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Natural Deficiency or Social Oppression? The Capabilities Approach to Justice for People with Disabilities

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Theories of distributive justice are often criticised for either excluding people with disabilities from the domain of justice altogether, or casting them as deficient in personal attributes. I argue that the capabilities approach to justice is largely immune to these flaws. It has the conceptual resources to locate most of the causes of disadvantage in the interaction between a person and her environment and in doing so can characterise the disadvantages of disability in a way that avoids the imputation of natural deficiency. However, I also argue that the capabilities approach cannot accommodate some of the stronger claims advanced by some disability scholars. No plausible capabilities approach can guarantee that social change will always be the just or fair remedy for disadvantage, and there is a small number of severe cases of disability where capability shortfalls will be attributed to the person’s ‘deficient’ physical and mental impairments.

1. fn11 Cf. R. Amundson, ‘Biological Normality and the ADA’, in Leslie Pickering Frances and Anita Silvers (eds), Americans with Disabilities. Exploring Implications of the Law for Individuals and Institutions (Routledge, 2000), pp. 102-110; A. Silvers, ‘Formal Justice’, in Anita Silvers, David Wasserman and Mary B. Mahowald, Disability, Difference, Discrimination. Perspectives on Justice in Bioethics and Public Policy, (Rowman & Littlefield, 1998), pp. 13-145; A. Silvers, ‘The Unprotected. Constructing Disability in the Context of Antidiscrimination Law’, in Leslie Pickering Frances and Anita Silvers (eds), Americans with Disabilities. Exploring Implications of the Law for Individuals and Institutions, (Routledge, 2000), pp. 126-145.
2. fn22 M. Oliver, Understanding Disability. From Theory to Practice, (Macmillan Press, 1996), p. 22.
3. fn33 Silvers, ‘The Unprotected’, p. 128. As these quotes suggest, impairments are usually understood as those mental or physical traits widely identified as such, albeit for various reasons (for example, because they are traits which deviate from advantageous species norms). Disability is usually understood to refer to the limitations in functioning typically associated with impairments. It is worth noting that even the notion of impairment is controversial, with some scholars insisting that such traits are merely different to those of the majority, rather than statistically or biologically deviant (cf Amundson, ‘Biological Normality and the ADA’).
4. fn44 Cf. Silvers, ‘Formal Justice’, p. 23.
5. fn55 ‘Formal Justice’, pp. 23-53.
6. fn66 R. Dworkin, Sovereign Virtue. The Theory and Practice of Equality, (Harvard University Press, 2000).
7. fn77 N. Daniels, Just Health Care, (Cambridge University Press, 1985).
8. fn88 E. Anderson, ‘What is the Point of Equality?’, Ethics 109 (1999), pp. 287-337; J. Wolff, ‘Fairness, Respect and Egalitarian Ethics’, Philosophy and Public Affairs 27 (1998), pp. 97-122; Silvers, ‘Formal Justice’.
9. fn99 R. Arneson, ‘Equality and Equal Opportunity for Welfare’, Philosophical Studies 56 (1989), pp. 73-93; J. Bickenbach, ‘Disability, Non-Talent and Distributive Justice’, in Kristjana Kristiansen, Simo Vehmas and Tom Shakespeare, Arguing About Disability. Philosophical Perspectives, (Routledge, 2009), pp. 105-123; G.A. Cohen, ‘On the Currency of Egalitarian Justice’, Ethics 99 (1989), pp. 906-944.
10. fn1010 It is important to acknowledge that not all disability scholars accept all of the claims that are the focus of this paper. For example, a number of disability scholars have denied that it is only social environments that render impairments disadvantageous: cf., J. Morris, Pride Against Prejudice, (The Women’s Press, 1991); S. Wendell, The Rejected Body. Feminist Philosophical Reflections on Disability, (Routledge, 1996). Nor by any means do all disability scholars deny the importance of redistributive measures in securing justice for people with disabilities.
11. fn1111 R. Arneson, ‘Disability, Discrimination and Priority’, in Leslie Pickering Frances and Anita. Silvers (eds), Americans with Disabilities. Exploring Implications of the Law for Individuals and Institutions, (Routledge, 2000), pp. 18-33; T. Pogge, ‘Justice for People with Disabilities. The Semiconsequentialist Approach’, in Leslie Pickering Frances and Anita. Silvers (eds), Americans with Disabilities. Exploring Implications of the Law for Individuals and Institutions, (Routledge, 2000), pp. 34-53; D. Wasserman, ‘Distributive Justice’, in Anita Silvers, David Wasserman and Mary B. Mahowald, Disability, Difference, Discrimination. Perspectives on Justice in Bioethics and Public Policy, (Rowman & Littlefield, 1998), pp. 147-207.
12. fn1212 ‘Disability, Discrimination and Priority’, p. 18.
13. fn1313 Ibid., p. 24.
14. fn1414 ‘Formal Justice’, p. 96.
15. fn1515 M. Nussbaum, Women and Human Development. The Capabilities Approach (Cambridge University Press, 2000); M. Nussbaum, Frontiers of Justice. Disability, Nationality, Species Membership, (Harvard University Press, 2006).
16. fn1616 Nussbaum, Women and Human Development; Frontiers of Justice; Anderson, ‘What is the Point of Equality?’
17. fn1717 T. Pogge, ‘Can the Capabilities Approach Be Justified?’, Philosophical Topics 30 (2002), pp. 167-228, p. 183.
18. fn1818 A. Sen, Inequality Reexamined, (Oxford University Press, 1992), p. 33.
19. fn1919 Ibid., p. 28.
20. fn2020 This is not inconsistent with the acknowledgement that some people with a given range of natural endowments may find it easier to function in a wider range of environments than others.
21. fn2121 T. Pogge, ‘Can the Capabilities Approach Be Justified?’, p. 177.
22. fn2222 Ibid., pp. 183-6.
23. fn2323 L. Barclay, ‘Disability, Respect and Justice, Journal of Applied Philosophy, 27 (2010), pp. 154-171.
24. fn2424 Ibid.
25. fn2525 E. Anderson, ‘Justifying the Capabilities Approach to Justice’, in I. Robeyns, and H. Brighouse (eds), Measuring Justice. Primary Goods and Capabilities (Cambridge University Press, 2010), pp. 89-100, p. 95.
26. fn2626 J. Wolff, ‘Disability Among Equals’, in Kimberley Brownlee and Adam Cureton (eds), Disability and Disadvantage, (Oxford University Press, 2009), pp.112-137, p. 135.
27. fn2727 Ibid., p. 131.
28. fn2828 A. Buchanan, D. Brock, N. Daniels and D. Wikler, From Chance to Choice. Genetics and Justice, (Cambridge University Press, 2000); T. Pogge, ‘Justice for People with Disabilities: the Semiconsequentialist Approach’; L. Barclay, ‘Disability, Justice and Respect’.
29. fn2929 T. Shakespeare, Disability Rights and Wrongs, (Routledge, 2006), p. 46.
30. fn3030 T. Pogge, ‘Justice for People with Disabilities: the Semiconsequentialist Approach’; A. Buchanan, D. Brock, N. Daniels and D. Wikler, From Chance to Choice. Genetics and Justice.
31. fn3131 D. Wasserman, ‘Philosophical Issues in the Definition and Social Response to Disability’, in Gary L. Albrecht, Katherine D. Seelman and Michael. Bury (eds), Handbook of Disability Studies, (Sage Publications, 2001), pp. 219-251, p. 239.
32. fn3232 B. Tucker, ‘Deaf Culture, Cochlear Implants and Elective Disability’, Hastings Center Report 28 (1998), pp. 6-14, p. 12.
33. fn3333 Ibid.
34. fn3434 Nussbaum, Frontiers of Justice, p. 53.
35. fn3535 Nussbaum, Women and Human Development, pp. 105-6.
36. fn3636 It is worth making the point that the problem of selection and the potential exclusion of people with severe impairments from enjoying some of the central goods that justice is supposed to secure are equally problems for many other objectivist accounts of justice. Indeed, it is somewhat striking to note how many critics of the capabilities approach have pressed the issue of selection apparently without noticing that it is also a challenge for well-being or sophisticated resource accounts of justice. Any metric of well-being will need to justify why some particular aspects of well-being are selected as the concern of justice, just as the sophisticated resource metric endorsed by Pogge will have to subscribe to a conception of human needs in order to select and weight relevant resources. Either approach is likely to identify some important areas of well-being or human need that some people’s impairments prevent them from satisfying irrespective of what social or distributive arrangements are in place.
37. fn3737 I. Robeyns, ‘Sen’s Capability Approach and Gender Inequality. Selecting Relevant Capabilities’, Feminist Economics 9 (2003), pp. 61-92; L. Terzi, ‘Vagaries of the Natural Lottery? Human Diversity, Disability, and Justice: A Capability Perspective’, in Kimberley Brownlee and Adam Cureton (eds), Disability and Disadvantage, (Oxford University Press, 2009), pp. 86-111.
38. fn3838 ‘Vagaries of the Natural Lottery?’, p. 100
39. fn3939 Frontiers of Justice, p. 58.
40. fn4040 Cf., D. Crocker, ‘Sen and Deliberative Democracy’, in Alexander Kaufman (ed.), Capabilities Equality. Basic Issues and Problems, (Routledge, 2006), pp. 155-197.
41. fn4141 Anderson, ‘What is the Point of Equality?’
42. fn4242 L. Barclay, ‘Feminist Distributive Justice and the Relevance of Equal Relations’, in Nils Holtug and Kasper Lippert-Rasmussen, Egalitarianism. New Essays on the Nature and Value of Equality, (Oxford University Press, 2007).
43. fn4343 ‘What is the Point of Equality?’, pp. 323-4.
44. fn4444 Frontiers of Justice, p. 167, my emphasis.
45. fn4545 Ibid., p. 187.
46. fn4646 Nussbaum argues that these conclusions are limited to a very small set of cases of very severe cognitive impairment. Using two examples of children with Down syndrome and Asperger’s syndrome, she denies that people with these kinds of impairments cannot be brought up to the threshold. The tendency to assume that they can’t is because of a desire to avoid the costs involved, or because of pernicious and limited views about what people with these impairments can achieve given the right resources and circumstances (Frontiers of Justice, pp. 287-190). I agree with her on these cases, and caution again against confusing debates about the metric of justice with debates about the rule of distribution. People have noted that it may be very expensive to ensure that some seriously impaired people acquire the relevant capabilities (cf Wasserman, ‘Philosophical Issues in the Definition and Social Response to Disability’). While in this paper I am only concerned with the issue of the right metric of justice, not with difficult questions about the rule of distribution, it is worth making three quick points. First, with the exception of simple income and wealth metrics, welfare, well-being and sophisticated resource metrics of justice potentially face precisely the same difficulties. Second, although the capability approach has usually been presented as either an equalitarian or sufficientarian approach, it can equally well be combined with a prioritarian or some other rule of distribution less vulnerable to concerns about the costs associated with trying to ensure that everyone has sufficient let alone equal capabilities. Third, I agree with Silvers that the costs associated with ensuring justice for people with disabilities are often grossly exaggerated (‘Formal Justice’).
47. fn4747 M. Nussbaum, ‘The Capabilities of People with Cognitive Disabilities’, in Eva Feder Kittay and Licia Carlson (eds), Cognitive Disability and Its Challenge to Moral Philosophy, (Wiley-Blackwell, 2010), pp. 75-95.
48. fn4848 I thank an anonymous referee for this journal for stressing this point.
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/content/journals/10.1163/174552412x628823
2012-01-01
2015-08-02

Affiliations: 1: Department of Philosophy, Monash University Clayton, Vic, 3800, Australia, linda.barclay@monash.edu

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