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66 Fordham L. Rev. 273 (1997-1998)
Capabilities and Human Rights

handle is hein.journals/flr66 and id is 289 raw text is: CAPABILITIES AND HUMAN RIGHTS Martha C. Nussbaum* INTRODUCTION W HEN governments and international agencies talk about peo- ple's basic political and economic entitlements, they regularly use the language of rights. When constitutions are written in the mod- em era, and their framers wish to identify a group of particularly ur- gent interests that deserve special protection, once again it is the language of rights that is regularly preferred. The language of rights has a moral resonance that makes it hard to avoid in contemporary political discourse. But it is certainly not on account of its theoretical and conceptual clarity that it has been pre- ferred. There are many different ways of thinking about what a right is, and many different definitions of human rights.' For example, rights are often spoken of as entitlements that belong to all human beings simply because they are human, or as especially urgent inter- ests of human beings as human beings that deserve protection regard- less of where people are situated.2 Within this tradition there are differences. The dominant tradition has typically grounded rights in the possession of rationality and language, thus implying that non- human animals do not have them, and that mentally impaired humans may not have them.3 Some philosophers have maintained that senti- ence, instead, should be the basis of rights; thus, all animals would be rights-bearers.4 In contrast to this entire group of natural-rights theo- rists, there are also thinkers who treat all rights as artifacts of state action.5 The latter position would seem to imply that there are no * Ernst Freund Professor of Law and Ethics: Law School, Philosophy Depart- ment, and Divinity School, The University of Chicago. 1. For one excellent recent account, with discussions of other views, see Alan Gewirth, The Community of Rights (1996). 2. For just one example, this is the view of Thomas Paine. See Thomas Paine, Rights of Man-Common Sense 80-85 (Alfred A. Knopf 1994) (quoting and discuss- ing the French Declaration of the Rights of Man and of Citizens); id. at 114 (insisting that rights, so conceived, should be the foundation of a nation's prosperity). Such views ultimately derive from ancient Greek and Roman Stoic views of natural law. The Latin word ius can be translated either as right or as law, Grotius already discussed the manifold applications of ius. See Hugo Grotius, De lure Belli Ac Pacis (On the Law of War and Peace) (P.C. Molhuysen, A.W. Sijthoff 1919) (1625). 3. The most influential exemplar of such a view, followed by most later theorists, is Cicero. See M. Tulli Ciceronis, De Officiis (On Duties), bk. 1, paras. 11-14 (Oxford Univ. Press 1994) (distinguishing humans from beasts by reference to rationality and language); id. paras. 20-41 (deriving duties from this). 4. See Peter Singer, Animal Liberation (2d ed. 1990). 5. This view is most influentially found in Kant. See Immanuel Kant, The Meta- physics of Morals, in Kant: Political Writings 132-35 (Hans Reiss ed. & H.B. Nisbet trans., Cambridge Univ. Press 2d enlarged ed. 1991) (1798) (defining right and the theory of right with reference to law and the state).

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