability approach? • However, a strong version of capability and agency (including responsibility) will not avoid the risk of malevolence (negative or perverse effects) related to thresholds: an issue of sustainability

11. Negative Capability vs. Negative Agency? • It is difficult to consider that the social science concepts (including economic ones) have only positive consequences. Experiences show the contrary. These appear after some thresholds. • This is true for freedom and may be too for responsibility • Theoretical reference is given by altruism (benevolent, neutral, malevolent)with an utilitarian vision of the other (Becker)and by the theory of the person’s fallibility (Ricoeur) • Then the question becomes: could capability be negative as result or is it positive with negative agency? Like for mafias, soldiers in war… • Can we measure this fallibility and set up to take it into account within the justice process

12. Policy Implications • What are the policy implication of introducing responsibility: • For the Subject: to switch to the Person in Kant/Arendt sense considering internal freedom • For the Capability Approach: to refer to a strong version of capability by adding new capabilities according to Nussbaum’s list • For Agency: to refer to a strong version of agency by defining a responsible agent • This is required to set up human development policies able to reduce the inequality of capability (Reboud) and to ensure sustainability while improving the peoples’s capability • Such strong version of the Capability Approach will request adequate instruments to debate on the positive and negative consequences: responsibility of the stakeholders, capacity of repair, insurance, judgments, … (Darwin nightmare, Iks,…)

13. Conclusion • The idea is to expand the partial theory of Justice proposed by the Capability Approach by introducing the Ethics of Just • This imply to refer to the person as a rational subject (Stuart Mill), reasonable (Kant, Rawls), responsible (Levinas, Jonas, Ricoeur), but also vulnerable, fragile and fallible, therefore having positive or negative agency according to thresholds linked to the distortion of the structure of her capabilities • Capability and agency considered in the strong sense (by introducing personal responsibility) are needed to define human development policies which are sustainable • In that way, trying to conciliate freedom and social justice implies considering anthropology (the Subject), deontology (self-constraint for the others) and phenomenology (social embedness and intention towards the others) • But it opens the path to define collective capability and agency