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Others argue that it is difficult to criticize Rawls' theory of justice in the way Nussbaum does. It is stated that Rawls' theory is an ideal theory of justice that aims primarily at truth-seeking whereas the capabilities approach falls in the category of non-ideal theories, which want to provide action-guidance. Given that their scope and theoretical aims are thus not the same, a comparison would prove hard. For an overview, see Robeyns, I. s.v., “The Capability Approach,” in Zalta, E. N., ed., The Stanford Encyclopedia of Philosophy, summer 2011, available at <http://plato.stanford.edu/archives/sum2011/entries/capability-approach/> (last visited October 3, 2013). (last visited October 3, 2013).' href=https://scholar.google.com/scholar?q=Others+argue+that+it+is+difficult+to+criticize+Rawls'+theory+of+justice+in+the+way+Nussbaum+does.+It+is+stated+that+Rawls'+theory+is+an+ideal+theory+of+justice+that+aims+primarily+at+truth-seeking+whereas+the+capabilities+approach+falls+in+the+category+of+non-ideal+theories,+which+want+to+provide+action-guidance.+Given+that+their+scope+and+theoretical+aims+are+thus+not+the+same,+a+comparison+would+prove+hard.+For+an+overview,+see+Robeyns,+I.+s.v.,+“The+Capability+Approach,”+in+Zalta,+E.+N.,+ed.,+The+Stanford+Encyclopedia+of+Philosophy,+summer+2011,+available+at++(last+visited+October+3,+2013).>Google Scholar

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In the justification of the capabilities approach, we find significant differences between the earlier Nussbaum in, for example, Nussbaum, M. C., “Aristotelian Social Democracy,” in Bruce Douglass, R. Mara, G. M. Richardson, H. S., eds., Liberalism and the Good (New York: Routledge, 1990): At 203–252. See also the later Nussbaum work, Frontiers of Justice, supra note 4. For reasons of simplicity, I will only focus on the later Nussbaum assuming that she had good reasons to change her view. Nussbaum's latest book on the capabilities approach, Creating Capabilities, aims to be an accessible introduction to the capabilities approach for undergraduates and general readers (Cambridge: Harvard University Press, 2011). It contains no new analysis besides a general classification of capabilities approaches, which does not fall in the range of this paper. Therefore, reference to Nussbaum's capabilities approach mainly rely on Frontiers of Justice and Women and Human Development.Google Scholar

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This is another difference with Rawls' account where the scope is limited to democratic countries with a constitutional regime.Google Scholar

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Nevertheless, in earlier writings, Nussbaum developed an idea about how to lead a flourishing life. It is clear for her “that functionings, not simply capabilities, are what render a life fully human in the sense that if there were no functioning of any kind we could hardly applaud it.” (See Women and Human Development, supra note 6, at 87.) Furthermore, there are actually some cases where functioning is the appropriate goal: In the area of self-respect and dignity and for children even in all areas (see Frontiers of Justice, supra note 8, at 172.) The reason for this is that a functioning is crucial to attain and maintain other capabilities here (see Women and Human Development, supra note 6, at 92). For instance, health care for children must be compulsory to enable them to have certain other capabilities later on in life.Google Scholar

One could of course argue that the choice for some capabilities instead of others is still to a certain extent paternalist.Google Scholar

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Given the different status of Rawls' theory in comparison with Nussbaum (see footnote 4), it is questionable whether this criticism is actually justified. One might argue that Rawls understands his conception of person as an ideal, not as a factual description. Here, for the sake of following Nussbaum's line of argument, I will simply assume that her criticism has a point.Google Scholar

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It is discussed how the interaction between an impairment and the environment can exactly be understood and what the role of these two elements precisely is. It is on the one hand argued that what constitutes an impairment also depends on social arrangements. See, for example, Amundson, R., “Against Normal Function,” Studies in History and Philosophy of Biology & Biomedical Science 31, no. 1 (2000): 33–53; and Tremain, S., “On the Government of Disability,” Social Theory and Practice 27, no. 4 (2001): 617–636. On the other hand, it is also argued that impairments themselves are often limiting or difficult. See, for example, Shakespeare, T., Disability Rights and Wrongs (New York: Routledge, 2006); and Terzi, L., “The Social Model of Disability: A Philosophical Critique,” Journal of Applied Philosophy 21, no. 2 (2004): 141–157.CrossRefGoogle Scholar

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Others assume a different distinction between positive and negative rights that avoids the confusion that is created here by making a conceptual distinction that carries with it a moral priority of negative rights as only requiring non-interference. Alan Gewirth, for example, argues that all rights, positive as well as negative ones, require government action. Here, negative rights are rights not to interfere with the right-holder's freedom and well-being (for example, to take active measures that no one will kill me) whereas positive rights are rights to the development of freedom and well-being. See Gewirth, A., The Community of Rights (Chicago: University of Chicago Press, 1996): At 33–38.Google Scholar

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Here, one could argue that this right is problematic as a human right, whether it concerns disabled persons or not. Should anyone have as many children as they like, and if they are not in a proper position to provide care, rely on society to take over? One could defend the position that no one has a right to have children, and hence, there is also no right to assistance in child-rearing. This depends on the question how rights in general are justified and to what extent having children falls under this justification. For a further discussion, see Warnock, M., Making Babies: Is There a Right to Have Children? (New York: Oxford University Press, 2002). Furthermore, in the special case of disabled persons, it could be argued that in some cases like a severe cognitive disability, it is their impairment and not the society-created disability that makes child-rearing impossible for them. It could be suggested that they had an insufficient notion of what it takes to be a parent, and hence could not make the responsible decision to be a parent no matter how much support they receive from society. This position would be compatible with in general holding up right to have children, but would allow some exceptions. It hinges on the conceptual question of what it means to make a responsible decision to have children and the empirical question to what extent people with cognitive impairments do or do not fulfill this requirement. However, this problematic issue cannot be adequately covered at this place. Therefore, I will not follow up on this discussion and rather focus on the implications that this right has because it is already established in the CRPD.Google Scholar

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