Human Rights and Capabilities: A Program for a Critical Sociology of Law (original) (raw)
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Contributions from the capabilities approach to the human rights practice
V. 13, n. 02, 2020
The article analyses the contributions offered from the capabilities approach to the human rights theory. The capabilities approach is a theory developed by Martha Nussbaum, US-American philosopher, that analyses the basic capabilities (alternative combinations of functionings that a person have the possibility to achieve) every human should achieve in order to live a life with dignity. The article demonstrates that Nussbaum´s theory contributes greatly for the development of human rights, by offering a list of specific capabilities that should be guaranteed to every human being by the State, with particular concern for vulnerable groups such as women, children and elderly. Even though the theory presents indisputable contributions, criticism is also presented, based upon mostly its essentialist point of view. In order to achieve the proposed objective, the methodology applied was bibliographical review.
Person, capabilities and Human Rights. Two contemporary trends
Persona y Derecho
Contemporary theories of justice may be categorized in mainly political and natural justice theories. The jormer are generally conceived asan i11sta11ce of the Kantian philosophical tradition, whereas the latter are rooterl in classical-philosophy theories. Each of them is furthennore grounded on a di.fferent conception of the person: "political", or "ontological''. This paper aims to bring them in rapport, taking in special account Martha Nussbaum 's and Sergio Cotta' s justice theories. The paper argues that the universal respect of individuals' rights-which is at the core of Nussbaum 's theory-jinds better support in Cotta 's onto-phenomenological approach to justice, rather than in Rawls'political liberalism. Contents: 1. From a "partially comprehensive" to a "political" conception of the person, 2. Sorne theoretical and practica! limitations of Nussbaum's "political" conception of the person, 3. An "ontological" definition of the person, 4. Human capabilities within Cotta's "onto-phenomenological" approach.
Christ University Law Journal, 2012
This paper seeks to contrast the language of human rights with capabilities approach conceptualized by Amartya Sen and Martha Nussbaum. While capabilities approach is an effective way of comprehending and mplementing the rights guaranteed to people, language of human rights remains the essential pre-requisite for the development and enhancement of people’s capabilities. While both these frameworks for justice operate within the western liberal paradigm, capabilities approach fills in the gaps of modern human rights discourse. The new idea of justice that accords a central place to human dignity mandates that the human rights entrenched in the Constitution be read as capabilities. The desperate vacuum that exists between the promises of law and realities of existence can only be bridged by institutionalizing a blend of rights and capabilities in the pursuit of justice. The paper argues that the language of human rights and that of capabilities ought to supplement and complement each ...
Human Rights and Ethical Reasoning: Capabilities, Conventions and Spheres of Public Action
Sociology
This interdisciplinary article argues that human rights must be understood in terms of opportunities for social participation and that social and economic rights are integral to any discussion of the subject. We offer both a social constructionist and a normative framework for a sociology of human rights which reaches beyond liberal individualism, combining insights from the work of Amartya Sen and from French convention theory. Following Sen, we argue that human rights are founded on the promotion of human capabilities as ethical demands shaped by public reasoning. Using French convention theory, we show how the terms of such deliberation are shaped by different constructions of collectively held values and the compromises reached between them. We conclude by demonstrating how our approach offers a new perspective on spheres of public action and the role these should play in promoting social cohesion, individual capabilities and human rights.
Justice, Rights, and Capabilities
My investigation of the capabilities approach as a burgeoning theory of global justice underlies the integrated-article format of this thesis, where each chapter treats a discrete but related problem. In Chapter One I survey the rapidly growing philosophical literature on global justice, focusing on contemporary rights-based approaches. I defend capabilities as central to global justice because justice demands that individuals be well positioned to enjoy the prospects of a decent life, measured by how well individuals are actually able to convert resources and opportunities into valuable functionings. In Chapter Two I explore what I take to be the most promising alternative philosophical approach to addressing pressing global challenges in terms of justice: the ethics of care. Just as capabilities help enrich and flesh out the depth and reach rights have, making capabilities a conceptually rich ally of rights, I argue rights signify a powerful ally to an increasingly global ethic of care. In Chapter Three I consider the as yet under examined connection between rights and well-being by exploring Sen’s pioneering work on capabilities. Capabilities provide us with an appropriate measurement for justice to the extent that the rights and well-being of individuals leave them empowered to enjoy a life of dignity that has at least a minimum set of opportunities. In Chapter Four I consider Hugo Grotius’s theory of rights as an important historical basis for developing a capability-based theory of global justice. In Chapter Five I argue that the status and treatment of nonhuman animals is not and cannot be a matter of justice within the structure of John Rawls’s theory, making it inadequate to this extent. I defend capabilities theory as better able to account for why the treatment of nonhuman animals is a matter of justice.
The construction of human rights
Manchester University Press eBooks, 2010
The construction of human rights: dominant approaches 19 T he idea of human rights covers a complex and fragmentary terrain. As R. J. Vincent comments near the beginning of his work on human rights in international relations, 'human rights' is a readily used term that has become a 'staple of world politics', the meaning of which is by no means self-evident (1986: 7). After glossing the term as the 'idea that humans have rights' (1986: 7)-a deceptively simple approach-Vincent notes that this is a profoundly contested territory, philosophically as well as politically. This is not surprising, as notions of human rights draw indirectly or directly on some of our most deeply embedded presumptions and reference-points-for those of us in liberal democracies, particularly those cosmologies concerning the nature of the person and of political community. Questions about and concepts of the human as individual, of what is right, the state, justice, freedom, equality, and so on, flicker like a constellation of stars just off the edge of our fields of analysis-fading in and out, holding much, promising or claimed as anchorage, yet elusive and obscure. For many, the assertion of human rights has become a kind of repository of secular virtue-a declaration of the sacred in the absence of the divine. In the Western liberal democracies, human rights are claimed as political home or as a principal 'instrument of struggle' by the libertarian right, by liberals of various persuasions, by socialists who feel the traditional socialist agenda has been overtaken by events and by 'post-liberal democrats'. To declare in a debate that the matter at hand involves rights can be to 'trump' discussion, drawing the limits beyond which exchange may not go, in a way that Ronald Dworkin (1977, 1984) probably did not intend. The language of rights thus carries great power while being potentially deeply divided against itself. The purpose of this chapter is to draw attention to some of the orders of thought that dominate human rights promotion and shape the meaning of this powerful, complex and in some ways contradictory tool of rights and 'rights talk'. In particular, I want to underline the limitations of these orders of thought, the narrowness of some of their central categories and the disfiguring M. Anne Brown-9781526121110
Rights, Capabilities and Human Flourishing
Christian theorists tend to ground human rights in the nature of human beings, as people created in the Image of God, and justified on the same basis. This paper argues for a complementary view: that rights might be grounded in the idea of shalom, and justified by their relationship to human flourishing. The Capabilities Approach of Armatya Sen and Martha Nussbaum, which emphasizes the importance of people's choices about how they will live, provides fruitful as a way of relating shalom to rights. A state of shalom implies human flourishing, for which capabilities are a prerequisite. Human rights, then, are those rights necessary for enhancing capabilities. This approach can assist with the clarification of certain features that rights possess, and so in evaluating rights claims.
Toward a Capability Approach of Legal Effectiveness. The Case of European Social Rights
CriDIS Working Paper n° 2, 2009
Comment agir en sujets dans un monde globalisé et au sein d'institutions en changement ? Le CriDIS se construit sur la conviction que la recherche doit prendre aujourd'hui cette question à bras-le-corps. Il se donne pour projet d'articuler la tradition critique européenne et la prise en charge des questions relatives au développement des sujets et des sociétés dans un monde globalisé.