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69 Fordham L. Rev. 1901 (2000-2001)
Rights, Capabilities, and the Good Society

handle is hein.journals/flr69 and id is 1921 raw text is: RIGHTS, CAPABILITIES,
Robin West*
What is a good society, as opposed to a just one, and what is
demanded of the state by the demand of goodness in a good
society? Must a state in a good society ensure for its citizens the
minimal material preconditions of a decent life? Is it obligated to do
so? Many of course, think not, but of those who think there is such an
obligation, there are a variety of reasons, or arguments proffered, as
to why. One civic republican argument, revitalized over the last
fifteen years by Michael Sandel,' is basically instrumental. A state, in
a good society, might be obligated to ensure for its citizens some
minimal level of material goods, but if so, it is required to do so in
order to instill some threshold level of civic virtue: in a good society,
citizens must be able to be free and equal participants in the collective
project of self rule, and if some threshold level of material well-being
is necessary for that participation, then the state is obligated to
provide it.2
A quite different and perhaps more basic sort of response, held by
scores of liberal, progressive, and radical legal theorists over the last
century, as well as innumerable political activists and state actors,
might be called a welfarist conception-the state, in a good society,
is directly, not just instrumentally, obligated to ensure that all citizens
enjoy some minimal threshold level of material well-being, or welfare,
or met needs, or access to primary goods.' They must enjoy this
minimal threshold, furthermore, not because such a threshold is
necessary to the exercise of the various civic virtues required of them
* Professor of Law, Georgetown University Law Center.
1. See Michael J. Sandel, Democracy's Discontent: America in Search of a Public
Philosophy (1996) [hereinafter Sandel, Democracy's Discontent].
2. Id. at 124-28, 329-38.
3. See, e.g., Frank I. Michelman, Constitutional Welfare Rights: One View of
Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter, Michelman,
Constitutional Welfare Rights]; Frank I. MiEchelman, The Supreme Court 1968 Term-
Forward- On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L
Rev. 7 (1969) [hereinafter Michelman, On Protecting the Poor]. The welfarist
conception is heavily indebted to John Rawls' early work, particularly A Theory of
Justice (1971).


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