What do we owe, as a matter of justice, to other people? Martha Nussbaum’s Creating Capabilities: The Human Development Approach, published earlier this year by Harvard University Press, seeks to answer this question. Intended for the general reader (and she notes specifically undergraduate audiences), the book presents the results of her collaboration with Harvard economist Amartya Sen on their “capabilities approach.”

Nussbaum is Professor of Law and Ethics at the University of Chicago and, along with Sen, a Founding President of the Human Development and Capability Association, the publisher of the Journal of Human Development and Capabilities, which works closely with the United Nations Development Programme (UNDP). In other words, this is an important, indeed consequential, body of scholarly literature, and it challenges many reigning scholarly orthodoxies about “development” in hopes of changing public policy. As Nussbaum notes, “We need a counter-theory to challenge these entrenched but misguided theories, if we want to move policy choice in the right direction.”

What are these entrenched but misguided theories? Nussbaum explores three approaches to development: GDP approaches, utilitarian approaches, and resource-based approaches. A GDP approach tries to measure development in terms of GDP per capita, the average amount of wealth in a nation. But Nussbaum faults this approach for failing to pay attention to each individual, especially those at the bottom, who might not enjoy any of the benefits of increased average GDP if the distribution of benefits lies solely among those at the top. Furthermore, this approach treats incommensurable aspects of human lives—“health, longevity, education, bodily security, political rights,” and more—as if they could be measured by a single number. Utilitarian approaches, measuring average utility (understood as preference-satisfaction), face similar challenges, for they too aggregate across lives and components of lives. But more troubling is the subjective nature of the measure, falling prey to the “social malleability of preferences and satisfactions.” After all, “when society has put some things out of reach for some people, they typically learn not to want those things.” Resource-based approaches make the mistake of assuming that material goods and wealth are adequate “proxies for what people are actually able to do and to be.”

This concern for the opportunities actually available to people drives Nussbaum’s capabilities approach. As she states repeatedly, the key questions to ask are: “What are people actually able to do and to be? What real opportunities for activity and choice has society given them?” We can’t measure this, even approximately, by looking to GDP, self-reported satisfaction, or physical resources. Instead, Nussbaum argues that there are multiple irreducible factors necessary for human development, and that each of these has to be measured individually, not with an eye to aggregate or average scores, but by taking each individual as a locus of value. Her measure is not materialistic: social and legal policies and conventions play an important role in shaping what opportunities really exist. In other words, culture counts.

Nussbaum’s approach focuses on each person as an end, with the ability for choice and freedom among a multiplicity of values. The capabilities approach is “evaluative and ethical from the start,” asking “which [capabilities] are the really valuable ones, which are the ones that a minimally just society will endeavor to nurture and support?” But while her conception is moral, Nussbaum insists that it is not moralistic: Governments should support the development of capabilities, but not influence their functioning, leaving individuals free to choose how to exercise their capabilities, for “capabilities have value in and of themselves, as spheres of freedom and choice. To promote capabilities is to promote areas of freedom, and this is not the same as making people function in a certain way.” So, she concludes, “there is a huge moral difference between a policy that promotes health and one that promotes health capabilities—the latter, not the former, honors the person’s lifestyle choice.”

What are the central capabilities? Nussbaum’s list includes ten broad areas:

1. “Life.”
2. “Bodily health” (“including reproductive health”)
3. “Bodily integrity” (including “opportunities for sexual satisfaction and for choice in matters of reproduction”)
4. “Senses, imagination, and thought” (“being able to use the senses, to imagine, to think, and to reason”)
5. “Emotions” (“being able to have attachments to things and people outside of ourselves”)
6. “Practical reason” (“being able to form a conception of the good”)
7. “Affiliation” (“being able to live with and toward others”)
8. “Other species” (“being able to live with concern for and in relation to animals, plants, and the world of nature”)
9. “Play” (“being able to laugh, to play, to enjoy recreational activities”)
10. “Control over one’s environment” (“being able to participate effectively in political choices” and “being able to hold property and having property rights”)

Nussbaum doesn’t offer much in defense of this list, as she subscribes to John Rawls’s theory of political liberalism, by which we must offer citizens “public reasons” free from any particular “comprehensive doctrine” of the good or the right in framing our public policies. Nor does she explain why states have a duty, in justice, to immanentize the eschaton: “The basic claim of my account of social justice is this: respect for human dignity requires citizens be placed above an ample (specified) threshold of capability, in all ten of those areas.” Sadly, she neither specifies these thresholds nor provides any argument for why this is a valid principle of justice. Even if it is (and I’m inclined to think something like it is), she owes her readers an argument. Instead she makes ungrounded appeals to human dignity and equality, and then claims that these are entitlements that a state must provide: “All people have some core entitlements just by virtue of their humanity, and it is a basic duty of society to respect and support these entitlements.”

Perhaps that’s the proper place to start highlighting the severe defects in Nussbaum’s Creating Capabilities. First, she never defends her conception of justice against competing conceptions. F. A. Hayek and Robert Nozick leveled serious criticisms against the concept of “social” justice and defended alternative classical-liberal (libertarian) conceptions. Whether or not one thinks they got it right, their arguments demand a response. Nussbaum shows no awareness that not everyone is a welfare-state liberal.

Instead she asserts that the American Founders, and the Declaration of Independence, support her view. Citing the Declaration, she writes that governments are founded “to secure these rights,” and then concludes that if government doesn’t “secure basic entitlements” (her ten capabilities), then it is unjust. She adds some rhetorical bluster: “The idea that the American Framers were libertarians, or fans of ‘negative liberty,’ is extremely misleading,” and continues: “The very idea of ‘negative liberty,’ often heard in this connection, is an incoherent idea: all liberties are positive, meaning liberties to do or to be something.” She concludes that her capabilities approach “is no recent invention,” but is “a deep part of mainstream liberal enlightenment thought.” Of course the American Founders, along with Hobbes, Locke, and Kant, as well as Hayek and Nozick, would have disagreed.

Second, regardless of the political justice of her account, she puts remarkable but utterly naïve faith in governmental institutions. One of her bald assertions is that “governments of richer nations ought to give a minimum of 2 percent of GDP to poorer nations.” She then shows deep hostility to free enterprise, civil society, voluntary associations, and private charity as proper remedies for poverty: “Suppose a nation attempted to solve its distributional problems through private philanthropy. It doesn’t work, and we know that.” Tell that to the students trapped in our inner-city government-run schools who yearn to attend the Catholic school across the street.

She continues in this vein. “However fine the [charitable] organizations are,” she notes, “they are not accountable to people in the way that a democratic nation is accountable.”  Really? Is a public school—beholden to the teachers’ union and city hall—more accountable to the people than a charitable charter school? Here Nussbaum does attempt to offer a reason: “if [charitable organizations] listen to anyone when setting strategy, it is, most often, to their big donors.” Unlike politicians, of course. Are our foreign aid programs really more responsive to “the people” than an Evangelical micro-finance charity?

Third, Nussbaum thinks that “equal respect for persons” requires that we “avoid taking a stand” on the controversial metaphysical issues that divide citizens, and instead base “political principles on some definite values, such as impartiality and equal respect for human dignity.” But as has been shown repeatedly, the Rawlsian search for “public reason” that is distinct from “reason” is a fool’s errand. Every time one rules out certain reasons as “non-public” but summarily includes one’s own as “public,” one necessarily appeals to a controversial standard, and merely asserts one’s preference for one’s own view (as is evident in Nussbaum’s list). More importantly, what we owe our fellow citizens as a matter of equal respect, when making law, is the truth: to give them good reasons, sound reasoning thought all the way through. Why should we artificially disqualify a class of true reasons from being the basis of political action? Nussbaum gives no reason.

Her Rawlsian predilections help explain why her theory of justice is weak: “I argue that the entire world is under a collective obligation to secure the capabilities to all world citizens.” But she doesn’t argue this; she just asserts it. From within her Rawlsian confines, she can’t offer any reason for this “collective obligation.” She must realize her weakness, for she admits that “my view does need to rely on altruism,” and by the book’s closing she is seeking to develop a “political psychology” to promote “emotions of compassion and solidarity.” When you can’t provide reasons to care for others, the only things left to do are to psychologize and to manipulate the emotions. A better philosophical approach would be able to appeal to our rational faculties.

Not only can’t Nussbaum explain why we have these duties in justice (or why we should be just in the first place), her account is inherently statist because of its Rawlsian “political, not metaphysical” framework. Since her approach only allows for reasoning about political institutions, once she identifies her central capabilities, “we cannot move directly to the assignment of duties to individuals: key duties must be assigned to institutions.” But this gets the entire story wrong. As thinkers as diverse as Aquinas, Locke, and Kant have argued, individuals have moral duties to assist those in need, and while the state should promote the common good, the state’s role in directly providing assistance to the poor is a secondary function, one where the state ought to assist individuals and voluntary associations in meeting their tasks before usurping that role from them.

(One must also ask how Nussbaum’s argument in favor of animal rights and animal entitlements meets the demands of “public reason” by avoiding controversial metaphysical claims: “That animals can suffer not just pain but also injustice seems, however, secure.” After all, “animals pursue not simply the avoidance of pain but lives . . . of honor or dignity.” She takes this bizarre anthropomorphism so seriously that she writes: “One form of intervention into nature that seems crucial is animal contraception. This will mean, for animals, modifying the capability list where reproductive choice is concerned.” Animals, as a matter of justice, don’t deserve reproductive choice.)

Fourth, and perhaps most crucial, Nussbaum never gives an argument for why we should care about capabilities rather than the exercise of those capabilities toward fulfilling ends. While she is willing to make morally controversial claims about which capabilities are central, she refuses to say how they should be exercised, claiming that this agnosticism respects freedom. But we best respect freedom by promoting a broad range of worthy ends for which to act, while also insisting that certain ends are unworthy of choice precisely because they degrade those people who choose them.

Nussbaum’s failure to explain how capabilities should be exercised brings out a central problem in her talk of “human dignity.” Repeatedly, she claims that all nations contain “struggles for lives worthy of human dignity.” That phrase occurs again and again: “some living conditions deliver to people a life that is worthy of the human dignity that they possess, and others do not.” Disregard the infelicitous usage of “lives worthy of dignity”—all lives are worthy of dignity. What she ignores is that “some living conditions” aren’t the only qualifiers for human dignity—so are human choices. Some exercises of human capabilities, some choices, are in line with human dignity, and some are not. If we are to measure human development and think about its justice, we must think about how capacities are exercised.

In another effort to avoid talking about how capabilities are to be exercised, she declares that Aristotle “did not instruct politicians to make everyone perform desirable activities. Instead, they were to aim at producing capabilities or opportunities.” But Aristotle thought that the entire point of politics was promoting the good life—not promoting morally ambiguous capabilities, but directing them to their appropriate ends.

Nussbaum uncritically helps herself to an Aristotelian understanding of government—without arguing for it— and then distorts it to rush to her own conclusion: “Given a widely shared understanding of the task of government (namely, that government has the job of making people able to pursue a dignified and minimally flourishing life), it follows that a decent political order must secure to all citizens at least a threshold level of these ten central capacities.” Among her fellow liberals, this is not a “widely held” view of government. Nevertheless, she needs to explain why concern for a dignified and flourishing life should translate into a threshold of capacities without concern for their exercise. She’s wrong to think that we should promote “health capabilities” rather than health. Health is the human good, and we can promote it in a way that respects human freedom.

If you put it all together, Nussbaum’s theory demands that a state coercively tax its citizens (ignoring negative-liberty claims to private property rights) to create a government-run program (disregarding subsidiarity) that will ensure that “opportunities for sexual satisfaction and for choice in matters of reproduction” are provided (regardless of how those capabilities are exercised). In fact, she writes that “thinking about sexual orientation through the lens of the whole list of capabilities” makes us see that laws refusing to treat same-sex relations as if they were marriages are “unfair,” just like “antimiscegenation laws,” “conferring a message of stigma and inferiority.” But if we really want to measure human development, we should ask how our sexual capabilities can be exercised in accord with human dignity, in a truly ennobling way, and we should seek to promote a culture (including a legal culture) that respects and promotes that ideal.

A sound theory of social justice would have to explore the constituent aspects of human flourishing—not just capabilities, but their truly perfective ends. It would have to investigate the moral norms that govern conduct with respect to these ends, particularly property rights and duties. Finally, it would have to ask what role the state plays in helping to secure human well-being. Social justice is too important a topic to leave matters where Nussbaum’s Creating Capabilities leaves them.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

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