Nussbaum AndWalzer: JusticeAs Enablement

A Discussion On Justice Up To AThreshold And Beyond

David T. L. Gillham

“Equality of opportunity is not enough. Unless we create an environment where everyone is guaranteed some minimum capabilities through some guarantee of minimum income, education, and healthcare, we cannot say that we have fair competition. When some people have to run a 100 metre race with sandbags on their legs, the fact that no one is allowed to have a head start does not make the race fair. Equality of opportunity is absolutely

necessary but not sufficient in building a genuinely fair and efficient society.”  Ha-Joon Chang

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“Let there be justice for all. Let there be peace for all. Let there be work, bread, water and salt for all. Let each know that for each the body, the mind and the soul have been freed to fulfil themselves.” Nelson Mandela

Introduction

Justice and what it requires has been an issue shared by humanity

throughout the ages. Conceivably justice is as old as civilisation,

and surely extends even further back into our lost social past.

Justice is important to everyone, because without it the rule

‘jungle-justice’ would be the order of the day. Living justly, and

not having one’s life harmed by the arbitrary will of others

(injustice) permeates most ethical theories, and perhaps one could

even make the (bold) claim that justice is the cornerstone of

ethics, and provides us with a guide as to how we should act (justly

or unjustly). Since the advent of John Rawls’s A Theory of Justice (1971)

the philosophical debate has been raging over just what justice is,

and what it requires. I wish to join the conversation and as such

this essay gives an account of two philosophers’ thought on the

subject: Martha Nussbaum’s minimal account of justice and Michael

Walzer’s distributive account of justice as complex equality. The

aim of the essay is to give a detailed exposition of both (parts 1 +

2) and then bring the two together in a fusion (part 3). Throughout

the paper however, I constantly bring the two together in

juxtaposition. I will eventually argue that the two in fact

presuppose one another, and that both theories are inevitably ideal,

yet unarguably worth striving for. Nussbaum argues for a threshold

(and importantly so does Walzer implicitly) and does not wish to

give a distributive account that would need to take into account

distributions above the threshold. Inevitably however, she is forced

into at least a minor distributive theory. Nevertheless, although

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she does not wish to give such an account, I argue that one is

necessary. As such, Walzer’s account is one of the most plausible

available: it describes a highly plural, functioning society (which

is necessary for her account) that allows for its citizens to live a

life un-dominated (ideally). In the end, I argue that both theories

point towards enablement as the means in which to go about 1)

respecting human dignity and 2) allowing for complex equality.

Part I

Martha Nussbaum

Martha Nussbaum, co-founder of the Capabilities Approach to human

development, presents a list of ten “central capabilities” that must

all be present in any given human (and for her non-human animals as

well) life, if that agent is to have a life that is minimally just

and in accordance with human dignity. Nussbaum classifies her brand

of the capability approach as a “species of human-rights” (Nussbaum

2011:62), in that she argues we should understand capabilities as

fundamental entitlements, owed to every member of our species (and

non-humans too) based solely on our belonging to that species, and

the dignity that belonging to such a species necessarily entails. As

Nussbaum explains “the approach grounds rights claims in bare human

birth and minimal agency”(Nussbaum 2011:63) the approach plays a

supplementary role to standard human rights, by emphasising the

importance of duties, and also focussing on issues of gender, race,

and entrenched social injustice. Importantly, Nussbaum’s view is

not ‘cosmopolitan’: that is, she is not arguing for a single

comprehensive doctrine of justice that would imperialistically

impose itself upon the entire populace of the world in all of its

plurality of difference that actually exists: the approach is not

some kind of ‘human rights imperialism’. Rather, she aims at

stimulating the human rights debate, focusing it on development. In an

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Aristotelian vein, human life is understood as being characterised

by growth; individual life can be understood as striving through

choice to reach betterment and as such fulfilment. Thus her theory

outlines what that fulfilment requires, and when those criteria (the

central capabilities) are met human dignity is respected. Her list

is deliberately open-ended, and the way in which it is understood

and implemented depends entirely on the actual plural,

differentiated, situated community and its constituent individuals

doing the understanding and implementing. However, her theory is

like a cosmopolitan theory in that it is universalist, and says

something about justice the world over. However, it is not

distributive (another feature of cosmopolitanism) in any particular

overarching way, or in other words her theory does not provide a

single ‘recipe’ for how social goods should be distributed

universally as to achieve dignity for all, although she does have a

certain distributive element to her theory and this will be

discussed later in the essay. The important point here is that

Nussbaum is not advocating a comprehensive (one size fits all)

doctrine to trump all others, but rather provides an account of

minimal capabilities that people, all people, ought to be entitled

to, in order for them to live a life worthy of their innate human

dignity. How this minimal threshold is met (the recipe) requires

much more thought and input from every sphere of a society, but

especially government. It is up to actual people to decide how human

dignity will be upheld in their nation and communities.

Nussbaum argues that her theory is one that supports pluralism. This

is the view that difference (moral, cultural, religious, language,

and in general what we can call a ‘comprehensive doctrine’ that each

and every person has) should be respected and upheld, not subjugated

and thwarted. This support of pluralism is linked to her liberal

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commitments, in that the approach does not endorse or require any

given pre-existing comprehensive moral doctrine (as defined above),

but rather allows for the variety of comprehensive doctrines that

already exist, owing to the variety of individuals. She argues that

an overlapping consensus between the comprehensive doctrines of living

people can be hypothetically found, and that such a consensus would

follow the lines that the capabilities approach does. This is

because the core of the approach is to take each human life and ask

“what is each person able to do and to be?” (Nussbaum 2011:18) The

answer to this question, she argues, is found in the central

capabilities. When all of the capabilities on her list are present

in a person’s life then that person’s life is worthy of its own

human dignity. With all ten central capabilities a person is capable

of living a life that allows them to “do and be” (ibid) whatever

they choose. So the freedom to choose (and that human beings need

this freedom) is of fundamental importance to the approach. As

already shown, a person is entitled to human dignity by mere birth.

Her theory aims at showing what that dignity requires, at least at a

minimum level or a threshold of minimal capabilities (the central

capabilities). This being said, Nussbaum at no point considers

justice above the minimal threshold: that is, she does not aim at a

distributive theory of justice addressing all inequalities across the

board. She is concerned primarily with inequalities in certain

central spheres of any individual’s life which play such an

important role in that life so that without them that person will

never live a fulfilled life: their human dignity would not have been

respected. She admits that “justice may well require more: for

example, the approach as developed thus far does not make any

commitment about how inequalities above the minimum ought to be

handled” (Nussbaum 2011:40). Rather her theory is an account of a

minimal standard of justice. It is the drawing of boundaries in

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accordance with human dignity: it is arguing for a threshold on

human dignity, and the outlining of what that dignity requires.

Nussbaum’s Conception of the Individual and Human Dignity

As is made clear in her question, Nussbaum is primarily interested

in people’s capacity, or rather capability towards the actual (lived)

“doings and beings” (Nussbaum 2011:28) of each individual. Her

starting point is the individual human being, but not any particular

human being: all particular human beings. In other words she is

concerned with an abstraction: the universalised individual. Of

course, to make an abstraction, one needs to be able to dismiss all

actual difference that may exist (race, cultural, monetary,

comprehensive doctrine etc.) between the multitudes of individuals

that actually exist, and to find what is common between all of them.

Thus, on the surface at least, it appears that Nussbaum is holding a

double standard: She proclaims to respect pluralism while

simultaneously abstracting plural difference away. But this

conclusion comes too soon; for although she does abstract the

individual, she does so in a way that highlights the actual shared

experience of life by all of us who live it. Empirically speaking,

Nussbaum can argue that her CCs are fundamentally important to

people the world over, and that she is not imposing anything on

anyone, rather her CCs are salient in every person’s life. This is

Nussbaum’s goal: To identify and support that which makes a human

life one worth living. It is through this abstraction that she is

able to create her list of CCs. Importantly, although I say

‘dismiss’ all difference, she does not understand difference to be

unimportant. Rather, on the one hand she looks ‘past’ all

difference, to find commonality, and on the other hand poses her

theory as to be partial towards difference.

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Imagine a Zulu man Nomvula Nglovu, certainly a member of a highly

plural society (viz. ‘the Rainbow nation’). Nomvula has his own

comprehensive doctrine including his coming from his ethno-cultural

group, his religious beliefs, his socio-economic status, and perhaps

his familial and friendly relationships. In short, Nomvula is a

person like all others, in that he has such a comprehensive

doctrine/s, in his case shared at least in some ways with the Zulu

people at large, and then perhaps the people of his province, and

ultimately a part of the Republic of South Africa. Nussbaum’s method

is to imagine that her CCs could be attached to Nomvula’s (or any

person’s) comprehensive doctrine, understood through the lenses (if

you like) of his particular historicity. Nevertheless, this

obviously means that some disagreement is likely between people in

the Rainbow nation, as to just what Nussbaum’s CCs really means.

Nussbaum goes on to argue that an overlapping consensus between

Nomvula Nglovu and an Afrikaner woman, say, Sara Smuts who lives in

Pretoria and has her whole life, is possible even with their

disagreements about how to understand this module that has been

attached to their already existing moralities. In Nussbaum’s words

“What is asked of them is that they endorse the basic ideas of the

Capabilities Approach for political purposes only, not as a comprehensive

guide to life” (Nussbaum 2011:90). This idea of a module leading to

an overlapping consensus is plausible with specific regards to its

importance politically: the overlapping consensus would be a common

ground between people of various particular differentiated

communities, allowing people to realise lives in which their (and

their fellow citizens) lives are lived in accordance with their

dignity.

Nussbaum uses the focal point of the “notion of human dignity”

(Nussbaum 2011:30) to underpin her theory. Human dignity is defended

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when all ten central capabilities are available to any given person,

and conversely that person’s human dignity has been in some way

denied if one or more of the central capabilities are unavailable to

them for any reason. Although the concept itself is relatively

vague, she attempts to flesh it out with the list. In doing so, she

is creating a system of interlinking concepts that support one

another, creating a strong holistic, pluralistic view of what a

human life lived with dignity is. This dignity affords all people a

moral standpoint that is always equal. In other words, no matter a

person’s race, age, gender, income, comprehensive doctrine, etc.

(indeed these factors have been necessarily abstracted past) they

are afforded the right to human dignity (access to the central

capabilities) and all that that entails. “In general, then, the

Capabilities Approach, in my version, focuses on the protection of

areas of freedom so central that their removal makes a life not

worthy of human dignity” (Nussbaum 2011:31). So for Nussbaum, human

dignity is the goal, and not, for instance, utility (when we

understand utility as the satisfaction of preferences) that is the

focus of a utilitarian approach to justice.

An important question must be asked: is a life that has been denied

its human dignity somehow less than human? The argument held by

Dennis Arjo is that because “Nussbaum’s account of human nature

focuses on our ability to use our basic biological and psychological

endowments in ways that are uniquely human and in particular ways

that are socially embedded and governed by practical reason” (Arjo

2011:460) then it seems plausible that Nussbaum endorses a view that

allows for the possibility of profoundly failing to live in a truly

human way, and thereby not being fully human. There are a number of

things at stake here; but in way of correction, Arjo’s argument that

Nussbaum is giving an account of human nature is actually wrong.

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Nussbaum argues (Nussbaum 2011:28) that “The capabilities approach

is not a theory of what human nature is…An account of human nature

tells us what resources and possibilities we have and what our

difficulties may be. It does not tell us what to value” and the

capabilities approach does, namely it argues we should value a set

of central capabilities as constitutive and definitive of human

dignity, not nature. Indeed it seems to me that any account of human

nature would also need to deal with impulses, for instance the ‘will

to death’ and many others to be sure, that the capabilities account,

by way of its political-developmental stance, does not cover. Aside

from this, what of Arjo’s main thrust, the idea that a human being

may fail to live in accordance with human dignity and thus be

capable of a life lived sub-human? Inmaculada de Melo-Martin and

Arleen Salles provide the answer: human dignity is the Stoic notion

of intrinsic worth that belongs to all human beings and is grounded

on “the capacities for various forms of activity and striving”

(Melo-Martin and Salles 2011:160). On this account, dignity can be

violated (by anything that violates a central capability), and thus a

person has been the victim of injustice, but that person’s actual

human dignity cannot be removed, allowing them to become sub-human.

Even a slave is still fully human, but a slave’s dignity is so

grossly violated that we could say their life has not been worthy of

their human dignity. Of course, one needn’t be a slave to have one’s

dignity violated, and in fact, this is the real critical edge of the

approach: for how many people in the contempory world actually have

the benefits of living a life in accordance with their human

dignity? Surely, very few, and this then ultimately means that

Nussbaum’s theory of justice is ideal (like Walzer’s) in that it is

doubtful that perfect minimal equality can actually be achieved;

however this does not mean that minimal justice (as described by

Nussbaum) is not worth striving for.

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Capabilities and Functionings

Just what is a capability? Nussbaum differentiates between several

‘kinds’ of capabilities. These include basic capabilities; internal

capabilities; complex capabilities; and central capabilities. Overall we can

understand capabilities broadly speaking in terms of the central

capabilities (CCs) and more generally in terms of the capabilities

people have and the relation they have to functioning.This has the

effect of making the concept appear to be more complex in reality

than it actually is. In fact, all of these ‘kinds’ of capabilities

are linked. Let me begin with the CCs. What are the CCs? In short,

they are Life; Bodily health; Bodily integrity; Senses, imagination, and thought; Emotions;

Practical reason; Affiliation; Other species; Play; Control over one’s environment a) political

b) material. As these are all capabilities they need to be developed

and nurtured so that they can be used and exercised in accordance

with the agent’s will. They must be protected from violation, and if

they are violated the violators must be held accountable. This list

is not prescriptive, and although Nussbaum does give a detailed

description of each (Nussbaum 2011:33-34), she is careful to do so

in a way that allows for subjective interpretation. Imagine a

person who has all of these, to live healthy and happily; to be

secure and safe; to be able to think creatively using your body as

it pleases you; to be able to feel, and to think clearly and well,

with the mind of an educated being; to be able to live responsibly

with other species; to relax, and enjoy, to laugh and play, to work

and to create; and to own your own land, and have control of one’s

political rights, to vote and participate in public discourse. These

things are unquestionably linked to human dignity, for if a person

is barred from even one, then that person’s life has been effected

in a negative way: they are unable to live in a way free to choose

and be what is proper to them. People that have their dignity respected on

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the other hand, are capable people; capable of living a life of

quality and worth, and that is no mean feat: Aristotle would perhaps

have said that such a life was the ultimate goal, reaching

eudaimonia; but Nussbaum has made it the minimum requirements for

dignity: An ambitious yet righteous project, at least to my mind.

The CCs are a crucial element of the approach, but Nussbaum’s

conception of capabilities and functionings still needs further

explanation. “Basic capabilities are the innate faculties of the

person that make later development and training possible.” (Nussbaum

2011:24) Nussbaum is claiming that all human beings (and indeed she

claims that her list of central capabilities can and should be

applied to other species too) are born with a certain plasticity:

the ability for one to better oneself through life (surely this is

what learning is?). But without stimulation these basic capabilities

will develop poorly, or not at all (again the education metaphor

holds). This stimulation is constituted by the external sources of

one’s life experience whereby such ‘life experience’ creates ones

so-called internal capabilities. An example of such an internal capability

that has developed out of the potentiality that is the basic

capability towards learning a language is the ability to speak and

use language later on in life. But this example is not an exhaustive

one, and all functioning human beings have many internal

capabilities. In turn, internal capabilities can become combined

capabilities when an external resource is provided that allows for the

internal capability to function on a higher level. Thus Nussbaum

argues that the aim of public policy, and thereby government should

be directed in a particular manner: “this requires two kinds of

efforts (1) the promotion of internal capabilities (say by education

or training) and (2) the making available of the external

institutional and material conditions.” (Garett 2008) Nussbaum does

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have a distributional element to her theory. The central role played

by external forces and circumstance upon the life of an individual, both in

the more implicit manner of developing internal capabilities, and

the paramount manner of combined and central capabilities. Without

any of the external resources no human could live at all, because

surely these external circumstances range from subsistence nutrition

through to all of what we might term ‘life experience’. The world we

live in is made-up of many spheres however, and all of them

different, depending on where we live, how we live, who we know, in

short everyone’s life is different because of their actual life

circumstances. In summary of this thought, the role of the world each

and every one of us lives in is indispensable, and this world is utterly

plural, differentiated and situated by its very nature. Nussbaum’s

solution on how this multitude of variation in the population of the

globe are to be accommodated in the creation of a world that would

meet this necessarily distributive aspect of her theory, is to leave

it broadly unexplained, passing the baton on to any nation that

would heed her advice. It is necessarily distributive because the

capabilities, envisioned as opportunities to choose and to be, must be

distributed (via the external circumstances to be provided via

government). This is a humble, intuitively correct method of dealing

with the issue, as she does not wish to, nor can she, claim to speak

with the voice of all humanity. Still, she leaves the challenge

open, allowing us to fill in the key ingredient ourselves: South

Africa must find its own way to uphold the fundamental entitlements

it proclaims sacred (by way of its constitution – a world leader),

and its own way must be tailor-made, to do things in a way that

makes sense from a South African perspective.

The second way in which Nussbaum elaborates on the distribution of

capabilities is nuanced and intelligent. She only argues for

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distribution in spheres that require such a distribution for the

sake of the threshold: equal voting rights, political entitlements,

education of a decent standard (such that there are no manifestly

unequal distributions of education throughout the nation), religious

freedom and decent housing are some of the entitlements that she

thinks must be distributed equally and to all. However “the same may

not be true of entitlements in the area of material conditions.

Having decent, ample housing may be enough: it is not clear that

human dignity requires that everyone have exactly the same type of

housing” (Nussbaum 2011:41). In summary, Nussbaum does have

distributive elements to her theory, in so far as human dignity

requires a threshold on certain social goods, yet her theory is not

a distributive theory of justice per se because she does not go into any

great depth on just how all social goods should be distributed,

focusing only on key distributions for her theory. She does not set

the threshold on any of the capabilities in any kind of a

prescriptive comprehensive way. That is the job of constitutional

law and the justice system, rather her list of CCs serve as a (non-

exhaustive) guide to considering what it is that human dignity

actually requires in a reiterative way.

It is also necessary to differentiate between a functioning and a

capability. In its simplest, “A functioning is an active realisation of

one or more capabilities… functionings are beings and doings that

are the outgrowths or realisations of capabilities” (Nussbaum

2011:25). For instance, people in a society that ascribe to

Nussbaum’s normative political ethics would all have the capability

towards the free expression of religion. Any person may choose to

exercise the capability towards a free expression of a religious

belief or not. That chosen stance is a functioning. So the notion of

“freedom to choose is thus built into the notion of capability”

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(ibid.). An example from Sen is “a person who is starving and a

person who is fasting have the same type of functioning where

nutrition is concerned, but they do not have the same capability,

because the person who fasts is able not to fast (a choice), and the

starving person has no choice.”(ibid.) So the role of agency is here

brought to light. The agent’s choice to act upon a capability is a

functioning, and without the opportunity to make that choice, the

functioning would not have been possible. Still, Nussbaum has been

criticised (by the likes of Crocker1 ) for not having a separate

ideal of agency, and by Paivansalo2 for not emphasising the need for

identifiable responsibilities to identifiable agents (but perhaps

this would be cosmopolitan?). Although Nussbaum does develop a

theory of responsibility in Ten Principles for the Global Structure, the role

of agents in her theory is primarily focussed on government and

policy making, while institutions and individuals play an

(important) secondary role. Government is primarily responsible for

the implementation of the CCs and thereby the enablement of the

people, but importantly every citizen has a duty to every other

citizen to maintain their dignity. I feel that her account of agency

is at least sufficient to make her claims about fundamental

entitlements understood, especially when we consider the role of

choice in a functioning. Nussbaum can’t afford to place too much

emphasis on the rational agency/ practical reason/ choice making

aspect of her theory as an all-important feature of her account, as

this would undermine her goal of having an account of justice that

delivers to those beings the social contract tradition could not

deal with: other animals; the mentally and physically impaired; and

1 See R.J.G. Claassen , “New Directions for the Capability Approach: Deliberative Democracy and Republicanism” in Res Publica 15:421-428 (2009) 2 See V. Paivansalo, “Responsibilities for Human Capabilities: Avoiding a Comprehensive Global Program”, in Human Rights Review. (2010). 11(4), 565-579.

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those without citizenship3. Still, there is a precarious balance

here, for as explicitly stated the CC practical reason plays an

architectonic role in that it “organises and pervades” (Nussbaum

2011:39) the other CCs, yet the balance is counterweighted by the

other CCs, all of which constitute a part of the complex balance

that makes up a life worthy of its human dignity. Although it is

true that practical reason is highly important, and plays an

irreplaceable role in a dignified life, it is not the only thing of

importance for dignity, all of the CCs are important.

Implementation and Government

Nussbaum argues that there are two ways to implement the central

capabilities (or CCs) in any given nation: The first of these argues

that her capabilities should be included in a country’s constitution

and thereby public policy. The second is through relying on the

people within the society at hand to accept these capabilities and

through some kind of a sense of duty (found through the overlapping

consensus) uphold the right to these capabilities of other people in

society. She envisions the central capabilities as being attached to

the ‘maximal’ moralities of actual people like a kind of ‘module’,

because (she argues) no human life is lived with dignity if they

lack even one of the CCs. By ‘maximal’ I mean the ‘thick’ conception

of morality that any given person, depending on their given

situation, will hold; the comprehensive doctrine that can be said to

be the combination of everything (moral, religious, etc.) that makes

up a person’s worldview. It therefore goes without saying that such

a ‘maximal’ morality will be highly differentiated, situated, and

plural. In fact, her approach has been criticised for not following

up strongly enough in terms of the second way that capabilities are

3See Martha Nussbaum, Frontiers of justice: Disability, Nationality, Species membership (2006)Cambridge, Massachusetts, London: Belknap Press of Harvard University Press.

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to be upheld, the duty oriented approach4. The basic gist of the

criticism is that Nussbaum does not take into account the role of

agency fully into her theory, thus the duty of the individual to

uphold the CCs is limited or stunted. Although it is true that

Nussbaum intentionally avoids basing her theory of human dignity on

rational agency (the only kind of agency capable of realising duty as

such) alone, she does not in fact ignore it. She acknowledges that

practical reasoning (one of the CCs) is “architectonic” (Nussbaum

2011:39), by which she maintains that practical reasoning permeates

and underpins all other CCs, and thus I cannot see how the claim

that agency has been ignored is viable. Simply because Nussbaum does

not have a separate ideal of agency in her theory does not mean

that she does not take account of agency per se, and in fact I think

that the fact that she seeks to incorporate agency (via practical

reason) into the CCs does agency as such much honour.

Yet Nussbaum does place a large amount of responsibility onto the

government as playing a primary role in upholding the CCs. Both of

these methods of implementation (via constitutional law – and

thereby government’s public policy; and what could be termed the duty

of the people) are good as starting points, but even together are not

enough to realise a minimal level of justice for all people. This is

because achieving a threshold must also entail a working

distributive system, a system that can operate above the threshold:

this is the reason for the examination of Walzer’s distributional

theory of justice, which necessarily examines justice above the

threshold; justice (as he conceives of it) throughout society. If a

society does not have a highly functioning distributive system (and

4 For such criticisms see V.Paivansalo , “Responsibilities for Human Capabilities: Avoiding a Comprehensive Global Program” (2009) in Human Rights Review. (2010). 11(4), 565-579. And; R.J.G Classenen, “New Directions for the Capabilities Approach: Deliberative Democracy and Republicanism” Res Publica (2009).

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thereby justice in terms of distribution), it seems unlikely that

such a society will be able to achieve a threshold. Imagine a

society with a government hell-bent on achieving all ten CCs for the

entire populace. The obvious route will be through capability

enablement, the creation of educational systems, the creation of

millions of jobs, of public health, and many other such schemes that

enable such spheres as just mentioned to support the capabilities of

the people living within and through them. This is a mammoth

project, yet it must also be integrated into the spheres of that

society (the particular, differentiated spheres) and such a system

will include many spheres, and the workings of the spheres will have

a direct impact on whether people manage to live above the

threshold; public buy-in is imperative, government alone cannot

achieve the capabilities, and as such the government scheme must

also be incorporated into the overall distributive workings of the

society. In simple terms, the fact that the economic sphere is by

definition a free market in any democratic state (and this is the

kind this essay deals with) means that people may by definition be

so impoverished that access to even a threshold becomes impossible

(say to nutrition, education, proper housing etc.) so to combat

this, buy-in from all the spheres (and the people within them) must

take place. The fundamental entitlements owed everyone must also be

supported by the ‘local’ maximal system of distributive justice, yet

without such an account of just what those fundamental entitlements

are (such as Nussbaum’s) how would we go about making sure of them?

However, Nussbaum does (rightly) emphasise the role of government in

her conceptual scheme. For one, she is able to do so in a broad way,

satisfying the pressing need to respect the actual pluralism of

existing governments, and if she were to attempt to do more (a

global distributive theory) she would start to look distinctly

cosmopolitan, a perspective she does not wish to be viewed from. It

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seems clear that because of the nature of the free market,

government will be forced to intervene (Walzer argues that this is

the purpose of the security and welfare aspect of a government) to

ensure that people do not live in abject poverty. However, exactly

how government should intervene, what government needs to do in

order to secure the CCs for all members of a nation is left to the

workings of the democratic government itself.

Government then is ultimately responsible for upholding the CCs in

any nation. “In my view, there is a conceptual connection between

central capabilities and government. If a capability really belongs

on the list of central capabilities, it is because it has an

intimate relationship to the very possibility of a life in

accordance with human dignity. A standard account of the purpose of

government is, at a minimum, to make it possible for people to live

such a life” (Nussbaum 2011:64). Does it then follow that because a

given life is not minimally just it is government’s fault? It would

seem that is arguably the case, but it is flawed view, in that a

life affected by injustice is often the victim of a rogue agent, a

person acting for personal gain: indeed this is most often the case.

You have something and I want it so I steal it, violating a number

of your CCs and thereby disregarding your human dignity. It would

seem a large ask, to expect government to play a preventative role

in, for instance, violent crime. There are a number of reasons why

such an attack would happen, from mob mentality through to sheer

desperation. Perhaps Nussbaum would argue that, if all of the CCs

exist in a nation, then crime/ violations of the CCs would be much

reduced, and perhaps would beright. Still, it is hard to imagine how

Nussbaum would have bodily integrity (the third CC on her list) which

includes protection against violence, pre-emptively enforced, as the

assailants could and would attack on their own terms: government is

18

left out of their schemes by definition. So all we can do then is to

1) reduce such crime through the delivery of the CCs to the whole

populace; 2) enforce by whatever means available, punishment on

those who have violated other’s CCs, using constitutional law; and

3) emphasise the role of the duty of the people in upholding each other’s

CCs: violating someone else’s dignity is on this view the same as

neglecting one’s duty to the people. To violate someone else’s CCs

is to violate their dignity, and as it is everyone’s responsibility

to uphold that dignity then to violate dignity is against one’s own

duty (the duty of the people). This last point is complicated by

questions of citizenship. Does one only owe dignity to fellow

citizens, or to all people? This is important because if one does

not owe dignity to those who are not citizens then non-citizens will

be targeted as legitimate targets for any number of injustices (an

obviously unsatisfactory outcome). Walzer thinks that we owe

security and welfare only to fellow citizens, but Nussbaum does not,

holding that all people are owed dignity. In this view then, common

humanity presupposes citizenship.

The Purpose of the Central Capabilities and the Pros and Cons of

Minimalism

Nussbaum asks us to understand her list as essentially politically

orientated. Its purpose is to help guide the creation of policies

through a constitution, to allow nations to provide a legal social

minimum to all its citizens. A constitution allows for legal

recourse and the legitimate parties can be held responsible for

their actions in accordance with its laws. Thus if a constitution

embodies the capabilities approach then people will have legal

recourse if their central capabilities are not upheld. With such a

document in place, people will be on the way to a better life claims

Nussbaum, because they will have fundamental rights so extensive

19

that they should in almost all ways conceivable, be protected, and

be able to live prosperous, fully functioning, minimally just lives.

It is seen as the job of government to make sure that the people of

the nation are afforded these capabilities, to build a nation that

delivers to its people a dignified human life. Nussbaum expressly

admits that in terms of dealing with inequality that is above the

conceptual minimal line of justice that she has drawn, or as she

would put it: the “threshold” (Nussbaum 2011:40), her approach has

little to say, and will attempt to grapple with those issues at a

later stage. It does seem to be a real difficulty, in that a theory

like hers could never actually do so: considering itself as a

normative minimal development theory of social justice, it can

necessarily have nothing to say about the maximal undertakings of

any given society, other than to criticise it for not meeting the

threshold of minimal values, through being attached to the maximal

understanding as a module, and thus being incorporated into the

maximal to effect change. Thus, a minimal theory like hers lends a

critical scalpel to any social critic, because it allows us to see

with alarming clarity, the actual level of absolute, intolerable,

yet always tolerated injustice that exists. Her theory, like a

scalpel, serves as a diagnostic tool, cutting through the layers of

putrid injustice, to show us what is wrong. Yet like a diagnostic

tool, it does not provide all the solutions. But it does point us in

the right direction to where we, as people living in our own plural

societies, can find the solutions. So in a sense, her theory

provides an important, yet only partial solution.

As alluded to earlier in the paper, I believe that a minimal account

of justice is not enough for justice per se, and indeed this is

admitted by Nussbaum. A critical undertaking of justice must also

consider distributions. This is because many of the ways in which

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CCs can be violated relate specifically to various spheres of

distribution that operate well in excess of a threshold. The

distributions of capital, education, and political governance come

to mind as a few that are of vital importance, all of which cannot

be simply controlled via a minimal account of justice embodied in a

constitution. South Africa has a constitution which respects many of

the capabilities, yet millions live lives affected by minimal

injustice. For a threshold to be met a more encompassing

distributional theory of social goods must be taken into account,

because although it is possible to conceive of a threshold in any

given distributional sphere, the sphere in question is not limited

by a threshold, but rather operates in excess of the hypothetical

threshold and thus a consideration of the spheres themselves is

important if justice for all is to be had.

Lastly, Nussbaum’s normative approach focuses fully on the

individual. This is a result of her liberalism, which traditionally

focuses on the individual. In fact, the only way her theory makes

any sense, she would argue, is with this focus on the individual.

This is because her theory relies on her account of human dignity,

which is an individualistic account par excellence. Her focus is on

“each person as an end” (Nussbaum 2011:35) still, the claims of

communitarians such as Walzer cannot be brushed aside as lightly as

Nussbaum attempts to do when claiming “This normative focus on the

individual cannot be dislodged by pointing to the obvious fact that

people at times identify themselves with larger collectives, such as

ethnic group, the state, or the nation” (ibid.). It may be true that

the individual is all important, but we cannot fail to remember that

“the most important phenomena we create are the spheres of our

social existence; human creations that we are born into and that

thus first shape us, but are then shaped in turn by a new generation

21

of discourse. We are therefore left with the obvious inference that

spheres (of society) are constitutive of our identity” (Gregory

2012:1096). The spheres that we move in throughout life, spheres

that are by their very nature ‘maximal’ or ‘thick’, are definitive

of who we are. If capabilities allow us to live a life in accordance

with human dignity that dignity would have no worth if we were

unable to live it in a way that is necessarily related to the

spheres of our lives: we must live in a society that allows (through

its distributional justice) an environment whereby our capabilities

and options to choose are maximised. Even more importantly, it is

the very spheres themselves that play the role of host to our lives,

and it is there that our threshold is upheld or broken. South Africa

is host to many social spheres, all of which define who we are: the

importance of the situated particular circumstance can never be

underestimated; South Africans are not American, or European,

although many of us can trace our lineage to many remote nations and

places. But we are all human first, and this is Nussbaum’s point: we

must focus on the individual human life as important before the

myriad of maximal moralities that define us. That is not to say that

being South African (and having whatever morality that entails) is

unimportant, rather she is positing that shared human dignity is

more important, and that all cultures should respect human dignity.

How they do so will be up to them (they will interpret in their own

way) and the CCs are simply a guide to help people think about the

notion of human dignity.

There are a number of key ways in which I can imagine the threshold

to be unmet: Primarily, a lack of capital, education, tolerance,

living and work conditions, nutrition and a plethora of other social

ills. In Nussbaum’s words “The claims of human dignity can be denied

in many ways…Social, political, familial and economic conditions may

22

prevent people from choosing to function in accordance with a

developed internal capability” (Nussbaum 2011:30) or perhaps prevent

the internal capability itself from developing. How are these to be

righted? For one, faced with a pressing need to overcome the

crippling poverty that grips millions of South Africans, we might

ask ‘how do we create millions of jobs?’ Similarly, we might ask

‘how do we raise the level of education from its appalling depth?’

or ‘what about the millions of South Africans that, due to

apartheid, never received even a rudimentary education? What of the

so called ‘lost-generation’?’ These are tough questions, and

Nussbaum’s only guidance is that 1) we create a constitution that

enshrines the CCs 2) that government (as primary agents in upholding

the CCs) create public policy aimed at creating and holding a

threshold and 3) the people of the particular nation (in this case

South Africans) take responsibility of the capabilities through a

sense of duty for themselves and their fellow citizens. But Nussbaum

provides no recipe for creating capabilities, rather she just

affirms their normative importance.

Part II

Michael Walzer

In Spheres of Justice (1983) {SOJ} Michael Walzer paints an entirely

different picture of equality and justice as does Nussbaum, in that

he thinks that justice is not so much a matter of delivering

capabilities at a threshold in order to respect human dignity, but

as the illegitimate domination of a person or a group of people via

social goods used illegitimately. He is a communitarian5 and as such

fundamentally opposed to cosmopolitanism6 (He argues that the focus

5 See C. Armstrong “Shared Understandings, Collective Autonomy, Global Equality”, in Ethics and Global Politics. 2011. 4(1), Pp. 51-69. 6 Ibid.

23

of any discussion in terms of distributive justice must be

understood in terms of the particular community’s situated,

differentiated, plural structure as opposed to single distributive

criterion that can and should be universally applied. What I mean is

that we have to understand that throughout the world, people’s

conceptions of social goods depend on the social meanings of that

place and time; the meanings of social goods and thereby how they

are related and traded are relative to that time, place, and

situation). Thus, as Nussbaum has cosmopolitan-like aspects to her

theory (in her universalism) it is easy to see why at first glance

Nussbaum and Walzer would be opposed to one another, however in this

paper I argue that the two are not fundamentally opposed to one

another. Still, that discussion I will save until last.

Communitarians place emphasis on the particular, differentiated,

historically embedded nature of any society, and thus follow what

has been described as the doctrine of ethical particularism7. This

doctrine argues that the focus of any conversation on justice must

(and in fact should always) be on the “rich local meanings and

cultural norms of a given community that, in turn, shape our

individual identities.” (Gregory 2010:1095). This is indeed Walzer’s

project: He wants his theory to represent pluralism (the pluralism

of goods and the way in which they are traded, as well as pluralism

of culture and social meaning). This is an important overlap between

Walzer and Nussbaum, as her theory also aims at supporting

pluralism. In SOJ Walzer argues for what he considers to be an

egalitarian conception of justice. However, it is not the ‘simple’

equality of earlier egalitarianism, but rather what he calls

“complex equality” (Walzer 1983).

Simple and Complex Equality

7 See J.Gregory “The Political Philosophy of Walzers Social Criticism”, in Philosophy and Social Criticism (2010). 36(9), Pp. 1093-1111.

24

Imagine a society where everyone had the same amount of any given

good (the imagined primary good). Perhaps the good is money, or

political power, or social influence, education, or any number of

things. In the regime of simple equality, all of these, or just one,

could be identified as the dominant good, and the basic egalitarian

principle of simple equality of distribution is implemented,

allowing for identical equality of this social good. Walzer argues

that such a simple egalitarian equality would be highly unstable and

prone to collapse. Take for instance, money. Everyone is allotted

one hundred rand (funds) and they can now buy and sell, hoard or do

whatever they please with the money. However, this is problematic,

as by the end of the day the equality that had been that morning

established would dissipate. Some will have spent their money on

this or that, some would not have. So by the end of the day the

regime of simple equality would have to be re-established, in order

for it to continue. In other words, buying and selling wouldn’t

actually even be possible, and furthermore, a government with

constant omnipotent omnipresence would have to be in control to

constantly maintain and regulate the state of simple equality. In

fact, simple equality does not fit well with our modern

understanding of what it is to live life, and to strive and achieve,

for in simple equality, everyone gets the same, no matter the

effort.

Walzer wants us to understand standard egalitarianism as generally

following in the footsteps of this simple equality, holding it as a

(false) ideal. In its stead, he wishes to propose a new standard of

equality, that makes sense (he claims) at least in an American

setting (Walzer argues that he is a ‘thick’ social critic, so his

being an American means that he is directly thinking of the USA when

formulating his theory). Simply put, imagine that in any given

25

society there are a number of ‘spheres’, the sphere of politics, of

education, of free market, of family, of any social phenomena.

Walzer argues that these spheres of society all have their own

necessarily interrelated social goods by which they function, and

these social goods are the focus of any discourse on distributive

justice, however as these social goods are just that (social) they

have particular differentiated ‘thick’ meanings and as such no

universal account of distributive justice is possible without

imposing upon others across the world a view of the meanings of

social goods that is not necessarily theirs (this is the

cosmopolitan stance). Complex equality is a balance of these

necessarily overlapping spheres; complex equality allows for many

social goods to have legitimate roles in human life (depending on

that life the social goods of importance will change), and those

spheres are interrelated, forming what we could visualize as spheres

that are autonomous yet overlapping, linked in interesting and

subtle ways. Thus complex equality is a balance between spheres, and

its (complex equality) arch nemesis is domination.

For Walzer, it is domination that is at the heart of inequality.

Domination is understood as one social good, legitimately traded,

spent, or accumulated within its own sphere, being used to gain some

other social good that the particular social good in question should

not be able to obtain. For instance, no matter the wealth of a

person, they are entitled to only one vote, their own. The buying of

a vote from someone else then, is tyrannical (and represents

domination). So importantly, for complex equality to work, there

must be a determined list of “blocked exchanges” (Walzer 1983)

placing limits on what money can buy, and “limited power” (ibid.) in

terms of the reach of political power (both of these will be

discussed in more detail as the paper progresses). Still, in

26

Walzer’s view monopoly of any one social good is not itself

inherently wrong, and he argues that different groups of people may

legitimately monopolise various social goods. “Equality is a complex

relation of persons, mediated by the goods we make, share, and

divide amongst ourselves” (Walzer 1983:18) because society is

importantly a “distributive society” (Wazler 1983:3) (it is other

things too but it is importantly this) then if we are to have any

understanding of distributive justice, we must attend to the goods

that are themselves distributed. In any society goods will be

different, with different meanings. As such, no account of complex

equality as a ‘one size fits all’ is possible. Because the goods

themselves are different, and complex equality demands the

definition of the boundaries (of the spheres), and because the

definitions of the meanings of the social goods in question is

relative, then it is impossible to give an account of distributive

justice (in a complex equality guided fashion) as a comprehensive

doctrine: This would be a cosmopolitan gesture and as such would

destroy the pluralism that Walzer defends as all important. In

short, he attempts to argue that distributive justice needs to be

understood in terms of social goods. These goods are traded off, and

dominated by groups of people. This domination is the primary source

of injustice. The purpose of complex equality (ideally) is to

prevent domination.

The State

The role of the state is extremely important for Walzer. “As State

Power, it is also the means by which all the different pursuits,

including that of power itself, are regulated. It is the crucial

agency of distributive justice; it guards the boundaries within

which every social good is distributed and deployed” (Walzer

1983:281) and “they act on our behalf and even in our names (with

27

our consent)” (Walzer 1983:282). The state is the regulator of

complex equality and represents the people as such. Of course,

rampant tyranny, in the form of cross sphere domination occurs most

of all in this crucial sphere, because political power is the means

by which power (dominating power) is most easily achieved. This

partiality to domination on the part of the political sphere then

calls for regulation of the sphere itself. This regulation is

understood by Walzer as “blocked uses of power” (ibid.) whereby the

limits of political power are understood, and the legitimate cross-

sphere interactions that occur are endorsed by the population.

The state has another role, one that is central to its purpose: that

of welfare and security. “There has never been a political community

that did not provide, or try to provide, or claim to provide, for

the needs of its members as its members understood those needs”

(Walzer 1983:68) and “I want to stress instead the sense in which

every political community is in principle a ‘welfare state’”

(ibid.). In the above two quotes, Walzer is trying to make the

argument that the purpose of communal living is to support and grow,

and as such, all communities have in some way attempted to meet the

needs (whatever those are) of the individuals living there and thus

at least minimally can be classified as ‘welfare states’.

Interestingly Walzer’s particular strain of universalism, his

reiterative universalism is here clearly apparent (in the above quote,

Walzer’s reference to the commonality shared between all political

communities ever: that they have always proclaimed to serve the

community in some way) but more will be said on this in the

following section. Importantly, just which social goods are owed to

the community (or parts of the community) can only be decided by the

particular, differentiated government and not by an overarching

comprehensive doctrine, such as a cosmopolitan approach.

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Money and Education

The sphere of money, the free market, is a sphere that permeates

life in many ways. Legitimately, it buys commodities: Things that we

need or want; staples or luxuries, goods and services. There are

things, however, that money cannot buy. Walzer lists fourteen such

blocked exchanges, and they are crucial in linking Walzer and

Nussbaum, and so they are briefly listed here too. Things that money

cannot buy include 1) Human Beings; 2) Political power and

influence; 3) Criminal justice; 4)Freedom of speech, press,

religion, assembly; 5) Marriage and procreation rights; 6)The right

to leave a political community; 6) Exceptions from communal duties,

such as compulsory military service, or jury duty; 8) Political

office; 9) Basic welfare services such as police protection or

primary and secondary education; 10) Desperate exchanges are barred,

and this is to stop for instance workers from working below a

minimum wage. This kind of a blockage ensures some personal

liberties are upheld; 11) Prizes and honours of many sorts,

including public and private; 12) Divine grace; 13) Love and

friendship; and 14) Many criminal sales, for instance murderers

cannot sell their services, or blackmail as an illegal activity.

In a few crucial ways, Walzer is in agreement in this section with

Nussbaum. The importance of human dignity is emphasised in the ban

on slavery (although human dignity is not mentioned ever), or the

rights to freedom of speech, marriage and procreation. Especially

important is the welfare role (as described by Walzer) of a nation,

as this role ties in with Nussbaum’s ideas about the fundamental

role that government plays, which is the provision for the exercise

of the CCs, or perhaps the making possible of opportunities. A

central capability of extreme importance is education and it is one

that Walzer too pays high homage to in awarding it a prime position

29

as part of any welfare states prerogatives (or perhaps the American

welfare state as envisioned by Walzer). Of course, Walzer is not

interested in drawing a threshold, because to do so would be overly

prescriptive in his eyes. But even so, the sphere of security and

welfare play a crucial role in 1) arguing and allowing for a

threshold and 2) implementing via public policy that threshold. In

fact, the very notion of blocked exchanges implies a threshold, a limit

on what can and cannot be bought. In many ways, drawing boundaries

on, for instance what money can buy is similar to drawing a

threshold: because surely a just distribution of social goods will

take into account at least some things that are universal? Perhaps

the common human dignity shared by all as a reason to ban slavery as

he does? By supporting boundaries, Walzer effectively legitimises

the spheres and their attendant goods. In so doing Walzer allows for

the different areas of development that human beings exist in, the

spheres, and provides a crucial link between himself and Nussbaum:

For humanity to function in any sphere is presupposed by human beings being capable of

doing so in the first place. In other words, only a capable person can

function at any level in at least most spheres. The person must be

taught/educated about any given sphere (and all its attendant

goods), or somehow initiated; they must come to know what exchanges

are legitimate, and which are contraband. This education8 is

development, though Walzer is unconcerned about it as such, assuming

that it just happens and that not much more on it needs to be said;

Nussbaum (properly) disagrees. Thus together, they provide a wider

understanding of not only the reality of various spheres (all with

attendant social goods) which require autonomous distributive

criteria, but of how the ‘universalised individual’ can function at

all in any given sphere: through capabilities. The quality of that 8 Education not only in the limited, yet highly important role of schooling, but also in a much more general use of the term, as in applying to all learning as such.

30

functioning is determined by the quality of the internal, combined,

and especially central capabilities. But Walzer recognises the

importance of education, at least in terms of schooling, and as such

does seem to accept that development is important. So I do not think

that he is opposed to the capabilities approach as such. In fact

Armstrong makes the argument that Walzer practices a kind

“reiterative universalism” (Armstrong 2011:54) when arguing about

ethics in the international domain, such that the “content of any

universal morality is precisely those principles that empirically

speaking are common to diverse communities” (Armstrong 2011:54) but

that “we should not expect too much convergence” (Armstrong 2011:54)

over just what that overlap is. However, Nussbaum disproves Walzer

and simultaneously affirms him. At once she shows that we can

compile a list of ten central capabilities that are reiterated

across all communities while managing to not provide an overly

prescriptive world view, such as a cosmopolitan stance. It is the

cosmopolitan stance that Walzer is against, which Armstrong

describes as a “Covering Law” (Armstrong 2011:54). This is the idea

that there is a single moral law which ought to be imposed upon

everyone: moral imperialism; ultimate cultural domination.

Domination

In a state that attains ideal complex equality, there will be no

domination. All spheres will be mapped out and understood, and the

appropriate blocked exchanges and limited power will be placed on

the social goods. Legitimate and illegitimate social goods exchanges

will be the order of the day, and thereby tyranny (understood as the

illegitimate access to social goods through other social goods) will

be avoided. Such a society would in reality have many inequalities,

because individuals and groups will still monopolise various social

goods (legitimately). This is not in itself an issue, as a theory

31

that created absolute simple equality is to be avoided. Still, this

distributive theory, which aims at the elimination of domination,

does not seem to take into account any idea of a threshold, and as

such, people are under no obligation to try and raise all people

over a certain threshold. Perhaps Walzer would argue that a

threshold is in fact undesirable as 1) such a threshold would be

overly prescriptive and; 2) such a threshold must be relevant to the

plural communities across the world, so it would need to be based on

the (in his view) limited ‘reiterative universalism’ to be found

across all communities. Indeed, a threshold has no room in a theory

aimed directly at what turns out to be something like and ‘equality

against domination’. Thresholds can only make sense in theories that

prescribe to an ‘equality of opportunity’ (or capabilities), and

this is what Nussbaum’s theory is. However, Walzer does in fact

strongly support ‘equality of opportunity’ but in the more limited

sense of a career open to talents. This is the idea that jobs should be

earned on merit and not given for arbitrary reasons. So where

Nussbaum is arguing for a kind of equality of opportunity to be able

to choose and to be whatever one wants to be (after all her approach

is not the ‘opportunities approach’ but conceiving capabilities as

opportunities to choose and to be is not a bad way of thinking about

them), Walzer understands equality of opportunity as a good

distributive criterion but only when it is merited: “‘equality of

opportunity’ is a possible, and a valuable, distributive principle

only when significant numbers of men and women have given up these

alternatives and come to see their lives as careers” (Walzer

1994:24). The “alternatives” (ibid.) in the above quote are lives

such as the inherited life; the socially regulated life; a spontaneous life; a divinely

ordained life9.

9 See Michael Walzer Thick and Thin (1994) Pp.24, London: University of Notre Dame Press

32

Interesting questions surrounding domination must be asked and

answered. If domination is the ultimate evil against complex

equality, does that mean that all people who are in some way

dominated are victims of injustice? What does his theory have to say

about the psychology of humanity: That to dominate is wrong? That to

be dominated is wrong? It seems that people have some kind of a

natural drive to dominate, and that this can be legitimately

expressed through the monopolisation of goods. However, when these

people illegitimately dominate other spheres and thereby the people

in them, they act wrongfully. So it seems that the answer to the

questions above is, yes, humanity naturally want to dominate, but to

do so in a socially unacceptable way (illegitimately across spheres)

is unjust. Humanity then faces a Freudian battle, wanting, nay

needing to dominate, yet forced by the super-ego into subservience

to the social system. So humanity, in simultaneously accepting the

need to dominate and the shackles of society (complex equality)

finds itself a slave to the social system, dominated by the social

goods that are the dominators; the spheres and their goods are

greater than any human life, existing not independently of humanity

(we created them) but independently of any individual life. And one

of the most powerful of these social goods, in terms of domination,

is money, or to be more specific, the lack thereof10.

Without money of any sort, the state known as abject poverty, one is

incapable of doing anything, one’s life options and choices are

brutally limited, and one’s very existence is done violation by the

very capabilities it lacks. As Walzer points out “Money, supposedly

10 Other social goods such as political power and formal education are also architectonic, yet living in abject poverty is so anti-humane that it must be seen as exceptionally important that all people (if they are able) should have some kind of an income that allows them to live minimally just lives. An income by itself is not enough to guarantee this, but a life cannot be minimally just without it.

33

the neutral medium, is in practice a dominant good, and it is

monopolised by the people who possess a special talent for

bargaining and trading – the green thumb of bourgeois society.”

(Walzer 1983:22). Indeed, he goes on to argue that “Money seeps

across all boundaries – this is the primary source of illegal

immigration” (ibid.). Money makes the world go round, and without it

our people have no power, no ability to facilitate growth, to

distribute via the means of a medium: there is no way that people

who live in abject poverty can have their central capabilities met,

because they have limited development of internal capabilities, and

next to no support for combined capabilities, let alone access to

the most fundamental of capabilities, the CCs. But Walzer sees this

problem and thus argues that as any state is first of all a kind of

‘welfare state’, that is, it must provide for its people, and as

such the state must undermine the free market to a degree: It must

facilitate growth if people cannot afford to, it must help build

lives that can live functionally in the spheres. At one point,

Walzer argues that “the inner logic, the social and moral logic of

provision” is such that “Once the community undertakes to provide

some needed good, it must provide it to all the members who need it

in proportion to their needs.” (Walzer 1983:75). Nussbaum simply

makes the argument that certain overarching social criteria are of

such importance that people need them in order to live a minimally

just life, and so in essence their arguments are not incompatible in

this crucial area: the idea of the role of government as providing

certain goods because of the neediness of the people provided to,

namely every member of the nation is common between them: Equal

opportunity to jobs (via merit), education, political rights and the

very role of the government in terms of security and welfare are all

common. Lastly, and to draw the discussion of the section together

(domination, money and security and welfare) “Men and women who

34

appropriate vast sums of money for themselves, while needs (of the

people of the nation or community) are still unmet, act like

tyrants, dominating and distorting the distribution of security and

welfare” (Walzer 1983:76). So it seems possible that due to the

nature of money, in playing such a fundamental role in distributive

justice, that it can be used to dominate, even if it has been

legitimately monopolised. In fact, the above quote points us towards

Walzer as open to a threshold: if people can act as tyrants

(dominating others) against the security and welfare of the nation

by hoarding vast sums of money while others have none, then it seems

apparent that Walzer supports the idea that everyone should at least

have some (in this case money) and as such be able to participate in

any number of spheres opened up either exclusively or in partnership

with (in this case) money. But a basic redistribution of the money

in a society resulting in simple equality is undesirable, so what is

the way forward? Perhaps a small tax on the richest of the nation

would help solve the problem, to fund a developmental process of

‘welfare’ with the aim of ensuring the central capabilities? However

this would only be effective if such redistribution actually

enabledpeople. It is not enough to simply hand out fish; rather we

need fishermen and women who can catch their own. The focus must be

on sustainable job creation and thereby enablement. Only with such

skills acquired can people actually have a chance at a life lived

worthy of their human dignity. In South Africa there are millions

who live below a minimally just life, and thereby function minimally

in any or all spheres. These people must be educated with skills,

these skills in turn must be put to use, and the people in turn

paid, which in turn helps build the economy and the cycle comes full

circle.

Thick and Thin

35

In his book Thick and Thin (1994) Walzer discusses the difference

between moral maximalism and minimalism. In particular, he wants to

show that social criticism always arises out of maximalism because

that is actually what morality is. The book is particularly

important for this essay for the obvious reason that Nussbaum’s

theory is a minimal morality based ethics of development, and so

further insight into just what that means for the relationship

between the two thinkers is pertinent. Walzer begins with a

discussion on minimalism; he describes a scene whereby a crowd of

people are marching (on the TV screen) in the streets of Prague

(1989) and bearing signs with titles like Justice, Truth, etc.

Immediately we are able to march alongside these people under our

thin universal understandings of just what these terms mean. But in

reality, we all have our own particular differentiated situated understandings

of just what these terms mean. In other words “justice is a social

invention, variously made” (Armstrong 2011:53). Walzer gives the

following account of minimal (universal) morality: “Though it was

first worked out in a specific time and place, it bears no mark of

its origin. This is the standard philosophical view of moral

minimalism: it’s everyone’s morality because it is no one’s in

particular; subjective interest and cultural expression have been

avoided or cut away” (Walzer 1994: 7). For Walzer, this is

unacceptable, as it is this very “subjective interest and cultural

expression” (ibid.) that defines us.

Walzer uses an example of a slab of marble, and a master artist. The

artist sees inside the marble, a beautiful statue waiting to be

exposed. We can imagine that this is the standard account of a

universal morality, and that underneath the thick outer layer, the

true morality lurks waiting only on a chisel to be set free for the

world to behold. But Walzer denies this to be the case, and proffers

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an alternative account of minimalism, one far less flattering. He

argues that “Morality is thick from the beginning, culturally

integrated, fully resonant, and it reveals itself thinly only on

special occasions, when moral language is turned to specific

purposes” (Walzer 1994:4) and as such that minimalism expresses not

the foundation of maximalism, but vice versa. Minimalism is the

“abstract version, a stick figure, a cartoon that only alludes to

the complexity of the original” (Walzer 1994:18) and that “We don’t

all possess or admire the same statue (The statue understood as our

own thick morality) but we understand the abstraction.” (ibid.). In

fact, Walzer is not against the abstraction as such, and thinks that

at least moral minimalism can give an account of justice, but that

its power would be limited (Walzer 1994:10):

“It is possible; nonetheless, to give some substantial account of

the moral minimum … Perhaps the end product of this effort will

be a set of standards – Negative injunctions, most likely, rules

against murder, torture, oppression, and tyranny. Amongst us,

late twentieth-century Americans or Europeans, these standards

will probably be expressed in the language of rights, which is

the language of our own moral maximalism. But this is not a bad

way of talking about the injuries and wrongs that no one should

endure, and I assume that it is translatable”

So moral minimalism can at best only echo a negative set of

standards to protect people against “injuries and wrongs that no one

should endure” (ibid.) and that these standards would probably be

expressed in terms of maximal (western) human rights. However,

importantly these human rights are “translatable” (ibid.) so Walzer,

like Nussbaum, does not seem to think that human rights imperialism

is an actual possibility. Rather, we must tease an answer from

Walzer that he himself does not give. We must ask and answer the

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question as to why there are such things as “injuries and wrongs that

no one should endure” (ibid.)? On what basis can we claim that there

is reason to not harm and do as we please to others? Why not murder

or rape, steal and abuse? The only reason that I can think of is

human dignity. Human dignity supports such a threshold, as well as

human rights, and in particular the capabilities approach.

Finally, it is important to remember that Walzer is concerned with a

distributive theory of social goods. He explains this position

perhaps best “The basic idea is that distributive justice must stand

in some relation to the goods that are being distributed. And since

these goods have no essential nature, this means it must stand in

some relation to the place that these goods hold in the (mental and

material) lives of the people among whom they are distributed. Hence

my own maxim: distributive justice is relative to social meanings”

(Walzer 1994:26). Aside from complex equality, Walzer’s focus on

pluralism and its direct impact on distributive justice carries much

insight, and puts him in opposition to cosmopolitanism, which holds

that there can and should be a single globally viable system of

distributive justice.

Part III

Coming together

Throughout the paper, I have tried to show the individual

philosophers in their considerable difference and remarkable

similarity. I wish now to highlight a few more, and some of the

already given, to come to some kind of a fusion of their thought.

This kind of interpretive philosophy is never perfect, yet it can

also provide insight and provoke conversation, because

interpretation is not simply an activity done on an occasion, but

something that we do at all times. This is Walzer’s great insight;

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the realization that humanity’s vast pluralism of comprehensive

doctrines ultimately leads to various interpretations of social goods

and thus his argument for complex equality. So for Walzer human

beings are interpretive creatures at a fundamental level. Walzer

places his focus on the comprehensive doctrines and social norms,

groups, communities; people living together in all the ways that

they can and do; one’s nation: society at large. These are the

things that define us claims the communitarian and are thereby

extraordinarily important for any discussion on justice. In other

words Walzer is a communitarian. Perhaps I could sum up the position

as follows one’s interpretational ability is forged in the fires of society; the communities

we live in define us, by defining the way in which we interpret the world.

Importantly, Walzer places himself in direct opposition to

cosmopolitanism. This is the view that one overall distributive

system can and should be implemented worldwide. Because of his focus

on the social meaning of goods, to make such a cosmopolitan gesture

would be the ultimate in cultural imperialism, and would reject all

pluralism. Nussbaum agrees, in that she does not propose a global

distributive theory, but simply a minimal justice, akin to the

reiterative universalism that Walzer is unopposed to. So because

Nussbaum supports the importance of pluralism, and because her

theory is non-comprehensive, understood as a module attached to a

person’s actual morality for political purposes only (for purposes

of security and welfare perhaps?), and understood in an overlapping

consensus, and because of Nussbaum’s reiterative universalism,

Walzer and Nussbaum make a good partnership when it comes to a

discussion of justice in general. When considering the overly large

concept of justice the two taken together cover a large amount of

territory in terms of the scopes of their individual philosophies.

39

Nussbaum is also interested in interpretation, but to explain why, I

need to give a brief explanation of her thought. Basically, because

she is interested in the development of capabilities, she is thereby

interested in developing individuals capable of the interpretation

that Walzer is so concerned with. Furthermore, Nussbaum relies on

people’s capacity to interpret her list in their own way in order to

find an overlapping consensus (for political purposes). She sees

herself as a liberal, and as such focuses her thought firmly on the

individual, but as such she recognises at the same time the

pluralism of comprehensive doctrines the world over are important

for their own sake (and these are the comprehensive doctrines by

which we interpret the world around us); people are defined by them

true, but in a way that is perhaps not as definitive as the

communitarian approach suggests. What I mean is that although it is

true that where we live and how we have lived defines us personally,

that does not mean that there are not at least some things that are

reiterated across all cultures. This reiterated minimalism allows us to

focus the discussion on capabilities (which to be sure require

social goods as will be argued in the following paragraph when I

consider the mutual presupposition of Nussbaum and Walzer) as

opposed to social goods, and thereby allows us to focus on the

universal individual; it allows us to focus on our common humanity

and what that humanity requires in order for its inherent dignity to

be respected. The central capabilities are not necessarily things that

we own, although things that we own can and often are related to the central capabilities

themselves; they are opportunities to choose and to be, and Nussbaum

bases this claim on the notion of human dignity. To choose and to be

what we please is the founding gesture of what it is to be human,

this is the core principle of the capabilities approach and it

echoes the liberalism on which it is founded. She wants people to

live lives in which their capabilities are at least above a

40

threshold, below which is injustice, because without them people are

unable to function or perhaps even more importantly, choose to

function. This happens for the same reason that poverty breeds

poverty, and racism breeds only hate and repeats itself: a negative

cycle of deprivation will lead to a person whose ability to

interpret the world will be limited, broken. This is not to say that

out of the depth of abject poverty good people cannot come, it is to

say that good people can come from abject poverty, but their quality

of life will most likely never reach a threshold in crucial areas of

development, without deliberate input from outside, perhaps from

government? Abject poverty is an evil in itself, for it breeds only

more poverty, thus living in such a state is an injustice to dignity

itself. This minimal account of justice allows us to consider what

it would take to live a life worthy of dignity itself, and to our

shame we see millions without their central capabilities in at least

some way. So her theory too, is ideal: a noble dream of a better

world. And like Walzer’s ideal complex equality, I believe it is one

worth striving for.

The relationship between Walzer and Nussbaum is actually an

incredible conundrum, because not only does Nussbaum’s account of

human dignity and the capabilities approach presuppose Walzer’s

complex equality; but in an amazing way Walzers account manage to

presuppose Nussbaum. In other words, they presuppose one another,

and this surely seems like a bizarre claim, so let me explain.

Earlier in the paper, I argued that for humanity to function in any sphere is

presupposed by human beings being capable of doing so in the first place; and thus in

this way the capabilities approach presupposes complex equality.

However, I also elaborated on the distributive aspect of Nussbaum’s

account, her dependence on the outside world to be one that allows

for the capabilities to blossom and grow. In other words, her

41

account requires a highly proficient state, using the large amount

of tax that it will collect from the highly functioning economic

sphere, itself stimulated in culturally and internationally salient

elements. This tax will be used to pay and purchase everything that

it takes, be it labour or technology, to provide each and every

single person with at least a threshold. This threshold is the realm

of security and welfare in complex equality, as well as the

principles of equal opportunity, equal education and equal political

rights as fundamental to both theories. Her theory needs complex

equality, or some other account of distributive justice for it to

work in practice. So they presuppose one another, and although both

place their emphasis on different starting points (the individual

and the community), and although neither wants to budge on these

early principles, we are forced to acknowledge the importance of

both thinkers for justice overall. Nussbaum provides a positive

account of the reiterative universalism that Walzer thought would be

sparse, and Walzer helps us to understand what a highly functioning

society might look like, itself necessary for Nussbaum’s account to

be successful: they presuppose each other.

A word on government, education and the final argument of this paper

is now in order. Walzer understands the role of government in two

ways: 1) as the regulator of complex equality, 2) as a welfare and

security state. The state wields the most powerful of powers, power

itself, because state power is representative power at its biggest:

whole nations handing over guardianship to the political parties,

and we can imagine that in some ways that power is even

quantifiable in terms of the percentage of the votes it controls. On

this view ultimate power is derived from vote’s themselves. So all

members of the nation must have the power to vote for that power to

be legitimate; Nussbaum agrees: “all the political entitlements, I

42

argue, are such that inequality of distribution is an insult to the

dignity of the unequal” (Nussbaum 2011:41). For Nussbaum, political

rights are extremely important. More importantly, she agrees with

Walzer on the role of government so far as he understands that all

states are welfare states. The state distributes central

capabilities and it is the state that is ultimately responsible for

ensuring the central capabilities. The focus of the capabilities

approach is basically one that emphasises the enablement of

individuals. This is the way to ensure against infringement of human

dignity, and as such education is extremely important to her

(rightly so). She even quotes Adam Smith to the effect that the

deprivation of education is akin to the mutilation of a person’s

ability to live a life of dignity. Likewise, Walzer understands

education to be extremely important, although he stresses how

education will be interpreted differently across the multiplicity of

communities worldwide. Walzer thinks that “we can think of

educational equality as a form of welfare provision” (Walzer

1983:203) and it should be provided to all as such. Education is the

path to enablement in at least a few crucial ways, not the least in

creating human beings that can do and be what they choose. To act freely

and participate throughout the various spheres of her life that is important to her. This

then is the ultimate purpose of both complex equality and the

capabilities approach: to enable human beings to live in a way that

respects their plural nature, allows them to participate and

interpret many rich thick social goods, and to be capable of this

interpretation in the first place. Nussbaum supplements Walzer,

giving an account of just why it is that there are such things as

blocked exchanges, because human dignity must be respected.

Furthermore, Nussbaum presupposes Walzer, yet he crucially does the

same for her, by providing a theory of equality that would allow for

a diverse plural community to live and function highly; and as

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argued this is necessary for Nussbaum, as only such a nation, with a

highly proficient ‘welfare’ government could in turn enable

individuals to live in the society: we face a cycle of enablement. Yet such

a cycle is ideal because it revolves around two ideal theories,

ideal minimal justice and ideal complex equality. What happens in

reality? Perhaps the very opposite: a cycle of abject poverty and disadvantage

permeate and grow below the threshold, begetting to the nation

individuals unable to participate meaningfully in many spheres,

access barred through brute luck of birth. And so the spheres

themselves function on, but never as well as they could, and with

many more illegitimate trade-offs and desperate exchanges, people

doing anything to get anywhere; a sad situation and it is South

Africa’s lot. Injustice is a reality, below the threshold and above,

and we must find ways in which to combat it (injustice in all its

forms), and the consequential devastating effects it has on the

lives of millions. A combined, fused version of Nussbaum and

Walzer’s theories of justice as enablement, can guide us in this

quest.

Conclusion

In conclusion, this essay has argued that enablement as the focus of

the capabilities approach, and as a necessary precondition for

complex equality, should be the number one priority for any nation

looking to create societies which provides its citizens with a more

equal standard of life and thereby adequate opportunities to do,

choose and be what they will. Nussbaum and Walzer provide insight

into the importance of pluralism of comprehensive doctrines, and the

pressing urge for development with the aim of creating better

people, and better societies. Both thinkers help us to understand

injustice differently, from domination to violations of human dignity, and

both point to the importance of enablement if any real headway is to

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be made on the war against injustice. Despite their differences

(Walzer’s communitarian focus on groups, and Nussbaum’s liberal

focus on the individual) their theories are in fact commensurable,

and together provide a picture of justice that is highly

interesting, because it covers more ground than either covers

individually, and brings different philosophies together in a way

that is actually important for both theories: as I have shown, they

presuppose one another in a cyclic manner.

13879 words

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