Disability Through the Lens of Justice 0198875614, 9780198875611

Table of contents :
Contents
Acknowledgements
Introduction
1. What Disability is Not
2. Disability: A Justice-Based Account
3. Disability and Distribution: A Capability Approach
4. Capabilities for Control
5. Neutral Impairment, Disadvantageous Disability
6. Disambiguating Adaptive Preferences: When, and Why, Should Testimony be Trusted?
7. Don’t do it for my Sake: Providing Control, Avoiding Paternalism, and Applying the Justice Account of Disability
Conclusion
References
Index

Citation preview

Disability Through the Lens of Justice

NEW TOPICS IN APPLIED PHILOSOPHY Series editor Kasper Lippert-Rasmussen This series presents works of original research on practical issues that are not yet well covered by philosophy. The aim is not only to present work that meets high philosophical standards while being informed by a good understanding of relevant empirical matters, but also to open up new areas for philosophical exploration. The series will demonstrate the value and interest of practical issues for philosophy and vice versa.      Spying Through a Glass Darkly The Ethics of Espionage and Counter-Intelligence Cécile Fabre Inheritance of Wealth Justice, Equality, and the Right to Bequeath Daniel Halliday The Politics of Social Cohesion Immigration, Community, and Justice Nils Holtug Not In Their Name Are Citizens Culpable for their States’ Actions? Holly Lawford-Smith Sharing Territories Overlapping Self-Determination and Resource Rights Cara Nine Exploitation as Domination What Makes Capitalism Unjust Nicholas Vrousalis

Disability Through the Lens of Justice JESSICA BEGON

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Jessica Begon 2023 The moral rights of the author have been asserted All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2022950547 ISBN 978–0–19–887561–1 DOI: 10.1093/oso/9780198875611.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Contents Acknowledgements

ix

Introduction

1

1. What Disability is Not 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9

The Problem of Defining Disability Disability and Impairment The Medical and Social Models of Disability Beyond the Medical and Social Models Species Norms and Impairment Welfarist Accounts Barnes’s Social Constructionist Approach An Ameliorative Approach Conclusion

2. Disability: A Justice-Based Account 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8

Which (In)abilities Matter? What Sort of Justice? Feasibility, Levelling-Down, and Thinning-Out Identifying Distributive Entitlements Entitlements without Hierarchy Beyond Minimal Functionings What Counts? Who’s Disabled? Conclusion

3. Disability and Distribution: A Capability Approach 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8

Introduction A Capability Theory of Justice Capabilities or Functionings? Capabilities: The Good, the Bad, and the Trivial Against Resourcism: Means, Ends, and Conversion Factors Resourcism: The Less Demanding Alternative? Beyond Simple Resourcism Conclusion

4. Capabilities for Control 4.1 Introduction 4.2 Having the Capability: From Formal Freedom to Freedom as Control 4.2.1 Independence 4.2.2 Security 4.2.3 Robustness 4.2.4 Set-consistency

10 10 11 15 20 24 28 32 36 39

41 41 43 45 48 54 57 62 68

69 69 70 72 75 81 84 86 88

90 90 91 94 95 96 97

vi  4.3 4.4 4.5 4.6 4.7 4.8

The Problem with Capabilities to Function Capabilities to Control Capabilities to Control: Too Little Freedom, or Too Much? The Value of Capabilities Why Capability Lists Conclusion

5. Neutral Impairment, Disadvantageous Disability 5.1 5.2 5.3 5.4 5.5

Introduction The Debate about Impairment In Defence of Impairment Impairment as Atypicality The Over-Inclusiveness Objection 5.5.1 Functioning Better 5.5.2 Latent or Hidden Pathologies 5.5.3 Distinguishing ‘Genuine’ Disorders 5.5.4 Distinguishing Disability from Other Forms of Disadvantage 5.6 Mere Difference or Complex Difference? 5.7 Bad Difference or Complex Difference? 5.8 Conclusion

6. Disambiguating Adaptive Preferences: When, and Why, Should Testimony be Trusted? 6.1 6.2 6.3 6.4 6.5

The Dilemma of Adaptive Preferences Adaptation and the Political Project Well-Being Adaptive Preferences Why Identify Well-Being Adaptive Preferences? Perfectionism, Justice, and the Need for a Substantive Approach 6.6 Justice Adaptive Preferences 6.6.1 Non-Autonomous Character Planning 6.6.2 Justice Adaptive Choices 6.6.3 The Coherent Internalisation of Oppressive Norms 6.6.4 Justice and Well-Being Adaptive Preferences 6.7 Responding to Justice Adaptive Preferences 6.8 Conclusion: Distrust without Insult?

7. Don’t do it for my Sake: Providing Control, Avoiding Paternalism, and Applying the Justice Account of Disability 7.1 7.2 7.3 7.4 7.5

Introduction Defending Anti-Paternalism State Assistance and the Anti-Paternalist Filter Anti-Paternalism in a Theory of Justice Intervention beyond Interference 7.5.1 Raising and Reducing Costs 7.5.2 Pre-emption: Information and Persuasion 7.5.3 Refusals to Assist

99 106 112 116 123 126

128 128 131 134 137 143 146 149 151 152 154 158 163

165 165 168 172 178 181 184 187 189 190 191 192 196

199 199 202 211 215 220 221 222 223

 7.6 7.7 7.8 7.9 7.10

The Paternalism of Unwanted Offers Specifying Capabilities without the Good Soft Paternalism, Autonomy, and Background Conditions Cures and Parental Paternalism Conclusion

Conclusion References Index

vii 225 228 232 236 238

240 251 267

Acknowledgements There are many people to whom I owe thanks for invaluable discussion, feedback, and arguments, throughout the years it took to complete this book. A no doubt incomplete list of these are: Elvio Baccarini, Alice Baderin, Mike Begon, Paul Billingham, Ian Carroll, Brian Carey, Stephanie Collins, Maria Dimova-Cookson, Adam Cureton, Cécile Fabre, Søren Flinch Midtgaard, Chris Finlay, Tim Fowler, Ana Gavran Miloš, Alex Geddes, Anca Gheaus, Rich Healey, Katherine Jenkins, Beth Kahn, Jan Kandiyali, Cécile Laborde, Joseph Lacey, Gerald Lang, Kasper Lippert-Rasmussen, David Miller, Chris Mills, Tom Parr, Jonathan Parry, Angie Pepper, Adam Slavny, Zofia Stemplowska, Tony Taylor, Kristin Voigt, David Wasserman, Katy Wells, and Nebojša Zelić. I would also like to thank audiences at the Association of Social and Political Philosophy Conference at the University of Sheffield, the CSSJ Seminar at the University of Oxford, the CELPA Seminar at the University of Warwick, the Centre for Political Thought Seminar Series at Durham University, the MANCEPT seminar at the University of Manchester, the Nuffield Political Theory Workshop, the Paternalism, Health, and Discrimination Workshop at Aarhus University, the Philosophy of Disability Conference at the. University of Tennessee, the Political Philosophy Seminar at the University of Newcastle, the Politics Department Seminar at the University of Bristol, the Priority in Practice Conference at the University of Oxford, the Royal Institute of Philosophy Seminar at the University of Nottingham, the Society for Applied Philosophy Conference at University of Edinburgh and Cardiff University, and the UCL Legal and Political Theory Seminar. Thanks, too, to Nuffield College, Oxford, who provided the funding, environment, and support for the period of research when this book began, though was not completed. Finally, thanks to Carl Fox, for absolutely everything.

Introduction Disability remains a neglected topic in discussions of distributive justice. Insofar as it is discussed at all, it is generally used as convenient shorthand for disadvantage. Yet far from being an afterthought or appendage to theories of justice, an analysis of disability can and should inform how we think about and refine these theories. My goal is to determine how disabled individuals should be justly treated in the public policy of liberal democratic states. This, of course, requires an account of what constitutes ‘just treatment’ in general. But such an account should not be developed in a vacuum, or developed following reflection on able-bodied, fully cooperating members of society, and simply imposed on disabled persons as one ‘special case’. On the contrary, we should engage in a process of reflective equilibrium, wherein our theory of justice informs how we understand and respond to disability, and a consideration of disability provides insights into how we develop a theory of justice. Disability, then, should play a central, rather than subsidiary, role in our approach to justice. I also aim to challenge the preconception that paradigm disabilities entail suboptimal functioning, and thus that disabled individuals are both unhealthy and worse-off than the non-disabled. Indeed, disabled individuals most often appear in theories of justice merely as paradigmatic, and apparently uncontroversial, cases of disadvantage. All that remains to be determined in such accounts is what disabled individuals are owed to mitigate, remove, or compensate for this disadvantage. Thus, theorists of justice have given little consideration to the question of what just treatment of disabled individuals entails if disability is not simply assumed to be always and necessarily disadvantageous. This is not to say that disability is unrelated to disadvantage. It is important to consider disability in the context of distributive justice exactly because disabled individuals are so often overrepresented amongst those who do not have what they are entitled to. Indeed, on the definition of disability I defend, to be disabled just is to be unable to exercise the control over our life that everyone should be able to. More precisely, then, it is impairment—physical or cognitive features causing atypical functioning—that is associated with, but Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0001

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not identical to, disadvantage. Human bodies and minds are heterogeneous, and this can make the lives of those who function differently more difficult— perhaps because their mode of functioning is not accommodated by society; perhaps due to that mode of functioning’s intrinsic features; perhaps due to interaction with some aspect of an individual’s physiology, personality, or preferences; or perhaps due to a combination of these factors. Yet the possibility that life can thus be made more difficult does not mean that a life with an impairment is worse, or even always difficult. There is nothing inconsistent in insisting that impairment as difference need not imply deficiency and should not necessarily be eliminated, whilst also acknowledging that those who function differently often do live worse lives than their non-impaired counterparts. But it is essential that a distinction is made between the mere fact of functional difference—lacking some sensory abilities, being mobile without using one’s legs, processing social cues differently—and the implications this has for individuals’ capabilities: specifically, in the context of justice, the implications this has for the capabilities they are entitled to. It is the latter that should be our focus. In other words, we should be concerned with the kinds of lives individuals can lead, the opportunities they have, and their ability to choose between them, and not on whether their functioning mode is typical: what matters is that people can be mobile, form relationships, engage in leisure and cultural activities, and so on, and not how they achieve these things. The idea that impairment itself is not the problem, and that normalisation should not be our goal, will seem obvious to some, yet highly implausible to others. There is a similar divergence on the plausibility of the claims that abstract theories of justice can contribute anything useful to the very practical problems entailed by living with impairments. And, indeed, on whether the experience of living with impairments can generate insights for abstract theories of justice. Whether initially plausible or not, I aim to show that all these claims are true. I begin by considering conceptual questions, and defend a new account of disability. Chapter 1 first outlines central features of accounts of disability on which there is a broad philosophical consensus.¹ Crucially, this includes rejecting both medical and social models, and adopting a hybrid of these two extremes. Adopting this hybrid allows us to acknowledge that disability involves a restriction in our abilities to perform tasks as a result of physical or ¹ E.g. Wolff 2009a; Kahane and Savulescu 2009; Shakespeare 2014; Terzi 2004; 2008; Daniels et al. 2009; WHO 2002: 8–9.

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cognitive features that cause deviation from a biological or statistical norm of functioning for our species (impairment), as the medical model insists; but in combination with external contextual factors, such as institutional design, social norms, natural environment, available technology, individual resource share, and access to support networks, as well as personal features, such as age, education, social background, career and personal goals, as the social model has demonstrated. In other words, we should take account of both physical and cognitive difference itself, and what it means to have anomalous functioning in a particular context. Whilst I accept this broad approach, I contend that it leaves an important question unanswered: which inabilities matter? Which of the many restrictions in our abilities to perform tasks resulting from atypical functioning are disabling? I consider and reject various competing answers to this question. Thus, the opportunity losses that should be considered disabling are not those entailed by ‘normal’ species functioning,² nor those that undermine wellbeing,³ nor those considered relevant by disability activists.⁴ The latter, social constructionist approach leaves disability radically underspecified, whilst on both the species norm and welfarist approaches disability will be ubiquitous. An account of disability is an essential prerequisite to formulating public policies that safeguard the just treatment of disabled individuals, but an account cannot form the basis of such policy if it sets the boundaries of the category of disability so wide that everybody is included. As such, none of these alternatives prove to be an adequate basis for public policy, political campaigning, or activist movements. In other words, none provide an adequate account of disability in the context of justice: one that will enable us to identify and respond to the injustice, discrimination, and mistreatment to which many disabled individuals are subject. In Chapter 2 I present my own answer: that the relevant losses of opportunities are of those that individuals ought, as a matter of justice, to have access to. More precisely, I suggest that we should understand disability as the restriction in the ability to perform those tasks human beings are entitled to be able to perform as a matter of justice (as the result of the interaction between an individual’s impairment, their social, political, and material context, the resources they have access to, and their other internal characteristics). An implication of this view is that determining whether an impairment is

² Buchanan et al. 2000; Daniels 1985. ³ Kahane and Savulescu 2009; Savulescu and Kahane 2009; Terzi 2008; 2009; Wolff 2009a. ⁴ Barnes 2016a.

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disabling requires an account of what we are entitled to. However, even before this is provided in subsequent chapters, the revisionary implications of this account are clear. Individuals with many paradigmatic sensory, physical, and cognitive impairments may not be considered disabled insofar as they still possess the more general opportunities they are entitled to—in the same way that short-sighted individuals may continue to have a visual impairment but are not disabled if, wearing glasses, their access to their entitlements is not restricted. Further, individuals with apparently minor or invisible impairments may be disabled, and individuals’ status as disabled may change across time and context, since what matters is not impairment per se but its impact on our access to our entitlements. Whilst potentially counterintuitive, these implications are a key advantage of my approach. By distinguishing disability as necessarily disadvantageous (lacking opportunities all human beings are entitled to), from a normatively neutral account of impairment (capturing the broad heterogeneity of human bodies and capacities) we can shift the focus from eliminating impairment to removing the disadvantages that can be associated with them. The next chapters then consider what individuals are entitled to, and argue that this is, indeed, broad opportunities or capabilities. Chapter 3 argues that reflection on impairment and disability can contribute to an argument in favour of adopting a capability approach to distributive justice. Indeed, insofar as disability has been considered in the context of distributive justice it is usually by proponents of the capability approach.⁵ However, capabilities are commonly understood as components of well-being, meaning that individuals are considered to be entitled to those capabilities that will make them better off. If incorporated into my justice-based account of disability this would appear to entail that individuals are disabled whenever their impairments contribute to a loss of opportunities that decreases well-being. I argue that this is implausible both as an account of justice and as an account of disability, since it will tend to justify an excessive degree of intervention in order to eliminate any opportunity loss that reduces well-being. Not only will this be overdemanding of the well-endowed, it will also push us towards normalising—even perfecting—human functioning capability. I argue that we should distinguish well-being from entitlements, where the latter may be narrower than the former. I then outline some of the reasons for understanding our

⁵ E.g. Barclay 2010; 2018; Mitra 2017; Nussbaum 2006a; Terzi 2008; Wolff 2009a, 2009b; Wolff and de-Shalit 2007; Wasserman 2006.

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entitlements in terms of capabilities, and delineate the core features of a capability theory of justice. Chapter 4 considers in greater detail what it means for an individual to have a capability, and why this is valuable. Capabilities are standardly understood as opportunities to perform (or not) particular ‘valuable’ functionings. This focus on the ability to do or to be particular things can exclude many individuals with impairments, who often cannot perform and do not value the functionings assumed to be central or essential to any decent human life. Individuals with sensory impairments may be unable to use all five senses, for example. Capabilities should, therefore, be understood instead as the ability to control central domains of our life. Even when impairment limits access to specific valuable functionings it need not prevent individuals from valuing, and being enabled to have, control and choice in these parts of their life. Deafness and blindness, for example, do not preclude deaf and blind individuals from having valuable sensory experiences and being able to control the exercise of these capacities. Thus, rather than attempting to identify valuable functionings and ensure everyone has identical access to them, we should focus on ensuring individuals have an acceptable range of options and the ability to choose between them. Rather than endorsing a hierarchy of functioning, inevitably grounded in the functioning capacities of the able-bodied, we should accept that different modes of functioning can be interchangeable and equally valuable: it is not necessarily worse to achieve mobility in a wheelchair than by walking, to communicate by Sign rather than speech, to read using Braille rather than text, and so on. This approach implies that a broad array of functionings may be valuable, that our entitlements can be fulfilled by multiple means, and that individuals with impairments should be given a central role in determining the different forms of functioning that may enable them to have the control they are entitled to. This theory of justice can accommodate individuals with a variety of needs, preferences, and abilities. It also implies that individuals are not entitled to the ability to perform specific functionings (even when these have some value), and are not disabled by an inability to do so as long as they nonetheless have the capacity to exercise control. It is worth highlighting that, whilst it is possible to adopt my account of disability without also accepting my account of justice, I believe (unsurprisingly!) that they work best in combination. As will become clear, narrower conceptions of justice will lead to an implausibly narrow view of disability on my view: if we are not entitled to much (just a basic bundle of resources, perhaps), then individuals with severely constrained opportunities as a result

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of their impairment will not be deemed disabled. However, as reflection on impairment will make clear such views should not simply be discarded due to their lack of fit with my definition of disability, but also because they are independently implausible as theories of justice. Building on the contention that our goal should not be to ensure all individuals can function normally by eliminating impairment as such, Chapter 5 considers exactly how impairment should be understood. The word itself naturally supports the assumption that it is something that warrants removal, which is further bolstered by its widespread definition as deficient or suboptimal deviations from the species norm. This negative account is controversial, however, since it is by no means straightforward to determine which forms of functioning are worse. Further, this standard negative conception of impairment risks undermining both the coherence of disability pride (why be proud of a deficiency?), and the possibility of solidarity (dividing the ‘genuinely’ deficient from those merely perceived as such). This has led some to abandon the central distinction between disability and impairment altogether. I argue that, whilst the distinction should be retained, we should abandon the negative account of impairment in favour of a neutral one. By this I mean that impairment should be understood as anomalous rather than deficient functioning. On this view, impairment is a broad church, and may include conditions that are relatively inert or even beneficial in our current context, as well as some that tend to make individuals’ lives much more difficult. As such, I suggest that impairment is best described as a complex-difference, rather than a mere-difference or a bad-difference. By this I mean that impairments are neither necessarily harmful (i.e. negatively impacting individuals’ wellbeing) nor necessarily disadvantageous (i.e. preventing individuals having what they are entitled to), though they may be both.⁶ When understood as difference rather than defect, and taking account of the complex effects of difference, it is easier to see why our goal should be eliminating the capability loss associated with impairment rather than eradicating anomalous functioning itself. I contend that individuals with impairments should be given a voice in determining both when the effects of these impairments are disadvantageous, and the content of their entitlements. Such testimony supports the conclusion ⁶ Note that whilst disabilities are disadvantageous by definition on my view—they just are the subset of impairments that prevent access to entitlements in a particular context—they also need not be harmful. Some of the things we are entitled to—the ability for political participation, for example—will have no impact on some people’s well-being.

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that many impairments do not, or need not, undermine access to entitlements. However, this diverges from the widely held, and apparently common-sense view of impairment as a paradigm case of disadvantage—indeed, as a tragedy. Chapter 6 then considers how we should respond to this divergence of views. We may be inclined to simply cede authority to those who have the relevant lived experience, especially given they are frequently subject to unjustified epistemic exclusion, silencing, and marginalisation. However, we should be cautious of assuming that those with the most direct experience of oppression or deprivation are always those who are best placed to identify and object to it. Part of the oppression impaired individuals face might be deprivation of knowledge regarding how their circumstances might be improved. More fundamentally, all individuals adapt to their circumstances, and may therefore participate in and support oppressive norms, but this hardly constitutes evidence that ableist—or patriarchal or racist—norms are justified. We may worry, however, that the possibility of such unreliable adaptation to circumstances—or ‘adaptive preferences’—simply provides a licence to ignore marginalised voices. It is certainly possible to misapply the concept of adaptive preferences, but this should not lead us to ignore the distortion that adaptation can cause. If we rely solely on the oppressed to identify their oppression, important sources of injustice will be ignored. Thus, this chapter will argue, first, that a balance must be struck between taking individuals’ preferences and self-assessment as definitive at one extreme, and ignoring them entirely at the other. The lesson of adaptive preferences is that we should be cautious in our use of affected individuals’ testimony, not that it can be justifiably ignored. The second goal of this chapter is to resolve an ambiguity in current accounts of adaptive preferences. By clarifying the various phenomena thus categorised, I aim to show that correctly diagnosing adaptive preferences need not constitute epistemic injustice, nor insultingly malign people’s rational capacities. This is, in part, because unreliability often results from unjust social circumstances, not an inherent lack of capacity. Being judged to have an adaptive preference, then, need not always have the insulting implications ordinarily supposed. Moreover, our account of adaptive preferences must be sensitive to our particular goals and context: no single account of adaptive preferences will be satisfactory for all the purposes to which it is put. In particular, I distinguish between adaptive preferences that are an unreliable guide to individuals’ interests (‘well-being adaptive preferences’), and those that are a poor guide to just policy (‘justice adaptive preferences’). Individuals may have adaptive preferences of the former but not the latter variety, and vice

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versa. Using my framework to determine when this is so allows us to avoid the blanket exclusion of individuals’ voices on the basis of their potential unreliability in some narrower domain, allowing for greater inclusion and betterinformed policy. Finally, Chapter 7 begins to consider the implications of utilising my justicebased account of disability. I have said that our focus should be accommodating and ameliorating the disabling effects of impairments rather than removing impairments themselves, and have assumed that it is the state who ought to fulfil this obligation. However, there is a deep level of distrust of the state by some sections of the disabled community, and for good reason: in the UK, for example, funding has been cut to essential services, welfare sanctions have been increased, the requirements that must be met to access what funding is available have become narrow and exclusionary, as well as increasingly complex and bureaucratic, and key changes in policy often are not communicated in an accessible way.⁷ All of these problems and more have been exacerbated by the response to the COVID-19 pandemic.⁸ Even when the state does make a genuine attempt to advance the interests of disabled persons, this often involves an assumption that it knows what these interests are, and the wishes of intended beneficiaries are ignored. Whilst I will not attempt to comment on the policies, motives, or prospects of success of any particular state or government, I will argue that all state action should be grounded in a commitment to anti-paternalism. Disabled individuals should not be treated as passive beneficiaries, whose views and voices are side-lined, but shown appropriate respect as autonomous agents.⁹ Often paternalism is objectionable because it fails by its own terms: interfering with an individual to benefit them will frequently not actually promote their interests. Yet I suggest that, even if successful, paternalism should be avoided. I defend an authority account of anti-paternalism, according to which individuals’ will should be treated as authoritative in matters concerning their own interests. Paternalism fails to respect this authority by making unauthorised ⁷ See e.g. Glasby et al. 2021; Institute for Government 2019; Morris 2011; Duffy 2013. ⁸ See e.g. Shakespeare et al. 2021; Institute for Government 2020; Kuper et al. 2020; Armitage and Nellums 2020. ⁹ It is worth noting at the outset that, whilst I consider both bodily and cognitive impairments, I do not consider those cognitive impairments that threaten individuals’ status as an autonomous agent. Nor do I take a view on exactly who should be included within this category, beyond insisting that mere cognitive impairment is not, in itself, sufficient to undermine this status. As ever, our focus must be on the effects of the impairment and the degree to which it undermines someone’s ability to set and pursue their own goals—that is, their ability to act autonomously—and not the mere possession of an impairment. Clearly, no sharp line can be drawn, and many individuals can act autonomously at some times and in some contexts and not others. I set these complications aside.

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appeals to individuals’ good as reasons for action, and thus potentially intervening without adequate justification: for example, providing cochlear implants to benefit deaf individuals, ignoring the heterogeneity of views regarding whether such an option would be welcomed. I demonstrate that, whilst some iterations of the capability approach may be guilty of paternalism of this sort, my own version is not objectionably paternalist. Yet paternalist redistribution is not merely objectionable because it misuses individuals’ good, but because it mistakes the very aim of redistribution. As I emphasise throughout the book, our goal should not be to ensure individuals lead the best life possible, but that they are able to control the shape of their life, deciding for themselves amongst an acceptable range of options. We might not always agree with these decisions, but this is what respecting people as autonomous agents demands. Our account of disabled individuals’ entitlements should not entail the paternalistic imposition of policies on disabled individuals as ‘passive beneficiaries’, nor assume that disabled individuals are incapable of forming their own conceptions of the good, or of making autonomous decisions about how their own lives should go. The goal of just policy should not be to enable identical functioning outcomes amongst all individuals, disabled or not, but to enable individuals to exercise broadly specified opportunities, however they choose. This requires that we develop an account of justice that leaves space for all individuals to set and pursue their own ends, and this cannot be achieved without taking account of the lives, opinions, and needs of all individuals from the outset. Our approach to disability must take seriously the diversity of disabled lives, the justified pride many individuals feel in their disabled identity, the abilities and capacities of disabled individuals (not just their inabilities), and the importance of enabling disabled individuals to direct their own lives. This has not been achieved by existing accounts of justice, and will not for as long as disability is a mere afterthought.

1 What Disability Is Not 1.1 The Problem of Defining Disability My first task is to investigate how disability should—and should not—be defined. It may seem that this is not a question in need of sustained philosophical investigation. After all, most people have a clear sense of what they mean by disability, and have little trouble identifying conditions they consider disabling. Further, there is a broad consensus on some central features of an account of disability (as §1.2–§1.4 will consider). In brief, these are, first, the widely accepted distinction between impairment as physical or cognitive features that cause deviation from a biological or statistical norm of functioning for our species, and disability as a restriction in our ability to perform tasks.¹ There is considerable agreement, too, that disability is caused in part by impairment, and in part by an individual’s social and political context and infrastructure, and the resources they have access to.² I do not intend to challenge the consensus on either of these points. Rather, I ask: if disability is the restriction in our ability to perform tasks, then which inabilities matter? In other words, which of the limitations that result from individuals’ impairments, in combination with their context and resources, should be considered disabling? We are all restricted by our bodies, and are all incapable of performing some tasks, but most of these inabilities are not considered disabilities. An account of disability is an essential prerequisite to formulating public policies that safeguard the just treatment of disabled individuals. But an account cannot form the basis of such policy if it simply concludes that ‘everyone is disabled’. If, then, we are to avoid the category of disability becoming overly broad—and thus politically and practically useless—we need some way of picking out which of these inabilities are relevant to defining disability. ¹ E.g. Terzi 2004; Nussbaum 2006a; Shakespeare 2014; Smith 2001; Buchanan et al. 2000; Oliver 1996. Though some recent work questions this distinction (Barnes 2018; 2016a), as Chapter 5 will discuss. ² E.g. Wolff 2009a; Kahane and Savulescu 2009; Shakespeare 2014; Shakespeare and Watson 2001; Terzi 2004; Daniels et al. 2009; Vehmas 2004; Vehmas and Watson 2014; WHO 2002: 8–9.

Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0002

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In the next chapter I defend a new account of disability, according to which the relevant opportunity restrictions are those individuals are entitled to as a matter of justice: to be disabled is to have these opportunities restricted. Here, I lay the groundwork for this account by laying out central features of the literature on disability, and then considering and rejecting alternative accounts of disability. First, in §1.2, I sketch the widely drawn distinction between disability and impairment.³ Then, in §1.3, I outline the current consensus against pure versions of both the traditional medical model, and its rival, the social model. The former suggests disability is straightforwardly caused by impairment. The latter can seem to suggest that disability is solely the result of unjust social structures. Clearly neither extreme is plausible, and, in §1.4, I lay out a hybrid account, which takes the middle ground between these two poles. Next, I argue that the opportunity losses that should be considered disabling are not those entailed by ‘normal’ species functioning (§1.5),⁴ or those that undermine well-being (§1.6),⁵ or those considered relevant by disability activists (§1.7).⁶ I demonstrate that the latter approach leaves disability radically underspecified, whilst on the former two approaches, disability will be ubiquitous and hence meaningless. As such, all these alternatives prove to be an inadequate basis for public policy, political campaigning, or activist movements, and none can be used to identify and respond to the injustice, discrimination, and mistreatment to which so many disabled individuals are subject.

1.2 Disability and Impairment Most discussions of disability are premised on a distinction between impairment and disability. Much can (and will) be said to clarify this terminology, but roughly, impairment can be understood as atypical forms of physical or cognitive functioning or ‘departure from human normality’.⁷ Impairments might include blindness, deafness, and mobility impairments, as well as

³ These terms are investigated in much greater detail in Chapter 5. ⁴ Buchanan et al. 2000; Daniels 1985. ⁵ Kahane and Savulescu 2009; Savulescu and Kahane 2009; Harris 2000, 2001; Terzi 2008, 2009; Wolff 2009a. ⁶ Barnes 2016a. ⁷ Terzi 2008: 43. Or, on the WHO’s (2002: 10) definition: an impairment is ‘a problem in body function or structure’, where body functions are ‘physiological functions of body systems (including psychological functions)’, and body structures are ‘anatomical parts of the body such as organs, limbs and their components’. To avoid the normative connotations—that to be impaired is, itself, a problem—it is preferable to talk in terms of deviation from the norm, as Chapter 5 will argue. The WHO account of disability is discussed in this section. Impairment is considered further in §1.5.

12       non-standard cognitive functionings experienced by individuals with autistic spectrum conditions (ASCs), Down’s syndrome, or Alzheimer’s. Disabilities are the ‘activity limitations, and participation restrictions’ that may result.⁸ Providing examples of disability is more complicated, given that determining which of the restrictions in our abilities to perform tasks are disabling is exactly what is at issue. However, some general points can be made. First, it is usually assumed that these tasks should only be those that are considered, in some sense, significant. Certainly, an account would be deeply implausible if it implied that our trivial inabilities—being unable to raise an eyebrow, or sing, or stand on one leg—count as disabilities. Second, whilst impairment focuses on differences in our body and mind, disability tends to focus on the social roles we are consequently unable to fulfil. For example, blindness is an impairment of our sight, whilst an associated disability might be our inability to drive a car or, even more specifically, to drive our child to school. ASCs restrict our ability to read others’ emotional responses, whilst the associated disability might be the resulting difficulty in, for example, working in occupations that require understanding and effectively reacting to these responses, such as being a social worker or car salesperson. In Jonathan Wolff ’s terminology, disability is a restriction of ‘social functionings’.⁹ This distinction between disability and impairment is not employed universally. First, Elizabeth Barnes rejects this distinction entirely, referring only to disability (see §1.7 and Chapter 5). Second, the WHO, whilst acknowledging the existence of impairment as a distinct category, nonetheless considers this to be incorporated into its broader classification of disability. Thus, they define disability as: ‘an umbrella term, covering impairments, activity limitations, and participation restrictions’, where ‘an activity limitation is a difficulty encountered by an individual in executing a task or action’, and ‘a participation restriction is a problem experienced by an individual in involvement in life situations’.¹⁰ Leprosy, for example, is a disability that involves the impairment of losing sensation in extremities, activity restrictions such as difficulties in grasping objects, and participation limitations such as unemployment resulting from the stigma surrounding leprosy.¹¹ In some ways, the terminological disagreement between the many theorists who see impairment and disability as distinct categories and the WHO is just that: a matter of semantics. Both acknowledge the same core components. On one account, disability is seen as certain consequences (restrictions in activities and participation) arising from a particular cause (impairment, plus external ⁸ WHO 2017.

⁹ Wolff 2009a: 125.

¹⁰ WHO 2017.

¹¹ WHO 2002: 17.

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circumstances); on the other, disability incorporates both part of the cause (the impairment, not the circumstances) and the effect. Nonetheless, I believe there are reasons to favour the former approach. First, it is widely acknowledged (including by the WHO) that the restrictions in individuals’ capabilities are not solely the result of their impairment, but also depend on their social, political, and material environment.¹² As such, it seems more natural to understand disability as the outcome of these various factors, rather than folding one of the causes into the concept itself. Indeed, elsewhere the WHO itself defines disabilities as ‘the outcomes of interactions between health conditions (diseases, disorders and injuries) and contextual factors’.¹³ Second, whilst we might reasonably seek to eliminate the restrictions and limitations that can result from impairments in some contexts, it is much more controversial to suggest that impairments themselves should always be eliminated. Distinguishing disability and impairment, then, allows us to campaign against disability (as restriction) without suggesting that we should also seek to normalise human bodies and minds (remove impairment).¹⁴ However, if impairment is understood as part of disability, then reducing instances of disability will necessarily require reducing instances of impairment: even if an individual no longer faced restrictions in activity or participation, they would still be disabled as long as they still have an impairment on the ‘umbrella view’. This obscures the fact that in many cases the restrictions associated with impairments can be removed by contextual changes alone, and that sometimes the focus of policy ought to be contextual changes alone. Third, then, distinguishing disability and impairment draws attention to the contingency of the connection between bodily and cognitive difference and having a disability, which also depends on context, resources, and personal features (as Chapter 5 explores). Indeed, highlighting this contingency was a major motivation behind the development of the social model by the disability rights movement.¹⁵ Finally, as Chapter 5 also discusses, retaining a concept of impairment allows for a sense of community and solidarity amongst those who function in ways that are unusual, and often poorly accommodated by institutions, norms, and infrastructure—regardless of whether this results in disability. I will, therefore, continue to distinguish disability and impairment. Nonetheless, objections may be raised against this terminology. First, whilst ¹² For example, the WHO notes that disability ‘is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives’ (WHO 2017). ¹³ WHO 2002: 10 (emphasis added). ¹⁴ As §1.7 will discuss. ¹⁵ The social model not only drew a conceptual distinction between impairment and disability but also, in some iterations, disputed the causal connection between them (§1.3).

14       common among disability scholars and activists, outside this community this language might strike some as clumsy and counterintuitive. We are very used to calling people with impairments—of vision, mobility, cognitive function— disabled, without paying much attention to the restrictions in activity or participation they may or may not face. It may seem awkward to insist that an individual in a wheelchair—often the literal poster child of disability—is merely impaired, and that this might not translate into a disability. Yet this discomfort is often grounded in the unexamined assumption that differences in physical and cognitive functionings must manifest themselves in restrictions of ability, and in the associated belief that the impaired body or mind is, itself, the problem. These intuitions and assumptions, however strongly held, ought to be questioned, as the disability rights movement has long argued. We should recognise that we all have impairments of various sorts—we all deviate from the norm in some way or other—but this need not be disabling. Indeed, that even those deviations most widely assumed to be disabling need not be so. Our focus should be on significant restrictions in what individuals are able to do and how they are able to participate in society, and not on how their body and minds differ. We should not assume that the former straightforwardly follows from the latter. A second, more serious worry concerns the potential normative implications of labelling individuals ‘impaired’. This is not intended to be an evaluative concept. It simply provides a way of distinguishing disability, which (partially) results from impairment, from other forms of disadvantage, such as that associated with some racial or gender identities, or sexual orientation.¹⁶ Further, (almost) everyone in some way deviates from the norm; hence, has an impairment. Nonetheless, this term has connotations of deficiency, defect, and imperfection. It may, therefore, seem more apt to refer to ‘difference’, ‘diversity’, or ‘heterogeneity’. I will begin to talk in terms of ‘anomaly’ in Chapter 5 when I defend a neutral account of impairment, but do not do so now in order to retain some neutrality over the definition of impairment and to avoid the proliferation of competing terminology. But to emphasise: it is my view that impairment should be understood as synonymous with difference rather than deficiency. This neutral account of impairment may seem to leave my approach vulnerable to a third objection: that it will render the category of disability ¹⁶ This is in addition to the other noted benefits: highlighting both the contingency of the connection between impairment and disadvantage, and the shared experience of atypical functioning. A further reason to accept this distinction is that I am not convinced by the arguments of its primary opponent—Barnes (2018, 2016a: 23–8)—for its rejection. These I consider in Chapter 5.

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over-inclusive. If impairment implies mere atypicality (rather than deficiency) then, it may be argued, it will include almost everyone. However, as will shortly become clear, an expansive, neutral account of impairment does not necessitate an all-encompassing concept of disability, and it is the latter prospect, not the former, that should concern us. For those who remain unconvinced by the idea of neutral impairment, this should not present a barrier to accepting my general account of disability. It is possible to agree that individuals are disabled when they lack the opportunities they are entitled to, but focus on cases in which this results from functioning in a ‘deficient’ or ‘unhealthy’ way (i.e. negative impairment). For now I merely defend the framework of my account.

1.3 The Medical and Social Models of Disability The preceding discussion foreshadows much of the disagreement between proponents of the medical and social models of disability, since their core conflict centres on disagreement over how the causal relationship between disability and impairment should be understood. In brief, a strict medical model would suggest that disability is straightforwardly caused by individual impairment, whilst a strict social model would deny this causal relationship, and insist instead that disability is solely the result of unjust social structures. There is now a broad consensus that neither of these extreme positions is plausible (and, indeed, may never have been endorsed in this form), and that we should instead adopt a hybrid account. It is important to understand why this is so. The problems with the medical model may, by now, seem obvious: it ignores the ways in which social and institutional structures and the material environment can restrict the opportunities of individuals with impairments and create disability. As such, it fails to capture an important element of disabled individuals’ experiences. Consider, for example, Alison Davis’s account of living with spina bifida: if I lived in a society where being in a wheelchair was no more remarkable than wearing glasses and if the community was completely accepting and accessible, my disability would be an inconvenience and not much more than that. It is society which handicaps me, far more seriously and completely than the fact that I have spina bifida.¹⁷

¹⁷ Davis in Newell 1999: 172.

16       A purely medical model would simply fail to acknowledge the ways in which Davis’s social context contributes to her disability. The various contextual factors that may be disabling will be considered further below, but might include architectural design inaccessible to wheelchair users, social norms according to which wheelchair users are patronised, ignored, or even abused, and a material environment, such as a hilly landscape, that makes wheelchair use difficult. The medical model ignores the significance of such contextual factors and identifies the ‘problem’ of disability as wholly internal to, and the result of, individual impairment. Thus, the solution to this ‘problem’ must be to cure this impairment: to eliminate impaired bodies and minds. Not only is such an approach inaccurate, failing to capture much of what causes disability, it is also considered by many to be offensive. Consider, for example, Steven Smith’s claim that this model: render[s] disabled people as passive and powerless targets of intervention in the face of non-disabled expertise and in the process this reduces the person and their experience to the ‘abnormal’ and ‘deficient’ medical condition.¹⁸

Defenders of the medical model may object to some of these lines of criticism and insist that the targets of Smith’s critiques are not the necessary outcomes of the model, but rather the contingent consequence of the high-handed and sometimes condescending way in which it has been applied. It is true that the assumption that disability is caused by impairment does not necessarily imply that those who have these impairments are passive or powerless, nor that they are reduced to their condition. Nonetheless, this is likely to be a consequence of seeing impairments as the problem, since the impairments must then be the target of policies and interventions. Further, on a medical model, it becomes hard to make sense of the testimony of individuals such as Alison Davis, who see their impairment as no more than an inconvenience. If disabled individuals’ testimony is deemed untrustworthy, it will likely be ignored, and this may well render individuals passive and powerless (as Chapters 6 and 7 will explore). It is clear, then, that the medical model is deeply unsatisfactory, and much of the progress towards recognising its limitations has been achieved by proponents of the social model, who successfully drew attention to the importance of contextual factors. In large part, this was the practical goal ¹⁸ Smith 2001: 24.

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they aimed to achieve.¹⁹ However, versions of the social model that see disability as rooted in social factors alone, and claim that ‘disablement is nothing to do with the body’, also do not provide a plausible account of disability.²⁰ We can draw out three related lines of criticism. First, whilst social structures can certainly be disabling, it is also clear that disability could not be eliminated by social changes alone, and that it should not be reduced to its social causes. Second, even when causes of disability are social they may be unavoidable, and so not resolvable with merely social changes. Finally, not all social causes are unjust, as some iterations of the social model claim. First, then, some impairments—for example, chronic pain, severe paralysis, or serious cognitive impairments—clearly restrict individuals’ opportunities independently of the influence of social structures.²¹ This is not merely to point out, as Barnes does, that if someone is in chronic pain, then ‘no amount of social awareness would be able to fully alleviate the ways in which they suffer from their disability’.²² This is undoubtedly true, but it is unfair to proponents of the social model to reduce their concern with environment and context to improving ‘social awareness’ and changing social norms. Norms, biases, and stigma can certainly be disabling. This can be demonstrated, for example, by the fact that unemployment is a consequence or feature of leprosy (and, indeed, of a great many other disabilities, especially in developing countries²³). However, the social model also draws attention to the influence of broader social arrangements, such as how information is communicated, the form of transportation that is common, architectural design, and legal processes, which introduce a host of new ways in which impairments might be disabling. Yet even this may be too narrow, insofar as its focus is still restricted to social, rather than broader ‘external’ or ‘contextual’, factors. Failing, for example, to include features of the wider material environment, such as physical terrain and climate: whether it is mountainous or flat, wet or dry, warm or cold. Such features can significantly alter the impact of many impairments. My goal here is not to determine what the boundaries of the social model are, or should be. If nothing else, it would stretch our understanding of the term to describe these features as social. Yet maintaining that disability is rooted solely in social causes would mean failing to account for the ¹⁹ E.g. see: Terzi 2008: 44–7; Shakespeare and Watson 2001: 9–12; Shakespeare 2014: 11–17. ²⁰ Oliver 1996: 35. Note that Mike Oliver’s view is complex, and may not be well represented by this oft-used quote. However, my goal is to simply outline and critique one possible approach, rather than to determine which authors it can be attributed to. ²¹ E.g. Barnes 2009b; Terzi 2004. ²² Barnes 2009b: 338. ²³ E.g. Mitra et al. 2011.

18       ways in which the wider material environment can cause disability, and expanding the account to include them seems consistent with the motivations of many proponents of the model. We have good reason, then, to take account of the impact of all external factors, both social and natural. However, even this broader construal of context is insufficient. Whilst many forms of chronic pain, for example, may be exacerbated by such contextual factors—transportation that requires physical exertion, architecture that includes many stairs, open spaces without rest areas, cold climates, or mountainous terrain—it is also clear that circumstances could not be designed to eliminate chronic pain in all its forms. Thus, many impairments will continue to be disabling (to some degree) in any likely social and material context. Whilst disability should not be reduced to the effects of individual impairment, then, we also should not ignore the directly disabling effects impairments may have. That is, ‘impairment effects’. This relates to a second problem with the social model’s focus on social causes of, and so social solutions to, disability: that there is no social environment that can be perfectly inclusive of all impairments. The previous point drew attention to the fact that some disabilities will not be fully mitigated by contextual factors, even broadly construed; this observes that even when disabilities could be thus mitigated, it may be that there is no set of social changes that would eliminate all disabilities. As Linda Barclay notes: A society maximally accommodating of the blind will be different to one that is maximally accommodating of the deaf . . . The shape of any social environment will always be more favourable to some people than it is to others, even if only in some respects and in some contexts.²⁴

Or, as Tom Shakespeare points out: People with mobility issues who do not use wheelchairs may find that steps are safer and easier for them than ramps . . . Wheelchair users may have problems with tactile paving which gives locational cues to visually impaired people . . . Partially sighted people may request large text on white background: people with dyslexia may prefer black print on yellow paper. Some people will prefer rooms to be dim, others will prefer them to be brightly lit.²⁵

²⁴ Barclay 2010: 161.

²⁵ Shakespeare 2014: 37.

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Deafness may only be disabling as the result of context, but if changing this context were to make blindness more disabling, then deafness may effectively be as intractably, and context-independently disabling as chronic pain. This connects, in turn, to a final objection to a particular interpretation of the social model, according to which disability is not merely externally caused, but is the result of unjust social causes.²⁶ On this interpretation, the social model does not merely claim that disability is caused by the social environment, but maintains that these ‘beliefs, attitudes, and social arrangements also need to be mistaken and unjust’.²⁷ Further, that a more just social arrangement is both realistic and possible.²⁸ However, this version of the social model is vulnerable to the objection that at least some of the social causes of disability are not unjust.²⁹ As the previous discussion has highlighted, some social causes may be impossible to avoid. If this is so, then it may seem implausible to suggest that settling on a social arrangement that is still disabling to a subset of individuals is unjust. In some instances, this is because we lack the technology or the resources to alter the social environment in ways that would accommodate some impairments. For example, speech-to-text programmes for individuals with hearing-loss, and text-to-speech programmes for those with visual impairments may significantly reduce, or eliminate, activity and participation restrictions that would otherwise be associated with these impairments. However, before the technology existed to provide useful versions of these programmes, their absence need not imply the state has acted unjustly— assuming sufficient effort has been made to research and develop them. Equally, if certain states simply lack the resources to provide these accommodations, their failure to do so may not imply they are guilty of injustice.³⁰

²⁶ Again, my goal is not to discuss the history of the social model, nor to take a view on which interpretation should be taken as authoritative. For discussion of the provenance of the social model see e.g. Shakespeare (2014: 11–46); Shakespeare and Watson (2001); Terzi (2004). ²⁷ Kahane and Savulescu 2009: 39. ²⁸ Kahane and Savulescu 2009: 40. ²⁹ Providing a complete account of which causes are unjust would require a complete theory of justice. However, the general objection is likely to follow from any account. ³⁰ This may, of course, be an instance of global distributive injustice, insofar as unjust inequalities in global resource distribution leave states in a position in which they cannot provide for their citizens. However, I will not investigate this topic here. This point also foreshadows a possible objection to my account: if these failures of accommodation are not unjust, and I suggest disability means lacking what we are entitled to as a matter of justice, then it may seem ineliminable restrictions are not disabling on my account. As §2.4 will argue, this is not so, since human beings may be entitled to opportunities or resources that cannot be provided universally, and whose lack of provision is not the result of injustice. Thus, insisting it is not unjust to uphold a social arrangement that unavoidably disadvantages some of those who live under it need not commit us to also suggesting that such disadvantages are not, themselves, unjust. In other words, a situation may be unjust though no agent has committed injustice.

20       In other cases, these accommodations cannot be made because the needs of individuals with different impairments pull in different directions, and there is no single social structure that is ideal for all. As noted, even if there are social arrangements that would improve some individuals’ situation, this might come at others’ expense. Thus, these cases can prove as intractable as those in which we simply lack the ability to institute the relevant change. Yet the fact that some social causes are unavoidable does not imply that the status quo should not be challenged: that we should not work to change existing social arrangements, and to shift the boundaries of the possible. I by no means wish to claim that no social causes are unjust. Rather, I wish to point out that the fact that a cause is social need not imply that it is unjust. We can, therefore, allow that it may be unjust to select an arrangement that is only designed for the able-bodied majority (or minority); that it may be unjust to fail to make changes that reduce disability at minimal resource cost, and without disabling others; that it may be unjust to fail to challenge discriminatory social norms, biases, and stigma; and that it may be unjust to expend few resources developing assistive technologies or design modifications, thus artificially maintaining the infeasibility of accommodating individuals with impairments. However, if social arrangements are as good as they can be, by whatever metric this is measured—perhaps reducing the instance of disability, perhaps reducing the most severe disabilities, perhaps reducing disability amongst the most vulnerable—they are not plausibly unjust. Yet they may still be disabling. The most plausible reading of the social model, then, is as an approach that roots the cause of disability in the impact of contextual features on individuals with impairments. This does not restrict our focus solely to social causes, nor to those that are unjust and can be changed.³¹ Yet even the broader focus on all contextual factors is insufficient, insofar as this ignores the direct impact that our bodies and minds can have on what we are able to do, and how we are able to live. Returning to the first critique: some impairments will be disabling in any context.

1.4 Beyond the Medical and Social Models Given the problems that plague both medical and social models, the right approach is surely a hybrid: an account that acknowledges the influence of ³¹ This may mean that its title (the social model) begins to look increasingly inappropriate.

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contextual factors, without divorcing the concept of disability from the effects of our bodies and minds. An approach, in other words, that takes on board the above criticisms, and understands disability as a restriction in the ability to perform tasks as the result of both internal and external factors. This is a view that is now widely held.³² I turn in §1.5 to the various competing answers to the question on which I believe most interesting debate turns: which inabilities are disabling? But before doing so, I first delineate these internal and external factors. Whilst the preceding discussion has given a sense of what these might be, it is worth explicating the various ways in which impairments may interact with individuals’ context to restrict their capacity for activity and participation. First, internal features of individuals distinct from their impairment may contribute to the ways in which their impairment is disabling. This is not clearly emphasised in either social or medical models, but does feature in various hybrid accounts, especially those grounded in the capability approach.³³ Evidently, the impact of an impairment on an individual will depend not only on their context but also on how it interacts with their other characteristics. The WHO names this category ‘personal factors’, and draws attention to: gender, age, coping styles, social background, education, profession, past and current experience, overall behaviour pattern, character and other factors that influence how disability is experienced by the individual.³⁴ For example, cognitive impairments such as Down’s syndrome may be less disabling in younger children when there is less of a discrepancy in functioning capacity and behaviour between them and their peers; mobility impairments will be less disabling to an individual who wishes to pursue the sedentary career of a philosopher than to one who wishes to pursue the active life of a park ranger; and the ability to adapt to changes in one’s circumstances, and modify one’s goals and conception of the good, has been shown to have a significant impact on individuals’ ability to cope with a decrease in their cognitive capacities following traumatic brain injury.³⁵ Second, a wide range of external factors can bear on whether impairments result in individual limitations. Note that whilst some of these factors may be

³² See e.g. Wolff 2009a; Kahane and Savulescu 2009; Daniels et al. 2009; Terzi 2004; Shakespeare 2014; WHO 2002; Vehmas 2004; Riddle 2013. This is sometimes called the ‘biopsychosocial model’ (cf. Engel 1977, though Engel was developing a model of disease rather than disability), the ‘interactive model’ (e.g. Wasserman 2006: 216), or the ‘interactional approach’ (Shakespeare 2014: 74–84). ³³ E.g. Wolff 2009a; Terzi 2008. ³⁴ WHO 2002: 10. ³⁵ On the latter example, see Daniels et al. 2009.

22       unjust, they need not all be so. Drawing on and modifying the WHO’s categories,³⁶ we can distinguish: (a) Services, Systems, Policies, and Institutions. This includes: (i) Formal legal and institutional policies. For example, antidiscrimination legislation (or its absence), legal mandates that reasonable accommodation should be made to ensure individuals can access buildings and facilities, or schemes such as the UK’s ‘Disability Confident’ (formerly ‘Two Ticks’) to improve disabled individuals’ access to the job market.³⁷ (ii) The provision of services. For example, appropriate educational provision for those with special educational needs, and the provision of welfare payments and other benefits. (b) Norms and Attitudes. This includes: (i) Individual attitudes. For example, open hostility, mistreatment, and abuse. This also includes the condescending and potentially insulting behaviour of individuals who are ‘trying to help’, yet assume that individuals with impairments are incapable when they are not, and who provide this assistance without first asking for permission.³⁸ (ii) Informal institutional practices. This incorporates both practices that are clearly discriminatory and unjust, as well as those that may contingently disadvantage individuals with certain impairments. The former might include a prejudicial reluctance to hire individuals with impairments; whilst the latter might include the increasing availability of white-collar, rather than manual, work as disadvantageous to those with learning difficulties, such as dyslexia. (c) Natural and Material Environment. This includes: (i) Natural features of the landscape and climate. For example, mountainous terrain making wheelchair use difficult, or a cold and wet climate leading to icy pavements, treacherous for individuals with impairments involving their vision, mobility, or balance. ³⁶ These are listed as: Products and Technology; Natural Environment and Human-Made Changes to Environment; Support and Relationships; Attitudes; Services, Systems, and Policies (WHO 2002: 16). The content of these categories is not clearly elaborated. ³⁷ Although this scheme may not have had this effect in practice (Hoque et al. 2014). ³⁸ Cureton 2016. Also see Chapter 7.

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(ii) Human-made changes to this environment (or their absence). For example, installing handrails on steep roads, including rest areas in hilly terrain, or paving paths over rocky or uneven ground (or failing to do so). This may also include environmental changes that increase individual restrictions, such as using gravel or sand on previously smooth ground. (iii) The design of material infrastructure. For example, kerb cuts, textured paving, providing alternatives to stairs such as lifts or ramps, auditory as well as visual cues for pedestrian traffic signals, and accessible entrances that do not require individuals to travel long distances to reach them.³⁹ The architectural ideal is surely universal design, but this may not always be feasible. (d) Products, Technology, and Resources. This includes: (i) The availability and creation of new products and technologies. This requires funding for the research and innovation necessary to develop new products, and the support necessary to ensure such products are available, even if the market for them is relatively small. (ii) Individual access to these products and technologies. This may be achieved either through direct state provision, or because individuals possess sufficient personal resources to acquire what they need. (e) Support Networks, Relationships, and Community. This includes: (i) Formal assistance. For example, access to home care workers, nurses, and social workers. This may be provided by the state or, when it is not, gaps may be filled by charities, church groups, and other volunteer support workers. (ii) Informal support networks of family and friends. Both informal networks and formal assistance may have great value to individuals, and are frequently relied upon. However, it should be noted that such reliance may render individuals vulnerable when mechanisms are not in place to ensure that this support is securely provided. For example, if the provision of state assistance is seen as a matter of benevolence rather than right, individuals may fear the withdrawal or reduction of this provision.

³⁹ Ashley Shew’s (2017) account of the impact of Virginia Tech’s failure to take accessibility into account in a campus remodel demonstrates the importance of such features. As she says, ‘there's no reason it should be this hard just to be on campus’.

24       Third sector and informal networks may also be insecure, depending, for example, on charities maintaining their funding, on individuals maintaining relationships with friends and family who take on a caring role, or on these individuals continuing to have the capacity to provide assistance. Even if these dangers are never manifested, this vulnerability to the withdrawal of necessary assistance may generate the same worries that accompany the threat of arbitrary interference in republican thought. In brief, these worries are: the anxiety over the possibility of withdrawal; strategic deference, anticipation, and flattery in an attempt to avoid this outcome; and the undermining of the equal social status when one individual is forced to ‘bow and scrape’ to another.⁴⁰ This provides reasons to ensure that individuals’ access to networks of support is made as secure as possible, where this will likely require institutional protection: to ensure the formal provision is not withdrawn, and to act as a failsafe against the breakdown of informal networks. (The importance of such security is discussed further in §4.2.)

1.5 Species Norms and Impairment I now turn to the various answers that have been given to the central question of which restrictions in individuals’ activities and participation should be considered disabling. One seemingly natural answer is that disability should be understood as the loss of abilities that members of the species are normally able to perform. These are ‘normal species functioning’, or ‘species norm’ approaches. This is the view of Allen Buchanan et al., who define disability as being ‘unable to perform some significant range of tasks or functions that individuals in someone’s reference group (e.g. adults) are ordinarily able to do, at least under favourable conditions’.⁴¹ It also seems to be the view underlying many folk intuitions regarding what it means to be disabled. However, despite these common-sense roots, this account will not, I contend, be able to capture all the cases we would want it to. Most obviously, perhaps, such accounts will be over-inclusive since individuals depart from the species norm in many trivial (or even beneficial) ways. Raising an eyebrow might be a species-normal ability, but those who cannot do this are hardly disabled by their inability. Buchanan et al. attempt to avoid this problem by

⁴⁰ Pettit 1997: 85–9. For further discussion of the harms of insecurity, even when these dangers are not realised, see e.g. Wolff 2009c; Wolff and de-Shalit 2007: 65–73; Perry 2009. ⁴¹ Buchanan et al. 2000: 286. Also see Gregory 2020.

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distinguishing ‘impairment of normal species functioning’⁴² from disability as the resulting inability to perform a significant range of tasks. To illustrate this difference, they give an example of someone who cannot hear sound at a particular range of frequencies, yet in whose environment nothing ‘she is likely to be required to do or would benefit from doing’ ⁴³ requires hearing sound in this range. This individual thus has an impairment, but this does not translate into a disability. However, this distinction between inabilities to perform species-normal functionings, and inabilities to perform species-normal tasks is difficult to draw—at least, without some additional account of which of these tasks are ‘significant’. Indeed, in describing their example, Buchanan et al. make reference to what someone might ‘be required’ to do or ‘would benefit’ from doing. By doing so they can avoid the inclusion of trivial inabilities as disabilities. However, this also suggests that their means of identifying the relevant restrictions in our abilities is not purely based on a species norm. Thus, it is not clear that this is any longer a species norm approach.⁴⁴ Buchanan et al. may respond that what they have in mind is species-normal requirements or benefits. However, this would raise a dilemma for the approach. On the one hand, these may be understood in a relatively thin, and thus relatively uncontroversial, way—for example, focusing only on basic human needs. Few would dispute that humans require, and would benefit from, access to nutrition, clean water, and shelter. However, we would be left with a very narrow account of disability if we were only considered disabled when we are unable to fulfil this narrow set of needs. On the other hand, then, we may wish to adopt a thicker account, perhaps including education, social relationships and family life, political participation, leisure time, and the chance for autonomous self-direction. Yet revision of this kind will move us beyond a simple statistical analysis of what adult humans are normally able to do, and into more complex and controversial normative terrain than is generally acknowledged by advocates of the species norm approach. ⁴² Buchanan et al. 2000: 285. ⁴³ Buchanan et al. 2000: 287. ⁴⁴ Alex Gregory’s approach to this problem is to allow that views focusing on species atypical inabilities (as his inability theory does), will indeed include trivial and insignificant inabilities as disabilities, but to insist that they ‘are not appropriately described as such’ (Gregory 2020: 31, my emphasis). However, this seems to shift rather than solve the problem. We are still left with the task of determining which inabilities are appropriately described as disabilities, which raises the same dilemma as for Buchanan et al. Either we devise a principle that determines which are ‘sufficiently life-changing’ (Gregory 2020: 31) in their effects (hence moving away from a species norm account), or leave this open to idiosyncratic individual judgement without a normative guide. This would then open the door to inclusion of trivial inabilities, as well as leaving the concept deeply indeterminate, which is a problem at least in the context of theorising about justice and individual entitlements (as §1.7 will discuss).

26       The point is not that this task is necessarily impossible, or has never been attempted.⁴⁵ Rather, the objection is that the account now hangs on questions concerning what is valuable or essential to human life (or, perhaps, a good or flourishing human life), and not merely questions of what is normal. Thus, opting for this latter horn of the dilemma will mean that the species norm approach collapses into other, more substantive approaches: perhaps a welfarist one if the inabilities that matter are those that reduce human welfare, or a justice-based approach if the inabilities that matter are those that humans are entitled to. I discuss the former approach in the next section, and the latter in the next chapter. Either way, this can no longer be plausibly interpreted as a species norm approach. A second problem for the approach is that its focus on ‘tasks’ may mean that it is under-inclusive. Consider, for example, individuals who suffer from chronic pain, fatigue, anxiety, or depression, but who are nonetheless highfunctioning and able to perform all species-normal tasks (or those they are required to do, or that benefit them). These cases are analogous to that of the individual who cannot hear particular sound frequencies: they may not function as normal, but this does not translate into a restriction in their abilities. Yet it is implausible to suggest that individuals who struggle with pain, fatigue, anxiety, or depression are not disabled until this manifests in an inability to perform tasks.⁴⁶ Buchanan et al. could respond by adopting a more expansive understanding of tasks, and thus of disability. They might point out that performing tasks whilst suffering is not species-normal: we should not focus just on what people can achieve but on whether their method of achievement is normal. This response would, indeed, allow them to include individuals with chronic pain, depression, and so on, but would come at the cost of also including their hearing-impaired person, and other trivial cases. After all, the species-normal way of performing the task of hearing includes, inter alia, not being in pain and hearing sound frequencies within a certain range. ⁴⁵ Indeed, this is the focus of much of Nussbaum’s early, Aristotelian work (e.g. Nussbaum 1992, 1993). ⁴⁶ Gregory (2020: 28) insists that we can solve this problem with regards to fatigue, at least, since this will be associated with ‘lower levels of ability at various temporally extended tasks’. Leaving aside the potentially expansive implications of allowing that individuals are disabled whenever they have lower levels of ability at particular tasks (not just absolute inability), we may also worry individuals will not be included in cases where this does not actually impair someone’s abilities in sufficiently significant ways, though it does increase the difficulty of performing tasks. For example, they are able to work a forty-hour week, but then need to take significant time to rest and recuperate, undermining their ability to pursue recreational activities. Further, Gregory’s response does not help with the other problem cases.

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This fully inclusive approach is both implausible and contrary to their stated view. The route out would involve an appeal to which of the atypical ways of achieving a task are relevant or significant and this, as noted, takes us beyond the appeal to mere species norms. (As §2.6 will consider, this route is open to me since I am explicitly committed to a principle that identifies which of the various ways of performing atypical functionings are disabling.) This gives us good reason to reject species norm accounts of disability, but it does not follow from this that we must also reject accounts of impairment grounded in species norms—indeed, I adopt just such an account (§1.2; §5.3). This is, first, because impairment should be an expansive category. Thus, we need not resist the inclusion of the individual with the mild hearing impairment, and those with anxiety, depression, chronic pain, and fatigue—and even those who cannot raise an eyebrow or, as we will see, individuals who apparently function unusually well. Impairment, then, will be a very broad church. This does not, however, imply that disability must be similarly all-encompassing, since, unlike Buchanan et al., I explicitly offer a criterion to identify which of the associated restrictions are disabling. Second, if impairment is, as I suggest, understood to be normatively neutral—synonymous with difference, not defect—it is not vulnerable to a final objection often raised against species norm accounts of disability. This is the worry that focusing on an idealised conception of normal species functioning entails a corresponding disrespect of, and insult to, those who fail to meet this ideal. For example, as Lorella Terzi notes: ‘the whole ideology of normal functioning is seen as primarily constructed in order to control and exclude disabled people from active and full participation in social and institutional arrangements which have no interest in accommodating them’.⁴⁷ This line of criticism is similar to those that draw attention to the medical model’s inaccurate and insulting focus on apparent individual deficiency, and insistence that this must be rectified. However, an account of impairment that is indexed to species norms merely acknowledges that many (or all) of us are not ‘normal’ in various ways and, whilst not problematic in itself, this can, in some circumstances, prevent us from having the opportunities we are entitled to. The same can be said of gender and racial identities and sexual orientation, without implying that any such identity is deficient. ⁴⁷ Terzi 2009: 90.

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1.6 Welfarist Accounts The second account of disability I will consider is the welfarist approach. This is most clearly and explicitly defined and defended by Guy Kahane and Julian Savulescu, according to whom disability is a ‘stable physical or psychological property of subject S that tends to reduce S’s level of well-being in circumstances C, when contrasted with a realistic alternative, excluding the effect that this condition has on well-being that is due to prejudice against S’.⁴⁸ Thus, the relevant inabilities, on this view, are those that reduce welfare. Whilst other welfarist views have been defended, I will focus on Kahane and Savulescu’s version of the approach here.⁴⁹ Perhaps the most obvious problem with this account concerns the difficulties in developing an account of welfare. Whilst Kahane and Savulescu aim to remain neutral between alternative accounts of welfare, there are problems with any that might be incorporated. This reflects the more general difficulties with formulating a clear and satisfactory account of welfare, which I will not rehearse here.⁵⁰ However, in brief: first, a subjective account of welfare, relying on individuals’ self-assessment, will inevitably raise reliability concerns. The various ways in which self-reported levels of happiness, contentment, or preference-satisfaction can be misleading have been well documented.⁵¹ One example is the problem of adaptive preferences, where individuals who have been subject to mistreatment or deprivation adapt to their circumstances, and no longer prefer what might seem like clearly superior alternatives, as when people prefer to remain in an abusive relationship.⁵²

⁴⁸ Kahane and Savulescu 2009: 53. ⁴⁹ E.g. John Harris (2001: 283) insists that ‘to be disabled in any sense is not the same as being differently abled’. Being deaf, for instance, positively ‘harms the individual relative to freedom from deafness’ (Harris 2001: 283). (Also see Harris 2000.) Arguably, Terzi’s (2009, 2008) approach could also be considered welfarist. Terzi adopts a capability approach to disability, and so understands impairments as disabling insofar as they cause a loss of, or restriction in, capabilities. However, she understands the capability approach as an account of subjective well-being, and so considers the loss of capabilities to entail the loss of components of well-being. Thus, individuals are disabled by capability loss because this renders them worse off. For example, she suggests that whether a wheelchair user has a capability depends on her ‘most valuable ends’ and her ‘attitude’ (Terzi 2009: 99): if these are such that she cannot fulfil her goals as the result of being in a wheelchair ‘her well-being appears to be restricted . . . and hence the full set of capabilities available to this person is diminished’ (Terzi 2009: 100). If we interpret Terzi as implying individuals are disabled whenever their well-being is restricted and capabilities diminished as a result of an impairment, then disability would be ubiquitous on her account—just as on other welfarist views, as we will see. ⁵⁰ Some of the many contributions to this debate include: Scanlon 1975, 1998; Griffin 1986; Crisp 2006; Sumner 1996; Parfit 1984. ⁵¹ E.g. Kahneman et al. 1982; Kahneman 2011; Le Grand and New 2015; Thaler and Sunstein 2008. ⁵² E.g. Elster 1987; Khader 2011; Terlazzo 2016; Begon 2020, 2015; Chapter 6.

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Yet moving toward a more objective understanding of welfare brings its own problems. These include the difficulty of finding a non-arbitrary way of compiling a list of basic goods, or the worry that this list will entail the paternalist imposition of a perfectionist conception of the good, or that it will be elitist and exclusionary. Further, we may be sceptical about the implication that something can be considered good for someone independently of their attitudes towards it, and indeed, despite their own insistence to the contrary. This is particularly problematic in the context of social justice, where there may be a divergence between state and individual assessments of which conditions reduce welfare, and thus (on a welfarist account) of what constitutes disability, and who is entitled to state assistance.⁵³ A further problem in the social justice context is the epistemic difficulty of assessing welfare in a great many cases. For example, Kahane and Savulescu discuss the ‘Ashley treatment’, named after a child with severe cognitive impairments who was given treatment to restrict her further growth and prevent puberty. They argue that, though this treatment moved Ashley further from the species norm, it lessened her disability since it improved her welfare. This stands in stark contrast to, for example, Eva Feder Kittay’s discussion of the case, in part because Kittay employs a different understanding of Ashley’s welfare. She contends that ‘[w]e take pleasure and pride in our bodies as they grow and mature because . . . we do. Full stop. It needs no further justification. It is constitutive of a thriving life’.⁵⁴ Yet evidently this would prove insufficient to Kahane and Savulescu, who do not recognise this value. These epistemic difficulties are especially intractable in cases such as Ashley’s, where it can be hard to ascertain the view of the individual concerned, and far from clear that those who have not experienced this condition can be in a position to understand what would be required for her to thrive. Thus, Kahane and Savulescu’s definition does not determine who is disabled—who experiences a welfare deficit—but simply moves the debate to a new context: finding a satisfactory account of welfare. This is an important gap in their approach. However, the fact that they have not filled it does not mean it cannot be satisfactorily filled. Further, a welfarist might respond that disability should not be easy to define, and that my own approach will face similar worries—there is, of course, no consensus on what justice demands. However, these epistemic worries seem deeper for welfarist approaches—at least for those that include an element of subjectivity in their account of ⁵³ Dworkin 2000; Williams 2002; Colburn 2014; Lazenby 2016; Begon 2021b; Chapter 7. ⁵⁴ Kittay 2011: 621.

30       welfare—since they necessarily require a direct reliance on first person testimony. Moreover, determining how the benefits and burdens of social cooperation are to be distributed requires that we reach agreement on certain essentials of a theory of justice, but not of welfare.⁵⁵ Lacking a working conception of the demands of distributive justice would cause problems for considerably more than my account of disability. Finally, whilst we may not have reached agreement on a complete theory of justice, it might be easier to agree on basic entitlements, and so basic injustices, than it is to identify core instances of welfare deficit. In Rawlsian terminology, the burdens of judgement mean that reasonable people will hold competing conceptions of the good yet can still be part of the overlapping consensus on the demands of justice.⁵⁶ For example, it is, perhaps, easier to agree that individuals are entitled to equal political participation, opportunities for mobility, and the ability to form relationships than it is to show that all these capabilities will make all individuals better-off, given the existence of the idiosyncratic preferences of the politically apathetic, sedentary, and misanthropic. Thus, disagreements about what makes life go well may be harder to settle even in apparently core cases, as examples like Ashley illustrate. The lack of a widely accepted account of welfare thus provides reason for scepticism about the possibility of operationalising the welfarist account. However, this amounts to raising a worry that demands a response, rather than providing a decisive refutation of the welfarist view. The deeper problem for this view is that, whatever account of welfare is used, disability will be ubiquitous, and this will prove problematic from the perspective of justice and public policy. As Kahane and Savulescu openly acknowledge, disability will be a degree rather than a threshold concept. Thus, ‘everyone has disabilities of one kind or another’.⁵⁷ I agree that there can be a degree of arbitrariness in drawing the boundary between mild and severe disabilities, and indeed between being disabled and able-bodied. I agree, too, that we might have reasons to make this category more expansive than it is at present (as §2.7 discusses). Nonetheless, we should be cautious of expanding it so far that it becomes meaningless, as it will be if it is a category in which everyone is included. A related problem is not just that it includes too many, but that it includes them for the wrong reasons. In some cases, individuals will count as disabled ⁵⁵ E.g. Rawls 1999: 5. ⁵⁶ Rawls’s argument is merely illustrative of this claim, so I will not explicate the details of this position here. ⁵⁷ Kahane and Savulescu 2009: 30.

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on the basis of conditions that do not much seem like disabilities—for example, because they have a ‘grumpy personality’.⁵⁸ More fundamentally, even when it seems like the right cases are identified, their inclusion surely should not depend on individuals’ welfare level—an individual with severe paralysis is not disabled because (and only if) they are unhappy about this.⁵⁹ I agree that it is absolutely fundamental that we focus on the consequences of impairment (for particular people, in particular contexts), but the relevant consequences simply do not seem to be how happy or satisfied they feel. Nor should we adopt an approach where coming to feel proud and happy about one’s anomalous functioning means one ceases to be disabled. As the next chapter argues, I believe we should focus, instead, on determining which impairments prevent individuals from getting opportunities they are entitled to. In other words, which individuals are actually disadvantaged in a way that is the proper object of social concern. Yet even leaving this point aside, the extensional inadequacy of welfarist accounts remain. If every stable physical or psychological property that lowers our welfare counts as disabling, then this definition does not seem to pick out the right cases—or, not only the right cases. At least, not in the context of social justice, where our concern is identifying disadvantage and determining how the state should appropriately respond. It is certainly worth emphasising that disability is a continuum, and that we are all restricted by the limitations of our bodies and minds. Nonetheless, when fighting against ableism and injustice, simply concluding that ‘we are all disabled’ is surely not a helpful approach. Similarly, we may wish to reject binaries of sexual orientation and gender identity, and deny that racial categorisation is possible, yet nonetheless find it useful to refer to ‘women’, and ‘gay people’, and ‘black people’ as a means of identifying, and fighting against, injustices against these groups. ‘Disability’, I contend, has value and meaning as a way of identifying, and responding to, disadvantage. The term has little function if entirely ubiquitous.⁶⁰

⁵⁸ Gregory 2020: 35. ⁵⁹ Also see Gregory 2020. ⁶⁰ Further, though we do not want to replicate a common-sense understanding of disability, it should not be entirely divorced from our intuitions. Indeed, Kahane and Savulescu (2009: 19) themselves object to the species norm approach on this basis. It might also be objected that the welfarist account deviates from common sense in the other direction: by failing to count harmless impairments as disabilities (Gregory 2020: 34–5). There are two ways to read this criticism. One is that disability should not depend on welfare loss, and individuals with high welfare may still be disabled. As noted in the text, I entirely agree. Alternatively, the concern may be that it is that it is ‘surprising at best’ that paradigm disabilities won’t be included, and that this is reason enough to reject an account with this consequence (Gregory 2020: 35). A version of this criticism also applies to my own account: I will implausibly fail to count impairments that do not diminish our entitlements as disabilities. However,

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1.7 Barnes’s Social Constructionist Approach Barnes, like many others, rejects the social model’s exclusive focus on external causes of disability, and emphasises that our understanding of disability should be grounded in an assessment of individuals’ physical features—or, ‘what their body is (really) like’.⁶¹ However, she is keen to emphasise, too, that particular qualities are considered significant not because of their objective features, but because of the way we think about them. Barnes further argues that those best placed to determine which particular features should be considered disabling are disability activists. Thus, that ‘disability just is whatever the disability rights movement is promoting justice for’.⁶² Inclusion in the category of disability therefore depends on ‘rule-based solidarity among people with certain kinds of bodies’.⁶³ In other words, we are disabled on Barnes’s view if our body meets the criteria used by the disability rights movement to identify disability. However, there may be problems with relying on rules devised by activists. First, we should not unquestioningly accept the content of these rules. Whilst the testimony of disabled individuals should undoubtedly play an important role in developing an account of disability, it does not follow that the rules adopted by the disability rights movement will be free of bias. Individuals who already ‘count’ as disabled, and have paradigm conditions, may have vested interests in excluding others from entering this group, and perhaps diluting the strength of their claims with the accretion of many others. This need not be a conscious process of exclusion. Individuals may simply tend to see their own impairments as the paradigm, and be less inclined to include those they are less familiar with. Barnes’s own focus on individuals with ‘certain kinds of bodies’, rather than individuals with cognitive impairments or mental health problems, might be an instance of this. Disability, on any account, is a hugely heterogeneous category. Thus, we should not assume that disabled individuals’ epistemically privileged position regarding their own experience extends to understanding the diverse experiences of all other disabled people.⁶⁴ Nor can we assume that a group fighting against injustice will never unjustly exclude others from membership. I believe this objection is misguided, as §2.7 argues at length. When a paradigm has arisen from prejudice and ill-informed assumptions about disabled life, it is not in the least surprising that it will require revision. ⁶¹ Barnes 2016a: 38. Barnes is focused only on physical, and not cognitive, disabilities. ⁶² Barnes 2016a: 43. ⁶³ Barnes 2016a: 46. ⁶⁴ For a discussion of the impact of restricted information on the reliability of individuals’ choices and preferences see Begon (2020) and Chapter 6.

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Consider, for example, the exclusion of asexual individuals by some in the LGBTQ+ community, or the exclusion of trans women by some feminists. The point is not that such exclusion is necessarily unjust, but that the question of injustice is not resolved by observing that it was existing members of the community who determined these boundaries.⁶⁵ A related worry with Barnes’s approach is that, given the heterogeneity that exists between and within such groups, disagreement about the content and application of the rules of inclusion seems likely, and difficult to resolve. Barnes acknowledges the diversity of disability rights movements, and allows that it may be ‘simply vague or indeterminate which social group is referred to . . . [as] “the disability rights movement”’.⁶⁶ Her response is to insist that ‘this entire domain . . . is riddled with indeterminacy’,⁶⁷ and that it would be ‘deeply implausible’ if it turned out that ‘any aspect of our complex, multifaceted social reality had fully determinate boundaries’.⁶⁸ It is certainly true that any definition will likely include difficult or borderline cases. Indeed, an account that provides a firm and unequivocal distinction between those who are, and are not, disabled, seems to have missed something important about this category. Yet even if the boundaries are somewhat fuzzy, we still need some sense of where they lie. I am sceptical that the implicit rules used by disability rights movements will be sufficient for this task,⁶⁹ and, indeed, whether we should simply accept these rules even if they could be clearly identified. Further, I believe that there are deeper flaws in Barnes’s approach. Barnes is not simply neutral about the content of an account of disability, but rather outlines criteria that any successful account should meet.⁷⁰ I will object to two of them. These are, first, that an account of disability should not prejudge normative issues and, second, that it should be able to deliver the correct verdict about paradigm cases. These criteria will not be met by my account, nor by the welfarist account. Yet I contend that an account of disability need not—and, indeed, should not attempt to—fulfil these criteria.⁷¹ Considering the latter point first, it is clear that the welfarist account will not deliver the correct verdict about paradigm cases. Its failure to do so does not come from the ubiquity of disability on this account: such ubiquity will ⁶⁵ Similar worries are raised by Campbell and Stramondo (2016), Wasserman (2018), Howard and Aas (2018: 1127), and Gregory (2020: 38–9). ⁶⁶ Barnes 2016a: 49. ⁶⁷ Barnes 2016a: 49. ⁶⁸ Barnes 2016a: 50. ⁶⁹ Also see: Wasserman (2018: 254); Howard and Aas (2018: 1115); Francis (2018). ⁷⁰ Barnes 2016a: 10–13. ⁷¹ Thus, though for the reasons already given I think we should reject the welfarist approach, this is not for the reasons Barnes would give.

34       ‘correctly’ identify paradigm disabilities, though it will also deliver the same verdict for many more cases besides. The greater problem is that Kahane and Savulescu allow that for particular people, in particular circumstances, conditions such as deafness, dwarfism, and (voluntary) amputation may positively improve well-being.⁷² These individuals will not be considered disabled and, indeed, regaining one’s hearing, or becoming average height, or being forced to keep one’s limbs may be disabling if, on balance, this lowers someone’s welfare. Clearly, Barnes would not take this to be the ‘correct’ verdict about these paradigm cases. My approach, too, will have revisionary implications (§2.7). However, it is not clear why it would be a virtue of an account to be ‘correct’ about paradigm cases. Whilst we may worry about an approach that is completely divorced from our understanding of disability—for example, an account that sees homosexuality as a disability—we should also be aware that our sense of what is ‘paradigm’ when it comes to disability is often informed by intuitions that are based on prejudice and misunderstanding of what disabled lives are like.⁷³ As noted, these worries may not be solved even if we allow those who are already considered to be part of this ‘paradigm’ to be the arbiters of who else will be included. Next, Barnes argues that ‘[i]t should not be built into the very definition of disability that disability is something that’s bad or suboptimal’.⁷⁴ Yet the welfarist account is explicitly evaluative: ‘on our definition it’s tautological that disability is bad for those suffering from it’.⁷⁵ Further, since to be disabled on my view means to be deprived of opportunities all humans are entitled to, then this is also an evaluative concept. However, it is only important that disability be value-neutral if we follow Barnes in rejecting the distinction between impairment and disability.⁷⁶ If we accept this distinction then we can allow that disability is necessarily disadvantageous and still maintain a normatively neutral account of impairment, capturing the heterogeneity of human bodies and capacities, which may be disadvantageous in some contexts, but need not be so. Thus, a normatively loaded account of disability does not undermine the possibility of being proud of our diverse bodies and minds. However, by conflating these two terms Barnes makes it near impossible to achieve the twin goals of recognising that diversity need not be negative, and that it can be correlated with disadvantage, which must be identified to be rectified. ⁷² ⁷³ ⁷⁴ ⁷⁶

Kahane and Savulescu 2009: 49–50. As §2.7 considers, and Barnes herself has pointed out (Barnes 2016a: 119–42; Barnes 2009a). Barnes 2016a: 11. ⁷⁵ Kahane and Savulescu 2009: 42. See Chapter 5 and §1.2 for a defence of this distinction.

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Barnes meets her own criteria, and so adopts a value-neutral model of disability, according to which disability is a ‘mere difference’. Yet this does not mean it has no effect on individuals’ lives. On the contrary, it ‘may be good for you, it may be bad for you, it may be utterly indifferent for you’.⁷⁷ Indeed, Barnes allows that being disabled may sometimes lower overall well-being, that some aspects of some disabilities are bad differences,⁷⁸ and even that some specific disabilities are bad simpliciter (something that makes ‘your life go worse in virtue of it specifically’⁷⁹). By including diverse conditions within this wider category, it becomes true that disability is not necessarily a bad difference, but this category still encompasses conditions (whether few or many) that are bad differences. As such, Barnes’s conception of neutrality is very weak.⁸⁰ Clearly, then, Barnes does not believe that ‘the positive effects [of disability] have to balance the negative ones’, and accepts that ‘in the world we inhabit, disability tends to significantly reduce one’s good options’—contra the claims of some of her critics.⁸¹ Nonetheless, espousing a ‘value-neutral model’ or ‘mere-difference view’ of disability can be importantly misleading, especially if this is used to ground general claims about the kinds of policies that should be pursued with regards to disability. Certainly we should acknowledge that it is ‘simply untrue that, as a general rule, disabilities are bad for those who have them’.⁸² Thus, claims grounded on the general assumption that someone’s life will be worse simply because they have ‘a disability’ are unjustified.⁸³ However, we should also avoid grounding claims about policy on the assumption that all disabilities should be treated as neutral simply because this category incorporates conditions with good, bad, and neutral effects. For example, we may accept that disability is a mere difference in Barnes’s sense, but still believe, contra Barnes, that it is sometimes wrong simpliciter to cause some disabilities.⁸⁴ Amalgamating all disability into a general ‘value-neutral model’, then, can obscure the disadvantage that can be associated with impairment.⁸⁵

⁷⁷ Barnes 2016a: 98. ⁷⁸ Barnes 2016a: 75. ⁷⁹ Barnes 2016a: 87, 102. ⁸⁰ See Wasserman 2018: 254–6; Hawkins 2018: 463–6; Dougherty 2014. ⁸¹ Kahane and Savulescu 2016: 777; 776. For Barnes’s response, see Barnes (2016b). ⁸² Campbell and Stramondo 2017: 176. ⁸³ More precisely, since unlike Barnes I distinguish impairment and disability: because they have an impairment widely assumed to be disabling. ⁸⁴ Barnes 2014; 2016a: 167. For a response, see Begon 2018; Wasserman 2018: 255. Also §5.6 and §7.9. ⁸⁵ As such, Campbell and Stramondo’s (2017: 163–5) suggestion that disabilities are intrinsically neutral, but not instrumentally, comparatively, or overridingly neutral, seems a more plausible and nuanced view. Nonetheless, there may be reasons to worry that their account could also be employed in a way that obscures disadvantages associated with impairments insofar as they tend to consider

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1.8 An Ameliorative Approach How problematic this is may depend on the context in which our account of disability is employed. My focus here is relatively narrow: aiming to develop an account that can guide theory and policy that aims to identify and mitigate the disadvantage associated with physical and cognitive difference. Such policies should be nuanced and individualised, as I will argue. They must acknowledge that some impairments, for some people, in some contexts, are not neutral—or merely ‘a minority body’⁸⁶—and should not be treated as such. Thus, in the context of justice, at least, it seems unwise to remain committed to a unified category of disability so broadly construed—or, indeed, to an account on which disability is ubiquitous. My approach to defining disability and impairment, then, is ameliorative in the sense that it seeks to answer the question of how disability should be understood, as opposed to simply describing how the word is commonly used. Further, like Haslanger my goal is to develop concepts that are ‘effective tools in the fight against injustice’.⁸⁷ The appropriate tools will depend on our purposes, so this leaves room for the possibility that there may be different contexts in which a different account of disability will be more appropriate, and I leave open the chance that social constructionist or welfarist accounts could have a place here. Further, insofar as advocates of these approaches have other goals they may not find some of my lines of criticism convincing (though, of course, the difficulties of specifying the content of these accounts—determining the rules of inclusion or a theory of welfare—remain). Insofar as my approach has an explicitly political or normative goal, it may appear that it could be vulnerable to criticisms levelled against the political project underpinning the social model. It is first worth clarifying which criticisms of the social model will not apply to my account—indeed, I outline and endorse these very criticisms in §1.3, §1.4, and §5.2. These start from the contention that social model theorists over-emphasised the external causes of disability as a political strategy to counteract the medical model’s single-minded focus on physical causes. Emphasising the importance of, and need for, social accommodation undoubtedly proved liberatory for many disabled people—‘They didn’t need to change: society needed to change. They didn’t have to be sorry for themselves: they could be angry.’⁸⁸ disabilities ‘in isolation from their effects’ that are most obviously detrimental to well-being. It is not clear that uncontroversially harmful elements of impairments such as pain, fatigue, or disturbed or depressed emotional states can be meaningfully isolated from these conditions, as §5.6 will discuss. ⁸⁶ Barnes 2016a: 1. ⁸⁷ Haslanger 2000: 36. ⁸⁸ Shakespeare and Watson 2001: 11.

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However, first, the social model’s normative assumptions and political goals were implicit, and hence unexamined and undefended.⁸⁹ Second, insofar as the focus on social causes led to the occlusion of impairment effects it could be counterproductive, undermining the very goal of improving disabled lives. Failing to capture ‘the lived, embodied and visceral experiences of having an impairment’⁹⁰ alienated many from the disability rights movement, and might even imply cures or resource enhancements are never appropriate. Since my own normative commitments are explicit and will have very different political consequences, these criticisms of the social model will not have bite against my account. However, Christopher Riddle raises a more general objection to normative approaches to defining disability that may seem to be applicable to my account. Riddle objects that the social model’s political objectives lead to its failure to provide ‘an accurate characterization of the reality of disability’.⁹¹ He insists that ‘an accurate model of disability’ needs to ‘aptly characterize, what it is like to live with a disability’.⁹² However, this does not seem the right way to describe what has gone wrong in the social model’s failure to acknowledge the embodied, messy reality of living with impairment. Beginning with the assumption that there is a ‘reality’ of ‘what it is like to live with disability’ simply begs the question we are trying to answer. Disability is not a natural kind but a socially constructed concept, so there is no context-independent truth about its scope that our definition must reflect. As Shakespeare and Watson say, ‘disability studies and disability politics share the assumption that we know who the disabled subject is. Yet this cannot be taken for granted.’⁹³ Indeed, even if the scope of disability was determinate it would remain open to debate which ‘experiences of disability’ are constitutive of the category. Conceding that the ‘brute facts’ of impairment should be part of our account of disability, for example, does not determine which facts about which experiences should be counted amongst the ‘reality’ of disability. There are, of course, biological facts about the various impairments archetypically considered disabling: arthritis is painful, individuals with Down’s syndrome have an extra copy of chromosome 21, and so on. There is nothing about an ameliorative approach that need deny these realities. The question that an account of disability must answer is which of the restrictions, resulting from ⁸⁹ See Riddle 2013, 2020; Shakespeare and Watson 2001; Vehmas and Riddle 2020; Vehmas and Watson 2014; Vehmas 2004; Watson 2002. ⁹⁰ Vehmas and Watson 2014: 641. ⁹¹ Riddle 2013: 384. ⁹² Riddle 2020: 1511. ⁹³ Shakespeare and Watson 2001: 23. Riddle’s concern here might echo Barnes’s contention that our account should include paradigm cases.

38       atypical functionings, are the disabling ones, and what unites these experiences into a meaningful category. Chapter 5 will refute the claim that the unifying feature of disability is defect, arguing that many disabling impairments comprise different, not deficient, modes of functioning. Yet even if we were to grant that all disabled bodies and minds are united in falling below the (notoriously impossible to identify) threshold of normal species functioning, they are not unique in doing so (§1.5). Which of the many possible imperfections of human bodies and minds are considered significant and relevant enough to count as disabling is not reflective of some deep and objective truth, but determined in particular contexts depending on which functionings are valued and what accommodations are made. To reiterate: there is no pretheoretical truth to appeal to, or a natural kind to identify. Rather, our answer will depend on what we want from our account of disability. In a broad sense, then, I believe the best definitions of disability—and other socially constructed categories—must be ameliorative. However, it is also worth noting that, whilst I share Haslanger’s broad goals, I do not advocate a Haslangerian model of disability: that is, one derived from her accounts of gender and race.⁹⁴ On one plausible iteration of a Haslangerian account, to be disabled is to be in a bodily or psychological state assumed to be an impairment in the prevailing ideology, where this marks one out for pity, stigma, and exclusion, and where the fact one is in this state plays a role in one’s systematic disadvantage.⁹⁵ Unlike the account I defend here, this approach is focused not on the specific ‘valuable activities’ individuals are excluded from, but with the cause of this exclusion: that it results from possession of a feature that, within the dominant ideology, marks one for this exclusion. Thus, as will become clear, this view will be both more and less inclusive than my own. On the one hand, individuals may be disabled though they face very little actual disadvantage—for example, Oscar Pistorius.⁹⁶ On the other hand, individuals may not be deemed disabled on this view though they face a restriction in opportunities they are entitled to due to atypical bodily or cognitive functioning, if this atypicality is not assumed to be an impairment in the prevailing ideology—for example, the case of obesity discussed in §2.7, which though clearly stigmatised is not generally pathologised as an impairment in Howard and Aas’s sense. I will defend how I draw the boundaries of inclusion in the next chapter. For now, my point is simply that it makes little sense to talk of disability as a ⁹⁴ See Haslanger 2000, 2012; Barnes 2016a: 28–38; Howard and Aas 2018. ⁹⁵ Howard and Aas 2018: 1113, 1128–9. ⁹⁶ Howard and Aas 2018: 1129.

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category divorced from some social purpose. This does not mean our definition should be entirely untethered from standard usage—an account that deems homosexuality a disability, or divorces disability from the experience, and perhaps suffering, entailed by functioning atypically, for example, would not be satisfactory. But this is because we could reasonably argue that this is not how disability should be understood. When defining disability we should engage in a process of reflective equilibrium, and if we are to conclude that paradigm cases should be jettisoned when incompatible with our preferred definition then good reasons will be needed. However, such reasons are available, and we should not leave uncontested the current scope of disability—socially constructed, unexamined, indeterminate, and inconsistent as our rules of inclusion are. The problem with the social model is not that it seeks to answer the question of how disability should be understood, but that the answer it gives is ill-supported and unconvincing. It lacks justification to ignore the significance of impairment, and as a result fails by its own standards. We should not conclude from this that our approach should not be normative. Indeed, it cannot be anything else.

1.9 Conclusion This chapter began with areas of relative consensus in the debate on disability. These were, first, the distinction between impairment as deviation from species-normal physical or cognitive functioning, and disability as the restriction in the ability to perform tasks; and second, that disability is caused in part by individuals’ impairment, and in part, by other internal features of the individual and external features of their circumstances, including policies and institutions, norms and attitudes, the natural and material environment, technology and resources, and relationships and community. I next outlined and rejected three alternative accounts of which restrictions in the ability to perform tasks should be considered disabilities. The species norm approach will include trivial inabilities, or cease to be concerned merely with species norms. The welfarist approach lacks a satisfactory account of welfare and will render disability ubiquitous. The social constructionist approach places too much weight on indeterminate and potentially unreliable rules of inclusion. It also broadens the category of disability to include conditions with good, bad, and neutral affects. Few conclusions about the just treatment of disabled individuals can be drawn until we can adequately define and delineate these subcategories, and identify which aspects of which disabilities are bad differences.

40       All these approaches shift the focus of the debate rather than settling it, and none settles the question of when disability is a disadvantage of the kind the state should mitigate. Thus, none can form the basis of public policy or political activism. I have emphasised the importance of having a value-neutral account of physical and cognitive difference (which I call impairment). However, it is important, too, to have a concept that can play a role in political debates about when difference is disadvantageous, what constitutes injustice towards disabled individuals, and the policies that should be pursued to respond to this. Existing approaches do not provide us with the tools to do so. My own account of disability, I argue, does.

2 Disability: A Justice-Based Account 2.1 Which (In)abilities Matter? Not all of the restrictions in individuals’ capacity for activity and participation, resulting from impairment, internal conditions, and external circumstances are disabilities: we are not disabled if we cannot sing, cannot stand on one leg, or cannot raise an eyebrow. As I have argued, this is so even if these abilities are species normal, even if restrictions in them decrease our welfare, and even if they are the subject of the rules of inclusion employed by disability rights movements. Instead, I argue that the relevant restrictions are in abilities that individuals are entitled to be able to perform. More precisely, I suggest that we should understand disability as the restriction in the ability to perform those tasks human beings are entitled to be able to perform as a matter of justice, resulting from the interaction between an individual’s impairment, their social, political, and material context, the resources they have access to, and their other internal characteristics.¹ To give an intuitive sense of what I have in mind, it will help to reflect on a specific application of this approach. Consider, then, the case of deafness. The impairment here is the inability to hear, whilst the disability is the reduction in relevant opportunities that may arise when most people communicate via speech, such as difficulties in political participation, access to appropriate education, and forming meaningful relationships. Deaf individuals are not disabled on the basis that they are unable to hear music, or the voices of their loved ones. However, this need not be because opportunities for aesthetic experience or forming relationships are not considered central entitlements. On the contrary, they may well be central—we simply do not need to hear music or voices to have them. Being entitled to opportunities in a domain need not require having every opportunity (as Chapter 4 argues). As such, if deaf individuals have access to other forms of aesthetic experience, their inability to hear music is not a concern of justice. Indeed, if deaf individuals have all the opportunities they are entitled to, they are not disabled. ¹ I have also outlined and defended this account in Begon (2021a).

Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0003

42       Individuals are disadvantaged when their access to their entitlements is restricted, and disabled when this results from an impairment (in combination with context, resources, and personal characteristics). My claim is that there is no simple or necessary connection between impairment and disadvantage, and hence disability. Thus, individuals with the same impairments may not be identically disabled, and individuals’ status as disabled may change even if their impairment does not alter. Rightly, then, we cannot know whether an individual is disabled merely from information about their impairment. On this view, to determine whether an impairment is disabling requires an account of our just distributive entitlements, and the contextual information necessary to determine whether an individual has access to them. However, my goal in this chapter is not to identify the contents of these entitlements, but to develop a framework into which various conceptions of distributive justice can be incorporated.² Theorists who disagree over whether individuals should be entitled to resources or capabilities, over which specific resources or capabilities they are entitled to, and over how this content should be determined, can nonetheless agree that individuals are disabled when their access to their entitlements is thus restricted. This is discussed in §2.2. Then, in §2.3, I consider possible objections to the definition I have sketched, according to which my approach will lead to an implausible account of what constitutes disability, or of what individuals are entitled to, or both. First, it may seem that if being disabled means lacking what we are entitled to, then in cases where this cannot be rectified, this cannot be unjust. This implies individuals with serious impairments would not be considered disabled on my account. Second, if we adopt a universal conception of entitlements, such that all individuals are entitled to the same opportunities (or resources), then it may be objected that this does not properly reflect disabled individuals’ unique experiences and ways of functioning. Finally, in part to avoid the former objections, I argue we have reason to adopt a broadly specified and multiply realisable conception of entitlements: for example, as opportunities for mobility, communication, or forming relationships. This leaves me vulnerable to the further worry that individuals will not be considered disabled, or entitled to assistance, even when unable to perform important functionings (walking, hearing, easily reading social cues) if they have more general capabilities in these domains. I respond to these objections in §2.4, §2.5, and §2.6, respectively.

² I defend my preferred conception of distributive justice in the following two chapters.

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I finish, in §2.7, by considering the revisionary and counterintuitive implications of my account. It will, for example, imply that individuals with significant and visible impairments may not be disabled by them, that individuals with apparently minor or invisible impairments may be disabled, and that individuals’ status as disabled may change across time and context. However, I argue that far from giving us a reason to reject my approach, this is one its key benefits. The intuitions with which this approach may clash ought to be challenged: our understanding of disability should no longer focus on bodily difference, or deviation from what we take to be the norm, and should instead reflect a concern with the opportunities that all individuals ought to have access to, and which are closed to so many.

2.2 What Sort of Justice? I have called my account of disability ‘justice-based’, so it is worth saying a word about the kinds of justice I have in mind. On the one hand, I intend the account to be a framework into which various competing theories of distributive justice can be incorporated. Certainly, accepting the general claim that individuals are disabled when their impairments restrict their access to forms of activity and participation they are entitled to does not require accepting a particular conception of entitlements. Yet, on the other hand, it is difficult to defend this account in the abstract, and cumbersome to run through every possible way to cash out individual entitlements, including those I believe we have independent reasons to reject. Thus, I will tend to talk in specific terms. As I will outline here, I believe that a consideration of disability will give us reasons to adopt the kind of approach I employ, but I largely defer my efforts to persuade readers that this is so until the next two chapters. For now, those who disagree can substitute their preferred understanding of entitlements. However, this does come with a caveat: there is one approach to distributive justice that cannot be incorporated. My account distinguishes what individuals are entitled to from what merely increases their welfare. As such, it cannot accommodate those welfarist approaches that consider anything that lowers individuals’ welfare—whether state oppression or stubbing our toe—to constitute a relevant disadvantage. Subjective welfarist accounts, which do not distinguish the different reasons for a decrease in hedonic state or the different sorts of preferences individuals may care to have satisfied, would collapse into the welfarist accounts discussed in §1.6 and so face the same worries about

44       over-inclusiveness and the ubiquity of disability raised there.³ This does not mean our theory of justice can have no place for welfare—for example, deeming individuals to be disadvantaged and perhaps disabled as a result of welfare deficits resulting from pain or fatigue (as §1.7 considers). Thus, I need not rule out pluralist welfarist approaches, such as G. A. Cohen’s, which allow that opportunities for welfare may be amongst the advantages individuals should have access to.⁴ I believe there are, indeed, reasons to reject such moderate versions of welfarism (see §3.4 and §4.6), but for now am only setting aside the view—rather implausibly extreme—that subjective welfare is the sole determinant of individuals’ entitlements. My approach relies on the general intuition that ‘[s]ome deprivations of capabilities [or resources] express greater disrespect than others, in ways any reasonable person can recognize’.⁵ This distinction is employed widely in the distributive justice literature, by theorists who disagree on much else, and has strong intuitive pull.⁶ It is the suggestion that individuals should be entitled to be able to vote in elections, to be mobile even if they are paraplegic, and to have access to educational opportunities, but that they are not entitled to have access to every ride in an amusement park, or a sports car, or an expensive musical instrument—and that this is so even if they would prefer these latter opportunities, and they would have a greater positive impact on their welfare. In other words, this is the claim that only some domains of life are the concern of justice, and so the state, and some are not, and that the scope of these domains is not determined by individuals’ preferences. Beyond this restriction, then, adopting a specific theory of distributive justice is not a prerequisite to accepting my account of disability. However, as I have said, I believe that reflection on disability gives us reasons to opt for accounts with certain features. First, I will assume that individuals are entitled to capabilities, rather than merely access to resources. The latter approach fails to account for the different opportunity sets a bundle of resources can enable given individuals’ heterogeneous capacities: a specific income level, for example, will allow an able-bodied individual to do more than someone with complex, expensive, and poorly accommodated health problems (see Chapter 3). Second, our conception of entitlements should be relatively thick: not merely entailing

³ It is worth noting that it is both implausible that individuals are disabled by anything that lowers their subjective welfare, and implausible that such individuals lack what they are entitled to as a matter of justice, though I will not defend this stronger claim here (see Begon 2021b). ⁴ Cohen 2011. ⁵ Anderson 1999: 332. ⁶ E.g. Anderson 1999; Dworkin 2000: 61; Carter 2014: 84–5. I will not defend this distinction against its welfarist opponents here (see Begon 2016a).

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the fulfilment of basic needs, but including access to opportunities such as forming social relationships, engaging in leisure activities, and enjoying aesthetic experiences. Finally, I assume that individuals are entitled to broadly specified opportunities, and not particular or identical functionings: for example, opportunities for aesthetic experiences, mobility, or communication, and not hearing music, walking, or talking. In other words, individuals should be entitled to capabilities understood as exercising control over certain domains of their life, where this requires acceptable alternatives but not the capacity to perform any valuable functioning.⁷ It follows from this commitment that individuals will not necessarily be entitled to the option they would most prefer. Even if we determine that individuals are entitled to leisure and aesthetic experiences, for example, this does not entail that the state must enable us to pursue our preferred hobby of being able to listen to live music (and not just if we cannot hear). Obviously, these criteria have not been selected at random. I believe there are good reasons to opt for an account of distributive justice with these features, and that reflection on disability can help demonstrate why this is so, as much of the discussion in this and subsequent chapters will illustrate. Approaches that fail to meet the criteria of thickness and generality will, I argue, generate both an implausibly thin account of disability and, indeed, an implausibly thin set of entitlements (as the concluding chapter considers). However, I certainly cannot definitively refute all alternative understandings of entitlements here, so will leave it to their adherents to demonstrate how they can navigate the issues disability raises.

2.3 Feasibility, Levelling-Down, and Thinning-Out I will now outline some possible objections to the account of disability I have sketched, and, in responding to them in subsequent sections, will elucidate my account. First, it may be objected that if I am suggesting that being disabled ⁷ Approaches that accept some version of the second criterion but not the third—i.e. an expansive, but narrowly specified set of entitlements—are common (arguably including: Dworkin 2000; Nussbaum 2000a; Cohen 2011; Rawls 1999; Anderson 1999). For example, a view that suggests individuals should be entitled to the capabilities or resources necessary for a decent human life, but provides a specific account of what these entails: those that enable individuals to walk, to exercise all five senses, or achieve species-normal cognitive abilities. I have defended the third criterion elsewhere (Begon 2017), and will do so again in Chapter 4. Also see Asch and Wasserman (2005) for an argument that individuals need not have access to every opportunity.

46       means lacking opportunities we are entitled to, then impairments that result in the loss of significant opportunities will not be considered disabling if we cannot prevent this loss, since we cannot be entitled to an opportunity it is impossible to provide. Thus, if, due to lack of medical or technological knowledge, or merely lack of resources, we cannot prevent individuals being rendered immobile, unable to communicate, or to form relationships, say, as the result of an impairment, then they cannot be entitled to these opportunities, and cannot be considered disabled by their absence. If this were so, serious impairments—perhaps the most serious impairments—would not be considered disabling on my account. Clearly, this would be very counterintuitive. Further, this understanding of our entitlements presents a dilemma. On the one hand, this may lead us to conclude that individuals with serious impairments should simply have a different set of entitlements. That is, if some individuals can only be provided with a restricted set of opportunities, then their entitlements are correspondingly diminished. On the other hand, we may wish to resist this tiered, non-universal approach to entitlements, and insist instead that all humans are entitled to the same opportunities (though not, of course, to the same outcomes). Yet this then seems to imply that the content of everyone’s entitlements should reflect the unavoidable constraints on some individuals’ functioning. In other words, that we can be entitled only to what can be provided to all. If we grasp this latter horn, then the content of our entitlements might start to look rather thin. This is implausible in itself and will generate an implausible account of disability if my approach is employed. For example, it implies that if we cannot currently enable everyone to control their mobility then no one can be entitled to this opportunity, and individuals whose control over their mobility is impaired are not disabled by their inability. However, this is an artificial dichotomy. We should reject an implausibly strict egalitarian view, according to which everyone must be enabled to perform an identical set of functionings. Instead, individuals should be entitled to generalised opportunities—for example, mobility, not walking—i.e. the third criterion outlined above. It then may seem that everyone can have the same entitlements. Indeed, if we recognise that capabilities are multiply realisable, and treat different functionings as interchangeable and equally valuable, then many individuals with impairments can have the opportunities they are entitled to even if there are some functionings they cannot perform. For example, blind and deaf individuals can have opportunities for sensory experience even if they cannot use all five senses, can have opportunities for

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aesthetic experiences even if the enjoyment of visual arts and music is limited for each respectively, and can have opportunities to communicate and form social relationships even if they cannot read visible social cues, in the former case, or communicate verbally, in the latter. Thus, even if we were to limit our entitlements to those that could be provided universally, this might lead to less being taken off the table than it initially appeared. As such, it seems we can largely avoid a tiered approach without levelling-down our entitlements. Nonetheless, this response will not prove fully satisfactory. First, even if we focus on a generalised, and multiply realisable understanding of the opportunities that individuals should have access to, there may be some opportunities that cannot be made available to some individuals, with some impairments, in any form. Returning to the example of mobility: though individuals with many mobility impairments can be enabled to control their mobility, this may not be possible for individuals with locked-in syndrome, at least for now. Moreover, the very focus on diversity in the expression of capabilities may generate a further objection about the possible ‘thinning-out’ of the content of individuals’ entitlements. It might seem that if it is ‘enough’ to use a wheelchair to have the capability to be mobile, then those who use wheelchairs rather than their legs to be mobile will be considered to have all they are entitled to from the state. Thus, if, for example, it were possible to restore functioning to a paraplegic person’s legs, even at very little cost, they would neither be entitled to demand this from the state nor considered disabled if the treatment were not provided.⁸ This is an instance of the more general worry that sufficientarian approaches, by only ensuring individuals reach some threshold of achievement, may fail to eliminate radical, and potentially unjust, inequalities above this threshold. The same line of reasoning would apply to other impairments, and potential treatments for them: if capabilities can be experienced in a variety of ways, then individuals can have these capabilities even when there ⁸ Note that this objection is specific to conceptions of entitlements as general opportunities (for mobility, communication, forming relationships, aesthetic experiences, and so on), rather than those that aim to provide the resources, or substantive capabilities, necessary to perform more narrowly specified functionings (walking, talking, using all five senses, easily understanding others’ expressions of emotion). Given that I will defend a version of the former approach, it is worth considering possible responses to this objection. Further, the latter approaches will face the additional worry that individuals will be entitled to state assistance (and, if my framework is applied, considered disabled) on the basis that they are mobile, or communicate, or enjoy aesthetic experiences ‘in the wrong way’. Although these individuals have control and a reasonable range of options in this domain, their inability to perform specific (often species-normal) functionings will be seen as disadvantageous nonetheless. This seems to put the focus in the wrong place, to put it mildly.

48       are specific, seemingly valuable functionings they cannot perform. Thus, deaf individuals who have all the general opportunities they are entitled to would not be entitled to cochlear implants, even if these were cheap and effective, blind individuals will not be entitled to operations to restore their sight, and so on. This implies individuals are neither considered disabled by their inability to perform specific functionings (walking, hearing, seeing, talking) nor entitled to be enabled to perform them, if they have more general capabilities (for mobility, leisure, aesthetic experiences, communication) at some appropriate level. If these objections were to hit their mark, this would certainly be damning for my account. Thus, I will now provide a response to each in turn.

2.4 Identifying Distributive Entitlements I turn, first, to the objection that individuals with serious impairments will not be considered disabled if the opportunity loss associated with their condition cannot be avoided; and, further, that we will therefore face the dilemma of either decreasing entitlements for this subset of individuals or levelling-down entitlements generally. This objection is grounded on the assumption, often called ‘the feasibility constraint’, that the demands of distributive justice must be realisable: that if an individual is entitled to something, it must be feasible to provide it to them. However, we need not accept this assumption. If, as I suggest, we reject it, then there will be some instances of injustice we are currently unable to rectify. Most significantly for our purposes, some individuals may not be able to access opportunities that justice requires they have. If a just state of affairs is not currently realisable then they cannot have a claim that someone should provide these opportunities. They can, nonetheless, have a claim that we work towards a situation in which their provision is feasible. In other words, even if no one currently has the ability to provide these entitlements, it may be that someone (or some collective) has the ‘indirect diachronic ability’ to provide them: the ability to provide these opportunities later if they perform some action now.⁹ If, for example, we believe all humans are entitled to control over their mobility, then this cannot mean the state has an obligation to provide this to someone with locked-in syndrome if this is impossible. However, they do have an obligation to enable them to have such control if it were possible, and to work towards realising this state of affairs. Further, the individual with ⁹ Gilabert and Lawford-Smith 2012: 811. Also see Lawford-Smith 2013: 249–50.

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locked-in syndrome is disabled because they cannot be provided with an opportunity that they should have access to: that they should be enabled to perform if this were possible. On this view, then, a situation in which some individuals lack opportunities that everyone is entitled to may be unjust even if no one is guilty of causing this injustice and no one has a direct duty to rectify it. However, some find the rejection of the feasibility constraint, and so the suggestion that entitlements should be conditional in this sense, implausible. How can we be entitled to something no one has a duty to provide? Can we really allow ‘the conceptual possibility of an unjust society in which nobody is doing anything wrong’?¹⁰ The answer, I believe, is yes. Whilst allowing for the possibility of injustice without perpetrators might seem counterintuitive, accepting the feasibility constraint has similarly unappealing implications. It implies that procedures with unfair outcomes that cannot be improved cannot be described as unjust—for example, a penal system that sometimes convicts the innocent and fails to identify the guilty.¹¹ And, more significantly, that ‘one must first establish what is feasible in order to determine what is just’.¹² Contrary, for example, to Cohen’s argument that our fundamental principles of justice should be fact insensitive, and should take priority over practical, action-guiding principles.¹³ Similarly, Pablo Gilabert distinguishes evaluative and prescriptive uses of justice claims. The truth of evaluative claims does not depend on whether ‘the obligation they mention cannot be fulfilled’.¹⁴ Whilst there are certainly contexts in which prescriptive or action-guiding principles are needed, my claim is that the broad content of our account of distributive justice—our list of central capabilities, primary goods, human rights, or whatever else we think all individuals are owed as a matter of justice—should be evaluative or fact insensitive. If we were instead to apply the feasibility constraint in the context of developing such a list of universal entitlements, then it seems that we can only include items on this list if they can currently be provided to every individual. Thus, if it is currently logistically impossible to secure nourishment for all, then even something this basic cannot be amongst our entitlements. Or, at least, it will only be unjust that such a basic need is not universally fulfilled if there is someone who can meet it: on this view, ‘a society can be fully just even if some ¹⁰ Stemplowska and Swift 2012: 385. ¹¹ Gheaus 2013: 452. ¹² Gheaus 2013: 452. I leave aside here whether this also commits adherents to a violation of the naturalistic fallacy, as Gheaus (2013: 458) has argued: ‘A reading of “ought implies can” to mean that, if X cannot be achieved, then X is the wrong ideal, is to derive a normative claim from a factual one.’ ¹³ Cohen 2008. ¹⁴ Gilabert 2011: 56.

50       needs remain unmet, provided there is nothing we can do to change the situation’.¹⁵ Some of the disagreement with the statement of my position may be semantic rather than substantive: even those who agree that we can distinguish fact-insensitive fundamental principles of justice from action-guiding principles, may object that talk of entitlements brings to mind the latter rather than the former. To be clear, then, by entitlements I mean what all individuals are conditionally owed as a matter of justice—the list of capabilities (or primary goods or resources or human rights) central to many theories of distributive justice—whether or not they can press their claim against a specific dutybearer, and whether or not they can currently be provided with every item on this list. Thus, we can speak about individuals being entitled to the capability for bodily integrity, or freedom of movement, or the social bases of social respect, even when these cannot be universally secured. This language allows us to capture what seems so objectionable about such situations. Individuals may not be wronged when they cannot be nourished, or mobile, or secure, but it is wrong, and not merely regrettable, that they do not have the opportunities (or resources, or rights) we think they ought to have— that they are entitled to.¹⁶ In addition, this language helps to identify the strength and nature of our duties in such cases: these are not mere wants or desires, which the state can choose to provide or not. Whilst we cannot have a duty to provide what is impossible, the state (or other relevant body) should, as noted above, work towards making these opportunities available, and certainly should not artificially limit the boundaries of the possible. We cannot know in advance what it is possible to achieve. Consider, for example, the vast changes in our views on the capability set feasible for individuals with Down’s syndrome. There has been a movement in just a few decades from a focus on institutionalisation and medicalisation, to enabling many individuals to be fully functioning and participating members of society.¹⁷ If currently unrectifiable capability deprivations are not considered injustices, we may focus instead on less urgent claims we know we can meet (‘actual’ injustices). Thus, we may fail to ‘invest . . . resources in pushing further the limits of what is feasible’.¹⁸ On my view, then, not all disability will be the result of unjust behaviour— though, of course, much will be. Sometimes the state may unjustifiably ¹⁵ Gheaus 2013: 453. ¹⁶ Further, as Gheaus (2013: 254) observes, ‘isn’t it mysterious that the same features that make improvable situations unjust should make non-improvable situations regrettable but not unjust?’ ¹⁷ See Bérubé (1996) for a personal account. ¹⁸ Gheaus 2013: 456.

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fail to fund research to develop technologies that would increase impaired individuals’ functioning capacity, or wrongly fail to ensure that individuals have access to existing technologies, or design material infrastructure in avoidably exclusionary ways. Indeed, sometimes disability may be the result not merely of such unjust negligence, incompetence, or oversight, but arise from more direct discrimination or mistreatment. Examples include the loss of freedom of movement or the ability to engage in social interactions of autistic individuals (or others) locked in solitary confinement,¹⁹ or the lack of opportunity for employment given prevalent attitudes about the competence of individuals with impairments.²⁰ More benignly, sometimes the restrictions to individuals’ entitlements may simply be ineliminable and unavoidable: perhaps due to natural obstacles, perhaps due to competing claims on a limited pool of resources, or to conflicts between different forms of accommodation (certain policies may render some impairments non-disabling (indeed, may be the only way to do so) whilst at the same time exacerbate others: see §1.3). Centrally, though, the content of our universal distributive entitlements should not be determined by what it is feasible to provide universally. Understanding entitlements in this way means we do not need to grasp either horn of the above dilemma: we can have a universal set of entitlements that is not levelled-down to include only those opportunities that can be achieved by all. However, this does not imply that the content of our entitlements can or should take no account of feasibility whatsoever. We could, for example, take the view that humans should be entitled to the opportunities necessary for a decent life, where this will be informed by our reasonable expectations of what such a life entails. On this view, controlling our mobility might be central to such a life; the ability to fly would, of course, not be. Further, the content of our reasonable expectations for a decent life can be predicted to change over time: we can now, for example, reasonably anticipate levels of life expectancy, health, nutrition, and education that would not have been considered essential to a decent life even in the relatively recent past.²¹ The point, here, is not to identify the specific content of our distributive entitlements, nor even to outline the method by which this content would be

¹⁹ Gallagher 2019. ²⁰ I discuss the counterintuitive implications of some such cases in §2.7. ²¹ I do not consider here the ways in which expectations may differ by geographical location. However, if individuals have lower expectations because they have adapted to opportunities that are limited as the result of unjust mechanisms of global interaction and distribution then it is not clear that this should be used to justify a more limited set of entitlements. Localised expectations might, though, have an impact on which opportunities we expect within a domain such as mobility, aesthetic experiences, or leisure activities. I will discuss adaptive preferences in Chapter 6, and consider how the content of our capabilities should be cashed out in Chapter 7.

52       determined. Rather, it is to note that this might depend on what it is possible for humans to do, and on what we think humans ought to be able to do, without implying that it must be possible that all these entitlements must currently be achievable for every human. In other words, entitlements can be indexed to what is feasible for most individuals, without requiring that they can be provided to all (though we should strive to achieve this). Two further objections may be raised against my approach here. First, if our entitlements depend to some extent on our reasonable expectations about a decent (or dignified, or flourishing) human life, and our reasonable expectations are informed by a consideration of what humans, as a species, can generally do, then this might seem to collapse into a species norm approach. That is, we are entitled to perform species normal functionings, and disabled when unable to do so as the result of an impairment. Yet this is not the case. Even without specifying the precise content of our entitlements we can see that these will be both narrower and broader than species-normal functionings. They will be narrower, first, because on any plausible view, some relatively trivial human capabilities will not be central entitlements in any form (the ability to roll our tongue, to sing, or to stand on one leg). Individuals who thus deviate from the species norm do not lack opportunities they are entitled to. Our entitlements are narrower, too, if understood as general opportunities, rather than the performance of specific functionings. An individual can have what they are entitled to (the capability for mobility, say), even if there is a species-normal functioning they cannot perform (walking or running using their own legs).²² Additionally, our entitlements will be broader than the category of speciesnormal abilities, since we may be entitled to more opportunities than those that are ‘natural’ or normal for our species.²³ As medical, social, and technological progress expands the scope of human capacities, our reasonable expectations of a decent life, and the opportunities we should thus be entitled to, will surely reflect this. For example, an account of species-normal mobility will depend on what a human body can normally do, or is ‘designed’ to do: walking at a speed of 3mph, running at a speed of 10mph, being able to travel at least twenty miles in a day, being able to walk for at least a few hours without rest. Yet our entitlement to mobility will surely incorporate much more than this. For example, being able to make a hundred mile round-trip commute to ²² I respond to the apparent implausibility of this implication in §2.7. ²³ The species norm approach will be restricted to only ‘natural’ human abilities if we follow Daniels’s (1985: 28) suggestion that it derives from the ‘design of the organism’, rather than ‘merely a statistical notion’.

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work in a reasonable time, being able to travel around the country, or even abroad, to visit friends and family, or for leisure.²⁴ The idea of being entitled to easily travel a hundred miles in a day would have been deeply implausible even in the recent past. Consider the discussion between Elizabeth Bennett and Mr Darcy over whether spending half a day travelling fifty miles should be deemed an ‘easy distance’.²⁵ Certainly it is not a journey either would expect to be able to undertake twice daily, and nor would we consider them consequently disadvantaged. Yet I would contend that if an individual in our society were unable to engage in such travel, and accordingly could not take certain jobs or see some of her friends or family, then she would lack something she is entitled to—and if this is the (partial) result of an impairment, then she would be disabled.²⁶ A second objection concerns the potential ambiguity regarding what it means to say that it is feasible to provide an individual with an opportunity. I have argued that we should reject the feasibility constraint, and hence that individuals may be entitled to opportunities that cannot currently be provided, but that these opportunities should, nonetheless, be provided if possible. But what if this is only possible at radical expense of time or resources? There are two broad forms of this worry. First, if we could all be enabled to fly, say—if the government were to divert all research funding to this project—then should this opportunity be an entitlement, in the absence of which we are disabled? Clearly the answer is no. When this is a mere abstract possibility, such a functioning is unlikely to feature in our reasonable conception of a decent life, or what we can reasonably expect from the state. However, I would concede that if a way of enabling humans to fly were discovered and made available to the majority, then we might expand our conception of our entitlements to include this.²⁷ In this imagined scenario this is no more a reductio ad absurdum of my approach than acknowledging that individuals’ capacity for mobility should take account of modern transportation and that, as such, someone who could only get around at speeds and distances walking and running would usually allow may not have what they are entitled to in this domain. To emphasise: insisting that we can be entitled to opportunities it is infeasible

²⁴ Concerns about climate change may push against our entitlements to engage in foreign travel for as long as this likely involves highly polluting air travel. Similarly, the harm we may do to others by travelling widely during a global pandemic might also limit how much travelling we can reasonably expect to do. I leave these concerns aside here. ²⁵ Austen 2004: 137. ²⁶ I discuss the contextual nature of my account of disability further in §2.7. ²⁷ Thanks to Paul Billingham for pushing me to clarify this point.

54       to provide universally does not mean our entitlements must be entirely unmoored from what is feasible for most. Second, and perhaps more troubling, are cases in which an opportunity is available to most individuals, but can only be provided to a further minority at great expense. For example, if an individual with locked-in syndrome can control their mobility only with an extremely expensive piece of equipment, are they entitled to it? Our approach to such questions must involve weighing up the capabilities provided to the minority against those lost by the majority. Thus, if the cost of providing this equipment meant that others suffered premature death or significant impairment as a result, then the individual surely cannot be considered entitled to their mobility in the face of these costs. In such a case, we can continue to say that it is impossible for the individual to be mobile and they are unavoidably disabled, given that their entitlements can only be provided at a prohibitive cost. There will of course be many difficult cases, but these are the considerations we must try to balance. This means that scarcity will not be wholly irrelevant to identifying our entitlements. Again, I claim only that the possibility of universal provision is not a prerequisite to something being an entitlement. Feasibility, including considerations of scarcity, may play a role in determining where the boundaries of our entitlements lie: for example, as discussed, via informing our reasonable expectations about the shape of a decent life. Returning to the above example, if individual jet-pack technology were created but was prohibitively expensive and/or relied on a resource too scarce for it to be made available to all, then this is not likely to feature amongst our reasonable expectations and thus our entitlements. In contrast, if this could be provided near-universally, became the dominant mode of transport, and a prerequisite for participation in various aspects of social and political life, then this may be amongst our (conditional) entitlements.

2.5 Entitlements without Hierarchy This understanding of entitlements allows us to avoid the above dilemma, and adopt a universal conception of entitlements even if we cannot currently provide individuals with all the opportunities they are entitled to. Thus, we can avoid a hierarchical notion of entitlement, according to which those who can be provided with less will be entitled to less, without a general levellingdown of the scope of our entitlements. However, a further objection may be raised against advocating a set of opportunities (or resources) all humans

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should be entitled to. This is, that it will entail forcing a conception of a good life on disabled individuals ‘from the outside’, or insisting that the most important opportunities in life are ones they cannot access or appreciate the value of. This is not the case, as subsequent chapters will elaborate. This worry does, however, highlight some of the ways in which a consideration of disability pushes us towards a particular conception of justice, as I will briefly outline here. First, when entitlements are understood at an abstract or generalised level then most individuals with most impairments can have access to them, even when they cannot perform a particular functioning (being mobile whilst being unable to walk, say). Thus, valuable opportunities are not generally closed to individuals with impairments; they are simply experienced in different ways. Further, individuals can recognise the value of an opportunity, even if they are part of a minority who cannot exercise it. An individual with locked-in syndrome, for example, need not dispute the value of mobility nor deny that this should be a central human entitlement. This is so whether they repudiate their condition and wish it could be cured, or are fully satisfied with their mode of existence. Thus, individuals with impairments need not dispute the value of certain capabilities, even if they are constrained from performing them.²⁸ Indeed, far from imposing a conception of the good on disabled individuals, I contend that understanding disability as a restriction in the ability to perform a specific, but generalised, set of capabilities, in fact better captures the concerns of disabled individuals than competing approaches. Many other approaches will not be satisfied with providing an acceptable set of options, and aim instead to provide individuals with an ever ‘broader range of opportunities for functionings’.²⁹ Welfarist approaches, for example, consider individuals to be disabled by the restriction in any functionings that may contribute to an individual’s welfare. Egalitarian versions of the capability approach would consider individuals to be disabled by any significant difference in their functioning capacities. Wolff, for example, argues that even a wealthy paraplegic person is disabled because their mobility is not at ‘the level enjoyed by others’.³⁰ What this means is slightly ambiguous. If ‘not being at this level’ means that this individual is not able to be independently mobile, then certainly they should be considered disabled (and would be on my

²⁸ The possibility of overlapping consensus on capabilities amongst individuals with different capacities is discussed in Chapter 4. ²⁹ Terzi 2009: 103. ³⁰ Wolff 2009a: 125.

56       account). A more plausible interpretation of the example, though, is to assume that this individual has the level of mobility that a wealthy paraplegic person is actually likely to have in our society. That is: they can be mobile, with the use of a potentially expensive wheelchair or other form of mobility assistance, have access to a modified vehicle or accessible public transport, are able to take flights, and so on—but they are unable to walk or run. This is sufficient for Wolff to deem them disabled since they do not have the same capabilities as other, non-paraplegic, individuals. Yet I would contend that insofar as they have control over their mobility, this is sufficient: we should be entitled to acceptable alternatives, but not identical options. This restriction to relevant opportunity loss seems to better capture the claims and concerns of disabled individuals. Consider, for example, Harriet McBryde Johnson’s account of the pleasures of wheelchair use, and the misperceptions of those who do not use one: I used to try to explain the fact that I enjoy my life, that it’s a great sensual pleasure to zoom by power chair on these delicious muggy streets, that I have no more reason to kill myself than most people. But it gets tedious . . . they don’t want to know. They think they know everything there is to know just by looking at me. That’s how stereotypes work. They don’t know that they’re confused.³¹

Of course, such testimony does not in any sense prove that wheelchair users should not be compensated. However, it does give us reason to question the assumption that we must consider individuals disabled, and compensate them, simply because they are mobile with the use of a wheelchair rather than their legs. Given the prevalence of disability positive testimony this does not seem to be an appropriate response to their demands, or reflective of many disabled individuals’ experiences. Yet, a critic might respond, what about those individuals who do not enjoy using a wheelchair? Will my account cruelly fail to assist them? Broadly, the answer is ‘yes’ (as §2.6 and Chapter 4 will discuss). However, we often fail to compensate individuals for features of themselves they dislike. This case is only especially ‘cruel’ if we assume it is especially disadvantageous. If it can be shown to be disadvantageous the individual should be entitled to assistance, but we should not assume this is so. I defer a full defence of my view of what individuals are entitled to, and when they are relevantly disadvantaged, to the ³¹ McBryde Johnson 2003.

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following two chapters. For now, my point is simply that we should not assume any non-standard functioning is disadvantageous, and that it is only when it is disadvantageous (i.e. involves the deprivation of what we are entitled to) that it is disabling. As Elizabeth Anderson points out: It is useful to ask what the deaf demand on their own account, in the name of justice. Do they bemoan the misery of not being able to hear, and demand compensation for this lack? On the contrary . . . [t]hey insist that sign language is just as valuable a form of communication as is speech and that the other goods obtainable through hearing, such as appreciation of music, are dispensable parts of any conception of good.³²

It is not the mere differences in their lives and ways of functionings that individuals with impairments consider disabling, or demand rectification of. Nor, in many cases, do individuals want the impairment itself to be eliminated. Our focus—in activism for social change and in the development of policy— should be on removing limitations on individuals’ access to the capabilities (or resources) they are entitled to, not ensuring every individual exercises these capabilities (or uses these resources) in an identical way. Accepting that not all difference is disadvantageous, and only disadvantage is disabling, does not require accepting that we should be entitled to multiply realisable opportunities, only the general framework of my approach to disability.

2.6 Beyond Minimal Functionings I now turn to an objection that is specific to my view that individuals are entitled to general and multiply realisable opportunities: namely, that such an account is far too minimal, and will mean that individuals will not be considered disabled even when they lack important opportunities. First, I consider Anita Silvers’s objection to what she takes to be capability theorists’ approach to educational provision for individuals with impairments. Silvers claims that the approach would only provide ‘educational opportunity adequate for a dignified life, which depending on cultural context may not even need to rise to the level of average educational attainment’.³³ She discusses a child with a hearing impairment, who struggles to catch all the information imparted in class due to the difficulty of lip-reading in this context. Nonetheless, she is ³² Anderson 1999: 333.

³³ Silvers 2009: 181.

58       denied a translator since her educational attainment is already above average.³⁴ Silvers objects that it is unfair that children with impairments are unable to fulfil their potential, simply because their educational environment is not designed to support them. Further, it might seem that, on my view, these children would (implausibly) not be considered disabled by this restriction in their access to education because ‘they already have what they’re entitled to’. However, contrary to Silvers’s view, a decent education surely requires more than the opportunity for some minimal educative outcome, such as passing grades.³⁵ More plausibly, this requires something like ‘the opportunity to develop our potential to a similar degree to our peers’. This must be at least part of the goal of education, and we would fail to show individuals equal concern and respect if we provided this to some and not others.³⁶ As Silvers puts it, we should aim to provide ‘equality of meaningful access to the content of instruction appropriate to developing students’ talents whether or not they have disabilities’.³⁷ Such an aim seems entirely compatible with any plausible reading of the capability approach. This is not to say that there will not be difficult cases, where the needs and requirements of different children pull in different directions, and limitations of resources mean that a learning environment cannot be provided that is ideal for everyone. However, as has been discussed, the fact that something cannot, currently, be universally provided does not mean that we cannot reasonably include this amongst our entitlements. Individuals will not have what they are entitled to, then, without equality of meaningful access to education. Yet it may be objected that education is a special case. Whilst the very goal of education involves enabling individuals to develop their talents and abilities, having opportunities for mobility, communication, or leisure surely does not require that we are able to satisfy our full potential in these domains. It seems much more plausible to suggest (as I will do) that we are here entitled to something like acceptable options and the capacity to meaningfully choose between them. As such, individuals who achieve mobility with a wheelchair rather than by walking, or communicate using Sign rather than speech, or look at art because they are unable to listen to music, are not considered disabled by this restriction in their ability to function; nor would they be entitled to an ³⁴ Silvers 2009: 177–82. ³⁵ The same is true if we focus on other criteria to identify entitlements, such as leading a dignified or flourishing life. Indeed, if a criterion did not have this implication, this would surely count as a reason against its adoption. ³⁶ See Terzi (2008) for a capability approach to education for children with impairments, grounded in such equal concern and respect. (Also see Gutmann 1987.) ³⁷ Silvers 2009: 186.

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operation to restore the use of their legs, or cochlear implants to restore their hearing, even if this would not be costly. This bullet should be bitten, though only with some important caveats. I would accept, then, that if we lived in circumstances in which individuals with impairments had all the opportunities they are entitled to, then they should neither be considered disabled, nor necessarily entitled to assistance from the state. For example, if an individual with a mobility impairment could exercise control over their mobility without being dependent on others for help, or being excluded from access to the public, built environment, then they may not be entitled to be enabled to walk.³⁸ Similarly, a deaf individual who had access to leisure activities and aesthetic experiences (and every other capability they are entitled to) would not be entitled to cochlear implants that allowed them to hear music if these were available. Nor would these individuals be considered disabled. Such an implication will strike many as counterintuitive but, as §2.7 will argue, I do not believe this should motivate rejecting this account. For now, I will simply point to an analogous case that does not seem implausible: individuals with visual impairments that can be accommodated with glasses and contact lenses. Such individuals still have an impairment (shortsightedness, perhaps). Further, many face restrictions in their activities: certain occupations may be closed to them (being an airline pilot, for example), long periods of reading or screen use may cause eye strain, they may be unable to read if they do not have their glasses or contact lenses with them, and they may be unable to participate in certain sports if contact lenses are insufficient and glasses are prone to falling off or breaking. Nonetheless, we do not generally consider these individuals to be disabled. Indeed, many would balk at what would seem to be a wanton and unnecessary expansion of the term. Other impairments may be less common, and we may be less used to

³⁸ Exactly how much of the environment would have to be inaccessible to conclude that an individual lacks control over their mobility is ambiguous. At one extreme, imagine a situation in which a few, privately owned houses exist that were built before concerns with accessibility, and have narrow halls and staircases unsuitable for manoeuvring a wheelchair, and which could not easily be altered. Individuals who use wheelchairs may find it difficult to visit friends in such houses, and when purchasing a home, these would not be an acceptable alternative. This seems insufficient to conclude that an individual lacks control over their mobility. The same restrictions might apply to an individual with a cat-hair allergy (they cannot visit the homes of certain friends or, perhaps, purchase certain homes where a cat has lived, or lives nearby). At the other end of the spectrum, imagine a historic town centre, in which most central shops, offices, and homes are similarly inaccessible to those who use a wheelchair. This level of restriction surely would prevent someone having control over their mobility, since so many options they would reasonably wish to pursue are closed to them. I will not attempt to settle how the various intermediary possibilities between these two extremes should be classified, which would require a consideration of the particulars of each case.

60       accommodating them, but we have no more reason to insist that these must be disabling, even when individuals have all the opportunities they are entitled to. Nonetheless, some caveats are needed. First, individuals with impairments often do not actually have what they are entitled to. In many cases, the restrictions in their capabilities are avoidable, and could be eliminated by changing social infrastructure and norms. However, this is not always so. As we have seen, in some instances this is because we lack the technology or the resources to prevent some impairments from restricting individuals’ opportunities. In others, this is because individuals’ needs conflict, and there is no way to structure the external environment that would eliminate the restrictions in activity and participation for all individuals. As such, in many cases the appropriate way to mitigate the disadvantage associated with an impairment may not be to change the environment, and this might be so even when the disadvantage is a result of that environment. Thus, to conclude that if an impairment was not disabling (did not result in relevant restrictions) an individual would not be entitled to state assistance does not imply that now, or in the near future, medical treatments that mitigate impairments would not be provided. The second caveat is to point out that suggesting that such treatments may not be a matter of entitlement does not imply that they are banned or restricted. Any liberal approach to distributive justice will aim both to ensure fairness in distribution, and to allow individuals the freedom to form and pursue their own conception of the good. Thus, if an individual desires to walk, or hear, or see, they will not be prevented from pursuing these goals. Thus, these treatments would have the same status as laser eye surgery in our society: individuals may choose to undergo it if they would prefer to see without using glasses, but they are not entitled to it if their visual impairment is not restricting their access to their entitlements. There is one way in which this analogy breaks down, however: these treatments, and the choices they bring, should not be open only to the minority who can afford them. Indeed, in a situation in which individuals had access to all of the central capabilities (or primary goods, or equality of Dworkinian resources) there would be sufficient resource equality that individuals would have the ability to achieve these goals (especially on the above assumption that these treatments are inexpensive). Indeed, my account does not even rule out state provision or subsidy of these options on the grounds of public choice, as long as the decision is procedurally just and does not divert resources from the satisfaction of actual entitlements.³⁹ ³⁹ Thanks to Carl Fox for helping me clarify this point.

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One final sense in which our entitlements might seem too minimal on my approach relates to an objection earlier raised against the species norm approach. This is, that by focusing on what individuals are able to do, I take insufficient account of how much more difficult it may be to do certain things when we have an impairment. Someone who uses a wheelchair, for example, may have the capability for mobility, but this will often be restricted by both the built and natural environment. Thus, they may find travelling much more physically demanding than, for example, walking a similar distance. Or, an individual in chronic pain may be able to perform all the functionings that a person without this condition can, yet they must struggle against the pain and fatigue that accompanies every functioning they perform.⁴⁰ I would certainly want to resist the implication that the difficulty of performing various functionings would not be considered a relevant dimension of disadvantage, and that individuals who experience such difficulty would not be considered disabled, nor entitled to assistance to mitigate it. Whether this is indeed an implication of my approach depends on the sensitivity of our conception of distributive entitlements not just to what we can do, but also to the pain and effort that must be expended to do it. I would contend that such concerns should feature in our understanding of individuals’ entitlements.⁴¹ It is important to note that insisting that a theory of distributive justice is sensitive to these considerations is not merely a post-hoc modification to ensure that my definition of disability remains plausible. On the contrary, the above examples give us reason to think that individuals should be entitled not just to the mere capacity to perform some functionings, but to be able to do so without associated pain, and without having to expend massively more energy than others to achieve the same outcome. Thus, the point is not that an account of our distributive entitlements that ignored the pain and effort required to achieve them would generate an implausible account of disability if my framework were employed, but that this would be an independently implausible account of our entitlements. More generally, I contend that a plausible understanding of our entitlements will generate a plausible definition of disability on my account. This is illustrative of my central theme: not only should our account of disability be informed by our understanding of what justice requires, but an investigation of disability should inform the theory of justice we adopt, as I will show. ⁴⁰ Thanks to Zofia Stemplowska for this example. ⁴¹ For approaches that do so, see Wolff and de-Shalit 2007; Wolff 2009a; 2009b; Cohen 2011; Anderson 1999. It may be a problem with Nussbaum (2000a; 2006a; 2011a) and Sen’s (1999a; 2009) approaches that they do not clearly incorporate such concerns.

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2.7 What Counts? Who’s Disabled? I will finish by considering whether my account will prove to be too revisionary. Certainly, the impairments that would be considered disabling do not neatly cohere with our intuitions in a number of cases. As emphasised from the outset, my account will imply that individuals with significant and visible impairments may not be disabled by them, that individuals with seemingly minor or invisible impairments may be disabled, and that individuals’ status as disabled may change across time and context. However, far from giving us reason to reject this approach, this is one of its key benefits. As §1.7 discussed, there is little point in devising a definition that captures all paradigm cases when we have good reason to think the paradigm is informed by prejudice and misinformation. First, then, many paradigm impairments, such as deafness, blindness, paraplegia, achondroplasia (a common form of dwarfism), ASCs, and Down’s syndrome need not be disabling on my account. If individuals have the opportunities they are entitled to—perhaps as a result of adequate infrastructure, access to resources, and lack of bias—they will not be considered disabled merely on the basis of their impairment. Throughout this chapter I have emphasised that disabilities should not be seen as simply any bodily or cognitive difference, but rather as a particular subset of the opportunity losses that might result from such difference. This does not imply that we cannot campaign for the better treatment of individuals with impairments, or that they will not be entitled to state assistance. However, we should not assume that having an impairment, especially a visible impairment, must be disadvantageous. We should, instead, focus on the specifics of each case, and determine whether an impairment is actually associated with restrictions in individuals’ activity and participation. As Chapter 6 will explore, the reality often will not accord with our unexamined intuitions.⁴² My approach will also lead to deviations from the paradigm in the other direction: many non-paradigm cases, such as depression and anxiety, and even obesity or shyness, might be disabling. Further, individuals who have body integrity identity disorder (the strong desire to amputate a healthy limb) may be disabled by being prevented from undergoing this amputation, insofar as living with a limb they disassociate from disrupts their access to capabilities, ⁴² As discussed, part of the motive behind the introduction of the social model, and the rhetoric of claiming that ‘disablement is nothing to do with the body’ (Oliver 1996: 35), was to resist the medicalisation of disability and to highlight the contingency of the connection between impairment and disadvantage.

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for example, by making social interaction difficult.⁴³ I will consider perhaps the most controversial of these examples: obesity. I am aware that both disabled and obese individuals will likely object to this implication, given the unjustified stigma attached to both these labels.⁴⁴ It is worth emphasising, then, that though I consider an obese body an impairment (after all, it is a deviation from the species norm), I am not suggesting that it is worse, or necessarily disadvantageous, to have such a body. Impairment is analogous to ‘different’ rather than ‘defective’.⁴⁵ However, this is a dimension of difference, like many others, that may be associated with disadvantage: that is, the restriction of important opportunities.⁴⁶ My focus here is not the possible (and sometimes controversial) correlation between obesity and health conditions such as high blood pressure, diabetes, or risk of heart attack or stroke. Even leaving these aside, merely having an obese body can be disabling. Our built environment is made for human bodies of a particular size and weight. As Roxane Gay says, ‘[t]here are very few spaces where bodies like mine fit’.⁴⁷ One simple and important example is chairs: aeroplane seats, restaurant booths, lecture theatres, cinema seats. Again, Gay gives a powerful account of this problem: Anytime I enter a room where I might be expected to sit, I am overcome by anxiety. What kind of chairs will I find? Will they have arms? Will they be sturdy? How long will I have to sit in them? If I do manage to wedge myself between a chair’s narrow arms, will I be able to pull myself out? If the chair is too low, will I be able to stand up on my own?⁴⁸

This lack of accommodation of individuals with larger bodies can be hugely restrictive to those who possess them, limiting opportunities to be mobile, to

⁴³ For discussion of these cases, see Bayne and Levy 2005; Müller 2009; Blom et al. 2012. ⁴⁴ One possible objection to considering obese individuals disabled is that their bodies are a ‘choice’, and their condition ‘self-inflicted’, unlike paradigm impairments. First, this often is not true: social factors and upbringing, past abuse and mental health can all contribute to individuals’ eating habits. Yet even if this were simply a ‘choice’, this does not obviously create a distinction from more standard cases of impairment: individuals may choose to engage in risky sports, like sky diving or rugby, and so be similarly responsible for their resulting impairment, or may choose not to have their impairment eliminated (just as obese people may ‘refuse’ to diet). Thus, appeal to responsibility is not a promising way to distinguish these cases, even without settling the question of whether responsibility provides a reason to treat disadvantaged individuals differently. ⁴⁵ This idea was introduced in Chapter 1 and will be defended in Chapter 5. ⁴⁶ There are, of course, some differences correlated with disadvantage that we would not want to describe as disabilities, such as our gender or racial identity, or sexual orientation. As §1.2 considered, this need not be an implication of my view. (Also see §5.5.) ⁴⁷ Gay 2017: 184. Also, see West 2016. ⁴⁸ Gay 2017: 184–5.

64       access education on an equal footing with their peers, or to engage in many leisure activities. In addition, an obese body may be restrictive independently of the design of material infrastructure, rendering ‘impossible’ activities like standing for long periods, walking a mile uphill, or hiking to an overlook with a great view.⁴⁹ Finally, the bias, stigma, and abuse obese individuals are often subject to, the commentaries on their bodies by friends, family, medical professionals, and strangers, and the assumptions made about their capacities may further limit their capabilities. Options may be closed to them because others assume they are incapable of exercising them (for example, not being offered certain jobs), or they may lack internal capabilities (for example, not feeling qualified to apply for these jobs in the first place).⁵⁰ In all these ways, then, obesity—like other forms of physical and cognitive difference—can be disabling. A further way in which my account may seem to be over-inclusive is by incorporating those whose restrictions do not seem to follow ‘directly’ from their impairment. As noted in §2.4, there are different reasons why individuals with impairments may lack opportunities they are entitled to. In some cases this opportunity loss is simply unavoidable. Hence, though the situation is not ideally just, this is not because any individual or collective agent is guilty of injustice. At other times, individuals may have their abilities restricted due to some form of discrimination or mistreatment. This is surely not a dichotomy but a continuum—from the unavoidable, to the unavoidable now, to the costly to avoid, and so on. The seemingly problematic cases for my approach are those on the avoidable end of the scale: restrictions that are avoidable because they are artificial and externally imposed, and so much so that we might begin to doubt whether any connection exists between the restriction and the impairment. Consider the following succession of cases: (1) It is possible to replace a stairway entry to a building with a ramp. There is not space for both. This would improve accessibility for some individuals, including wheelchair-users, but would exclude a greater number of building-users whose mobility impairment makes stairs easier to master. The decision is made to keep the stairs.⁵¹ ⁴⁹ Gay 2017: 16. ⁵⁰ In Nussbaum’s terminology, internal capabilities are ‘developed states of the person herself that are . . . sufficient conditions for the exercise of requisite functions’ Nussbaum 2000a: 84). Whether restrictions in internal capabilities constitute a loss of entitlements depends on the conception of entitlements we employ. As noted, I defer to Chapters 3 and 4 the task of defending a capability approach to justice. ⁵¹ See, Shakespeare 2014: 37; §1.3.

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(2) Due to a bureaucratic error, a homeless wheelchair-user is provided with an inaccessible hotel room as emergency accommodation.⁵² It is at the top of a flight of stairs meaning they cannot leave without assistance, and is designed such that they cannot comfortably move around, get in and out of bed, or use the toilet alone. This individual thus lacks, inter alia, freedom of movement, control over their environment, and access to adequate shelter. (3) An individual is similarly confined to an inaccessible hotel room, but in this case as the result of the direct and conscious action of an employee of the Department of Work and Pensions, despite accessible accommodation being available. (4) A schizophrenic individual is confined to a cell as the result of a state policy of imprisoning all individuals with cognitive impairments, resulting in a similar opportunity loss to the individuals in (2) and (3). Whilst the degree of injustice, and the extent to which the impaired individual can press a claim against any agent, differs in the first three cases, all are pretty straightforward examples of the ways in which individuals with impairments might be disabled by some combination of institutions, norms, environment, resources, and support networks (as §1.4 discussed). The fourth case is rather more counterintuitive. The individual’s opportunities are restricted as a result of their impairment—it is this, after all, that is used to justify their imprisonment under this terribly unjust policy. However, it might seem that their impairment does not ‘directly’ contribute to the restriction in their mobility as it does in the former cases: whilst the hotel rooms are inaccessible because of the wheelchair-users’ impairment, we might say it is being imprisoned rather than being schizophrenic that causes the restriction in this case. It may seem odd, then, to say that they are disabled as a result of their imprisonment, whilst the able-bodied person in the neighbouring cell—imprisoned due to a policy of race-based incarceration, say—is not disabled by their identical ability loss. Nonetheless, I believe this is exactly what we should say. Norms or bias usually act in some way to exacerbate what might seem like the ‘natural’ effects of an impairment, but we should not allow this to mislead us. Impairments are functional atypicalities that are often disabling because an individuals’ way of functioning does not fit well with their context. It is not natural that an individual with Down’s syndrome is excluded from education, ⁵² E.g. see Youngs 2019.

66       or that an individual with autism lacks opportunities to work because potential employers find stimming or self-soothing behaviours offputting. Nonetheless, it is common to see these as ways they are disabled by their impairment. This is not to say that there is nothing distinctive about cases such as (4), in which the ability loss associated with an impairment is entirely arbitrary. Such cases are particularly objectionable, and often more unjust than the standard cases: the losses are not unavoidable, nor the result of negligence, nor unconscious bias, but a conscious decision to limit an individual’s opportunities because of their impairment. However, this line is not a clear one: it is not clear that (3) is markedly more just. Indeed, even negligence or failures to mitigate the effects of our unconscious biases can also be deeply unjust. Thus, cases such as (4) may be towards one end of a scale of the avoidability of the restriction and, relatedly, the injustice done by imposing it. Nonetheless, they are not qualitatively different from more familiar cases in which restrictions are imposed on individuals with impairments. Moreover, I believe that including cases in which the connection between the impairment and the opportunity loss seems wholly contingent better achieves the aims that a definition of disability should achieve. Recall that I take myself to be engaged in an ameliorative project, with my goal being to develop an account of disability that is effective in our fight against injustice (see §1.8). These contingent cases of direct discrimination against individuals with impairments certainly constitute relevant opportunity losses from this justice-oriented perspective. We will be better able to identify and resist such injustices if our definition of disability (as disadvantage) includes all cases in which individuals lack opportunities they are entitled to as a result of their impairment. Even if it were possible, embarking on a project of solidifying the vague and rather arbitrary line between ‘natural’ and ‘unnatural’ opportunity losses seems likely to create unnecessary divisions within the disability rights movement, and may potentially mean important injustices fail to be recognised. The final counterintuitive implication is that what counts as a disability on my view will be contextualised, and may change over time. This can happen in at least three sorts of way. First, as society becomes better able to accommodate impairments, and enable different forms of functioning, then these impairments will cease to be disabling. This is not because these impairments are ‘cured’, but because their link with disadvantage is severed. For example, if the oft-discussed examples of deafness and mobility impairments no longer lead to capability loss, then individuals with these impairments may not be disabled, though they still cannot hear or walk unaided. Whilst this may seem counterintuitive to some, it accords with the experience of many disabled

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individuals, who do not regret, or demand compensation for, the different ways they function (see §2.5). It is also in line with our approach to other impairments that have been similarly accommodated: for example, individuals with visual impairments who wear glasses or contact lenses. Second, as our capacity to provide opportunities changes, individuals may be entitled to more if the content of our entitlements depends on our reasonable expectations or something similar. For example, we now expect leisure time, aesthetic experiences, and a longer life than previously. Impairments that restrict access to these new entitlements will then count as disabling, even though individuals’ actual abilities have not changed. One example here might be (some forms of) dyslexia. In a context in which many people are illiterate, this is unlikely to be disabling. In a context in which a grasp of the written word is a prerequisite for many other opportunities, it would be. Thus, dyslexic individuals may become disabled over time, or by moving from one context to another. Consider, for example, a dyslexic girl who emigrates from rural Gambia, where illiteracy is rife and educational infrastructure underdeveloped, to the UK, where she has better access to education, though her dyslexia is not fully accommodated. Whilst she is now less disadvantaged (she now has access to education), she may also become disabled insofar as it is now her impairment that restricts her access to education (where previously it may have been poverty or sexism). Again, this seems to be the right way to understand such cases. Lastly, individuals who have impairments, such as fatigue and pain conditions, which are not experienced as constant over time, but involve periodic and perhaps unpredictable flare-ups, may have a changeable disability status. To pick a personal example, consider migraines. During the hours when I am experiencing impaired vision, nausea, and pain, I am unable to drive, unable to read, and sometimes unable to enter any brightly lit space. Given the infrequency and comparatively short duration of such flare-ups, combined with personal features such as a flexible work schedule, these restrictions do not in general amount to a limitation in the opportunities I am entitled to. Many others are not so lucky. Some will be disabled only during a flare-up, some may be disabled during periods when flare-ups are common, and for some the mere possibility of a flare-up may render them consistently disabled. For example, an individual with epilepsy may never be able to drive a car, or an individual with ME may struggle to retain employment if their impairment necessitates frequent absences. Making a determination about any case will depend both on features of the relevant impairment (for example, severity, duration, and frequency of pain,

68       fatigue, or other symptoms) as well as contextual features (for example, workplace accommodations, a supportive employer and colleagues, access to resources, and a personal support structure). It is undoubetedly appropriate to make such determinations on a case-by-case basis, rather than making a blanket assumption that all individuals with some impairment (in all times and places) are or are not disabled by it.

2.8 Conclusion It is a consequence of my approach that individuals are not categorised as disabled in the way many would expect, and that who is included in this category may change. Yet it is surely right to set aside our preconceptions about how bad some impairment must be, and concentrate instead on the actual restrictions individuals face, and on which of these should be the focus of our concern. What matters—what is disabling—is that individuals are rendered (often contingently) unable to be mobile, to communicate, to form social relationships, or to access education or meaningful work as a result of their impairments. Not that they are unable to walk, unable to listen to music, or unable to read emotional cues easily. Whatever account of distributive justice is used, then, my approach to disability will be revisionary and contrary to many common-sense intuitions about who is disabled. However, these implications constitute a feature, not a bug. Our present intuitions concerning what constitutes disability often reflect prejudice and bias, and should be altered. Further, our account of disability should change over time, and reflect what individuals are able to do, and what we think they ought to be able to do. The problem of disability is the problem of losing significant opportunities— and not the ‘problem’ of deviation from the species norm, or the loss of our irrelevant opportunities—and our understanding of disability should be reoriented to reflect this.

3 Disability and Distribution A Capability Approach

3.1 Introduction Disability appears frequently in examinations of distributive justice. Having developed a theory of justice—often based on the consideration of standard or idealised individuals, unburdened by many features of actual humans— philosophers then consider how their theory will handle ‘hard cases’. And what cases are harder than those of individuals with physical or cognitive impairments? I share the goal of ascertaining how theories of justice inform our understanding of, and response to, disability. However, I also believe that this process must not be unidirectional: simply applying a theory of justice to cases of disability and seeing what answers it generates. Rather, we should engage in a process of reflective equilibrium, where our consideration of disability and impairment informs our approach to justice, as well as the reverse. Certainly, my goal in a couple of chapters will not be to develop a wholly new approach to distributive justice. Nor is it to rehearse every move in the extensive debate on the metric of distributive justice (‘equality of what?’), or the appropriate distributive principle (‘equality, or what?’). Rather, my central aim is to begin to demonstrate the ways in which reflecting on disability can inform our approach to justice and, in particular, the nature and content of what individuals should be entitled to as a matter of justice. I argue that considering disability will lead us to conclude that our distributive entitlements should be conceptualised as capabilities. In so doing, I defend a version of the capability approach: that is, an approach that deems individuals to be entitled to the substantive ability and real freedom to be able to do and be certain things—to be nourished, to be healthy, to use their imagination and reason, to play, and so on. The capability approach has been widely used by those considering disability in the context of distributive justice, and for good reason.¹ Yet, in this ¹ E.g. Barclay 2010; 2018; Mitra 2017; Nussbaum 2006a; Terzi 2008; Wolff 2009a; 2009b; Wolff and de-Shalit 2007; Wasserman 2006.

Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0004

70       context, the capability approach is often interpreted as an account of well-being, rather than of what individuals are entitled to—where the latter may be narrower than the former. This then implies that individuals should be provided with any opportunities that contribute to their well-being, and sees disadvantage in any restriction of these capabilities. This leaves the capability approach open to the critique that it is over-demanding and will seek to rectify all inequalities:² for example, compensating a tone-deaf individual for their inability to appreciate music. This criticism can be avoided if the capability approach is understood, instead, as an account of what individuals are entitled to, where this need not be identical to what would increase their well-being. Thus, I begin by outlining what it means to develop a capability theory of justice in particular—as opposed to a more general capability approach, or a capability theory for some other context (§3.2). I then outline two key features that I argue a capability theory of justice—though not necessarily a capability theory of well-being—should possess: a focus on capabilities rather than functionings (§3.3) and a concern for particular, valuable capabilities (§3.4). Next, I will discuss the benefits of the capability approach over resourcist alternatives in the context of disability, and in particular its focus on what individuals are actually able to do and be, given their particular features and resources needs (§3.5), before responding to resourcists’ objection that the capability approach is overly demanding of the well-endowed (§3.6). Finally, I consider whether more complex resourcist accounts are able to accommodate diversity equally well as capability theories and, indeed, whether the two sorts of approaches may simply collapse together. I conclude that they cannot, and do not (§3.7). Having sketched some of the reasons for adopting a capability theory, and outlined its core features, in the next chapter I will consider in greater detail what it means for an individual to have a capability, and why this is valuable.

3.2 A Capability Theory of Justice The capability approach is concerned with the kinds of life individuals are able lead: with their substantive opportunities (or ‘capabilities’) to perform certain functionings (or ‘doings and beings’). A capability, then, is the real freedom for individuals to achieve a certain outcome if they so choose. Functionings involve either pursuing certain courses of action (‘doings’)—such ² See Pogge 2002; §3.6.

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as travelling, voting, caring for a child, engaging in leisure activities, forming friendships, owning property, or accessing the labour market—or achieving certain states (‘beings’)—for example, being healthy, sheltered, literate, wellnourished, or part of a developed social network. Functionings are ‘constitutive of human life’ in the sense that a range of functionings make a human life both a life (not the existence of an inanimate object), and a distinctively human life (not that of a plant or animal).³ As we will see, this need not mean that the approach excludes or ignores the lives or functionings of disabled individuals as not being fully human. Whilst this may be a consequence of some capability theories, whether this is so will depend on the functionings selected and the reason for selection, and not the mere concept of human functionings. For example, Nussbaum selects ten central capabilities on the basis that the ability to perform certain functionings is essential to a decent human life.⁴ In earlier iterations of her theory, at least,⁵ this required the performance of specific functionings, such as using all five senses, achieving sexual satisfaction, exercising complex reasoning, and employing developed social skills.⁶ This approach is open to the objection that it will be exclusionary to those unable to perform these specific functionings who will be deemed incapable of living a fully decent life until the impairment that prevents them from functioning is removed or mitigated.⁷ Further, such specificity is implausible. A decent life surely does not require, for example, the use of every sense. More plausibly, it might require access to, and control over, sensory experience (as §4.4 will discuss). These problems, then, are not endemic to any version of the capability approach, and the general claims—that human life entails performing some human functionings, and that individuals are entitled to control their functioning in certain important domains—need not be exclusionary. This is one example of why it is so important to distinguish the general principles of the capability approach from their specification and application in various capability theories, which cover diverse forms and fields of investigation. As Ingrid Robeyns has powerfully demonstrated, the capability approach is ‘a flexible and multipurpose framework, rather than a precise theory’,⁸ though this framework can be used to form the basis of many specific capability theories. My goal here is not to provide an account or defence of the

³ Robeyns 2017: 39. ⁴ E.g. Nussbaum 1992; 2000a: 34–96; 2002a; 2011a: 17–45, 69–112. ⁵ Wasserman 2006: 220, 228–9. ⁶ See Begon 2017. ⁷ E.g. Barnes 2009a; Begon 2017; Terlazzo 2014, 2019. ⁸ Robeyns 2017: 24.

72       capability approach as a framework, but to defend the use of a specific iteration of the approach as the basis for a partial theory of justice. The capability theory I will defend is not intended to be applicable in all other areas. For example, in a capability theory of individual welfare the full spectrum of possible functionings would likely be relevant, whilst in a capability theory of distributive justice (aiming to identify individuals’ entitlements) the focus may justifiably be restricted to capabilities the state has an obligation to secure. Similarly, whilst an accurate theory of well-being should take account both of what individuals can do (their capabilities) and what they actually do (their achieved functionings), justice might only be concerned with individuals’ opportunities, and not with whether they choose to exercise them in ways inimical to their well-being. Both these points are central to my capability theory of justice, and will be explored in §3.4 and §3.3, respectively.

3.3 Capabilities or Functionings? Beginning, then, with the latter point: despite its name, there is much debate regarding whether capability theories should promote individuals’ capabilities to function, their actual achievement of functionings, or some combination of the two. The distinctive focus of the capability approach is ‘on the state of the person, distinguishing it both from the commodities that help generate that state, and from the utilities generated by the state’.⁹ Crucially, then, the capability approach draws attention to the fact that it is unsatisfactory to focus either on the bundle of resources individuals have access to, without taking account of what they are able to actually do or achieve with these resources, or on their level of subjective welfare given how much this may be influenced by potentially unjust background conditions, contextual factors, and (potentially malformed) individual expectations. For example, a pregnant woman and a man may have access to an identical amount of food. However, given that the woman currently needs a greater caloric intake, she may be less well-nourished. Further, if she does not expect to be adequately nourished, and is used to doing without, she may consider her preferences better satisfied or experience higher levels of contentment or happiness. Nonetheless, despite her resource equality and higher welfare, it is surely the woman who lacks something important in this case, and whom we might consider entitled to access more food to ensure she has adequate nourishment. ⁹ Sen 1993: 43.

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However, determining that it is the state of the person that matters rather than their resources or welfare does not settle whether we should focus on capabilities (to be nourished, in this case) or functionings (actual nourishment). The state of a person incorporates not only the activities and states of being they have achieved but also those they are able to achieve. Thus, the appropriate focus remains an open question, and as with so many questions about the capability approach, the answer will depend on the context and application of the theory. Both of the capability approach’s primary proponents, Nussbaum and Sen, seem to allow for the value of both opportunities and outcomes.¹⁰ On the one hand, accepting the value of particular achieved outcomes (functionings) prompts the worry that this may result in the paternalistic imposition of a specific conception of the good.¹¹ Yet, on the other hand, a pure capabilities focus has been criticised by those who insist that, if flourishing matters, we should be concerned with outcomes—with the kinds of lives individuals actually lead—and not merely with their opportunities.¹² After all, an individual’s quality of life depends on how their lives actually go, and not just on what they are able to achieve through the expression of their own agency. However, we might respond that ensuring individuals have a flourishing life should not be our sole concern in the context of distributive justice. On the contrary, we may instead believe that individuals should also be entitled to opportunities— regardless of how many resources this requires, irrespective of the degree to which this improves their welfare, and independent of ‘whether or not [they] choose to make use of that opportunity’.¹³ The claim that justice should be concerned with individuals’ opportunities, rather than their achievements, will be returned to multiple times in the remainder of this chapter (and Chapters 4 and 7). However, it is worth providing some motivation for this contention from the outset. The most famous example used to make this point is that of a fasting and a starving individual. Both have the same level of functioning (malnourishment), but different capability sets: the former’s includes the opportunity to achieve adequate nourishment, whilst the latter’s does not. The focus on opportunities captures the intuition that only the starving person’s lack of functioning is unjust, because they lack the capability to be nourished. There is no injustice

¹⁰ ¹¹ ¹² ¹³

E.g. Nussbaum 2000a: 91; 2011b: 25; Sen 1993: 43–4. E.g. Nelson 2008; Carter 2014; Deneulin 2002; Claassen 2014a; Jaggar 2006. E.g. Richardson 2000; Arneson 2000a; Fleurbaey 2006; Cohen 1993, 1994; Vallentyne 2005, 2006. Sen 2009: 235.

74       when individuals voluntarily forgo an option, even if this makes their life go less well than it might. A more topical, but closely analogous example is the phenomenon of ‘poverty appropriation’ or ‘poverty tourism’, wherein wealthy individuals choose to adopt the trappings of working-class or lower income lifestyles. For example, high-income individuals who choose to downsize into a small mobile home, as per the Tiny House Movement,¹⁴ or who frequent bars and restaurants that attempt to emulate (and perhaps mock) traditionally lowincome cuisine: Perhaps the most egregious example is San Francisco’s Butter Bar, a trendy outpost that prides itself on being a true-blue, trailer park-themed bar, serving up the best in ‘trashy’ cuisine and cocktails. With tater tots, microwaved food, and deep-fried Twinkies on the menu, the bar also serves cocktails that contain cheap ingredients, such as Welch’s grape soda. The bar has an actual trailer inside, and serves cans in paper bags, so that bar flies can have a paid-for experience of being what the owners of this bar think of when they think of trailer trash.¹⁵

Interestingly, the author of this article identifies the root of her discomfort about this kind of poverty tourism very explicitly in the issue of choice. Individuals who decide (perhaps temporarily) to live in the woods in a tiny home, to live as a ‘freegan’, surviving off food salvaged from supermarket dustbins, or to live off state support in an anarchist commune, are very explicitly choosing to live this lifestyle (and, at any point, could make a different choice), and this transforms the nature of the activity. An individual in a ‘tiny home’ and a trailer may have very similar functionings, but their options are very different: one is there by choice and could choose to leave; the other may have no alternatives. Of course, these examples bring additional complications. Most notably, issues surrounding social status and cultural capital. Often, individuals who choose the ‘simple life’ belong to privileged social groups (white, educated, non-disabled) and, as such, do not face the stigma and discrimination for choosing an alternative lifestyle that those in other groups might face for being forced to live such a life. Second, whilst these examples show that choice matters, they are insufficient to demonstrate that only capabilities matter. It might be better to live off frozen ready-meals as a statement of a subcultural ¹⁴ See thetinylife.com.

¹⁵ Westhale 2015.

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identity rather than because that is all you can afford, but if these fail to provide you with a decently balanced diet it might also matter that you lack the actual functioning of being adequately nourished, regardless of whether this results from your choice. However, it is important to clarify what we mean by saying something ‘matters’. Functioning achievement matters in the sense that an individual will likely be better off if they have, for example, a more nutritious diet. But it does not follow that the state should aim to ensure people live well in such ways, rather than protecting their capacity to do so. We frequently allow individuals to have, or risk having, very low functioning achievements when we are assured that they are choosing these outcomes for themselves: for example, by engaging in dangerous sports, consuming drugs like alcohol and tobacco, using convenient yet potentially dangerous modes of transportation, or undergoing cosmetic surgeries or procedures.¹⁶ I will return to these points later but, for now, merely wish to demonstrate the prima facie plausibility of restricting the domain of justice to providing individuals with the opportunity to direct their lives and make important decisions for themselves, rather than aiming to ensure their lives go a certain way.

3.4 Capabilities: The Good, the Bad, and the Trivial Even if we can agree that a capability theory of justice should promote capabilities, and not functionings, a further source of disagreement concerns whether our focus should be restricted to capabilities to perform good or valuable functionings, rather than any functioning. Whilst most of the examples of functionings discussed so far are of desirable things to be or do, functionings can, or course, also be bad: for example, being malnourished or unhealthy, being able to abuse our partner or drive a gas-guzzling vehicle. Or, indeed, they can be trivial: for example, being mildly irritated or bored, being able to wiggle our toes or decide when to scratch our nose. (We might also disagree on how the various functionings should be sorted into these categories.) A complete account of how well someone’s life is going would need to take all these abilities into consideration, but surely these are not all

¹⁶ Of course, the idea of an anti-paternalist state is not without its critics (e.g. Conly 2013; Hanna 2018a; LeGrand and New 2015). However, we need not accept at this stage that all paternalistic interference is unjustified, only that the state sometimes has reason to prioritise choice. I defend anti-paternalism in Chapter 7.

76       entitlements. Does the state really owe us the ability to abuse our partner or, indeed, to wiggle our toes? Perhaps the question seems rhetorical, but the answer is not self-evident, and some theorists contend that all functionings are relevant to an account of justice. Most notably, Peter Vallentyne argues: it is a mistake to hold that there are some functionings . . . the opportunities for which are irrelevant to justice . . . for any functioning, there are some circumstances in which it would affect the quality of one’s life, and justice is concerned with the opportunities for a good life . . . no capability that contributes to the value of a person’s capabilities should be excluded.¹⁷

Many functionings may be inessential to a good human life, but could potentially enhance the quality of an individual’s life. Vallentyne gives the example of ‘being able to sing beautifully’.¹⁸ If something could make a positive contribution to someone’s life, he says, it should not be excluded from the scope of justice. Vallentyne’s goal is to argue that a plausible version of the capability approach is identical to the most plausible ‘equal opportunity for well-being’ view.¹⁹ However, given that Vallentyne starts by assuming that ‘justice is concerned with the opportunities for a good life’,²⁰ his conclusion that the two approaches collapse into each other is hardly surprising. However, it is far from obvious that this is what justice is concerned with. Justice, of course, is a nebulous concept, and it may be that different theories of justice will serve in different domains. However, focussing on justice as a feature of social institutions, and taking the fairly uncontroversial view that justice demands showing all people equal concern and respect, it is not unreasonable to think that its appropriate goal is not to promote well-being by any means. Some capabilities—such as singing beautifully, wiggling our toes, or abusing others—are beyond the scope of justice, in the sense that we are not entitled to perform these functionings (at least for their own sakes) and are not subject to injustice if we cannot perform them (assuming we are not prevented from functioning by unjust means).²¹ It is plausible that individuals are entitled to access functionings that have little or no impact on their quality of life (votes for the politically apathetic, say), and are not entitled to access to some that might radically improve their well-being (for example, singing lessons for an aspiring performer). The fact that a functioning might positively ¹⁷ Vallentyne 2006: 82–3. ²⁰ Vallentyne 2006: 82.

¹⁸ Vallentyne 2006: 82. ¹⁹ Vallentyne 2005, 2006. ²¹ These parenthetical caveats will be unpacked below.

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influence our well-being is insufficient to demonstrate that we are entitled to perform it, unless we simply assume that our entitlements are merely a means to ensure our well-being surpasses some threshold. Certainly, it does not seem to follow from a commitment to equal concern and respect.²² Another route to expanding the scope of a capability approach to justice is to explicitly incorporate individuals’ lack of access to negative functionings (which I call negative capabilities) alongside their capabilities for positive functionings (positive capabilities). For example, it might seem that considering whether individuals are free from pain, not merely whether they have opportunities for pleasure, might identify important differences in peoples’ lives. In a first case, two individuals might both lack a positive capability—for example, the capability to be nourished—but differ in their access to a negative one—for example, the capability not to starve. The situation in which an individual has this negative, but not positive, capability could occur if the only diet they have access to is unvaried and unbalanced (they lack the capability for proper nourishment), but they are not at risk of involuntary starvation (they have access to sufficient calories). In a second case, we might distinguish two individuals who both have a positive capability—for example, to be part of a social network—but, again, differ in whether they also have an associated negative capability—for example, the capacity to be in social contexts without experiencing painful anxiety. Having the freedom from negative functionings, as well as the freedom to perform positive ones, is undoubtedly important, yet the capability approach already has the resources to accommodate these cases: negative capabilities are already implicit within the approach. Even without embarking on a detailed exploration of what the ‘substantive freedom’ entailed by having a capability involves, it is clear that any plausible view requires that we have the ability to perform functionings in the absence of avoidable pain, distress, or other negative functionings.²³ Thus, we simply do not have a positive capability if we do not also have the capability to be free of associated negative capabilities. As such, in the second of the above cases the person with anxiety does not have the capability to form social networks: they may be able, in some sense, to achieve this outcome but the costs are too high to say they have the real freedom to do so. Similarly, someone does not have the capability to exit a space station if all that awaits them is a quick death.²⁴ ²² See Dworkin (2000: 11–64; 2011: 352–63) for extensive argument on this point. ²³ The conditions of having the real freedom entailed by a capability are discussed in §4.2. ²⁴ See e.g. Olsaretti (1998); Goodin and Jackon (2007); Taylor (1979); MacCallum (1967); Pettit (1997); Carter (1999).

78       In the former of the above cases, neither individual has the capability to be well-nourished, though one lacks the capability to be even minimally adequately nourished. Little hangs on whether these cases are phrased in terms of access to positive functionings (minimally adequate nourishment) or freedom from negative ones (starvation), though in my view the discussion is less convoluted when we focus on whether individuals have positive capabilities, and simply ensure the threshold of positive capabilities are set at an adequate level. The deeper worry here might be that any approach that focuses on thresholds will fail to take account of the degree to which individuals fall below it. This worry is distinct from the question of including negative capabilities, and will be discussed below (§4.6). It might be argued that negative functionings should not be included as items we should lack access to (negative capabilities), but as items individuals have a claim to be enabled to perform, despite their being negative in the sense that they harm others or themselves. These are not cases that Vallentyne has in mind, but are surely a consequence of including every capability. It would certainly be unfair to interpret Vallentyne as suggesting that an abusive partner might have the right to continue their abuse if it has a sufficiently positive impact on their well-being. Nonetheless, it seems that the contribution to the abuser’s quality of life provides some reason for this to be provided as a matter of justice, even if this is decisively outweighed by the negative impact on their victim, and even this concession seems deeply implausible.²⁵ One response would be to simply bite the bullet and allow that negative capabilities have value when they increase well-being, yet insist that this would never in fact result in any all-things-considered entitlements to harm others. Alternatively, if a more objective account of well-being is used, then some behaviours and actions will be deemed to be bad for people regardless of the value they attach to them. This raises the more general concern regarding how we determine which functionings are ‘trivial’ or ‘bad’, and how certain definitions may be used to ignore or diminish abilities that play a hugely important role in many lives—including disabled individuals’—and place these beyond the scope of justice. I defer discussion of this to §4.6. I will finish this section by returning to the two caveats made above to the claim that granting the ability to perform every trivial or negative functioning is beyond the scope of justice. These were that (a) we are not entitled to them for their own sakes, and (b) we are not denied these capabilities by unjust ²⁵ Also see Claassen and Düwell (2013) who criticise Nussbaum’s approach on the basis that she does not have a clear explanation for why such negative capabilities should be excluded.

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means. First, then, it is important to emphasise that, although there are some functionings we are not entitled to perform for their own sake (being able to sing beautifully or wiggle our toes, perhaps), few functionings are universally, context-independently trivial. This is because, as Chapter 2 argued, giving individuals a decent life (or a dignified life, or the ability to participate as a democratic equal) does not necessitate the performance of specific functionings. For example, walking, specifically, is inessential for a decent life, dignity, and democratic equality, even if some form of mobility is required. However, if an individual with extensive paralysis can be mobile only with a motorised wheelchair that they control by wiggling their toes, then this specific functioning might be one they are entitled to. Thus, an ordinarily trivial functioning (toe wiggling, in this example) may become an entitlement if it essential to a general capability (mobility). To be clear, the reason for its inclusion is not for the contribution it might make to an individual’s well-being, but that it is the only way they can have control in a domain that does fall within the scope of justice. Contrast this case with an individual who nurses the hope of becoming a professional ballet dancer, yet lacks the capability to achieve this goal as the result of their inflexible toes. Assuming good alternative careers are available to them, their failure to achieve their specific goal may not ground a claim of redistributive justice. Similarly, the capability to sing beautifully would not be a concern of justice if it were merely a means to pursue the private goal of being more popular or famous, but it might be if singing were (hypothetically) the dominant form of communication and we could not make ourselves understood in our atonal singing voice. We might believe that both individuals’ wellbeing (their quality of life) and their (dis)advantage (their access to entitlements) should be measured in terms of capabilities, but it does not follow from this that those capabilities we are entitled to are identical to those that will increase our well-being.²⁶ The second caveat—that individuals should not be denied opportunities by unjust means—emphasises that, even if we are not entitled to be able to perform bad or trivial functionings, this does not imply that no injustice is ever done when we are prevented from performing them. Thus, we can say both that we are not owed compensation for our inflexible toes, and that we would be wronged if someone physically prevented us from wiggling them by injecting us with a paralytic. This is especially important to emphasise in the context of disability given that, as we have seen, many of the barriers that ²⁶ Contra Vallentyne 2005, 2006; and arguably Cohen 1993 1994 (see Begon 2016a for discussion).

80       restrict the capabilities of individuals with impairments are not neither unavoidable nor natural, as is so often assumed. As well as the obvious injustice of direct discrimination and exclusion, failing to take reasonable measures to mitigate an exclusionary status quo may also be unjust (see §2.4). This conclusion does not require the assumption that individuals are universally entitled to all opportunities they are excluded from. This is important since, as §2.6 mentioned, and §4.4 will argue, I contend that individuals should be entitled to general and multiply realisable opportunities rather than particular functionings. Thus, there will be many functionings individuals are not entitled to as a matter of justice on my view—and not merely trivial functionings, but many that are widely considered deeply significant, such as walking, talking, and hearing. Nonetheless, if we accept that reasonable accommodations should be made to include those whom a system is biased against, then the means by which someone is prevented from, or enabled to, function may still be unjust. For example, as Anderson famously noted, it would far more disrespectful to deny individuals with impairments access to public schools than to amusement parks.²⁷ Yet many of the reasons individuals with physical and cognitive impairments are unable to access amusement parks arise from features of them that are designed to accommodate only the able-bodied. As an example, consider the issue of whether queues for rides should be actual (people turn up and stand in line) or virtual (people turn up, take a ticket, and return at a designated time). Whilst the former approach is more common it can prove exclusionary to individuals with various impairments: individuals with fatigue or pain conditions may be unable to queue for a long time, especially if this requires standing or being in the sun, and individuals with autistic spectrum conditions might not understand why they are being made to wait, or find the process of queuing unbearably frustrating.²⁸ In some cases, universal access may be impossible or prohibitively expensive, in which case the failure to go to any lengths to provide it may not be unjust. If it is simply unfeasible to make exhilarating rollercoasters safe for individuals with heart conditions, or to secure individuals with severe paralysis into the seats of some rides, then these excluded individuals are not wronged, since this does not indicate unfair bias and they are not entitled to the particular functioning. But failing to mitigate the effects of arbitrary and exclusionary norms and infrastructure can be unjust, and this is so whether we are being denied access

²⁷ Anderson 1999: 332.

²⁸ Thanks to Kevin Todd Mintz for the latter example.

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to public schools or to Disneyworld—though, of course, we may have additional reasons of justice to secure access in the former case.²⁹

3.5 Against Resourcism: Means, Ends, and Conversion Factors It is all very well to say that if we are to take a capability theory of justice it should aim to provide individuals with opportunities (rather than outcomes) in particular parts of their life (rather than expanding the scope of entitlement to include any functioning that might contribute to an individual’s wellbeing). Yet more remains to be said regarding why we should adopt the capability approach over alternative accounts of distributive justice, and over resourcist approaches, in particular. The core difference between capability and resourcist approaches hangs on the degree to which ‘their principles of justice are sensitive to internal individual differences, and environmental features and social norms that interact with these differences’.³⁰ Resourcists focus on providing individuals with means to pursuing ends: that is, with a bundle of resources, broadly or narrowly construed.³¹ If all individuals were equally capable of making effective use of these goods, or converting them into valuable opportunities and outcomes, then resourcism would not differ from the capability approach: equality of resources would be identical to equality of capabilities. However, individuals obviously differ in their needs, abilities, and talents and, further, occupy different social, political, and environmental contexts. As such, focusing on the resources individuals have access to will be a poor proxy for determining the kinds of lives they are actually able to lead. Sen has called the ‘personal characteristics that govern the conversion of primary goods into the person’s ability to promote her ends’, their ‘conversion capacities’.³² However, this focus on personal characteristics or internal features of individuals is too narrow, and ignores the influence of external social and environmental features. As such, the language of ‘conversion factors’ may ²⁹ I am not, therefore, suggesting that social justice only requires that we cease discriminating against disabled individuals. Barclay (2010) has powerfully criticised Anderson and Pogge for taking this approach. I am making the much less controversial point that part of what justice requires is the mitigation of avoidable discriminatory exclusion. ³⁰ Anderson 2010a: 87. ³¹ See e.g. Brighouse and Robeyns 2010; Daniels 1990; Dworkin 2011: 356–63; 2000: 65–119; Pogge 2002; Rawls 1999. ³² Sen 1999a: 74. Also see Sen 1992: 31–8; 1990; 1999a: 35–53.

82       be more appropriate.³³ As Chapter 1 discussed in the context of identifying causes of disablement, these might include: (a) services, systems, policies, and institutions; (b) norms and attitudes; (c) the natural and material environment; (d) products, technology, and resources; and (e) support networks, relationships, and community. Individuals with socially salient impairments are the go-to example of those who need additional resources to achieve equal opportunities and outcomes. Yet they are not the only ones whose opportunities are influenced by their personal features (like age, education, and social background), or by the policies and norms in place, or features of the physical environment, their access to resources, the level of medical and technological development, or the support networks they can draw on. For example, someone with a high metabolism will require more food than average to be nourished. Or, in a social context in which norms and biases undermine women’s ability to pursue a career in engineering, perhaps due to discriminatory hiring practices or by undermining women’s confidence in their ability to pursue this profession, they may require additional resources to overcome such barriers. Or, in an environment in which pollution is rife, people may need additional resources to be healthy, such as masks or air filters, or treatments for respiratory issues that are caused or exacerbated by low-quality air. For capability theorists, what matters is what individuals are actually able to do given the conversion factors they face. The capability approach is, therefore, well-placed to accommodate the multiple factors that interact to cause both disability and many other forms of disadvantage. The disagreement between capability theorists and resourcists concerns whether we should focus on providing individuals with means (resources) or ends (the capabilities these resources enable), and not on what the relevant means or ends are. Capability theorists agree that resources are amongst the means to ensuring individuals have what they are entitled to, though not the sole means. Resourcists, meanwhile, could hardly attempt to identify the value of resources independently of their usefulness in enabling individuals to function, and, ultimately, the opportunity to form and pursue their own conception of the good. As arch-resourcist Thomas Pogge says, ‘what ultimately matters is that opportunities to pursue human goals are distributed equitably in some sense’.³⁴ Yet it is sometimes objected that capability theorists also supply individuals with means, and so may be thought to face the same problem they have posed ³³ Crocker and Robeyns 2010: 68; Robeyns 2017: 45–7.

³⁴ Pogge 2002: 191.

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for resourcists: they ensure individuals have access to certain standard opportunities, but they do not ensure all individuals are equally able to achieve their specific goals, which is surely what each of us ultimately cares about.³⁵ The opportunity for mobility, for example, is valuable only insofar as it allows individuals to, more specifically, achieve the goals of taking their children to school, visiting their friends, going out to the countryside, going shopping for groceries, and so on. There are, however, good reasons for capability theorists to focus on general rather than specific capabilities. First, it may often be either self-defeating or infeasible to promote individuals’ ultimate ends as a direct policy goal. The value of many of our goals derives from the fact that we set and pursue them for ourselves, free from the interference and encouragement of the state. Pursuing leisure, forming relationships, or exercising imagination would not have the same value if we were externally directed or nudged into doing these things. Second, accepting that resources and capabilities have value insofar as they enable individuals to pursue their particular goals and projects does not commit us to the view that justice demands that we maximise people’s ability to do so. We may wish to accommodate other concerns, such as the value of individual autonomy and the limits of legitimate government power. Finally, some capabilities may have value as ends in themselves, even if they are not used by individuals and so do not improve their individual quality of life: the opportunity to vote for the politically apathetic, for example.³⁶ For these reasons, capability theories of justice understand the goal of just public policy to be to provide individuals with opportunities, which they can then utilise as they wish. As Robeyns says: ‘the end of policy making and institutional design is to provide people with general capabilities, whereas the ends of persons are more specific capabilities’.³⁷ Focusing on providing individuals with general opportunities and allowing them to control their pursuit of their ultimate ends is, therefore, not problematic in the same way as providing resources without taking account of the (general or specific) ends this actually allows individuals to pursue. Capability theorists might not enable individuals to have identical opportunities or to equally satisfy their personal ambitions (depending on their goals, ambitions, and how they choose to utilise their general capabilities), but resourcists fail to ensure that some individuals have the opportunity to pursue any goals if their personal,

³⁵ E.g. see Pogge 2002: 223 nn.78, 83; Carter 2014. ³⁶ These points will be discussed further in the next chapter, and in Chapter 7. ³⁷ Robeyns 2017: 49.

84       social, and environmental conversion factors mean they cannot convert their resource entitlement into any actual functionings.

3.6 Resourcism: The Less Demanding Alternative? Given that Sen (and many subsequent authors) have brought into clear relief the disconnect that will exist between resource shares and opportunities for as long as individuals differ in their capacities and environment, we might wonder what reason there is to remain committed to resourcist accounts.³⁸ There are two broad forms of response that resourcists might make. The first pulls in exactly the opposite direction to the preceding worry about the capability approach’s failure to equally enable individuals to pursue their specific ends. Instead, some resourcists argue that even ensuring individuals have equal access to more general capabilities will simply prove to be too demanding. Pogge, for example, contends that, whilst there may be some intuitive appeal to ‘the feeling it is not fair that some human beings are less healthy, bright, tall, handsome, athletic, or cheerful than others or just need more food, water, or clothing’,³⁹ it simply is not the role of the state to mitigate this kind of unfairness. A resourcist would accept that their approach may not provide individuals with identical opportunities, but argue that an approach that did so would be far too demanding. In other words, they simply

³⁸ A further worry that might be raised against resourcist approaches is that not only is the compensation provided inadequate, it also will not be provided to all those who need it. This is because, as Pogge notes, ‘on a resourcist view, the causal origins of special needs and disabilities are morally significant’ (Pogge 2002: 22). Pogge contends that all individuals should be entitled to a standard bundle of resources, and will be compensated for any unjust deprivation they have suffered. Thus, if an individual has additional needs as the result of past injustice or a currently unjust institutional order then they will be entitled to compensation to mitigate this, but they will not be entitled to assistance for non-standard needs that are not so caused. The Dworkinian version of resourcism is slightly more permissive insofar as it would also compensate individuals for impairments (or any additional needs) produced by bad brute luck, such as a childhood accident or a genetic predisposition. However, neither approach would provide assistance if additional needs were a consequence of an individual’s ambitions or tastes: paraplegia caused by a bungee jumping injury, say. The consequences of providing only for standard needs or rigidly holding individuals responsible for the consequences of their choices might seem unpalatable (see Anderson 1999, for a powerful rejection of luck egalitarian approaches). Nonetheless, if we accept either of these resourcist views then we would have to conclude that this is simply all that justice requires. However, such commitments are not essential to resourcism, and could conceivably be incorporated into a version of the capability approach, though I know of no approach that has done so. Capability theorists necessarily hold individuals responsible for inequalities in non-central capabilities and functioning outcomes, but a more responsibility-sensitive capability theory could be devised—perhaps providing opportunities only to those who don’t bear responsibility for their inability. Given this debate is somewhat orthogonal to the choice of a metric, I will not discuss it further here. ³⁹ Pogge 2002: 208.

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bite the bullet, but insist that the problems faced by alternative accounts are more serious. Whether this criticism has any purchase will depend on the specific iteration of the capability approach and, in particular, on which capabilities or functionings are selected as valuable and how they are specified. If a capability theory of justice argued that individuals should be equal in their capability to achieve every human functioning—including their ability to be bright, tall, handsome, athletic, and cheerful—this may indeed be implausibly overdemanding. However, the only theorists who take this line are those who argue for the collapse of the capability approach into equal opportunity for welfare (notably, Vallentyne and Arneson). I have already considered some problems with this approach (§3.4; also §4.6 and §4.7) and, indeed, it is not the view of any capability theorist who maintains the distinctiveness of the approach (as neither resourcist nor welfarist). There are various influential accounts of how we should identify the capabilities all individuals are entitled to. Anderson argues we should have the capabilities necessary to function as equal citizens in a democratic society; Rutger Claassen suggests we should have the capabilities necessary to express autonomous agency; and Nussbaum focuses on the capabilities necessary to live a decent (or, perhaps, dignified) human life.⁴⁰ Any of these approaches would exclude a number of capabilities as being beyond their scope. For example, Anderson discusses an example of a woman with lung cancer, who would be entitled to medical treatment, but would not be entitled to compensation for the loss of enjoyment of life brought about by her confinement in the hospital and reduced lung capacity, for the dread she feels upon contemplating her mortality, or for the reproach of her relatives who disapprove of her lifestyle.⁴¹

Capability equality, then, need not (and usually does not) mean equality of every capability. However, it might seem that all of these accounts could nevertheless be interpreted to include some version of the opportunities Pogge mentions: perhaps individuals will be entitled to some degree of intelligence, enough height to access various social spaces, a lack of any disfigurement that would lead to ostracism, enough ‘athleticism’ to have independent control of mobility ⁴⁰ Anderson 1999, 2010a; Claassen 2018, 2017; Nussbaum 2011a, 2006a, 2000a. ⁴¹ Anderson 1999: 327.

86       and so on. However, as these qualifications show, this does not suggest an entitlement to opportunities to be equal in intelligence, height, beauty, athleticism, and temperament. Capabilities should be specified by appealing to the principle that is used to identify them, and individuals’ capability for democratic equality, expressing autonomous agency, or leading a decent or dignified life certainly does not require the equal provision of these capabilities.⁴² A much lower threshold is clearly sufficient. This problem—of advocating unachievable and perhaps undesirable equality of specific functionings—is also avoided on my own account. According to this, capabilities are understood as the ability to exert control in certain domains of our lives rather than the capacity to perform specific functionings. Never mind attempting to ensure equal athleticism, then, people need not even be equal in their ability to walk.

3.7 Beyond Simple Resourcism A second resourcist response to their failure to take account of differences in individuals’ ability to convert resources into actual opportunities involves reconceptualising what resources constitute. At the most simplistic level, ‘resources’ can be taken to mean income or wealth. A slightly more developed version might include material goods of any sort. This would permit the inclusion of public goods, such as access to public spaces or public transport, which could not be readily converted into a monetary value, or seen as solely in the possession of a single individual. A yet more nuanced account might also include rights and freedoms. Rawls’s list of primary goods is, of course, the archetypical such account. Primary goods are ‘things citizens need as free and equal persons living a complete life’, and include: basic rights and liberties; freedom of movement, and free choice amongst a diverse variety of occupations; powers of offices and positions of authority and responsibility; income and wealth, understood as all-purpose means to achieve a variety of ends; and the social bases of self-respect, understood as the recognition by social institutions that gives citizens a sense of self-worth and the confidence to advance their ends.⁴³ However, all such accounts focus on ‘things’ that people ought to have access to, and hence fail to take account of specific features of persons or

⁴² Sen argues that the capabilities should be determined through a process of public reasoning and deliberation (2009, 1999a). The content is thus indeterminate, but it seems reasonable to suggest that it would also exclude equality of such capabilities, given the infeasibility of providing them if nothing else. ⁴³ Rawls 2001: 58–9.

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their circumstances, and the influence this may have on their ability to convert these things into actual functioning achievements.⁴⁴ The internal resourcist critique of these accounts diagnoses the problem as being with the kinds of resources focused on. Specifically, identifying the worst-off solely on the basis of their possession of social primary goods (like income and wealth, opportunities and powers, or rights and liberties, which are distributed directly by social institutions) at the expense of calculating their share of natural primary goods (like health, intelligence, imagination, and talents, which are affected by social institutions but not directly distributed by them).⁴⁵ Dworkin’s is undoubtedly the most well-developed resourcist account that takes seriously the importance of both social and natural primary goods—or, in Dworkin’s terminology, personal and impersonal resources.⁴⁶ Centrally Dworkin argues that ‘a political community should aim to erase or mitigate difference between people in their personal resources’, that is, their ‘health, strength, and talent’.⁴⁷ This is achieved through providing those who are deficient in personal resources, such as ‘people who are physically handicapped or otherwise unable to earn a satisfactory income’, with additional impersonal resources.⁴⁸ Although Dworkin concludes that the capability approach (or ‘Sen’s theory’) is merely ‘equality of resources in a different vocabulary’,⁴⁹ this is not the case. Dworkin’s view aims to neutralise if possible, and mitigate if not, the effects of the ‘deficits’ in some individuals’ internal resource share. As such, this approach is too focused on individuals themselves, at the expense of their social and material environment, and takes this context as given.⁵⁰ This gives rise to three interrelated problems. First, it fails to take account of the effect of context on individuals’ ability to function and the value of their resource share. Thus, it fails to identify an important vector of disadvantage. Second, it identifies the ‘problem’ of individuals who are less healthy, strong, or talented, as rooted in their internal ⁴⁴ Some of the primary goods—notably the social bases of self-respect and free choice amongst occupations—do not seem much like ‘things’ that we either have or lack, but capabilities that we can be enabled to possess by diverse means (depending on our conversion factors). Indeed, many iterations of the capability approach take themselves to be developments of Rawls’s theory rather than diverging from it. Nonetheless, Rawls and many Rawlsians wish to maintain that primary goods are distinct from capabilities, so I will grant that this is so. ⁴⁵ Kymlicka 2002: 64–5, 70–2. ⁴⁶ See Dworkin 2000: 65–119; 2011: 356–63. ⁴⁷ Dworkin 2000: 286. ⁴⁸ Dworkin 2000: 286. Also see Clayton 2000: 69. The other central element of Dworkin’s view, not relevant to the current discussion, is that individuals should not be compensated for differences in their personality: ‘for differences traceable to the fact that some people’s tastes and ambitions are expensive and other people’s cheap, for instance’ (Dworkin 2000: 286). (See n.38.) ⁴⁹ Dworkin 2000: 303. ⁵⁰ See e.g. Terzi 2008: 132–3; Wasserman 2009: 219–20.

88       deficiencies as opposed to unjust structures. Thus, it reinforces a conception of individuals with impairments, or who lack marketable talents as inferior, flawed, or defective, and in need of compensation for their imperfections. As well as being inaccurate, this reinforces a damaging, yet dominant, conception of individuals with impairments as ‘substandard’ compared to non-impaired individuals. Third, this suggests that the site of change and intervention should be individuals rather than the environment. To pick a simplistic example: it suggests that the state should eliminate mobility impairments or distribute individual mobility equipment rather than making the built environment more accessible to those who are mobile through non-standard means (for example, using wheelchairs, crutches, prostheses, electric scooters, and so on). There may be cases when such individual interventions are the most appropriate response—if, for example, it is impossible or prohibitively expensive to make the environment sufficiently inclusive. However, the automatic focus on individual impersonal resource compensation misses a significant portion of the effective ways to respond to impairment and, indeed, to broader instances of diversity in individual conversion factors. All these problems can be avoided if we focus on what people can actually do given the combination of their impersonal resource shares, personal features, and social, political, and material environment.

3.8 Conclusion The goal of this chapter has been to begin to motivate the claim that our account of distributive justice should be a version of the capability approach, and to show that the advantages of this approach are most clearly evident in the context of impairment and disability. In summary, capability theories have three central advantages over resourcist approaches. First, they can take account of both internal and external conversion factors, and thus of the multiple and interrelated factors that cause disability, and other forms of disadvantage. Second, they can avoid the assumption that having an impairment leaves an individual worse off. We need not figure out whether an individual has her fair share of personal resources; we need only determine whether she has the capabilities she ought. This will inevitably be the result of a wide combination of factors, and lacking the opportunities you are entitled to does not imply inferiority. Further, there is no reason to think that individuals with impairments will necessarily or uniquely be amongst those who lack the

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relevant capabilities. Third, the approach emphasises how unjust background conditions can psychologically, as well as physically, prevent individuals from having access to opportunities. Even if someone is not physically prevented from achieving some functioning, they may still lack the capability to perform it due to lowered expectations as a result of adapting to mistreatment or oppression, the influence of unjust power relations, or discriminatory social norms.⁵¹ The capability approach can acknowledge that individuals in such circumstances lack the real freedom that they should have, as I will now discuss.

⁵¹ This is discussed in much greater length in Chapter 6.

4 Capabilities for Control 4.1 Introduction I have argued that individuals are disabled when they lack opportunities they are entitled to as a result of an impairment. The previous chapter has provided some reasons to think that what all individuals are entitled to is certain central capabilities. But what does it mean to have a capability? And will the focus on providing people with valuable opportunities be exclusionary for individuals with impairments, whose opportunities are often limited? I argue that this is not so if we reject the standard understanding of capabilities as the freedom to choose whether or not to perform certain valuable functionings or combinations of functionings. This standard construal of capabilities is unable to accommodate individuals who do not value, or cannot perform, the functionings deemed central: for example, individuals with mobility impairments may be unable to walk or run, individuals with sensory impairments may be unable to hear or see, individuals with social impairments may be unable to engage in some forms of social interactions. They can, however, have more general opportunities (to be mobile, to have sensory experiences, to form social relationships), and they can value having control and choice in these parts of their life. The lesson we should draw from this is that we should place less emphasis on identifying valuable functionings and then guaranteeing that everyone has access to an identical set of such functionings. Instead, we should focus on ensuring everyone is able to exercise control over various parts of their life— such as their mobility, communication, or social interactions—whilst avoiding the paternalistic imposition of a perfectionist ideal in these domains. Thus, I contend that capabilities should be conceptualised as opportunities to exercise freedom, as meaningful control, in certain domains of our life. By not specifying centrally important functionings but only domains of choice, this approach allows individuals to exert genuine control over central parts of their lives, regardless of the content of their choices. This approach avoids endorsing a perfectionist account of what constitutes the ‘right’ way to function or a hierarchy of functioning, and instead Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0005

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acknowledges that different ways of functioning can be interchangeable and equally valuable: that it is not necessarily worse to achieve mobility in a wheelchair than it is by walking.¹ This is particularly important in the context of disability, since it shifts the goal from normalising bodies and minds (promoting identical functionings) to allowing individuals to control their functioning outcome (their mobility, their health, their social interactions) without specifying the form this should take (walking, eliminating physical impairments, engaging in neurotypical social interactions, and so on). Thus, this approach demonstrates appropriate respect for the lives and choices of individuals with impairments, and allows us to develop a theory of justice that accommodates individuals with diverse needs, preferences, and abilities. I will begin by clarifying what it means to say that someone has the ‘real freedom’ to pursue functionings (§4.2), before considering exactly what it is that we should have the real freedom to do. I will outline the problems with the standard formulation of capabilities as the ability to perform valuable functionings (§4.3), and argue instead that they should be conceptualised as opportunities to exercise control in certain central domains of our life (§4.4). I will then defend this account against the objections that it either over- or under-emphasises freedom (§4.5). I finish by considering some potential objections. I respond, first, to those who disagree that individuals should have capabilities to control certain domains of their lives, rather than ensuring access to actual functionings (§4.6); and second, to those who dispute the claim that individuals should be entitled to an irreducibly plural list of these capabilities, even when some of these are not exercised (§4.7). By defending a more fleshed-out account of what justice demands and what individuals are entitled to, the content of my claim that individuals are disabled when they lack these entitlements will become more concrete.

4.2 Having the Capability: From Formal Freedom to Freedom as Control What, exactly, does it mean to possess a capability? Does a woman have the capability to be nourished if her husband takes her share of the food and keeps ¹ This is not intended to imply that we should be concerned only with what individuals can do, and not with how difficult it is to do these things, as we have seen. It may, then, be worse to achieve mobility using a wheelchair if its use entails serious fatigue or pain, and our understanding of capabilities should reflect this. This is another lesson for our theory of distributive justice that can be learned from a consideration of disability (as §4.2 will discuss).

92       it for himself, and she does not wish (or feel able) to complain? What if she must choose between providing adequate nourishment for her children or herself? What if her access to nourishment depends on the continued existence of a food bank? What if she does not consume an adequate number of calories in an effort to conform to a socially prescribed body shape? Whilst there is much that is powerful about Sen’s distinction between the fasting and the starving individual, determining which is which—or whose undernourishment is truly by choice—is often more complicated. It is common to insist that having a capability requires internal and external preconditions so that an individual can genuinely voluntarily choose how and whether to function, as I will shortly outline. Whilst I do not dispute this, I contend that this is insufficient to have the genuine control necessary for a capability. First, to clarify the importance of the internal and external preconditions of a capability, it is helpful to utilise Nussbaum’s distinction between three forms of capability: basic, internal, and combined.² Basic capabilities are individuals’ potential, latent abilities, or capacities: the ‘innate equipment . . . necessary . . . for developing the more advanced capabilities’.³ Most infants possess the basic capabilities for speech, practical reason, and fine motor skills, but the cultivation of these nascent capacities requires education, development, and practice, as well as the confidence and self-respect to actually exercise these abilities. For example, for an individual with Down’s syndrome to have the capacity for practical reasoning (evaluating, choosing, and pursuing goals or ways of life) they do not only require an appropriate education. In addition, they need to develop a sense of themselves as the kind of being who can direct their own lives in this way. If the dominant understanding of individuals with Down’s is as incapable, incompetent, or helpless, this may affect their ability to perform functionings they would otherwise be capable of. When individuals possess the developed psychological traits actually sufficient to perform a functioning, they have the internal capability to perform it. Yet even this is insufficient to ensure an individual is actually able to perform a functioning, since there may be external factors that prevent them from doing so. The focus is usually on legal prohibitions or engrained social

² See Nussbaum 2000a: 83–6; Nussbaum 2002b: 132–3; Nussbaum 2011a: 20–4. ³ Nussbaum 2000a: 84. Somewhat confusingly, Sen uses the term ‘basic capabilities’ to mean something different. In his early work it is used interchangeably with ‘capability’ as the metric of distributive justice. Later, he uses it to refer to a threshold level of a capability: ‘the ability to satisfy certain elementary and crucially important functionings up to certain levels’ (Sen 1992: 45 n. 19). For Sen, then, basic capabilities are ‘the freedom to do some basic things considered necessary for survival and to avoid or escape poverty or other serious deprivations’ (Robeyns and Byskov 2020). For further clarification of this terminological confusion see Robeyns (2017: 94–6).

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norms that restrict opportunities, but we should also include the various other features of our social, political, and material environment, which can cause impairments to be disabling (see §1.4). Only when an individual has an internal capability combined with the external conditions and resources necessary to exercise their ability do they have a combined capability. This is what capability theorists are concerned to promote, and is what I will usually mean when I refer to ‘capabilities’. Capabilities, then, are substantive or real freedoms, not merely formal opportunities.⁴ Individuals with impairments do not have the capability to obtain meaningful employment simply because there is no law preventing them from entering the job market. To have this capability also requires, inter alia, education in an appropriate format and at a sufficient level to be qualified for a range of jobs, an absence of explicit discrimination and implicit bias that might prevent them from being shortlisted or hired despite being suitably qualified, and not being subject to social norms and stigmas that might inhibit individuals from seeking work in the first place. Yet even this is not enough to have the substantive opportunity to pursue some chosen option. Ideally, capabilities should also be possessed (i) independently of the arbitrary will of another and regardless of their content, (ii) securely, (iii) with a robust probability that the capability is actually realisable, and (iv) as part of a consistent capability set that does not require unreasonable sacrifices or tragic choices. All these four criteria are scalar: our capabilities can be possessed more or less independently, securely, and robustly, and our capability sets may be more or less consistent. If an individual falls below some threshold level of any of these criteria, it may be that they cannot be meaningfully said to possess a capability at all. However, more often these are dimensions along which the quality of individuals’ capabilities will differ. We have reasons of justice to move individuals up the scale on all these criteria, with the ultimate goal of ensuring they are able to exercise their capabilities autonomously and free from undue external pressure. However, in many cases achieving complete or maximal levels of independence, security, robustness, and set compatibility will simply be impossible or implausible. Individual cases will need to be considered on their merits, and in light of what is possible given technological development, resource scarcity, and competing demands. I will not, therefore, attempt to precisely fix the thresholds for each of these criteria, and will instead discuss some illustrative examples. ⁴ E.g. Sen 2009: 227; Nussbaum 2000a: 86.

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4.2.1 Independence First, consider an example Sen gives of an individual who has the capability ‘to go out of her house whenever she wants and to move around freely’ because she ‘is always helped by volunteers with goodwill’, and one who is enabled to do so by servants who ‘obey—and have to obey—her command’.⁵ (To avoid the ethical implications of employing servants, we can substitute machines that fulfil a similar role.) The salient distinction is between a person who is dependent on others’ goodwill for control over her mobility, and someone who is not. Sen wishes to resist Pettit’s proposal that capabilities must incorporate the requirement that individuals’ freedom is permit-independent.⁶ Hence, Sen acknowledges that there is certainly something valuable about not having to rely on others, but, he claims, all the capability approach should aim to capture is whether someone has the ability leave their house, however this is achieved.⁷ As ever, whether this is satisfactory will depend on the application of our particular capability theory. If we were devising a theory of well-being, for example, we might sometimes need only to ascertain whether individuals can perform certain functionings. However, part of the distinctive appeal of capability theories of justice is that they aim to provide individuals with the ability to direct their lives (regardless of the size of the resource bundle this requires, and independent of how much welfare this generates). If individuals can only pursue options that coincide with the goodwill of the more powerful, and only for as long as this goodwill lasts, we may reasonably question whether they have the substantive freedom that capabilities are supposed to encapsulate. As Cohen puts it, freedom ‘worthy of the name’ must entail ‘the circumstance of genuine control over one’s life’.⁸ Thus, in the context of justice at least, we should follow Pettit and require capabilities to entail permit-independence, such that the decisiveness of our preferences does not depend on the ‘gratuitous favour’, or arbitrary will, of a third party.⁹

⁵ Sen 2001: 54. See Begon (2016a: 58) for further discussion. ⁶ Pettit 2007, 2010. ⁷ Sen 2001: 52–6. ⁸ Cohen 1995: 102. It is worth making explicit that I do not mean to imply that all forms of interdependence or vulnerability are bad, or that complete independence should always be prized. Merely, that in some domains of our life we should be able to make choices and pursue a conception of the good without being forced to rely on others’ willingness to provide assistance. ⁹ Pettit 2007, 2010; Begon 2016a. (Also see §1.4.) This has also been called context- or favourindependence, but Pettit (2010: 98–9) prefers the label of permit-independence, since this better captures the significant feature of our context (the permission of a third party).

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An additional sense in which capabilities should be independent, also emphasised by Pettit, requires individuals’ choices to be decisive regardless of what they choose. Having this content-independent freedom means individuals are not only enabled to perform those functionings deemed valuable. Thus, the person in Sen’s example should not only be free to leave the house but also free to stay inside all day long if they wish (and not be dragged to the park by well-meaning volunteers). If the core of the capability approach concerns what people are ‘really able to do and what kind of person . . . they [are] able to be’¹⁰ then this is best captured if capabilities—at least as the metric of distributive justice—are interpreted as providing people with the contentand permit-independent freedom to choose how they want their lives to go.¹¹ We may be both better-off and freer if we can leave our house than if we cannot, whatever the conditions under which we can do so, but we do not have what we are entitled to unless we have the real freedom to control our mobility.

4.2.2 Security To truly possess a capability, our ability to perform a functioning should not be precarious. Living at risk is both harmful and inimical to the possession of the real freedom to control how our life goes. However well someone’s life actually goes, they are seriously harmed if they live at risk of losing their access to central functionings. Even if these risks never materialise, individuals will live with the fear and anxiety about how their circumstances might change, and with the difficulty of planning their life under such uncertain conditions, and are forced to take actions to mitigate the risks they face.¹² Individuals who are reliant on foodbanks, work on zero-hour contracts, or depend on bureaucratic benefit systems under which they may be subject to unpredictable sanctions or delays in payment all experience this precariousness. Even if they never actually experience hunger, are never evicted from their home, or are never unable to pay their electricity bill they cannot be said to fully have the

¹⁰ Robeyns 2017: 9. ¹¹ Note that a commitment to content-independence need not imply that individuals must be entitled to every possible capability. It is compatible with restricting the scope of justice to certain capabilities, though meaningfully possessing these capabilities will involve the ability to make choices in these domains (as §4.4 will discuss). ¹² The significance of risk and its relevance to the capability approach is most clearly articulated in Wolff and de-Shalit (2007).

96       capability to achieve these functionings since they lack control over the achievement of all these outcomes. Part of the problem with lacking permit-independence is such precarity: we never know when or if our benefactor’s favour will be withdrawn. However, we may experience permit-dependence without precarity (for example, a spouse who is reliant on their partner for their economic security yet (justifiably) does not fear that this support will be withdrawn, though nothing would prevent it), and precarity without permit-dependence (for example, farmers whose livelihood is dependent on the climate). Moreover, precarious access to one functioning will often spread to other functionings: risks to employment lead to risks to nutrition if we rely on our income to buy food, to risks to our health if we are stressed and poorly nourished, to risks to our ability to form and maintain a social network if we cannot afford to socialise or are too anxious and distracted to engage with our friends, and so on.¹³ Correspondingly, providing secure access to ‘fertile functionings’ (in Wolff and de-Shalit’s terminology)—functionings that are likely to secure further functionings—will ensure individuals have other capabilities.¹⁴

4.2.3 Robustness The focus on capabilities rather than functionings is often justified with reference to individual responsibility: individuals are entitled to opportunities and it is up to them what use they make of them. However, this connection only holds if possessing a capability entails a reasonable chance that an individual’s attempt to exercise a functioning will succeed.¹⁵ Determining what probability of success is reasonable will depend on features of particular cases. In general, though, we cannot claim to have achieved capability equality if individuals’ probabilities of success differ radically, and cannot claim to have achieved capability sufficiency if some people’s chance of success is remote. Further, if the reasons for these discrepancies are arbitrary and avoidable, this is likely to be an instance of injustice. For example, all students with the relevant qualification may, in some sense, have the capability to gain a place at an elite university. However, if, as the ¹³ Wolff and de-Shalit (2007: 70–2) call this ‘cross-category risk’. Disadvantages that carry this risk of having negative effects on other functionings they call ‘corrosive disadvantage’ (see Wolff and deShalit 2007: 121–2, 133–49). ¹⁴ Wolff and de-Shalit 2007: 133–54. ¹⁵ The label of ‘robustness’ for this criterion is Robeyns’s (2017: 97–8).

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result of explicit and implicit biases, the chances of admittance are much higher for white, straight, non-impaired men, with wealthy parents and a long family history of attending the institution, we can hardly claim that justice is done because every candidate has some chance of success. Further, it would seem disingenuous to say to another candidate—non-white, queer, impaired, working-class, and without a family history of university attendance— ‘you too have the opportunity to attend, what more can you expect?’. They certainly have the right to demand more. It would be similarly misleading to claim that someone with MS has the capability to travel to work on public transport if every one attempt in five (say) is successful, yet on other occasions they are overcome by pain or fatigue, a lack of proper assistance, or inappropriate accessibility modifications. These individuals can hardly be described as having a ‘genuine opportunity’ or ‘real freedom’.

4.2.4 Set-consistency Lastly, having a capability not only requires that our attempt has a robust chance of success but that the cost of the attempt is not unreasonably high and, in particular, does not require individuals to sacrifice some capabilities to achieve other functionings. The goal of a capability approach to justice should not be to provide access to individual capabilities but to capability sets that can be consistently exercised without requiring unreasonable sacrifices or tragic choices. Wolff and de-Shalit consider cases in which the pursuit of some functionings renders access to other functionings precarious, which they label ‘inverse cross-category risk’.¹⁶ They consider, in particular, an individual who undertakes dangerous work to secure access to food and thereby puts their ability to be healthy (or, indeed, alive) at risk. This is an important subset of cases, but ‘unacceptable costs’ are not identical to inverse cross-category risks. In some cases, the cost of performing a functioning may not be the risk of losing a capability but instead either the actual loss of another ability; or the sacrifice, or risk of sacrificing, another’s capability; or the sacrifice, or risk of sacrificing, the same capability in the long term; or, though the cost is high, it may not require the loss of a central capability. For example, imagine a paraplegic individual can either afford to purchase a wheelchair that will enable her to be mobile or pay the rent on her apartment, but lacks the capability to achieve ¹⁶ Wolff and de-Shalit 2007: 70.

98       both mobility and shelter. Alternatively, imagine a parent who must choose between working so that they have the resources to feed and clothe their children, and being able to spend time with them, raise them, and form valuable parent–child relationships. Either choice will jeopardise both their own capabilities and their children’s. Or, consider the individuals discussed in §2.7, who are able to perform all relevant functionings but only with associated pain or fatigue. They cannot be said to have the capability to be mobile if walking causes excruciating pain or their wheelchair produces great discomfort. We might describe individuals in such cases as simply lacking the capability for these incompatible functionings, or as lacking an important capability set. I believe there are reasons to adopt the former approach. For example, imagine that an impaired student applying to university would be admitted only if they were willing to undergo a procedure to eliminate this impairment. (Or, for those who think this would be a very good thing for the student and not really a cost at all, imagine the situation is reversed and admission depends on being impaired: a student has the capability to go to university, but they will be required to undergo an amputation (say) first.) We can specify either case such that the student does not lose access to any other functionings as the result of losing or gaining an impairment. The cost nonetheless seems far too high to say that they have a genuine opportunity to enter university. Similarly, we can say that a person lacks the capability to fly to Australia both if they simply cannot afford the airfare and if buying the ticket will require clearing out their life-savings and selling everything of value that they own. A functioning must be a realistic option for an individual if we are to say they have the capability to achieve it. It might be objected that exercising our capabilities often restricts our other options: pursing one career might foreclose opportunities to pursue others, deciding to have children might restrict one’s control over one’s leisure time, deciding not to have children by undergoing sterilisation will restrict one’s future ability to conceive. Such opportunity loss surely is not unjust. The difference is that in the troubling cases above the associated costs were contingent, avoidable, and not consented to. Having control and pursuing a conception of the good will require that we are able to sacrifice some opportunities, but these sacrifices should not be imposed on individuals (see §4.6). Thus, when determining what individuals are entitled to, and whether they have what they are entitled to, we should take account not only of whether they can exercise control in some particular domain (independently, securely, and robustly) but also of whether they can do this without foregoing, against

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their wishes, other important areas of control in either their own lives or others’, or paying some other unreasonably high cost.

4.3 The Problem with Capabilities to Function Although capability theories differ in many dimensions, all share the terminology of functionings (as doings and beings) and capabilities (as the real freedom to achieve these functionings). And, whilst they may disagree about which functionings are valuable and how they identified, they agree that an account of valuable functionings is needed. Thus: ‘What matters . . . is that people enjoy certain specific capabilities, not that they enjoy capability as such, and in order to identify such specific capabilities we shall still need to refer to a list of independently specified functionings.’¹⁷ It is true that the distinctive contribution of the capability approach would be lost if it were simply about providing unspecified freedom (see §4.7), or indeed bad or trivial freedoms (§3.4). However, the ability to perform independently specified functionings is not the only way in which our freedom can be specified. Nor, I think, is it the right one. My objection to understanding capabilities as abilities to function is not that by doing so we inevitably promote actual achievements, rather than mere opportunities, as a requirement of justice in the political realm. As will become clear, even without directly promoting particular functioning, a commitment to their value can be exclusionary to those who do not value and/or cannot perform some of them. I will grant, then, that identifying central, valuable functionings can be compatible with insisting, as Nussbaum does, that ‘capability to function, not actual functioning, should be the goal of legislation and public planning’.¹⁸ I will leave aside those places in which she appears to violate her own liberal commitments and argue that the state may, in fact, have reason to override individual choice in order to promote actual functioning or the capacity for future functioning.¹⁹ Instead, I will take her at her word as a political liberal, who deems it ‘inappropriate for any particular comprehensive conception of ethical value to be endorsed by politics’.²⁰ Thus, whatever ¹⁷ Carter 2014: 91. ¹⁸ Nussbaum 1992: 221. I focus on Nussbaum’s account here as the most developed liberal capability theory of justice. ¹⁹ See Begon 2017 for discussion. Also, Claassen 2014a; Claassen and Düwell 2013; Jaggar 2006; Nelson 2008; Terlazzo 2014; §4.6. For examples of this in Nussbaum’s work, see Nussbaum 2000a 55, 74, 87–93; 2004: 199; 2011a: 25. ²⁰ Nussbaum 2000b: 124.

100       Nussbaum’s personal views on the superiority of life in which capabilities are exercised, the plausibility of her view does not depend on everyone sharing a particular conception of the good. Crucially, Nussbaum seeks an overlapping consensus on the value of the central capabilities ‘for political purposes only, not as a comprehensive guide to life’.²¹ Thus, individuals are not required to endorse the value of the underlying functionings, or pursue them within their own lives. Indeed, people need not even ‘endorse freedom as a general good’,²² but merely a short list of freedoms for political purposes. Given that Nussbaum is so clear that in the political realm we should not endorse or enforce a comprehensive conception of the good, it might seem unimportant that she specifies the functionings everyone should be entitled to perform. After all, individuals still retain the freedom to set and pursue their own goals. Yet I will argue that, despite Nussbaum’s attempts to make her approach neutral, the conceptualisation of capabilities as the ability to perform specific functionings will always threaten this neutrality. This is because, although individuals need not include every functioning in their particular conception of the good, Nussbaum does insist that the list could be the object of an overlapping consensus. Thus, for her, we must all be able to agree that the capability to perform these functionings is necessary for a decent human life.²³ However, this will never be true of at least some individuals who lack the capability to perform some central functionings. Her claim that the list could be the object of an overlapping consensus does not require that there is, at present, no disagreement on the content of the list. Thus, the problem cases are not those in which people choose not to perform a central functioning, either occasionally (for example, fasting), or more permanently (for example, celibacy). Individuals might do this for the sake of another central functioning: for a celibate monk, a failure to function in one way (sexual satisfaction) may be necessary for another functioning he values more highly (spiritual fulfilment). Or, someone might sacrifice central for non-central functionings: for example, starving oneself to meet some ideal of beauty, or choosing the pleasures of drug-use at the expense of one’s long-term health. These individuals do not threaten the possibility of an overlapping

²¹ Nussbaum 2011a: 90. ²² Nussbaum 2006b: 60. ²³ Nussbaum has moved towards talking in terms of the constituents of a dignified human life (Nussbaum 2006a, 2008), though it is not always clear how this concept should be cashed out (see Formosa and Mackenzie 2014; Claassen 2014b). My focus is on how capabilities are conceptualised rather than how they are selected, so I will not attempt to determine whether we ought to talk in terms of decency or dignity, or exactly how these might differ. The examples I consider have force on any plausible reading of any of the main candidate criteria used to identify the list of central capabilities (including Anderson’s or Claassen’s, mentioned above).

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consensus on the central capabilities to function because they can agree on the value of these opportunities for political purposes, even if they have different priorities in their own lives. In the first set of cases, the very meaning of the sacrifice requires an acceptance of the value of the functioning that is being forgone: fasting and celibacy are only meaningful sacrifices because nourishment and sexual satisfaction have value. In the second set of cases, individuals do not consciously sacrifice a valuable functioning, but merely find that their other priorities conflict with it. Again, this does not imply that they dispute its value or importance, and they would likely prefer circumstances in which both goals could be achieved (nourishment and the requisite level of slimness; health and drug use). There are other cases, however, where individuals who choose not to perform some functioning do not consider themselves to be giving up something valuable. Possible examples would be misanthropes who believe there is no value in human association, or people who entirely lack the capacity for humour.²⁴ However, it can be hard to be sure that these individuals really see the opportunity to perform these functionings as inessential to a decent life: for some, it may be part of their self-conception to have the opportunity to form human relationships, say, and yet choose not to. It would be hard to understand oneself as a misanthrope having simply lacked the chance to interact with other people, so we may value having the opportunity so we can reject it. More clear-cut cases, therefore, are those in which individuals are incapable of performing a functioning, and consider their lives to be fully flourishing (and decent and dignified) nonetheless. These individuals lack the capability to function—we cannot have the real freedom to do something impossible—and so might naturally dispute the inclusion of the opportunity to perform this supposedly necessary functioning on the list of central capabilities. For example, consider asexuality, wherein individuals do not experience sexual attraction to others. Asexuality is a diverse category, but at least some asexual individuals will not experience any sexual desire. Such individuals, whilst typically capable of performing sexual acts, cannot be said to derive sexual satisfaction from them.²⁵ They might choose to engage in sexual activity to achieve some other end (such as the satisfaction of another’s sexual or emotional needs), but they cannot choose to perform the functioning of sexual ²⁴ Nelson 2008: 99; Claassen and Düwell 2013: 496–7. ²⁵ Brunning and McKeever (2021) argue that it is possible to experience sexual desire without sexual attraction. I am happy to accept this point and merely claim (as Brunning and McKeever allow) that sexual desire will not be experienced by some asexual persons. (Also see AVEN 2020; Decker 2015; Bogaert 2015.)

102       satisfaction, since they have failed to achieve what is uniquely valuable about it—a satisfying sexual experience. Nussbaum includes ‘having opportunities for sexual satisfaction’ as part of the capability for bodily integrity,²⁶ but insofar as some individuals cannot achieve this functioning, they cannot be provided with the real freedom to perform it. Similarly, some individuals with Autistic Spectrum Conditions (ASC) may be unable to perform some elements of the supposedly central functionings of affiliation and forming emotional attachments. Consider Nussbaum’s description of the former capability, which requires being able ‘to recognise and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another’.²⁷ This seems incompatible with the experiences of those individuals with ASC who have difficulty with social interaction, communication, and expressions of empathy.²⁸ Yet, as the thriving neurodiversity movement makes clear, many individuals with ASC do not consider themselves worse off as a result. Those with ASC, they argue, are not ‘damaged or deficient, but rather . . . exhibit . . . a very natural form of human variation’.²⁹ Asexual individuals, too, are rightly offended by those who consider their sexual orientation a pathology that requires therapy or hormone treatment. As one asexual person comments, ‘there’s nothing to fix because we’re not broken’.³⁰ In both these cases, then, individuals cannot perform a central functioning, and yet can plausibly claim to have a flourishing life in its absence. These are not merely cases in which opportunities that matter a great deal to some people are considered relatively trivial by others.³¹ Rather, these are cases in which, for as long as these individuals continue to be asexual or autistic, it will be impossible for at least some of them to have the capability to perform all of the central functionings, and so impossible to achieve consensus on their being essential.

²⁶ Nussbaum 2000a: 78. ²⁷ Nussbaum 2011b: 34. ²⁸ To be diagnosed with autism, one needs to have ‘persistent deficits in social communication and social interaction across multiple contexts . . . [and] restricted, repetitive patterns of behavior, interests, or activities’ (American Psychiatric Association 2013). ²⁹ Begon and Billington 2019: 188. Indeed, as Robeyns points out, whilst some individuals with ASC will lack ‘genuine access’ because ‘they do not have the innate characteristics that are needed to truly enjoy some of these capabilities’, the same may also be true of non-autistics (Robeyns 2016: 387). Robeyns does not discuss examples, but if she is right this only strengthens the concern I raise about the exclusionary nature of capabilities to perform specific functionings. In the next chapter I defend the claim that impairments, including ASC, should be understood as atypicalities rather than defects. ³⁰ Asexuality Archive (2012). ³¹ An objection can be made that the capability approach goes wrong in providing individuals with opportunities they do not personally value, though I will question the force of this worry in §4.6.

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A simple solution would be to therefore excise the ability to perform these functionings from the list of capabilities that all individuals are entitled to, but given the importance of these functionings in many other lives, we may be reluctant to do so. This reluctance may be bolstered by the thought that there is no harm in including the items on the list. Individuals will only be provided with capabilities, after all, and so will not be compelled to function in ways they do not value or are incapable of. Further, for Nussbaum in particular, the possibility of an overlapping consensus provides only an ancillary justification for items’ inclusion: ultimately, what matters is their substantive value.³² Perhaps she could simply accede, then, that an overlapping consensus on the central capabilities will not be possible after all. However, we should be reluctant to give up on the possibility of an overlapping consensus. Ensuring that the content of our account of distributive justice could be the object of an overlapping consensus demonstrates appropriate respect for those to whom the theory will apply, and avoids imposing an alien conception of value that they can never recognise. Insisting that capabilities are freedoms to function in specific ways means that some individuals can never be part of a consensus on the necessity of the ability to perform these functionings—their own lives are clear evidence that the functioning is not essential—but I will argue that consensus is possible on the value of capabilities to control. A further benefit of this approach is that it avoids another troubling implication of focusing on enabling specific functionings: that those who wish to engage in alternative, comparable but unusual forms of functionings may not be entitled to state assistance. For example, an individual with ASC may be entitled to ‘normalising’ therapies but not assistance to engage in atypical forms of communication and social interaction. Even if we set these two worries aside, we still have reason to reject capability-to-function approaches due to the exclusionary consequences of justifying the value of capabilities on the basis of the value of the underlying functioning, for those who cannot perform, and do not value, the functioning. An advocate of such justification might respond that everyone can have a capability to function, since even those currently unable to perform it can be offered a ‘cure’ for whatever condition constitutes a barrier to functioning, though they would not, of course, be compelled to undergo such cures. After all, individuals are only provided with capabilities and not forced to function. They might also point out, as §2.4 considered, that the demands of justice need not be fully realisable at present. Thus, the fact that we cannot currently cure ³² See Jaggar 2006: 309–20; Terlazzo 2019. Also e.g. Nussbaum 2001: 74.

104       cancer does not mean that a cancer patient is a counterexample to the claim that individuals are entitled to the capability for health: justice demands that this opportunity be provided if feasible, and that we should work towards making it feasible.³³ It might, then, be argued that we should understand asexual individuals and those with ASC or other impairments in the same way. Even if it is currently impossible for asexual individuals to achieve sexual satisfaction, or for individuals with ASC to function neurotypically, we could imagine circumstances in which this were possible—where all individuals were enabled to have the full range of functionings—and justice might demand that we work to achieve this.³⁴ As such, they are no more ignored or excluded by the inclusion of capabilities to perform inaccessible functionings than the cancer patient. The most obvious difference between these cases and something like cancer, however, is that people who have cancer do not tend to defend their life and lack of functioning as valuable, or to understand this feature of themselves as part of their identity. This difference means that the justification of the capability will be justifiably offensive to the asexual and autistic individuals where it would not be to the cancer patient. There is nothing objectionable in telling someone with cancer that in a more just world we would have a reliable way to eliminate their illness, and that justice requires that we try to realise this possibility. This is not true of asexuality and autism. Or is it? These simple labels cover a heterogeneous set of experiences, opinions, and preferences. Thus, whilst many autistic and asexual individuals would find it deeply offensive to suggest that their life lacks something ‘good and important’ and that their conditions should therefore by cured, others might welcome such a cure. It might seem, therefore, that making a cure available, but not forcing anyone to undergo it, is the right approach: everyone has the capability to function, and they can choose whether they make use of ³³ The concept of ‘health’ is controversial, and having the capability for health should not be understood to mean the ability to eliminate all of one’s impairments—indeed, given the breadth of impairment this would be difficult to imagine (as Chapter 5 will discuss). It is relatively uncontroversial, however, to suggest that being healthy requires being free from cancer, and this is all I am claiming here. ³⁴ Nussbaum’s discussion of disability in Frontiers of Justice suggests she may endorse such a response. She is rightly critical of the role that social institutions and norms play in causing various impairments to be disabling, and insists that nearly all individuals could perform the central functionings ‘if only public spaces could be adequately designed to support them’ (Nussbaum 2006a: 189). However, when institutional change is insufficient to enable capabilities she argues ‘we could cure [a] condition . . . because it is good, indeed important, for a human being to be able to function in these ways’ (Nussbaum 2006a: 193). Nussbaum is here discussing Eva Kittay’s daughter Sesha, who is ‘ “severely-profoundly” mentally retarded’ (Kittay 2005: 127). She remains undecided on whether the view would also entail ‘engineering away’ Down’s syndrome, or Asperger’s, or blindness and deafness, and refuses to ‘speak clearly against’ this possibility (Nussbaum 2006a: 193).

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it. For example, even those in the Deaf community who are deeply opposed to cochlear implants, going so far as to describe the practice of giving them to deaf infants as a form of ‘genocide’, would not want to prohibit their use by deaf adults.³⁵ So, am I suggesting that the deep offence that some individuals feel at the idea of curing their impairment should give them a veto, preventing others from accessing treatments and ways of functioning they might very reasonably wish to pursue? I am not. My objection is not that treatments are offered, nor that someone feels offended, but that the basis of their justification is offensive. Specifically, that they are taken to be necessary in all cases, implying an irredeemable deficiency in the lives of those who choose to retain their impairment. If capabilities are justified on the basis of the value of specific functionings, then individuals who cannot perform them must be considered to need the opportunity to be rid of their condition in order to lead a decent life.³⁶ The fact that people are permitted not to exercise this opportunity, and so live an inferior life, hardly avoids the insult. The importance of avoiding the state endorsement of the value of particular ways of life is a theme in much political liberal writing. Nussbaum describes this as ‘expressive subordination’, which is ‘subordination that consists in being publically ranked beneath others’.³⁷ To see why this is problematic consider two alternative justifications that could be offered to a reasonable atheist for providing the capability for religious expression. One states that engaging in religious expression is a good and important human functioning, the opportunity to engage in which is essential to a decent life. The second acknowledges that this functioning forms part of some reasonable conceptions of the good, and that it has value in these lives. The latter justification does not rank the life of the atheist below that of the religious practitioner.

³⁵ For some discussion of the controversy surrounding cochlear implants, see e.g. Napoli et al. 2015; Pray and Jordan 2010; Sparrow 2005, 2010. Note that Deaf (capital d) denotes members of the Deaf community, as compared to those with impaired hearing, who may or may not consider themselves part of this cultural group. ³⁶ The idea that such functionings are essential not merely to a decent life, but to any kind of human life, and that those who cannot perform them are consequently less than human, is, sadly, not uncommon. For example, a survey of attitudes towards asexuality concluded that ‘sexual desire is considered a key component of human nature and those lacking it are viewed as relatively deficient, less human and disliked’ (Hodson and McInnis in Mosbergen 2013). Or, as Julie Decker says, ‘[w]e are perceived as not being fully human because sexual attraction and sexual relationships are seen as something alive, healthy people do’ (Decker in Mosbergen 2013). The ‘overarching master narrative of society dictates that “being fully human” or “being a complete person” is dependent on experiencing sexual attraction’ (Decker 2015). ³⁷ Nussbaum 2011b: 35.

106       It is perhaps even more important to avoid such ranking when we are doing this on the basis of central features of individuals’ identities, rather than their choices. We should not subscribe to a theory of distributive justice that tells those individuals who see their impairment as a source of identity that justice requires that we are able to ‘fix’ you, that we should give you this opportunity if we could, and that it is a great shame that we are unable to do this just yet. But such expressive subordination is avoided if capabilities are conceptualised instead as the ability to control certain domains of our life. Treatments would then be offered as one way to control our functioning outcome in some domain, as opposed to the only way to achieve a specific valuable functioning. In addition, this approach could be the subject of an overlapping consensus amongst those who cannot perform and do not value supposedly central functionings. Further, as we will see, it provides a wider range of opportunities, such that all individuals are given opportunities they can reasonably possess and value.

4.4 Capabilities to Control To reiterate, the problems with capabilities to function should not lead us to abandon the capability approach or cull the list of capabilities, but instead change how capabilities are conceptualised: as opportunities to exercise control in certain central domains of our life.³⁸ We also should not abandon the methodology of identifying the central features of a decent life through internal consideration and interpersonal discussion, resulting in an overlapping consensus for political purposes, amongst individuals with otherwise diverse conceptions of the good. However, we should change what we come to a consensus on. Rather than asking ‘which functionings are essential to a decent life?’, we should ask ‘which domains ought people have control over if they are to lead a decent life?’ Our goal, then, should be to enable individuals to form and pursue their own conception of the good, ensuring adequate control over a variety of options in specific parts of their lives. Thus, capabilities should no longer be the chance to perform (or not) a particular functioning, but the substantive opportunity to function in whatever way we choose in a domain we have agreed to be important. The capability for bodily health, for example, will not be the opportunity to achieve a predefined conception of bodily health, or to choose not to achieve it. ³⁸ A version of the following argument appears in Begon (2017).

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It would be the opportunity to control our bodily health, and have the substantive power to determine and achieve the functionings we prefer in that domain, even if they are not widely considered ‘healthy’. It is the domain (our health), not the functioning (being conventionally healthy), that is identified as being valuable. This means that we can derive a specific list of capabilities without a specific conception of a flourishing life.³⁹ There are three related benefits to this understanding of capabilities. First, it allows individuals to be included in the consensus on the central capabilities without having to acknowledge the value of functioning they do not value or cannot perform. Individuals with different preferences can agree on the value of having choice and control without needing to agree on what it is best to choose. For example, by focusing on ‘control over matters of sexual expression’, rather than ‘opportunities for sexual satisfaction’, a religious conservative, a free-love hippy, and a committed celibate could all agree that this is important. They would, of course, have radically different views about the proper use that should be made of such control but they can, nonetheless, accept the central value of setting our own ends in these domains of our life.⁴⁰ Additionally, and more importantly, individuals who cannot perform a functioning, and so cannot possess the corresponding capability to function, can still possess, and value, a capability to control. As discussed, asexual individuals cannot possess the capability for sexual satisfaction, and may resent the offer of therapies designed to enable this experience. They can, however, exercise and value the capability to control their sexuality and sexual life: this is exactly what asexuality advocacy groups, such as AVEN, campaign for. This may, for example, involve education programmes to allow for the wider recognition of asexuality as a sexual identity. The second benefit is that individuals with non-standard preferences and functioning capabilities are not simply provided with the opportunity to be ‘normal’—the capability to perform some functioning deemed valuable. Instead, they are provided with the less specific freedom to determine, and

³⁹ It is worth emphasising that in advocating control I am not suggesting that we should aim to give people as many options as possible. As has been well-established, providing a great number of similar and/or valueless options will not increase someone’s control over their life, and may even decrease it. For example, imagine a single mother who must spend a great deal of time choosing between similarquality private nurseries and health insurance plans for her children. She seems to have less ability to exercise control over her life than a mother who has good-quality state-provided childcare and healthcare automatically provided, and thus more time for alternative pursuits or to consider more significant decisions. ⁴⁰ Inclusion of such individuals would not have a repressive effect: individuals cannot enforce their view of what is ‘right’, since they would be asked only what individuals should control, and not the proper use that should be made of this control.

108       pursue, their own goals within a specific domain. This may include the availability of treatments, but this is not all that would be offered. Providing individuals with control, without predetermining the proper use they should make of this control, better captures the capability approach’s central concern to ensure that everyone has space to form and pursue their own conception of the good, independently of the content of their decisions. If we are to respect autonomy, and treat individuals as the origin of ends, we must allow them to control their bodily health, their sexual satisfaction, their emotional attachments, and so on, and to choose the ends that they wish to pursue in these domains. This approach is also consistent with understanding impairment as difference, and disability as the disadvantages that may be associated with it, depending on personal features and wider context. Focusing on control means that justice does not demand the elimination of impairment or the different ways of functioning it may produce. It merely demands the elimination of disadvantage, understood as loss of control in a central domain. Since such control does not necessitate the ability to function in specific ways, this does not require that impairments are removed. Given that, as the next chapter will argue, impairments are neutral, this is an important implication. The third benefit, then, is that when treatments are offered, they are not justified on the basis that they are necessary because a life lacks something ‘good and important’ unless we can perform a functioning. Rather, they are offered because the functioning is one valuable option amongst many that may be part of some reasonable conceptions of the good. For example, consider deaf and/or blind individuals, who arguably lack the capability to ‘use the senses’ since they cannot achieve the functioning of hearing and/or sight.⁴¹ These individuals can, nonetheless, possess and value control over their sensory experience, and the ability to achieve other sensory functionings, some of which may be shared by hearing and sighted individuals, and some which may not. Allowing for a range of goals in this domain would mean that we would not just focus on, for example, the provision of cochlear implants, thereby making available the ability to perform the functioning identified as valuable (hearing). Further, insofar as cochlear implants are made available, they are provided as one route to functioning amongst others, and not as the only means to achieve an essential opportunity. Instead, individuals would be entitled to the resources they need to control their sensory experience—as well, indeed, as control over their ability to function in other domains, which ⁴¹ For further discussion of this case see Barnes (2009a); Begon (2015).

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may be restricted if there is limited accommodation for their impairment. Hence they may be provided, for example, with education in an appropriate medium, translators and guides, Braille books and keyboards, audible and visible traffic signals, and so on. There need be no suggestion that the ability and opportunity to perform specific functionings, and only these functionings, are important or essential to a decent life. Indeed, even if individuals would prefer to hear or see, they will not necessarily be entitled to these opportunities if they already have sufficient options in the sensory domain, and thus already possess the control they are entitled to—no more than someone who would prefer to spend their leisure time driving a sports car should be entitled to one if they already had other leisure activities available to them. Two possible objections to this approach may suggest themselves. First, even if a range of options is provided, the definition of domains of control, and the justification of their inclusion in the list of central capabilities, may still seem to involve some reference to valuable functionings. Control over our sensory experience, for example, is included because functionings in this domain are deemed valuable; control over sexual expression matters because the various functionings achievements that this expression could entail matter. Thus, the approach might seem vulnerable to the criticisms raised against capabilities to function. It is true that we could only pick out the important domains of control by reference to the valuable functionings that individuals may pursue in this domain. However, the domains need not simply be defined as a list of functionings that have been predetermined to be important. Just as Nussbaum emphasises that the list of capabilities is ‘open-ended and humble’ and open to revision,⁴² so the same should be said of the contents of the domains of control. What these domains entail should be determined in consultation with those with a variety of experiences, preferences, needs, and abilities, and should be revised as necessary to include further functioning experiences within the domain that can be shown to be valuable. Indeed, as the next chapter will discuss, a far greater role should be given to individuals with impairments in determining the various forms of functionings that should make up this domain. Further, the very inclusion of a multiplicity of functioning achievements within the domain avoids the central and problematic assumption underlying capabilities to function: that specific functionings are taken to be valuable or even necessary to any decent life. Defending the value of a life with ⁴² Nussbaum 2000a: 77.

110       impairment is not to defend a life lived without functioning achievements, but with atypical functioning achievements. I agree with Nussbaum’s contention that we can come to agreement on the shape of a decent human life. I only suggest that this shape should be sketched in far broader brushstrokes. Certainly, we could hardly describe a life as decent if it included no capacity for sensory experiences, no opportunities to be mobile, no ability to communicate with our fellow persons, and so on. It does not follow from this, though, that all individuals must be able to hear and see, to walk and run, and to talk and listen. The second possible objection is that, since control requires that individuals have a range of options to choose from, and since individuals’ impairments can sometimes restrict their option sets, a capabilities-to-control approach may also seem to necessarily consider at least some impairments to be disadvantageous. The status of impairment and disability as disadvantageous will be explored fully in the next chapter. Nonetheless, a response can be sketched by noting, first, that few impairments leave individuals with only one functioning option in a domain. Although asexual individuals cannot achieve sexual satisfaction, this does not mean that there is only one form of sexual expression open to them. The asexual community is a diverse one, in which some choose to engage in various forms of sexual relationships (although they themselves cannot experience sexual attraction), some engage in romantic but non-sexual relationships (and may identify as hetero-, homo-, or biromantic), and some engage in neither sexual nor romantic relationships. The diversity of potential functioning achievements is even more apparent amongst ASC individuals, as their very emphasis on neurodiversity makes clear. Individuals with sensory impairments, too, have diverse sensory experiences. Consider Helen Keller’s powerful account: My world is built of touch-sensations, devoid of physical colour and sound; but without colour and sound, it breathes and throbs with life. Every object is associated in my mind with tactual qualities which, combined in countless ways give me a sense of power, or of beauty, or of incongruity.⁴³

Thus, impairments do not ordinarily remove individuals’ ability to control their functionings or foreclose all their options, and indeed often open up new possibilities. Further, it is also true that all individuals will be unable to perform some functionings, and so lack certain experiences. For example, as ⁴³ Keller in Barnes 2009a: 15.

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Keller continues: ‘[r]emember that you, dependent on your sight, do not realise how many things are tangible’.⁴⁴ Thus, having an impairment need not make an individual unusually restricted. Or, more precisely, impairments assumed to be disabling need not remove individuals’ capabilities for control, and impairments not usually assumed to be disabling can seriously restrict individuals’ option sets. It is important to be careful about language here. As has been discussed, all individuals have impairments of some form or other, though some are widely seen as disabilities, some are not, and for some the classification will vary depending on social context and the preconceptions of whoever is making the judgement. For example, many would contend that blindness is ‘obviously’ a disability, whilst short-sightedness is ‘obviously’ not, despite the sometimes fuzzy border between cases. We cannot simply accede to such intuitions, but need a principled way to identify the impairments that are disabling. Specifically, I have argued, individuals are disabled when they lack opportunities they are entitled to. My goal here is not to offer a classification of conditions that are and are not disabling (because disadvantageous). Indeed, a central claim of my approach is that there is no single answer as to whether some impairment is disabling (as the next chapter explores). What matters is the impact of an impairment (on access to capabilities to control), and this impact depends not just on the impairment itself, but all the many factors outlined in §1.4. I have argued that whilst some individuals with presumptively disabling impairments cannot perform functionings considered central on capability-to-function approaches, they can have a range of options in central domains, and can (and should) be enabled to exercise control over their pursuit of these options. Contrary to the objection presented here, then, being unable to perform certain functionings does not rule out the possibility of control. And being entitled to control in a domain does not require having every opportunity. Indeed, as Wasserman and Asch point out, ‘[h]aving more ways to realise a good does not mean that you can realise it more fully’.⁴⁵ This is especially evident given that all individuals face limitations. Such limitations are not disabling unless they prevent individuals from having the control they are entitled to, and our intuitions about what ‘counts’ as a disability are not a good guide to when this is so. We should not, in other words, be attempting to generate the ‘correct’ judgement about paradigm cases.

⁴⁴ Keller in Barnes 2009a: 15.

⁴⁵ Wasserman and Asch 2014: 157.

112       However, I also wish to make clear that I am not making the opposite claim: that paradigm impairments are never disabling. Not everyone with Helen Keller’s or Harriet McBryde Johnson’s impairments will have the circumstances, support, and internal and external resources to have the same opportunities and control they experienced. Their testimony demonstrates not that such control is inevitable, only that it is possible—and, with more support, could be experienced more widely. There will, then, certainly be cases in which individuals’ options are sufficiently restricted that they cannot meaningfully be said to be able to control their functioning outcome in some important domain of their life, given the current availability of resources and the development of technology. Indeed, this may be true very often in the highly imperfect context in which most impairments are experienced. In such cases, these impairments are, for now, disadvantageous, and hence disabling (§5.4). My point, here, is only that this need not be true of all presumptively disabling impairments.

4.5 Capabilities to Control: Too Little Freedom or Too Much? It may further be objected either that too many assumptions are being made here about what is valuable in human life, unjustifiably ruling out some conceptions of the good, or too few assumptions about what is valuable, allowing individuals to make deeply harmful decisions, and, indeed, promoting and supporting such ‘bad’ functionings. First, then, although this approach makes fewer value assumptions than capability-to-function approaches, it may be objected that it ‘writes-in’ a commitment to autonomy, and forces choice on those who do not value it. For example, a religious conservative might agree that human sexuality is important, but vehemently disagree that our choices in this domain should be open, limited by nothing but a concern for the consent of, and potential harm to, others.⁴⁶ They may object even more to being expected to fund others’ choices in this domain. My response would be that a commitment to autonomy is a necessary feature of most liberal positions, and I will not attempt to defend liberalism to non-liberals here. That this is incompatible with the values of illiberal and intolerant individuals should not necessarily concern us. First, though individuals are provided with the capacity to set and pursue their own ends in ⁴⁶ For an argument that this should be our approach, see Begon (2019).

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certain domains of their life, they are not forced to choose autonomy-centred goals. It is compatible with the approach to allow individuals to use the control they are provided with to choose a way of life that makes little active use of this control. As §4.6 will discuss, a commitment to the value of capabilities need not entail an assumption that individuals should choose a life involving autonomy or maintain their autonomy over time.⁴⁷ If the concern is, instead, that people will resent allowing, and indeed enabling, others to have such control, then I would echo Nussbaum, who frequently notes that it is self-subverting to tolerate the intolerant, or to defend ‘strongly nonrelativistic’ local norms out of a commitment to relativism.⁴⁸ If we accept political liberalism, we need only enable individuals to pursue their own conception of the good, not enable them to force this conception on others (however much they would value the chance to do so). Hence, as Nelson notes, ‘the exclusion of liberty-violating accounts of the good life is the only departure from neutrality explicitly allowed in . . . [Rawls’s] theory’.⁴⁹ Individuals have the opportunity to pursue their conception of the good in domains of their own life but are denied the opportunity to limit others’ freedoms, through act or omission. Second, it may be objected that, rather than assuming too much, the approach assumes too little: by providing individuals with relatively abstract opportunities, and allowing them to function as they wish, the approach has no recourse against individuals making ‘bad’ choices. Further, it may support or even promote such choices. Claassen and Düwell, for example, have raised the concern that Nussbaum’s capability approach may justify supporting ‘dark’ capabilities, such as cruelty and aggression. They argue that we must distinguish the abilities that exert a moral claim to be politically protected and developed from those that do not.⁵⁰ In response, it should be pointed out, first, that the capability approach will not allow individuals to develop and exercise capabilities such that they inhibit the capabilities of others. A central concern for both Nussbaum and Sen is the separateness of persons, and they vehemently oppose utilitarian approaches that aggregate individual interests. We can assume, then, that any version of the capability approach will not allow someone to exercise their capabilities in

⁴⁷ Perfectionist liberals may object to this approach for just this reason (e.g. Chambers 2008: 159–202). (Also see Chapter 7.) ⁴⁸ Nussbaum 2000a: 49. ⁴⁹ Nelson 2008: 102. ⁵⁰ Claassen and Düwell 2013: 495–8. Note that Claassen now favours a view that is neutral on all but ‘the value of autonomy’ (Claassen 2018: 6). The state, he insists, should not ‘create a set of valuable options or discourage disvaluable options’ (Claassen 2018: 21).

114       such a way that it avoidably causes someone else to fall below the specified threshold of some other capability. Whilst there may be some hard cases, requiring difficult choices about the allocation of a limited bundle of resources, an individual certainly would not have their capacity for aggression enabled if this required the provision of a stream of victims on which to express it. Leaving aside cases of harm to others, then, should we be concerned that a capability to control approach may permit, or even promote, ‘unvirtuous’ functionings? Should individuals be provided with outlets for their aggression? Should individuals be allowed to use their control over their health, say, to undergo non-essential and seemingly harmful medical procedures, such as FGC or the voluntary removal of a healthy limb? Simply put, the answer is yes: individuals certainly should not be prevented from pursuing their conception of the good even when the content might seem distasteful to some.⁵¹ The more difficult question concerns whether such functionings would be supported, enabled, and politically protected. This answer, I think, will depend on the role of the functioning for the individual concerned. For example, removing a healthy limb might be part of an individual’s capacity to control their bodily integrity if they have bodily integrity identity disorder (BIID) and can only feel ‘complete’ if the limb is removed. Or, for some, such an amputation might be an important part of sexual expression.⁵² As a component of domains that are agreed to be important this functioning might, therefore, be amongst the options that are positively enabled: for example, by making surgeries available on the NHS.⁵³ This distinction—between what should be permitted and what should be enabled as a matter of justice—is crucial, though often elided. For example, Carter contends that insofar as the capability approach aims to provide opportunities to perform specific valuable functionings (or to choose not to), then no value will be placed on ‘dysfunctionings’: being a couch potato, eating ⁵¹ I am certainly not suggesting that FGC as it is currently practised—forcibly, against young girls, in unsterile conditions—should be permitted. Rather, I contend that if the procedure was chosen voluntarily, by consenting adults, then political liberals should not interfere with this self-regarding decision, just as they would permit cosmetic procedures including (the sometimes very similar) labioplasty. Nussbaum’s (1999: 118–29) attempt to maintain that political liberalism is consistent with a ban on FGC is unsuccessful, as Chambers (2008: 159–202) convincingly demonstrates. ⁵² Both motivations are discussed in Noll and Kasten (2014); the former in Bayne and Levy (2005); the latter in Blom et al. (2017). ⁵³ There might anyway be good reasons to do this given the dangers inherent when individuals take matters into their own hands, and in light of the positive reports of well-being of those who are successful (Reynolds 2018; Noll and Kasten 2014; Bayne and Levy 2005; First 2005). This approach is further supported in the next chapter, where I defend understanding impairment as atypicality: this then implies that the surgical removal of a limb need not entail harming the patient, undermining a central objection to its provision (also see Reynolds 2018).

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unhealthily, or engaging in non-social and anti-social behaviours.⁵⁴ Whilst ‘liberals would normally tolerate’ such behaviours, Carter insists that capability theorists can ‘prescribe . . . [them] only to the extent that each of them can be shown to have value’, either as a valuable functioning or an alternative to a valuable functioning.⁵⁵ For this reason, he suggests that to make the capability approach more permissive, we should value ‘capability as such’, or contentindependent freedom, as well as specific capabilities.⁵⁶ However, we need not choose between capabilities to perform valuable functionings (or not), on the one hand, and ‘capability as such’, on the other. I agree that we should not be overly prescriptive about the kinds of functionings individuals should choose and should enable them to pursue their own conception of the good. Thus, I do not and need not dispute Carter’s claims that, given persons’ status as setters of their own ends, it would be inappropriate and disrespectful to set their ends for them, and that a situation is better when an individual has more freedom than less.⁵⁷ However, it does not follow from accepting this that we must also believe that the state should enable people to achieve all of their ends, maximise their freedom, or ensure they have access to ‘capability as such’. Instead, we can focus on enabling individuals to be mobile, say, however they choose: supporting individuals’ access to mobility aids, prostheses, modified vehicles, and so on (and even if their mobility impairment results from their own decision to remove a limb). Yet control over mobility does not require that every desired option is provided. Control over some parts of our life may be beyond the scope of justice and the concern of the state. Plausibly, buying a sports car is neither necessary for control over our mobility, nor part of any other central domain. Thus, the state is not required to enable this functioning. This need not imply the paternalist judgement that sports cars are disvaluable, or that driving them is a dysfunctioning (at least assuming their emissions do not constitute a harm to others). Neither seems true. The state need not proscribe this functioning, then—it simply is not required to ensure that all individuals can access it.⁵⁸ Moreover, there is a benefit in such cases to adopting my approach over Carter’s. Whilst Carter advocates providing individuals with non-specific ‘capability as such’, he argues that we can identify appropriate beneficiaries on the basis of their lack of access to specific capabilities. (He advocates a ⁵⁴ Carter 2014: 91–2. ⁵⁵ Carter 2014: 92. ⁵⁶ Carter 2014: 95–6. ⁵⁷ Carter 2014: 93. ⁵⁸ It is true that the state is endorsing a judgement that such functionings are inessential to a decent life, but this does not seem to generate reasonable grounds for an insult, or an accusation of paternalism, in such cases.

116       mixed account in which both capability as such and specific capabilities have value.) Thus, he gives an example of an individual who lacks the capability to walk, and is deemed worse off for this reason. He can choose to spend his (cash) compensation as he chooses, but it is this inability that warrants the provision of compensation.⁵⁹ Given the individual will not be interfered with, this is not a case of paternalism. Nonetheless, this demonstrates the unwarranted and disrespectful assumption discussed above that individuals ought to be able to function in very specific ways, and if they cannot we can automatically assume they are worse-off and entitled to compensation. It can certainly be argued that a life goes better when an individual can control their mobility, but we should not be so wedded to the idea that specific functionings (like walking) matter. My contention, then, is not that individuals should be able to do ‘whatever they want’, but that they should be able to control central domains of their life, where this will require access to a range of acceptable options. Some domains, and some functionings, might sometimes be beyond the scope of justice. Nonetheless, unlike capability to function approaches, I am not committed to the value of a specific and narrow set of functionings and the conceptions of the good that incorporate them. Thus, to point out that my approach will support and protect various non-standard conceptions of the good is not to critique my approach but to state it—and one of its primary attractions. The aim of my approach is to ensure that we have substantive support not just to perform a functioning—for example, to be healthy—and the chance not to perform it. We should also have the substantive opportunity to be what is ‘unhealthy’ on many views: to live with ASC or deafness or blindness; to amputate a limb; to engage in sexual activities that leave bruises or scars, or engage in no sexual activity at all.

4.6 The Value of Capabilities A final line of objection questions whether providing capabilities of any form should be the goal of a theory of justice: if such theories ‘should be concerned only to promote the well-being of persons’ rather than their agency, then indeed capabilities would not be our central concern.⁶⁰ This gives rise to two

⁵⁹ Carter 2014: 96. ⁶⁰ Arneson 2006: 35 (also see 2000a, 2010). Others who share this concern include Cohen (1993, 1994), Fleurbaey (2002, 2006), Richardson (2000), and Vallentyne (2005, 2006 (see §3.4)).

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interrelated worries. First, it might be argued that a capability theory of justice overvalues capabilities at the expense of functionings. A weaker version of this worry holds that, though freedom is valuable in itself, achievements matter too. The stronger version suggests capabilities have no value unless they are actually used. Both views contend that functionings should be promoted as well as, or instead of, capabilities. Second, given that at least some items on any capability list will not be universally utilised or valued, it may be argued that the focus on providing all individuals with access to specific capabilities should be dropped, allowing instead for trade-offs between commensurable functionings and the provision of a wider array of opportunities. In response, I defend both the commitment to capabilities not functionings (in this section), and to a universal, plural, non-fungible list of capabilities (in the next). In brief, I claim, first, that it is not just the ability to achieve outcomes, but the ability to achieve them for ourselves, that is of central and ineliminable value in the context of justice; and, second, that the scope of distributive justice should not be all-encompassing. First, then, do capability theorists place an excessive degree of emphasis on leading an autonomous, self-directed life? Cohen criticised Sen along these lines, arguing that the ‘athleticism’ of his approach leaves no space for the value of benefits that are achieved passively.⁶¹ For example, the health we achieve from being in a malaria-free environment or from the rays of the sun, or nourishment from a nutrient drip. As Cohen notes: ‘[t]here are two values associated with the successful exercise of freedom. One is that the world conforms to my will and the other is that it is I who achieve that result. Sometimes the second value does not matter much.’⁶² Similarly, Fleurbaey insists that freedom is not the only thing that matters: ‘even those who like freedom a lot do also care in general about their achievements’.⁶³ This is the more moderate version of the worry that capabilities are over-valued, insofar as it does not deny the intrinsic value of freedom, but simply emphasises that achievements matter too. ⁶¹ Cohen 1993, 1994. This is a rather unfair criticism of Sen in particular, given that Sen distinguishes the value of agency and well-being and sees both as important: it matters that I control my life and it matters that my life goes well, and these concerns are not reducible to each other (see Sen 1992, 1993; Crocker and Robeyns 2010; Cudd 2014). Nonetheless, Cohen’s critique does have bite against those iterations of the capability approach that focus on agency, including my own. Further, Cohen and Sen are in genuine disagreement over whether individuals are free if the world conforms to our will even if we did not bring this conformity about. For Sen (1993: 44), ‘freedom has many aspects . . . and it would be a mistake to think of achievements only in terms of active choice by oneself’. I follow Cohen in understanding freedom to require control (also see Begon 2016a). (For a defence of Sen, see Olsaretti (2005).) ⁶² Cohen 1994: 124. ⁶³ Fleurbaey 2006: 306.

118       Indeed, this is the view that is taken by many capability theorists, including both Sen and Nussbaum: ‘freedom has intrinsic value . . . [but t]he capabilities would be pointless and idle if they were never used’.⁶⁴ Or, even more starkly: ‘if there were no functioning of any kind in a life, we could hardly applaud it, no matter what opportunities it contained’.⁶⁵ As such, much of the criticism of the capability approach for valorising autonomy is misplaced: many capability theories, including the most influential, allow that sometimes functionings should be promoted rather than capabilities. Nonetheless, this criticism is worth engaging with since I unambiguously endorse a commitment to capabilities (as the ability to control certain domains of our life), rather than the achievement of valuable functionings. The stronger version of this criticism, most clearly articulated by Arneson, goes further and insists that capabilities do not have any value in themselves. Rather, they are merely a means to ensuring individuals perform valuable functionings. Indeed, Arneson claims it would be ‘fetishistic’ to postulate that well-being freedom has ‘intrinsic moral importance’ independent of the value of actual well-being.⁶⁶ On Arneson’s view, then, freedom only has value if it actually improves lives: ‘capability provision that in no way enhances anyone’s life is pointless’.⁶⁷ He finds it yet more inexplicable that a theory of justice would deem people entitled to a capability that ‘will be ignored or wasted or mishandled by the individual to whom it is provided’.⁶⁸ Simply put, Arneson’s complaint is that ‘justice according to the capability approach obligates society to “help” [people] in ways that do [them] no good by [their] own lights’.⁶⁹ Much of this dispute arises from a deeper disagreement regarding whether theories of justice should aim to promote well-being on a case-by-case basis. It is undoubtedly true that we only consider individuals to be entitled to something as a matter of justice if we think it is, in some sense, good for people. ⁶⁴ Nussbaum 2011b: 25. As n.59 notes, Sen values both agency and well-being. ⁶⁵ Nussbaum 2000a: 87. Nussbaum’s primary justifications for promoting actual functioning are, first, that some of the capabilities are themselves so important ‘that we are sometimes justified in promoting functioning rather than simply capability’ (Nussbaum 2000a: 91); and second, that we can promote functionings to ensure that individuals do not lose access to capabilities, or ‘crucial areas of empowerment’ (Nussbaum 2004: 199) in future. Yet it should also be emphasised that Nussbaum’s writing on this topic is ambiguous, and she often argues that the goal of just public policy should be to provide access to capabilities, not functionings. (For further discussion of Nussbaum’s view see Begon 2017.). ⁶⁶ Arneson 2006: 34. Olsaretti (2005) also takes an instrumentalist approach to the value of capabilities. On her view, it is not enough simply to perform valuable functionings, we should also endorse these functionings, and this is best achieved if individuals have the capability to function or not. Thus, agency should be promoted merely as a means. And, indeed, only if the causal connection between having capabilities and endorsing valuable functionings actually holds (see Begon 2016a: 58–60). ⁶⁷ Arneson 2000a: 60. ⁶⁸ Arneson 2006: 32. ⁶⁹ Arneson 2000a: 61.

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However, welfarists like Arneson and Vallentyne assume that the goal of each instance of (re)distribution is to improve someone’s quality of life. Hence, they claim justice should never demand the provision of opportunities that are not good for some particular individual in their particular context. Yet many theorists of justice contend that individuals are entitled to opportunities (or resources, or rights) regardless of the benefits they bring, or fail to bring, in specific cases. This distinction can be seen most clearly when we consider opportunities that are indeed likely be ignored, wasted, or mishandled by some, yet plausibly remain a distributive entitlement. The opportunity to vote is perhaps the most obvious and uncontroversial example: few would suggest that we should abandon universal suffrage because some individuals ignore, waste, or mishandle their right to vote. Similar points apply to the opportunity to found a family for the resolutely childless, the opportunity to engage in sexual relationships for the determined celibate, or the opportunity for leisure for the committed workaholic: it is plausible to suggest that these individuals are entitled to these opportunities nonetheless. One line of response to the welfarist worry would be to point out the ways in which the provision of capabilities can be beneficial even when they are not exercised: that a life with opportunities to vote, have children, engage in sexual relationships, and leisure activities is better than one without, even if the functioning achievement in the two lives is identical. Indeed, I believe this is so, for at least three reasons. First, because providing opportunities to exercise control in central domains of our lives demonstrates an appropriate attitude of respect toward people as equal members of the community, or as fellow persons: everyone should have the chance to have their voice heard in political decision-making, everyone should have access to employment that leaves them with time to pursue leisure activities if they wish, and so on. Being treated with the respect to which we are entitled may reasonably be deemed to improve our quality of life compared to a scenario in which we are disrespected. Second, having an opportunity to do something significantly changes the nature of our decision not to do it. Most obviously, it is a decision. Choosing to be a workaholic is very different from never having time for hobbies (see §4.3). The value of being in control of our functioning achievements does not lie merely in the outcomes that we achieve, but in the ability to take charge of our own lives. Our political goal, then, should be empowerment and not mere functioning (see Chapter 7). Third, providing opportunities, even if unused, leaves options open if individuals change their goals or conception of the good

120       in future.⁷⁰ Individuals can choose to change their work–life balance or retrain for a different career, they can become politically engaged, or pursue nonbiological routes to parenthood. There is value in feeling that we can change our mind and pursue a different way of life, even if we are not one of those who in fact does so. Thus, even by Arneson’s own lights there might be some value to ‘wasted’ opportunities.⁷¹ Nonetheless, the core dispute remains. The capability approach is motivated by the plausibility of the claim that there is something valuable about having freedom as control over how our life goes. Welfarists like Arneson and Vallentyne contend that capabilities should only be provided in those cases when they will actually improve quality of life. The fact that freedom is sometimes conducive to well-being is, as far as they are concerned, insufficient to ground a general policy of capability provision, since in actual, specific cases well-being could be better promoted by other means, such as directly promoting or compelling functioning. It is worth noting that, contra Arneson’s caricature of their position, capability theorists do not advocate the provision of ever more freedom, even when it is not desired and might lead the recipient astray. Arneson imagines someone who enjoys a life of seeing opera and playing football, but begins using cocaine at the expense of other pursuits as a result of the additional freedom that more money provides them.⁷² Yet capability theories of justice do not argue for maximal freedom, but the provision of specific freedoms, usually to some threshold level.⁷³ It is much less obvious how freedom of this constrained sort will be positively bad for people. Nonetheless, I will grant Arneson that central capabilities might sometimes be mishandled, and undoubtedly there will be many cases where capabilities are at least wasted or ignored. Given this, are individuals still entitled to opportunities in these cases? Unequivocally, yes: we have a right to dispose of our private property, for example, even if some individuals use this right in ways that do them no good by their own lights—selling it on a whim, gambling it away, gifting it to some temporary object of their affection, and so on. Imagine someone who ⁷⁰ Of course, individuals may exercise their capabilities in ways that foreclose them changing their mind (see §4.2). Allowing individuals freedom as control encompasses the opportunity to remove their own options in this way. ⁷¹ Indeed, Arneson (2006: 32) agrees that freedoms have value as constituents of some items on his objective list of the components of well-being. ⁷² Arneson 2006: 33. ⁷³ Arneson (2006) has a distinct set of objections to sufficientarianism, which I will not engage with here.

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does not have the vote but never wanted it, or someone who was subject to a programme of sterilisation because individuals in their social group were deemed incapable of looking after their offspring but never desired children, or an individual who is excluded from educational institutions due to ableist bias and a lack of accommodation but does not see the value in education. Or, if we follow Arneson and understand well-being objectively (so these individuals’ well-being is not high despite their opinion to the contrary), then instead imagine that these individuals are, respectively, compelled to vote, prevented from being sterilised (and so subject to the constant fear of unwanted pregnancy for themselves or their partner), or made to stay in formal education (instead of pursuing a career in a domain they would prefer). The treatment of the individuals in both sets of cases seems clearly unjust, even if we assume their (subjective or objective) well-being is appropriately high. Yet Arneson and Vallentyne see the opposite answer as similarly self-evident. Perhaps much of the disagreement arises from a deep clash of intuitions of a form that parallels disagreements around paternalism.⁷⁴ I do not doubt that individual well-being might improve in some cases if policy were designed to nudge, manipulate, or even compel actual functioning. After all, if paternalist policies were always simply self-defeating there would be no interesting debate regarding their permissibility. However, the fact the paternalist policies can, at least sometimes, achieve what they are designed to—that is, make individuals better off by bypassing individuals’ choices or ignoring their autonomous capacities—certainly does not settle the question of whether we should pursue them. I can thus only appeal to the contention that competent adults should be provided with the freedom to control the course of their own lives, to pursue their goals, and to function as they wish, even if they sometimes make mistakes.⁷⁵ A further objection Arneson might push against the provision of capabilities that will be unused or misused is that it is wasteful: why spend our limited resources on this instead of something that will actually make people better off? Again, one partial response can be provided in terms Arneson would accept. This is to point out that the provision of unused capabilities need not be expensive. Providing capabilities for ongoing education and retraining, for example, does not require that we run classes in which no one has registered on the off-chance someone shows up. Similarly, the provision of accessible

⁷⁴ A debate in which Arneson has made influential arguments on both sides (e.g. Arneson 1980, 1989, compared with Arneson 2000a, 2013). (See Begon 2016b.) ⁷⁵ As Chapter 7 explores in much greater detail.

122       course materials, for example, can take account of those registered on a course (insofar as policies of universal design are infeasible). We need not, then, produce material in Braille, as audio files, in large type, and so on, ‘just in case’. Thus, in many cases, the costs of capability provision only manifest on uptake. However, cases may remain when this is not so: we may be required to run courses with inefficiently low numbers of attendees, for example, or run local elections in wards like Liverpool Central with a 12.7 per cent turnout rate and little uncertainty about the outcome.⁷⁶ We might question whether this is a good use of limited resources. There are, of course, many questions that can be asked about how our limited resources should be used. For example, should the state fund art galleries when people die of avoidable diseases? Should we provide computers for dyslexic children when children all over the world (including in developed countries) do not have enough to eat? Or, in effective altruists’ favourite example, should we fund the expensive process of training guide dogs when many lives could be saved if this money were instead spent on mosquito nets to prevent malaria? There are no simple answers to these questions, and few would find it easy to answer ‘no’ in all these cases. The problem of weighing questions of efficiency against fairness and the achievement of other valuable ends in the context of resource allocation is hardly unique to the capability approach, then. Moreover, we should be cautious of simply accepting such dichotomies. Scarcity can be exaggerated and is frequently manufactured. Often the problem is not that there is not enough to go around but that it is concentrated in the wrong hands.⁷⁷ We must refuse to allow social norms, political intransigence, or systems of government to determine what justice requires. Otherwise, unjust norms, systems, and structures could avoid this label simply by becoming sufficiently entrenched (see §2.4). Thus, in a world in which we can afford to both train guide dogs and buy malaria nets, justice might require that we do both. Similarly, justice might require us to run adult education classes with low enrolment and run elections with low turnouts, as well as providing opportunities that are more appreciated. When practicalities mean the requirements of justice cannot be fully realised, it might be that less utilised opportunities receive lower priority.⁷⁸ Yet this does not undermine the general ⁷⁶ https://www.bbc.co.uk/news/uk-england-35999707. ⁷⁷ E.g. consider Sen’s (1980, 1981) influential argument that famines take place in situations of moderate to good food availability, or Singer’s (1972, 2009) arguments that the affluent should do more to help the world’s poorest. ⁷⁸ The weighting of different capabilities is discussed below (§4.7).

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claim (which Arneson disputes) that individuals have a claim of justice that they be provided. However, a capability approach to justice would not only provide opportunities that are under-utilised or wasted. It would also not provide opportunities that would be used, appreciated, and significantly impact quality of life: for example, cash to spend as we wish, rather than free healthcare, education, and voting systems. In the end, then, the dispute revolves around the question of what we think justice is really about. Welfarists like Arneson and Vallentyne assert that it must involve improving individuals’ quality of life in every case, whilst I (alongside many others) dispute the claim that justice is reducible to well-being promotion. I contend instead that a just society is one that respects individuals as free and equal, and enables them to exercise control in certain central domains of their lives. One in which they have the chance to lead a life with high well-being, but not one which aims to maximise well-being with every state action. Thus, even if individuals would rather have sports cars, rollercoaster rides, or musical instruments than access to the voting booth or public schools, they are entitled to the latter and not the former. Individuals are entitled to capabilities even if they use them in ways we disapprove of, or which make them worse off, and even if we could instead provide them with some functioning outcome that would make their life better by nudging, manipulating, or forcing them to make better choices.

4.7 Why Capability Lists A further consequence if we were to promote individuals’ well-being rather than their freedom in specific domains is that this would generate a single scale of well-being on which individuals can be placed and ranked. And if our goal is to ensure that individuals reach a particular well-being ‘score’, and ‘well-being scores can be assigned to all functionings to which one has access’,⁷⁹ then (leaving aside the difficulty of assigning these scores) all individuals can be judged, simply, to have achieved or not achieved that score. Further, it does not matter how the target well-being score is reached as long as it is—even if it is achieved with trivial functionings, by overriding individuals’ autonomous choices about how they function, or by substituting deficiencies in one domain for greater opportunity in others. No special value is attached to achieving

⁷⁹ Arneson 2006: 25.

124       specific functionings or having access to a range of functionings, except insofar as some variation might be necessary for well-being. Thus, when the focus is firmly on well-being, there is no place for the thought, central to many iterations of the capability approach, that certain freedoms are of particular importance as entitlements of justice, and a special kind of wrong is done when these freedoms are infringed: ‘people feel that the abridgment is not just a cost to be borne; it is a cost of a distinctive kind, involving a violation of basic justice’.⁸⁰ Nor, indeed, is there space for the contention that the list of valuable capabilities is irreducibly plural,⁸¹ that individuals are entitled to each of these capabilities, and that an absence of one capability cannot be substituted with another. I suggest that these implications of welfarist views should be resisted: we should not adopt such an overall ranking, or allow capabilities to be traded. Compare, for example, a person who lacks the time and resources to engage in leisure activities but has control over their bodily integrity, with someone in the reverse situation (a wealthy individual who is raped by their spouse, perhaps). We might be able to come to a view about which of these individuals is better-off. However, simply ranking these individuals according to a single metric—well-being, say—and thereby describing the person who must work three jobs to make ends meet as ‘better-off ’ than the wealthy victim of rape and abuse is surely not the right way to characterise this case, or others like it. This is because such general judgements may blind us, first, to the fact that both individuals lack what they are entitled to and, second, to the independent and incommensurable value of these different domains. We cannot, for example, compensate someone for a lack of bodily integrity with additional opportunities for leisure, or vice versa. Even if we do genuinely manage to improve their well-being by this method, this should not be what a theory of justice advocates. Of course, in some contexts we may need to make judgements about the comparative urgency of individuals’ unmet needs, as well as the difficulty of meeting them, in order to determine how to allocate scarce resources. However, accepting a pluralist approach, according to which we cannot negate the injustice of an absence of one capability with more of another, need not commit us to the view that capabilities are so deeply incommensurable that we can never make such judgements about relative weighting or prioritisation of needs. This is not the place to defend a specific list of valuable capabilities or to

⁸⁰ Nussbaum 2006b: 56.

⁸¹ E.g. see Nussbaum 2000a: 81.

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determine how the items on the list should be identified and weighted. This is a project that has been taken up and analysed by many others.⁸² I am, however, in broad agreement with the approach employed by Wolff and de-Shalit, who adopt a method of dynamic public reflective equilibrium to identify valuable capabilities and provide guidance about their relative weightings.⁸³ Ultimately, they advocate a system of complex evaluation, utilising multiple approaches to weighting, generated through democratic consultation.⁸⁴ However, given that disadvantages in different domains tend to cluster, they note that the same groups will be identified as the least advantaged across multiple evaluation methods, making it easier to identify whose needs should be prioritised. I will not attempt to recapitulate the details of their approach, but merely raise it as evidence that accepting an irreducible plurality of capabilities does not preclude weighting competing interests and identifying the least advantaged in a way that can provide practical policy guidance.⁸⁵ Pragmatic considerations do not, therefore, necessitate a move towards adopting a single scale. More important, though, are the theoretical reasons to avoid linearising our understanding of disadvantage and to instead acknowledge that lives can go better and worse on all sorts of dimensions. Some of these dimensions may be more significant than others, and may have knock-on effects (either good or bad) in other domains of our life. Nonetheless, simply asserting, say, that a rich person with MS is ‘worse off ’ than a person without money (as Vallentyne does) unhelpfully removes ⁸² E.g. Byskov 2017; Claassen 2011; Jaggar 2006; Nussbaum 1992, 2000a, 2011a; Robeyns 2003; 2005; Sen 2004; Wolff and de-Shalit 2007. I broadly accept the content of Wolff and de-Shalit’s modified version of Nussbaum’s list, though of course I would understand these as capabilities for control, not functioning: life; bodily health; bodily integrity; sense, imagination, and thought; emotions; practical reason; affiliation; other species; play; control over one’s environment; plus doing good to others; living in a law-abiding fashion; understanding the law; communication (Wolff and de-Shalit 2007: 45–62; Nussbaum 2011b: 33–4). I would also accept Nussabaum’s subdivisions: for example, bodily integrity incorporates control over one’s mobility and one’s sexual life. ⁸³ Dynamic public reflective equilibrium is a process whereby initial theoretical assumptions are tested and, where appropriate, revised in light of the theories and intuitions of participants who have experience of disadvantage or of working with those who do (Wolff and de-Shalit 2007: 41–3). In addition to providing support for, and additions to, Nussbaum’s list of central capabilities, Wolff and de-Shalit also identify a subset of these that are of special importance: life, bodily health, bodily integrity, affiliation or belonging, control over one’s environment, and sense, imagination, and thought (Wolff and de-Shalit 2007: 106). These are particularly significant in themselves, constitute fertile functionings when possessed (‘functionings, which spread their good effects over several categories’), and corrosive disadvantages when absent (‘disadvantage that has negative effects on other functionings’) (Wolff and de-Shalit 2007: 121–2). Thus, it may be that rectifying a lack of control in these particular domains should be a priority. ⁸⁴ Wolff and de-Shalit 2007: 101. ⁸⁵ This is not dissimilar from Sen’s claim that incommensurable values and incomplete orderings can be resolved through a process of social choice, wherein a consensus is reached on the relative weight of the various dimensions (see e.g. Sen 1999a: 75–9; 2009: 235–6). Wolff and de-Shalit provide far more concrete guidance, however.

126       nuance from our understanding of their experience.⁸⁶ It might be that neither individual has what they are entitled to (though we should, of course, be cautious of assuming that merely having MS warrants this conclusion, see n. 86). It might even be that the needs of the individual with MS should take priority if we can only provide assistance in one of these cases. However, none of this implies that the able-bodied person ‘beats’ them in some overall ranking—in some ways each of their lives goes worse than the other, and in some ways better. This is so for almost any pairwise comparison we might make. It is important, then, to acknowledge the plurality of value in individuals’ lives and the multiplicity of domains over which they should have control, without which they do not have what they are entitled to, no matter how well their life is going. As such, the irreducible multidimensionality of the capability approach should not be lost.

4.8 Conclusion As a partial theory of justice, the capability approach is centrally motivated by the goal of ensuring that all individuals have the substantive opportunity to lead a decent human life, and to decide for themselves the form this life should take. The preceding chapter outlined some of the benefits of adopting capabilities as a metric of justice: by focusing on outcomes, and the multiple factors that can influence them, the capability approach avoids ranking individuals on their internal capacities, recognises the influence of contextual factors, and takes account of the ways in which unjust background conditions can undermine both opportunities and the use individuals make of them.

⁸⁶ Vallentyne makes this claim on the basis that MS is so bad that even if a person with MS had all the available money (in an imagined, two-person world) they would be worse off than the person who had no money: ‘the absence of multiple sclerosis is infinitely more valuable than any (finite) amount of money’ (Vallentyne 2006: 87). There are a number of things to object to about this case. I will mention two of them. First, it provides a paradigm example of the unwarranted yet frequent assumption that having an impairment is a tragedy, and can be employed as a case of extreme disadvantage without much thought. This is not the place to discuss the status of impairment: that will come in the next chapter. Nonetheless, it is worth flagging the deep implausibility of this case. Whilst it may be reasonable to classify MS as something that tends to make individuals’ lives go worse (hence, not value-neutral), it is not reasonable to assume that it is, in every case, (infinitely) worse than abject poverty. Second, the focus on money is misleading. We might, for example, reasonably say that someone is better off if they become disease free, despite losing £10,000 of income. However, if their past higher income had been used to achieve functionings that they can now achieve much more cheaply—for example, because they no longer need to purchase pain relief, hire home help, or undergo expensive specialist treatments—then they have hardly lost one capability at the expense of another. Rather, they have the same capabilities, but now require fewer resources to achieve them as a result of a change in their conversion factors (see §3.5).

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This chapter has argued that the focus on capabilities to control avoids the insulting justifications for capabilities to function, is better able to include individuals who do not value central functionings in the overlapping consensus, and enables people to function in non-standard ways. The aim of these chapters has been threefold. First, to defend an account of distributive justice that avoids a commitment to a restrictive conception of the good, and so avoids privileging certain ways of functioning. This means that individuals with impairments often considered to be paradigm disabilities need not count as being disabled, despite being unable to perform specific, valuable functionings. Second, to flesh out a conception of individual entitlements, in order to clarify what it means to claim, as I have, that individuals are disabled only when they lack the opportunities they are entitled to (as a result of having an impairment in a particular context). Finally, to demonstrate that taking human diversity and the fact of impairment seriously can, and should, influence our decision about the kind of theory of distributive justice to adopt.

5 Neutral Impairment, Disadvantageous Disability 5.1 Introduction Is it bad to be disabled? Are disabled individuals, ceteris paribus, worse off than non-disabled individuals? Is disability compatible with health? The answers to these questions might seem obvious, yet there is little agreement on what the ‘obvious’ answers are. Many disabled individuals do not consider their disability a bad feature of their life, they do not think they are, in general, worse off than non-disabled individuals, and in many cases consider themselves to be perfectly healthy. Experiencing the world as an autistic person, for example, need hardly be a bad thing, and deafness need not constitute a state of ill-health. Yet for many others, the opposite conclusions seem self-evident: it is bad to be unable to walk, or hear, or see, or to lack an intuitive sense of what other people are thinking and feeling; a life with these features is, all else being equal, worse than a life without them; and it is necessarily impossible to be both healthy and disabled if health entails ‘optimal or normal functioning’ and disability ‘sub-optimal functioning’.¹ Whilst this debate is often framed in terms of disability, the core dispute in fact concerns the relationship between well-being and impairment. Recall that disability is widely understood as a restriction in our ability to perform important tasks. These tasks might be those an individual is ‘likely to be required to do or would benefit from doing’,² those that would increase her welfare,³ or, in my view, those they are entitled to be able to perform as a matter of justice. In any case, on a wide range of views disability is definitionally disadvantageous. More controversial is the status of impairment. Impairments are physical or cognitive features that cause deviation from a biological or statistical norm of functioning for our species, usually taken to

¹ Bickenbach 2013: 826. Also see: Boorse 1975, 1977; Daniels 1985; Kahane and Savulescu 2016, 2009; McMahan 2005; Savulescu and Kahane 2009; Singer 2005. ² Buchanan et al. 2000: 287. ³ Kahane and Savulescu 2009.

Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0006

 ,  

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mean suboptimal functioning. Indeed, even those who defend a neutral account of disability, or argue that disability is compatible with health, nonetheless accept that impairment implies deficiency, shortfall, or limitation.⁴ Restricted vision, for example, is an impairment, whilst the inability to read written language might be part of the associated disability. Impairment is often what non-disabled individuals have in mind when considering the ‘badness’ of disability: they wonder what it would be like if their functioning capacity changed, and their conclusions are often pessimistic.⁵ Disabled individuals, too, tend to focus on functional difference when defending their condition. There is nothing inherently worse, they contend, about having different forms of sensory, motor, or cognitive functionings, though in certain contexts these can generate serious restrictions. Yet the negative understanding of impairment—indeed, the very word itself—seems to lend support to those who take a negative view of disabled life, bolstering the widespread assumption that impairments constitute barriers to a normal life, and so ought to be eliminated if possible. Further, the negative conception of impairment is also in danger of undermining both the coherence of disability pride (why be proud of a deficiency?) and the possibility of solidarity (dividing the ‘genuinely’ deficient from those merely perceived as such, as we will see). Finally, beyond an intuitive sense of where the boundaries of this category fall, it is notoriously difficult to consistently delineate which forms of functioning are the suboptimal ones. These four worries have led some theorists to simply abandon the concept of impairment, and so abandon, too, the central distinction between disability and impairment (§5.2). Instead, I defend both the value of having a concept of impairment, and its distinction from disability (§5.3). However, I argue for a neutral account of impairment, as atypicality rather than deficiency. On this view, impairment is a broad church, and may include conditions that are relatively inert or even beneficial in our current context. Disabilities, therefore, are limitations resulting from different, not deficient, ways of functioning. I argue, first, that the conception of impairment plays an important role in our theorising about disability and, second, that many objections to it can be side-stepped by moving from deficiency to difference (§5.4). The move to a neutral conception of impairment may seem to be a straightforwardly positive change from the perspective of the disability rights

⁴ E.g. Aas 2016: 1266–7; Hull 1998: 209–10; Silvers 2003; §1.4. ⁵ Although there is, of course, ample evidence that contrary to the expectations and presumptions of non-disabled people, ‘the disabled are often about as happy as healthy people are’ (Moller 2011: 189).

130       movement and the cause of disability pride. Disability is no longer associated with deficient physical or cognitive forms or processes, but merely different ones. Thus, there is no question about the potential irrationality of being proud of something that is, by definition, worse. Yet, on the other hand, the broadening of the underlying notion of impairment might seem to render the category of disability itself overly broad, diluting the sense of identity and solidarity shared by a group with a specific set of experiences, and undercutting its social usefulness as a banner under which to fight against injustice, exclusion, and rights violations. In response to these worries about overinclusiveness, in §5.5 I argue, first, that the fact that impairment will indeed be an expansive grouping need not imply that the same must be true of disability, and second, that solidarity does not require a fixed and determinate line between ‘insiders’ and ‘outsiders’. Thus, the benefits of my justice account of disability as a means of identifying and responding to injustice are by no means lost by pairing it with a neutral account of impairment. I end by considering what kind of difference the impairments usually deemed disabling really are: bad difference, mere difference, or, as I shall contend, complex difference (§5.6 and §5.7). To explain that contention, I should clarify from the start that I distinguish disadvantage, understood as a lack of what we are entitled to, from harm, understood as what negatively impacts individuals’ well-being. By saying impairments are complex differences, then, I mean that they are not necessarily harmful or disadvantageous, though they may be. In addition, whilst disabilities are, of course, disadvantageous by definition on my view, they need not be harms. Thus, from the outset it should be emphasised (again) that in the vast majority of cases individuals with impairments have, or can be enabled to have, a wide variety of opportunities. This is especially so if our focus is on enabling control over our functioning at a particular level, rather than in a particular form: individuals with many mobility impairments can often achieve high levels of mobility, even if not the ability to walk; individuals with ASC might form meaningful intimate relationships, even if unable to engage in neurotypical forms of social interaction; deaf individuals can communicate even if they cannot speak, and so on. There is, then, nothing desirable about normalcy in itself, nor any reason to think that atypical functioning is necessarily incompatible with leading a good life. Returning to the questions that opened this chapter, it is clear that none of these should be given universally positive or negative answers. As previous chapters have argued, in the context of justice our focus should be on the restrictions in the central opportunities that people face in particular contexts.

 ,  

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Whether an individuals’ impairment disadvantages them, and whether it lowers their well-being, will depend on the person and their circumstances. Given the complex effects of individual difference, we should aim to eliminate the subset of these effects that are disadvantageous, not attempt to eliminate difference—that is, impairment—itself. Rather, we should accommodate it. A neutral account of impairment best enables this approach.

5.2 The Debate about Impairment As Chapter 1 considered, it is standard in much work on disability to distinguish impairment, seen as some physical or cognitive deficiency, from disability, as a restriction in the ability to perform tasks. Impairment is seen either as directly causing such restriction (on the medical model) or to result in such restriction due to external features, such as exclusionary or discriminatory infrastructure and social norms (on the social model), or, more plausibly, a combination of the two. We should clearly reject the suggestion that impairment, unmediated by context, is the exclusive cause of disability. Yet given the essentially embodied nature of disability, we also cannot trace all the disadvantages associated with disability to social causes, nor should we expect that disability would necessarily be eliminated in a fully just society.⁶ For example, deficiency in the ability to hear is an impairment that is associated both with various direct restrictions, such as being unable to listen to music or hear voices, and with various socially mediated forms of exclusion, such as being unable to go to cinema because of a lack of subtitles or hearing aid loops, or not being shortlisted for jobs due to prejudice or lack of workplace accommodations. Thus, disability should allow for the inclusion of the experiences of both atypical functioning (i.e. of being impaired) and of being marked for exclusion or living in an environment poorly suited to one’s form of functioning (i.e. of being impaired in a given context), when these restrictions are disadvantageous. So far, so familiar: impairment is an individual’s physical or cognitive state, and disability comprises certain direct and indirect consequences of impairment. Yet it remains to be asked why this language and this distinction is so widespread, and why it might be helpful. Most obviously, this was a wise tactical move by activists fighting against the medicalisation of disability, ⁶ Indeed, proponents of the social model (of which I am not one) need not be committed to either claim, despite common caricatures of this view (see Chapter 1 for extensive discussion and references).

132       and against the focus on ‘cures’ over accommodation. The approach was ‘politically liberating’ because it ‘provided a basis to question the dominance of medicine in explaining disability’.⁷ The rhetoric of claiming that ‘disablement is nothing to do with the body’⁸ also helped to draw attention to the ways in which individuals’ opportunities can be restricted by the poor fit between norms and infrastructure, on the one hand, and some forms of functioning, on the other. This helped to shift the focus away from ‘fixing’ individuals, and towards the problems that certain social and environmental structures caused and the ways they could be modified to avoid those problems: focusing on accommodation and barrier removal, and not simply attempting to find cures. This conceptual framework constitutes a significant theoretical contribution from within the disability rights movement, reflecting the self-conception of many disabled individuals. It has had, and continues to have, a substantial impact on how disability is understood. In particular, it has helped to undermine the assumption that disabled bodies are, in some sense, defective. It is an important tool for drawing people’s attention to the various external causes of disability, to the importance of accommodation, and to the core problem of ‘fit’ between our bodies and minds and prevailing social norms and infrastructure—something rarely reflected on by those who do not experience dissonance between their physical and cognitive functionings and their context. All of which should give us strong reasons to think that this distinction should not be lightly discarded. Nonetheless, we should still ask whether distinguishing impairment and disability actually provides conceptual clarity or improves the precision of discussion in this area, especially given that some scholars, notably Elizabeth Barnes, have forcefully argued that it does not. Barnes’s first objection to the concept of impairment is that it merely functions as a way of capturing the intuitive distinction between forms of socially mediated disadvantage—such as sexual orientation, or our gender or racial identity—and those which disabled individuals experience, but without actually providing a justification or explanation of this intuition.⁹ There is clearly an intuitive distinction between the stigmatisation of a body for its perceived feminine characteristics or for exhibiting a phenotype associated with a particular racial category, and the stigmatisation of a body for its perceived physical or cognitive deficiencies. There are clear reasons, too, why we would want to distinguish these phenomena, and avoid conflating the

⁷ Vehmas and Riddle 2020: 349. Also see: Shakespeare and Watson 2001; Shakespeare 2014, and §1.8. ⁸ Oliver 1996: 35. ⁹ Barnes 2018: 1156–8.

 ,  

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experiences of all such stigmatised groups into a single category—describing all as ‘disabled’, perhaps. However, Barnes insists that the promise the concept of impairment gives of grounding the distinctiveness of the disabled experience is a false one: it does no more than appeal directly to our intuitions about which individuals are disabled. In her view, no account of impairment can be provided that will satisfactorily distinguish amongst the various causes of disadvantage, so instead we simply appeal to our intuitions to decide difficult cases by fiat: homosexuality is not an impairment, for example, and ASCs are. Further, the intuitions to which we appeal concern our judgements about disability. Thus, Barnes maintains that there is no difference between the judgement that ‘x is an impairment’ and that ‘someone with x is disabled in context C’.¹⁰ What matters are the rules used to judge who is disabled, and not the physical (or cognitive) conditions experienced by those to whom these rules apply.¹¹ Thus, judgements about disability do not depend on an account of impairment. Rather, impaired individuals are identified on the basis of a prior judgement about who is disabled. For example, paraplegia will constitute an impairment only if someone is disabled by it in a given context. Recall that, for Barnes, paraplegia is a disability if it is amongst the conditions the disability rights movement are seeking to promote justice for, given their rules about making solidarity judgements.¹² Barnes’s first objection, then, is that there is no explanatorily and extensionally adequate account of impairment that can ground our judgement that someone is disabled. On the contrary, our judgements about disability ground our claims about impairment. As such, she suggests that we abandon talk of impairment and focus instead on determining what actually grounds our judgements about disability. In other words, she believes that all important philosophical work can be done by talking in terms of disability alone. Barnes’s second objection is that drawing a distinction between disability and impairment will lead to an overly disembodied view of disability. As noted above, a plausible account of disability must incorporate both the exclusion, stigma, and disadvantage associated with one’s physical and cognitive atypicalities, and the more personal and direct experience of living with such difference. If impairment is used to capture the embodied element of the

¹⁰ Barnes 2018: 1156. ¹¹ Barnes only discusses physical, not cognitive, disabilities, hence the parentheses. I am concerned with both (and, indeed, am not convinced they can be straightforwardly separated, e.g. see Shepherd 2020: 133). ¹² Barnes 2016a: 43–38; Barnes 2018: 1155. See §1.7.

134       disabled experience, disability might seem to simply refer to exclusion, ignoring the ‘messy reality’ of having a disabled body (or mind).¹³

5.3 In Defence of Impairment I agree with Barnes about both the importance and difficulty of devising an explanatorily adequate account of impairment. It is this that motivates my adoption of a neutral account, as the subsequent two sections will explore. However, I disagree that there is no meaningful distinction between saying that something is an impairment and saying that this leads to disability in some context, and I disagree, too, that introducing a concept of impairment necessarily divorces the physical and cognitive reality of the disabled experience from an account of disability. Beginning with the former point: Barnes might be right that some of the conditions we most frequently think of as being impairments are those that result in disabilities in contexts we are familiar with. Thus, the paradigm cases of impairment—such as restrictions in sensory functionings or mobility, learning difficulties, or limited social functionings—are those that frequently lead to disabilities in our society. However, the fact that someone is disabled as a result of impairment x in one context does not demonstrate that x is universally disabling for all individuals in all contexts. Indeed, it may not (or may no longer) be disabling for individuals in any context. Yet this does not seem to alter our judgement that the form of functioning is an impairment. Myopia, for example, is not disabling in our society, given easy access to glasses, contact lenses, corrective surgery, and environmental modifications, but it might be in other places, or at other times, where no such solutions are or were available. We would not, therefore, describe this ‘x’ as a disability in our current context (or perhaps any context), though we would reasonably describe it as an impairment. This suggests that our judgements about whether something is an impairment are not reducible to whether it is currently disabling. Thus, Barnes seems descriptively wrong to insist that our intuitions about disability are prior and do all the work of identification, given there are many cases in which this is not so. Rather, we appear to be able to make independent judgements about what constitute impairments without determining their association with disability. This is so even when we focus on Barnes’s account of disability and restrict our ¹³ Barnes 2018: 1158.

 ,  

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attention to rule-based solidarity judgements: it is hardly a stretch that no disability rights movement employs rules that imply they should be fighting for justice for short-sighted people (on the plausible assumption that this is not a group suffering from injustice), yet this does not seem to undermine the strength of our intuition that these individuals are impaired. Of course, our intuitions might be wrong. Indeed, insofar as impairment implies deficiency I would contend that our intuitions are often mistaken. The point here is only to note that our intuitions and judgements about these two concepts can be independent. I also believe there are good reasons to think that they should be maintained as independent concepts. Two of these reasons have been mentioned already. First, it can be a useful means to avoid overmedicalisation and a narrow focus on ‘cures’ or elimination of difference. Second, it can be a way of distinguishing disability from other forms of socially mediated disadvantage. The above discussion now suggests a third: it is useful to be able to describe the shared experience of atypical functioning of those who have some condition—or impairment—whether they are disabled by it or not. Thus, all individuals with myopia, or paraplegia, or dyslexia have an impairment, and have some shared experiences of living with their impairment, though not all have the experience of being disabled by it. For example, a well-off dyslexic individual in our society, with access to high-quality and appropriately modified educational institutions, may not be disabled by their impairment any more than a myopic contact lens wearer is disabled by theirs. Nonetheless, they may share significant experiences with less advantaged dyslexic individuals whose condition was not diagnosed or appropriately accommodated. For example, both may experience difficulties in using ‘letter-sound relationships (phonics) in combination with context to identify unknown words’,¹⁴ or embarrassment or discomfort at disclosure.¹⁵ Of course, one of these individuals has much better methods in place for dealing with such experiences, but the experiences of such forms of functioning are nonetheless shared in a way to which a non-dyslexic individual can have no direct access. Thus, it seems to be worth identifying instances and experiences of atypical functioning, even if the connection to social disadvantage is severed in some contexts. In other words, it seems worth identifying impairment as a category. However, this might seem to raise the spectre of disembodied disability— Barnes’s second worry. She might object that the experience of functional ¹⁴ Schatschneider and Torgeson 2004: 758.

¹⁵ Alexander-Passe 2015.

136       difference is now solely encapsulated by the concept of impairment, and disability refers only to social aspects, such as stigma and exclusion. But this is not so. Impairment captures the idea of having a body or mind that functions atypically (on standard views, deficiently), and disability captures what it means to have such a body or mind in some particular context. In other words, disability should be understood as some possible consequences of having an impairment—specifically, on my view, those consequences that restrict our access to opportunities we are entitled to—and this will include elements of our bodily and cognitive experiences. Thus, individuals are not disabled merely because they are unable to function in a normal mode (cannot walk, for example), but because they function at a significantly different level and, specifically, at a level below that to which they are entitled (for example, lacking control over their mobility).¹⁶ Given that our bodily and cognitive features are always mediated by our environment, what it means to have these features will always depend to some degree on the context in which they are experienced. As such, there is no noncontextual answer to the question of what impact any impairment will have, or to whether some way of functioning is good or bad—though some may be better suited to more circumstances or to circumstances we have a higher probability of facing. Arthritis, for example, is a painful condition that frequently makes life difficult for those who have it. Nonetheless, there is no answer to exactly what this impairment involves—neither what its impact will be nor the normative valence of these outcomes—that is independent of external factors, such as climate, terrain, standard methods of travel, available medicine, and technology. Some impairments may make life more difficult or complicated in most imaginable contexts (though we should be cautious of limiting the scope of our imagination), but its consequences are nonetheless dependent on that environment. Disability is necessarily a contextualised concept on my view (and ought to be, if it is taken to have normative valence). However, the impact of context should not be narrowly construed as merely stigma and exclusion, as subsequent sections will consider further. For now, my goals are only to defend the meaningfulness and usefulness of distinguishing impairment and disability—that is, between certain ways of functioning and the context-determined impact of doing so—and to demonstrate that drawing this distinction does not imply that disability is disembodied.

¹⁶ My focus is the specific context of justice, however I am happy to allow that there might be contexts in which it is expedient to draw attention to a different set of the externally mediated effects of impairment, and so employ a difference conception of disability.

 ,  

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5.4 Impairment as Atypicality In the preceding discussion, impairment was generally described as constituting atypical forms of functioning. However, it is more ordinarily understood as a ‘physical, mental or sensory functional limitation’,¹⁷ a ‘sub-optimal functioning’,¹⁸ a ‘significant shortfall from biologically normal functioning’,¹⁹ or ‘a dysfunctional bodily state that limits a major life activity’.²⁰ In other words, impairment is usually synonymous with deficiency or dysfunction. It is assumed that if we do not restrict the relevant atypicalities to dysfunctions— indeed, often those dysfunctions that significantly limit major activities—then the category of impairment will be too broad, and thus so too will be the associated category of disability. In particular, it might seem that a broad account of impairment will imply that people can qualify as being disabled as a result of functioning that is ‘better’ than average, or due to latent or hidden pathologies. Further, that it might prevent us from distinguishing disabilities from non-pathological conditions with similar effects, or from other features of identity, for example, minority sexual preferences, sex, racial identity, or some forms of gender dysphoria. I will respond to these worries about over-inclusiveness in the next section. Here, I will consider the benefits of an inclusive, neutral approach, which avoids having to identify which of the various atypical ways of functioning are the defective, dysfunctional, or ‘worse’ ways—worse, that is, independent of a specific context. There are three key benefits to the neutral approach. First, suggesting there are independent criteria that can pick out the abnormalities that are simply ‘worse’ or dysfunctional implies that normalisation is the only appropriate solution to such dysfunction. The neutral approach does not have this assumption in favour of normalisation. Second, whilst it is uncontroversial to note that some forms of physical and cognitive functioning do not fit well in certain environmental contexts, attempting to determine which ways of functioning are non-contextually worse is far more difficult and problematic. This is not a task that the neutral approach need attempt. Finally, a conception of impairment as dysfunction encourages a distinction in the disabled community between those who are ‘really’ impaired (hence, defective), and those who are wrongly perceived as such. The neutral approach will not draw this distinction.

¹⁷ Hull 1998: 209. ¹⁹ Aas 2016: 1266.

¹⁸ Bickenbach 2013: 826. ²⁰ Howard and Aas 2018: 1128.

138       All of these points require elaboration but, before providing it, I will make a quick note on terminology. Thus far I have retained the language of impairment, given that it is widely used and I wish to avoid the unnecessary proliferation of terminology, and to avoid weakening the link to the existing literature on impairment (see §1.2). This has also allowed me to remain inclusive of both impairment-as-deficiency and impairment-as-difference views. However, now I am explicitly defending a neutral account of impairment there are reasons to use a different vocabulary to avoid having to repeatedly specify which conception of impairment I have in mind. This rationale is strengthened by the fact that the negative etymological root of ‘impairment’ means the negative connotations are difficult to shake off. Thus, I will henceforth treat ‘anomaly’ as synonymous with ‘neutral impairment’. First, then, the medicalisation of disability and the language of normalcy have long been used to stigmatise disabled individuals and to locate the ‘problem’ of disability as internal to them. This does not follow from the mere use of a concept of impairment, but from its negative construal. For example, Jerome Bickenbach has defended an account of impairment as dysfunction according to which having an impairment means being in ill health. He insists that there is no reason to resist this move, and that it can seem a ‘mystery’ why someone with an impairment ‘would ever deny, or feel uncomfortable being told, that their impairment is a health problem’.²¹ Indeed, he claims that understanding impairment as mere human variation will ill-serve the interests of disabled individuals for whom ‘access to impairment-related health care resources is an important human rights issue’.²² These rights claims, he argues, cannot be grounded unless we allow that disability is associated with ‘health problems’. Bickenbach does acknowledge that states of ill health—and, we might add, states of neediness and vulnerability more generally—can be stigmatised. His proposed solution is that we try to ‘disabuse people’ of this view.²³ Leaving aside the difficulty of eliminating such stigma (which Bickenbach fails to acknowledge), the problem with the medicalisation of impairment is not merely attitudinal. It is also the associated implication that the appropriate response to disability must involve eliminating or curing the underlying suboptimal functioning and seeking normalcy: supplying cochlear implants to remove the dysfunction of deafness, for example, or encouraging individuals with ASC to suppress repetitive and self-soothing behaviours, and other forms of atypical functioning. As already discussed, our goal should not be to ²¹ Bickenbach 2013: 821.

²² Bickenbach 2001: 50.

²³ Bickenbach 2013: 827.

 ,  

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restore a normal form of functioning, but to ensure an individual can function at an appropriate level, without associated pain, discomfort, or fatigue. This is not to say that medical intervention—even medical intervention that seeks to eliminate an anomaly—is always an inappropriate response. Indeed, in the current context, our best solution to a number of anomalies may involve removing them, and in some cases this may seem true for the foreseeable future. For example, it is not unreasonable to focus on the wider provision of drugs like Orkambi to treat cystic fibrosis, given the lowered life expectancy associated with the condition and the fact that many of the symptoms cannot easily be accommodated by structural changes.²⁴ The objectionable implication of dysfunctional accounts of impairment is the assumption that finding and providing such cures should be the default solution in every case—the only way to rectify the ‘decrement of health’²⁵ impairment entails. The neutral account does not assume impairment is a problem, thus need not assume we should always seek to remove it. However, it also need not deny that impairments can be a problem. The second problem with the negative construal of impairment is that it may not be possible to identify criteria that will satisfactorily determine the boundaries of this category: the ways of functioning that are non-contextually worse. The most obvious approach is to appeal to ‘normal species functioning’, classically defined as the statistically typical contribution for an organism’s reference class of their parts or processes to their survival and reproduction, with a reference class being an age group of a sex of a race of a species.²⁶ However, despite the claims of its proponents, this does not generate an objective, uncontroversial account of impairment as dysfunction.²⁷ First, as Elselijn Kingma has argued, much hangs on the selection of an appropriate reference class.²⁸ For example, not experiencing menstruation would constitute a deviation from normal functioning for a young adult female, but would be normal for a pre-pubescent or post-menopausal female, or for a male. Yet though the use of reference classes seems plausible in many cases, Kingma demonstrates that Boorse’s appeal to ‘a natural class of organisms of uniform functional design’²⁹ provides no objective justification for his selection of reference classes since diseases (and impairments) can occur in ²⁴ For some of the controversy surrounding the licensing of Orkambi see e.g. Cystic Fibrosis Trust 2019; Wise 2019; Boseley 2019. ²⁵ Bickenbach 2013: 826. ²⁶ Boorse 1977: 555. ²⁷ For example, Kahane and Savulescu (2012), in arguing for the derivative moral importance of statistical normality take it as obvious that we can distinguish deviations from the statistical norm in the negative and positive direction. For a critique of their argument, see Reynolds (2018). ²⁸ Kingma 2007. ²⁹ Boorse 1977: 562.

140       nature, be common, be of uniform design, be written in our genes, and be maintained by natural selection. Why, then, should race, age, and sex be considered characteristics of natural reference classes, whilst Down’s syndrome, blindness, or sickle-cell anaemia are not? Ultimately Kingma’s point is similar to Barnes’s, though in the context of defining health rather than disability: there is no empirical, value-free justification for the claim that a post-menopausal woman is normal for their reference class, as opposed to being an impaired member of a broader class of post-pubescent women, whereas an autistic person is an impaired (or nonhealthy) member of the neurotypical reference class, as opposed to a normal member of an ASC reference class. However we cash out the idea of deviation from normal species functioning, it will not cover all the cases we would wish unless we import some additional assumptions or considerations, which then do the actual work of determining what counts. Thus, the mere concept of unhealthiness (for Kingma), or impairment (for Barnes), as negative deviations from normal species functioning offers little independent guidance. Barnes has also outlined some of the implausible implications were any of the candidate theories of deviation from normal functioning employed. She argues that appeals to functionings that promote ‘survival and reproduction’, to abilities that most people have, or to inabilities that will have a substantial impact on daily life, will all generate counterintuitive cases. After all, Michael Phelps’s marfanoid habitus, which gives him the lanky physique that makes him an excellent swimmer, also puts him at greater risk of cardiac problems, and so does not promote survival. Further, being able to roll our tongue is an ability most people have, and being a petite woman might have a substantial impact on our daily life, but neither the inability to tongue-roll nor petiteness would usually be considered an impairment.³⁰ Barnes raises these examples as cases that cannot plausibly be considered disabilities, though she is similarly sceptical about the possibility of identifying the ‘feature(s) bodies [or minds] with impairments have in common’,³¹ and these cases therefore function equally well as counter-examples to deficiency accounts of impairment. It may be responded that this line of criticism simply shows that existing accounts are flawed, and not that the development of an account of relevant dysfunction is impossible. However, we can see that the problem is deeper than this when we recall that impairment is a decontextualised concept, concerning the nature of the body and mind itself and not its interaction with a particular set of circumstances. We cannot determine whether ³⁰ Barnes 2016a: 13–20.

³¹ Barnes 2016a: 25 (my emphasis).

 ,  

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particular ways of functioning are necessarily worse without knowing more about the context in which they will be exercised. The environment is not something to be layered on, which might help or hinder an already defective body. Rather, it determines what constitutes a defect. This is not undermined by the observation that some forms of functioning are likely to be disadvantageous in many prospective contexts—perhaps any conceivable context. Even seemingly easy cases, such as depression or arthritis, are not necessarily, universally, and context-independently worse. For example, for a young man in Britain in 1916, having arthritis that exempted him from military service may have been significantly advantageous. This does not imply a commitment to the implausible claim that being in pain, experiencing depression, or having lowered life expectancy are not bad things—merely to the much weaker claim that our assessment of the overall status of any anomaly must always depend on the context in which it is experienced. Given the impossibility of such abstract determinations, the content of the category of impairment-as-dysfunction is in fact determined by judgements about the kind of functionings we believe it is worse to have, focusing on what seems disadvantageous in familiar contexts, or on features that tend to be stigmatised. Thus, far from being objective, the category is constructed on the basis of prejudice and unexamined assumptions.³² The judgement that being unusually short is an impairment (that is, defective) whilst being unusually tall is not, for example, is not grounded in some feature that short stature shares with blindness, and Down’s, and paraplegia, but not with being tall. Such assumptions are made all the more dangerous by masquerading as a valueneutral, scientific category. If, however, we no longer see impairments as deviations from the norm in a certain (negative) direction, but any form of variation or atypical functioning—as anomalies—then these problems are avoided. We need not claim to have found the unifying feature identifying all and only negative impairments, and since we are not concerned with the negative there is no room for prejudicial assumptions about which forms of functioning are worse nor any need to restrict our focus to paradigm impairments (usually those that are currently disabling in familiar contexts). The third and final reason to adopt a neutral account is that it provides a means of responding to a worry that might be raised about under-inclusiveness: namely, that if impairment is deficiency, then those whose functioning cannot plausibly be described as deficient will not be considered disabled. ³² See e.g. Amundson 2000; Reynolds 2017, 2018; Shakespeare 2014; Tremain 2001, 2002; Wasserman et al. 2016a.

142       This is a problem because some apparently paradigm cases of disability do not seem to be associated with a state that can plausibly be described as an impairment in the negative sense. Perhaps the clearest example of this is individuals with some (though certainly not all) forms of ASC, many of whom strongly reject the moniker of deficiency in favour of neurodiversity.³³ To accommodate such cases, thinkers as diverse as Bickenbach and Sean Aas have suggested that individuals might be disabled even if they do not have an impairment, as long as their condition is perceived as, or treated as if it were, an impairment.³⁴ Aas, for example, contends that ‘to be disabled is to not be medically needy; but rather, to occupy a social position defined in part by false/misleading/threatening representations of medical need’.³⁵ The suggestion is that these individuals share at least the socialised element of the disabled experience—being marked for exclusion, being stigmatised, and the false perceptions of their condition—even if not the embodied, impairment element. The problem with this approach is that it leads to a distinction between those who are ‘really’ dysfunctional, and those who are merely perceived as such. First, it is not clear on what basis a deep distinction can be drawn between, say, blindness as dysfunction and autism as difference. Both are ways of functioning differently that might be correlated with disadvantage. Both can be valued by their possessors and are compatible with living a good life. Thus, it is unclear why some individuals’ refusal to conceptualise their form of functioning as a deficiency is taken more seriously than that of others. Yet the more significant problem is not the difficulty of identifying who is deficient and who merely atypical, but rather the fact that attempting to do so is unnecessarily divisive and misleadingly obscures an element of shared experience. Contrary to the claims of Aas and Bickenbach, it is not merely the social element of the disabled experience that those who are socialised as disabled share with those who are, ostensibly, truly impaired. They also share the experience of functioning differently: of being in a functioning minority.³⁶ This experience is shared with individuals with paradigm ‘defective’ impairments, such as sensory loss or mobility restriction. Like neurodiverse individuals, many do not experience their functioning as anything other than atypical. ³³ See e.g. Baron-Cohen 2017; Begon and Billington 2019; Davidson and Orsini 2013; Kapp et al. 2012; Robeyns 2016; Sinclair 2012. ³⁴ Aas 2016; Howard and Aas 2018; Bickenbach 2013: 826. Indeed, the ADA has taken this approach (see Francis 2018 for discussion). ³⁵ Aas 2016: 1273. ³⁶ This is a common theme in much of the writing by individuals with ASC (e.g. Grandin and Panek 2013; Higashida 2013; Prince-Hughes 2002; Williams 1999).

 ,  

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Yet the sense that others do not experience or move around in the world as we do is a significant part of the embodied experience of disability, distinct from how other people respond to, misunderstand, or are prejudiced against, unusual forms of functioning. Further, narrowly restricting the socialised element of the disability of those who are apparently not genuinely impaired to false, misleading, or threatening representations of their condition and their neediness fails to capture the difficulties and complexities that comes with being in a functional minority. This may include awkward or uncomfortable reactions to one’s unexpected or unusual behaviours, which may be borne not out of exclusion, stigma, or false perceptions but merely lack of familiarity. Finally, then, in addition to the difficulty of making the distinction between the truly dysfunctional and those merely perceived to be so, and the failure to account for important elements of shared life experience across the divide, reducing the disability of the neurodiverse, and perhaps others, to merely the false and threatening social reactions to their condition, undermines and ignores the embodied part of their experience. In a more just world, individuals with ASC may not be represented misleadingly and, as a result, some of them may no longer be disabled. Yet they would still be impaired in the sense of functioning atypically, and would continue to face the challenges associated with this. This can be captured with a broader, neutral conception of impairment—or anomaly.

5.5 The Over-Inclusiveness Objection My contention, then, is that impairments should be understood as atypical functionings—anomalies—which may be good or bad (depending on their impact on quality of life or individual welfare) or disabling or not (depending on whether they restrict access to opportunities we are entitled to) in particular contexts. Impairment itself, therefore, becomes a broad church, which may include conditions that are relatively inert or even beneficial in our current context. On the one hand, it may seem that this approach would be welcomed by disability activists. If disability is no longer associated with deficient physical or cognitive forms or processes, but merely different ones, then there can be no suggestion of irrationality for being proud of a feature that is, by definition, worse, nor an assumption that our goal must be the elimination of these conditions. Yet, on the other hand, the underlying notion of impairment might now seem to have been rendered too broad, undermining disability pride by diluting the sense of identity and solidarity shared by a

144       group with a specific set of experiences. In particular, this might seem to leave us with no way of excluding from the category of disability those who: (i) function better, not worse; (ii) have latent or hidden pathologies; (iii) function in ways with similar effects to genuine disorders, but without having those disorders; or (iv) experience exclusion and stigma as a result of their race or gender identity, sexuality, or some other socially mediated vector of disadvantage. Before turning to analyse these four cases in detail, I would dispute the general claim that an inclusive account of impairment must undermine disabled pride and solidarity. First, since disability involves anomalous functioning that, in a particular context, results in the loss or restriction of important opportunities, then even if many people will be deemed impaired they will not also be disabled unless these consequences follow. Thus, the inclusiveness of the category of impairment is a separate question to the inclusiveness of the category of disability. The scope of the latter category will depend on the restrictions that are deemed disabling (as Chapter 2 discussed). According to my own account, many anomalies will not generate disability (as the restriction in access to the capabilities individuals are entitled to). Moreover, there are positive reasons to allow the disability rights movement to be a relatively broad church, and reasons, too, not to believe that impairment will become meaningless unless its boundaries are carefully policed. An inclusive approach captures the shared experiences of those who once were, but are no longer, disabled though are still impaired (perhaps because their impairment is now effectively accommodated), or those who anticipate becoming disabled in future (perhaps because they have a degenerative illness that will likely result in a disabling impairment, or because they fear their impairment will cease being accommodated in the future). A further case here might be individuals who plan to undergo a form of body modification that will likely restrict their opportunities such that they are disabled: body integrity identity disorder (BIID), wherein an individual seeks to amputate a healthy limb, is the obvious example.³⁷ One interpretation of such cases is that these individuals are not, but plan to become impaired (and, perhaps, disabled). A more plausible reading, at least for those who experience body dysmorphia and a strong sense of discomfort and unease at the possession of a limb they dissociate from, is that they are currently impaired (and may be disabled), and plan to eliminate one anomaly (body dysmorphia) by acquiring ³⁷ See §4.5 for discussion and references.

 ,  

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another (the loss of a limb), which may render them more or less disabled, depending on context. To emphasise, if individuals currently lack an anomaly that relevantly restricts their abilities, then they will not be disabled. Nonetheless, there may be considerable elements of shared experience amongst this wider group, and there is little reason to think that acknowledging this will pose a threat to the cogency of disabled pride and disabled identity. For example, there is no suggestion that provisions for disabled individuals should be opened up to the wider community of the impaired. On the contrary, individuals only have a claim to additional resources on the basis of their different functioning if this actually results in a restriction to their entitlements. A neutral account of impairment simply allows for the distinct recognition of functional difference. These worries seem especially misplaced given that the disability rights movement is a way for individuals who are excluded and stigmatised as a result of their atypical functioning to fight for their rights and inclusion. Hence, it seems very unlikely that people will attempt to claim solidarity on the basis of atypicalities with few significant consequences, and which do not, therefore, disable them. On the contrary, individuals are inclined to shrug off both the mantle of impairment (as in the ASC case) and disability. Students with dyslexia, for example, may report feeling uncomfortable about being offered assistance from disability support services, and many successful disabled individuals insist that they ‘do not really consider themselves to be disabled’. In part, no doubt, this results from the inappropriately and often unjustifiably negative connotations of both terms. Simple categorisation in this domain is so difficult exactly because disability constitutes such a diverse group, yet with certain core, shared experiences (of atypical functioning and resulting exclusion). We should allow everyone who has these experiences to have a voice in determining the impact their atypical functioning has on their life, and should be cautious of excluding individuals simply because their experiences are not like our own or do not fit into the paradigm model of the disabled experience. This is not to say that any spurious claim should be accepted—there are criteria for inclusion as both impaired and disabled, which give guidance on when these terms are being inappropriately applied. Nonetheless, an openness to shared experiences in perhaps surprising places need not be antithetical to solidarity. These points can be illustrated by examining the four kinds of cases that seem in danger of being wrongly categorised as instances of disability because they will be categorised as impairment on the neutral view.

146      

5.5.1 Functioning Better If we no longer require impairment to involve functioning in a way that is in some sense substandard, then does this mean that individuals with better than normal functioning might count as being impaired? It will. And though counterintuitive given the etymological roots of the term, this implication should not be resisted. It was the very difficulty of discerning a meaningful way of distinguishing (context-independently) better or worse functionings that in part motivated the move towards a neutral account of impairment. Indeed, when we turn to any particular case it becomes clear that few atypicalities can simply be classed as beneficial. Especially so if we attempt to make this judgement without reference to context. The same atypicality that contributes to Phelps’s swimming ability also increases his risk of cardiac problems; the ASC that might make someone better at processing patterns and numbers might also make them worse at reading social cues, and so on. These need not be cases of simple trade-offs—losing sight and gaining better hearing, say. The consequences of any form of functioning are simply complex, as §5.6 will discuss. However, assume that it is possible to imagine a person whose atypicalities are positive in a decontextualised way: they have some combination of cognitive and physical abilities that would be of benefit in any context—high intelligence, athletic ability, physical beauty, and so on (assuming these qualities can be defined without reference to context). It is true that on a neutral account they would be deemed impaired, but now that this simply means atypical or anomalous, this is hardly implausible in itself. More importantly, they would never be disabled since the consequences of their atypicality are, by assumption, solely positive. (Note that if we did not assert this by fiat, it is improbable that any way of functioning would always, on balance, have a positive impact: the highly intelligent might alienate, or feel alienated from, those around them, the physically attractive (especially if female) may feel objectified, reduced to their appearance, and not taken seriously, and so on. The best we can say about desirable features or ways of functioning is that they have a high probability of being beneficial, but the effects of all are complex and cannot be assessed without knowledge of an individual and their environment.) What, though, about more realistic cases, such as Phelps or the highfunctioning autistic person? They too are impaired, and whether they are disabled will depend on the restrictions this causes (and the restrictions we take to be constitutive of disability). On the one hand, Phelps’s risk of cardiac

 ,  

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problems does not seem to render him disabled, as will be discussed in the context of latent pathologies below. On the other hand, though, such an autistic person might be disabled if the reactions to their behaviours, such as a lack of eye-contact or stimming, mean that they are passed over for jobs for which they are well qualified, or unable to form emotional connections or social networks (and even if they consider their condition beneficial overall). Yet in another, quite similar context, with different social norms and etiquette, their anomaly might have a wholly positive impact on their life and opportunities. In neither case, though, does their impairment or anomaly necessarily lead to their being categorised as disabled. I suggest enhancement should be treated in the same way: enhancements that entail anomalous functioning are impairments, and when they cause their possessor to be disadvantaged, they are disabling. This does not imply all enhancements are disabling, or even that all are impairments. As Kahane and Savulescu have emphasised most enhancements move individuals within ‘the existing range of human capacities and dispositions’—normal range human enhancement—and not beyond it—supranormal enhancement.³⁸ It is likely that I define the range of normal more narrowly than they do, since impairments are certainly within the existing range of human capacities and dispositions—though, in Kahane and Savulescu’s view, at the ‘lower’ end of that range—yet constitute anomalies on my view.³⁹ The boundaries of what constitutes normal are, as discussed, fuzzy and determined as much by social expectations and norms as by human physiology. Nonetheless, making a person with slightly below average intelligence, stamina, or concentration slightly above average would probably not involve creating anomalous functioning.⁴⁰ Interventions that ‘radically transform (even transcend) normal

³⁸ Kahane and Savulescu 2015: 133. ³⁹ Despite acknowledging that all changes in capacities have complex positive and negative effects, Kahane and Savulescu (2015: 137–8) nonetheless seem confident that we can ask—and answer—the question: ‘should we increase or enhance [property] X?’ The assumption that we can pretty clearly rank any change in capacity as positive or negative is necessary for their commitment to the value of enhancement and to procreative beneficence (Savulescu and Kahane 2009; Savulescu 2001). We need to be committed to the view that paradigm impairments are overall bad for people, and qualities like higher intelligence or stamina are overall good to make such judgements about how humans should, in general, be modified (or selected). I dispute that such features can be judged non-contextually good or bad (§5.6, §5.7). ⁴⁰ I say ‘probably’ because we can imagine a situation in which such a process is carried out over generations until the average moves quite far from what it currently is, and expectations for success in the job market and social interactions shift too. The non-enhanced, whose intelligence is at the previous average, may now have anomalous functioning in this context, and so be impaired. Enhancement can thus create impairment not merely among the enhanced, but in the rest of the population by shifting our expectations (see §2.7).

148       human capacities’⁴¹ clearly would involve the creation of individuals who function anomalously, and hence have impairments on my view. Is it unacceptably implausible to suggest that such individuals—apparently ‘perfected’—should be described as impaired and even disabled? Again, insofar as impaired means (and should ideally be replaced with) anomalous, this does not seem in the least implausible. The difference between such (imagined) individuals and the rest of humanity is what leads to the use of labels like ‘posthuman’ and ‘transhuman’ in this literature.⁴² They are certainly anomalous, then, but are they disabled? If proponents of enhancement are right and these processes can be a means to ‘achieving an ideal of what constitutes a good and flourishing person’,⁴³ then there will be no association with disadvantage and so no disability. If, as seems plausible to me, we are unable to identify qualities that are simply good or bad for us, and/or changes have unanticipated consequences, and disadvantage does result, then it is indeed possible that the enhanced will be disabled. For example, if genetic enhancements to someone’s intellectual capacities render their abilities sufficiently above the norm that they feel alienated from, and unable to relate to, the rest of the non-enhanced population, and as such lack the ability to form social relationships, then they would be disabled on my definition. This also means that we cannot maintain the simple dichotomy between impaired and enhanced individuals, and so the simple assumption that entirely distinct rules should govern the permissibility of intervening to prevent or remove enhancements on the one hand, and impairments on the other. Far from being hard cases that my account struggles to accommodate, I think these implications help to highlight the benefits of my account. A central goal of this chapter is to challenge the assumption that we can identify context-independently negative (or positive) deviations from a species norm. There do certainly seem to be some easy cases—prodigious memory seems positive, dementia negative, say—and it may initially seem odd to suggest that both conditions are alike insofar as both are impairments and may result in disability. Yet it is important to be clear about what this means. I need not deny that paradigm enhancements are less likely to be disabling than paradigm impairments (at least in the current social context). Nor need I deny the ‘insurmountable realities attached to some impairments’.⁴⁴ As the subsequent sections argue, insisting that atypical forms of functioning cannot be categorised as good or bad without considering their impact on particular ⁴¹ Kahane and Savulescu 2015: 133. ⁴² See Giubilini and Sanyal 2015. ⁴³ Fowler 2015: 68. ⁴⁴ Vehmas and Watson 2014: 642.

 ,  

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individuals, in particular contexts, does not preclude acknowledging that some of these consequences may be bad (perhaps for most). However, my view also guards against the assumption that any atypicalities are good or bad simpliciter: the loss of abilities many able-bodied individuals fear need not prevent us having all the opportunities we are entitled to, and features many would welcome may, in fact, lead to the loss of central capabilities. In my view, then, it would be both conceptually incoherent and unnecessary to attempt to distinguish disabilities that result from ‘dysfunction’ and those that result from ‘enhanced’ functioning. First, I deny that differences can be meaningfully classified in this way, prior to a consideration of their impact (disabling or otherwise). Second, if someone is unable to access meaningful work, form social relationships, participate in a political community, or move freely within their environment, surely what matters is that they lack these opportunities, and not whether they lack them due to some form of functioning others tend to welcome or repudiate (except insofar as this may inform our approach to rectifying the capability loss). It is the very assumption that the category of atypical functionings that are dysfunctional is stable and significant that I aim to refute in this chapter.

5.5.2 Latent or Hidden Pathologies Most standard accounts of impairment can straightforwardly exclude latent or hidden pathologies on the basis that asymptomatic pathologies do not seem dysfunctional or to limit major life activities. Whether they constitute functional atypicalities will, in some cases, depend on the kind of functionings we have in mind. The pancreatic functioning of a person with asymptomatic diabetes might be atypical, for example, but does not generate atypical functionings at a level that would be experienced or observed by the individual. I would contend that impairment should be restricted to observable functional atypicalities to preserve the connection with embodied experience. This is lost if we include all unusual underlying physiological structures and processes, since these are ‘found in “normal” long-lived individuals’.⁴⁵ For example, Ron Amundson discusses an example of a UK university student with previously undiagnosed hydrocephaly, who had normal intellectual and social functioning despite having ‘no more than 10% of the average person’s brain tissue’.⁴⁶

⁴⁵ Bergman et al. 1995–2020.

⁴⁶ Amundson 2000: 40.

150       At the level of bodily process his functioning was certainly atypical, though his day-to-day functioning was perfectly normal. We should focus on the observable, not merely the observed, since some cases may not be recognised by the affected individual. For example, a person who is unaware of their low pancreatic function may still experience low energy or mood swings as a result while failing to identify the cause. Or they may fail to identify that their energy levels are unusually low if they have never experienced any other way of being. Since these unacknowledged symptoms nonetheless form part of the individual’s experience they should be considered an impairment. The question of whether latent or hidden pathologies will result in disability might seem to have a more obvious answer: being latent or hidden these pathologies will not restrict individuals’ opportunities, and so will not be disabling. However, there are some complex cases. First, if treated prejudicially as a result of misconceptions about the pathology, individuals’ opportunities might nonetheless be restricted. For example, an HIV-positive person may be asymptomatic but nonetheless subject to stigma, exclusion, and bias. Whilst this is clearly a case of disadvantage, this does not seem to be a disability. Given that the individual does not experience atypical functioning they are not, on my view, impaired. Thus, insofar as disability is restricted to those disadvantages associated with impairment, these disadvantages are not disabilities. This is perhaps especially clear in this particular case since the prejudice and ill-treatment is likely the result of a combination of factors, including homophobia and negative judgements about drug-users (however misplaced). Undoubtedly, though, such individuals will share significant experiences with disabled individuals, as do those subject to other forms of discrimination, as I discuss below. Second, there may be cases in which the symptoms of an impairmentcausing pathology are hidden from an individual because their opportunities are anyway limited. For example, imagine an individual who is photosensitive but has been prevented from going outside, and so is unaffected by their condition. Although this condition is not observed by its sufferer it is observable (under more normal conditions), and hence constitutes an impairment. However, whether the restrictions they face count as a disability depends on the reason they have been subject to them. If, on receiving this diagnosis, overprotective parents have thus limited their child’s activity, this (over) reaction to the impairment disables their child—likely much more so than if they were to take a more measured approach to the condition. If, on the other hand, the individual’s restrictions are in no way related to their impairment,

 ,  

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but are, for example, the result of deeply sexist norms that do not permit unmarried women to leave the family home, then they are not disabled— though they are, of course, disadvantaged. Further, they might become disabled if they were no longer subject to sexist norms, but were then restricted by their photosensitivity.⁴⁷

5.5.3 Distinguishing ‘Genuine’ Disorders Many theorists consider it essential that an account of disability is able to distinguish ‘genuine’ disorders from normal conditions that have functionally similar affects—ensuring, for example, that we differentiate between those with disorders like sleep apnoea and those who simply do not like getting out of bed in the morning;⁴⁸ or distinguishing depression from ‘normal’ sadness following a major distressing life event; or ordinary premenstrual emotional swings from Premenstrual Dysphoric Disorder.⁴⁹ Some thinkers, for example Leslie Francis, have claimed that we need the concept of (negative) impairment to draw such distinctions, whilst others, such as Barnes, worry that the concept will itself lead to pathologising, and thus stigmatising, normal behaviours and responses. My inclusive account might seem vulnerable to both types of concern. First, it will include, and so might seem to conflate, ordinary grief, reluctance to get out of bed, and premenstrual mood swings with the ‘genuine’ dysfunctions. Thus, it may seem that it fails to draw the distinction impairment is meant to. Second, this inclusiveness may seem to lead to even more widespread pathologising than an ordinary, negative impairment account: all anomalies are deemed impairments. But such concerns would be unfounded. It may be that some cases—not liking to get up very early, perhaps—will simply be excluded on the basis that this kind of functioning cannot plausibly be described as atypical. Nonetheless, it is true that many cases not normally considered disorders are indeed anomalous, and so will count as impairments on my account, and, if this leads to a restriction in relevant opportunities, will be considered disabilities too. Yet this is not a conclusion we should be at pains to avoid, since it does not have the negative implications Francis and Barnes suppose. Certainly, it is important to understand the different causes behind someone’s insomnia—depression, transient grief, sleep apnoea, or bad choices in sleeping arrangements—in order ⁴⁷ Compare this example to that of the dyslexic girl migrating to the UK, discussed in §2.7. ⁴⁸ Francis 2018: 1146–7. ⁴⁹ Barnes 2018: 1161–2.

152       to know how best to respond. It is important, too, to identify and prioritise those people whose opportunities are most restricted, or are most subject to stigma, or whose issues are least likely to resolve without assistance. However, it is far from clear that it is either possible or desirable to clearly distinguish the point at which grief becomes depression, or even struggling to get out of bed every day becomes a sleep disorder.⁵⁰ It is right to take an inclusive approach that aims to provide all individuals with the help that they need, and it is a benefit of such inclusion that it acknowledges the impact that apparently minor forms of atypical functioning can have on people’s lives. Insomnia, for example, is often not taken seriously by GPs and other medical professionals, but the impact on individuals’ lives and health may be profound (and can be effectively mitigated with specialised cognitive behavioural therapy).⁵¹ A similar line of argument would support the (controversial) suggestion that we should cease to diagnose and distinguish individuals with dyslexia, and instead simply aim to provide early intervention for all children who experience reading difficulties, who currently may not get the help they need if their difficulties are not diagnosed.⁵² Further, what we consider to be a disorder is a transient and shifting category: the learning difficulties experienced by individuals with dyslexia were once dismissed as the result of mere lack of intelligence, for example, and ASCs blamed on a lack of maternal affection. The stability and usefulness of these, and many other characterisations, continue to be the subject of debate. We should, therefore, be less eager to exclude apparently borderline cases. Instead, I contend, we should allow the category of impairment to be expansive but focus on the nature of its consequences in a particular context— that is, whether it is disabling.

5.5.4 Distinguishing Disability from Other Forms of Disadvantage Impairment is frequently used to mark out disability as a category, distinct from other forms of disadvantage, such as those based on race or gender ⁵⁰ It might be objected that there is a clear means by which grief and depression, say, can be distinguished: one is an appropriate emotional response, the other is not. I do not, and need not, deny that drawing distinctions along these lines is possible, since my claim is not that there is no sense in which these different sorts of cases can be distinguished. Rather, I only claim that in the context of determining whether a form of functioning is atypical, and whether it leads to a restriction in relevant opportunities, such distinctions are neither relevant nor useful. ⁵¹ Parkin 2018; Taylor and Pruiksma 2014. ⁵² See e.g. Elliott and Grigorenko 2014; Elliott et al. 2016; Gibbs and Elliott 2020.

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identity, or sexual orientation. Will a neutral account of impairment be able to reliably draw this distinction? Some cases seem to be excluded from the outset, since whatever differences they entail can hardly be described as functioning atypicalities—‘atypical functioning’ hardly seems constitutive of race, for example, however race is defined.⁵³ It also seems a stretch to describe minority sexual orientations in these terms. Same-sex romantic and sexual preferences, for example, are arguably atypical and might restrict our opportunities in a number of contexts: most obviously as a result of social stigma though, in addition, this may (for now) prevent individuals having a biological child with their romantic partner. However, these restrictions cannot plausibly be described as stemming from atypical physical or cognitive functionings, but from preferences and the unjust and unjustified treatment of them. Sex-based differences may seem to present a harder case, since there do seem to be differences in the functional capacities of average male and female bodied persons. Most obvious are variations relating to differences in their reproductive capacities, though these are not the only differences: for example, females may typically experience different symptoms of a heart attack than males. We do not need to accept the existence of a strict binary, or a metaphysically deep reason to appeal to reference classes based on sex categories, to allow that our assessment of typical functionings can be indexed to the capacities of biological females and males. For example, a male unable to bear young is not anomalous, so not impaired in my sense. It might seem that trans persons are a difficult case to accommodate here. Whilst I cannot attempt a full account of this complex and controversial topic, it is not immediately obvious that this must be so. Roughly I would suggest, first, that either conforming to, or subverting, socially constructed gendered behaviours should not be considered a form of physical or cognitive functioning, but a preference about how to live our lives. Thus, individuals whose gender presentation is non-binary or does not conform to their assigned sex should not be understood as having an atypical functioning capacity. However, individuals who change their sex identity, or change their body to corresponded to their true sex, might be impaired if they are unable to perform functionings that are typical for this sex. For example, trans women who are

⁵³ Clearly this is not the place to defend a particular account of race. However, it is worth noting that most plausible accounts are broadly constructivist, rejecting the idea of ‘racial essences’, but nonetheless allowing that race possesses a contingent ‘social objectivity’ (Mills 1998: 48). As Haslanger (2000: 43) puts it: ‘Race is socially real, even if a biological fiction’. If race is, indeed, a matter of racial identity and identification not biology, then it is hard to see how or why this would be correlated with any kind of atypical functioning (e.g. Appiah 1996; Shelby 2002).

154       unable to bear young or menstruate could be said to function atypically, and could potentially be disabled too, depending on the consequences of such restrictions, just as natal women who cannot so function might be. This certainly does not imply that there is anything pathological about mere possession of a trans identity. I follow the DSM-5, then, in accepting that ‘gender nonconformity is not itself a mental disorder’.⁵⁴ This would not, of course, hold true if we do not believe individuals can choose or change their sex, in which case these trans women would be normal functioning malebodied persons with female gender identity and presentation—and thus, not impaired. I take no position on this debate here, but merely mean to sketch how various approaches would be accommodated by my account and to show that they can be accommodated.⁵⁵ A neutral account of impairment can, then, provide some guidance on distinguishing disability from other dimensions of disadvantage, without falling prey to the manifold difficulties in determining which of the ways of functioning are dysfunctional. The core role of impairment in this context is to enable us to distinguish restrictions in options that result from atypical forms of functioning, and those that result from (prejudice against) certain preferences, presentation, or appearance. Undoubtedly, then, there are structural similarities between all these kinds of cases and disability—being subject to stigma, prejudice, misconceptions, and lowered expectations as a result of one’s presumed capacities based on a superficial assessment of one’s physical appearance and behaviours—but this should not, and need not, lead to their conflation.

5.6 Mere Difference or Complex Difference? Impairments are atypical functionings or anomalies, whilst disability is a subset of the consequences of having an impairment in a specific context. I now turn to the normative questions with which the chapter opened. Specifically, under what circumstances are such anomalous functionings and their consequences disadvantageous (causing an absence of something

⁵⁴ American Psychiatric Association 2013. I leave aside here the question of whether there may nonetheless be reasons for trans persons to choose to adopt a disabled status if this is the only way to ensure their rights are protected (as Wahlert and Gill 2017 argue). ⁵⁵ For further discussion of these issues see e.g. Bettcher (2014a, 2014b), Byrne (2020); Dembroff (2018), Jenkins (2016).

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individuals are entitled to)?⁵⁶ And under what circumstances are they harmful (negatively impacting individuals’ well-being)? The central questions, here, concern the kinds of opportunities that might be restricted and the impact this tends to have on individuals’ lives. I argue that impairments are not necessarily harmful or disadvantageous, and whilst disabilities, on my view, are disadvantageous by definition, they need not cause harm. Centrally, I argue that we should be cautious of assuming that there is something especially bad about having the kinds of impairments usually considered disabling, and should not assume that it is appropriate to seek to eliminate them (see §7.9). As such, I strongly reject taking a ‘bad-difference’ view of disability and, especially, impairment: functioning differently need not be ‘bad’, understood as either harm or disadvantage. However, I do not adhere either to a ‘mere-difference’, or neutral view. I will consider and reject two versions of the mere-difference view, and argue instead for the complex-difference view. Then, in the next section, I will defend this view against arguments that the loss of opportunities entailed by disability and impairment mean it is a bad difference after all. First, Barnes has mounted an influential recent defence of the meredifference view. According to her version of the view, disability is simply something ‘that’s bad for you with respect to some aspects of your life . . . [and] good for you with respect to other aspects of your life’.⁵⁷ Her view does not, therefore, imply that there is no difference in average well-being between disabled and non-disabled people (in an ableist world); it does not imply that being disabled cannot involve the loss of some intrinsic goods (only that it is not merely this loss); and it does not imply that all the bad-making features of disability are the result of social norms and infrastructure (even if many are).⁵⁸ Insofar as Barnes’s contention is that there is not an inherent, intrinsic, or automatic connection between having a disability (or, in my terminology, having an impairment that is usually disabling) and being overall worse-off, I am in complete agreement with her. However, by including, as she does, a vast diversity of conditions within a unified category of disability, this conclusion becomes obviously true, yet somewhat empty.⁵⁹ Disability, in Barnes’s broad sense, is not necessarily a bad difference, but still encompasses conditions (whether few or many) that are bad differences. ⁵⁶ Recall that a situation in which individuals are disadvantaged is not fully just since they lack what they are entitled to, though this may not be the result of injustice (see §2.5). ⁵⁷ Barnes 2016a: 79. ⁵⁸ See §1.7 for further discussion of Barnes’s approach. ⁵⁹ On Barnes’s weak interpretation of neutrality, also see Wasserman 2018: 254–6; Hawkins 2018: 463–6; Dougherty 2014. Note that I need not be committed to the strong claim that Barnes’s account cannot be action-guiding in any context, only that it is unhelpfully vague in the context of theorising about justice (which is not, in any case, Barnes’s concern).

156       Her approach, therefore, allows us to conclude that we should not assume that all disabilities warrant removal, but it does not commit us to accepting that all disabilities are neutral features that it would be wrong to remove.⁶⁰ Thus, in the context of attempting to devise just policy proposals, at least, Barnes’s emphasis on the terms mere difference and neutrality is importantly misleading. She is right to be irritated at those who insist that her view implies that ‘the positive effects [of disability] have to balance the negative ones’, or claim that she ignores the fact that in our current, ableist context disability can often significantly reduce our good options.⁶¹ She very clearly rejects the former claim and accepts the latter. Nonetheless, it is perhaps unsurprising that her mere-difference view is assumed to mean that differences are not bad, as opposed to not necessarily bad, and Barnes does sometimes trade on this rhetoric. For example, the key thesis of her book is that ‘to be physically disabled is not to have a defective body, but simply to have a minority body’,⁶² and whilst this is true in a sense, it can gloss over the fact that some impairments, in some contexts, do lead to worse forms of functioning—indeed, in Barnes’s own words that ‘disability can, in and of itself and even in ideal social conditions, be a harm’.⁶³ As such, it simply would not be as objectionable to work to eliminate the genes that cause cystic fibrosis or multiple sclerosis as it would to eliminate genes that give rise to the phenotypes associated with racial categories. The terminology of complex difference better captures the multi-faceted impact impairments can have on different lives.⁶⁴ Alternatively, we might adopt a more substantive version of the meredifference view, which, perhaps more reflective of the term, implies disability does not encompass any negative differences. This involves restricting the scope of disability to explicitly exclude those elements most likely to be negative, such as pain or lowered life expectancy. In other words, we ‘need not deny that impairments have undesirable aspects, such as pain or discomfort—merely that those aspects are not within the scope, or part of the meaning, of disability’.⁶⁵ This view perhaps underlies Silvers’s suggestion that individuals deserve healthcare resources ‘for their pain, not for their disability’.⁶⁶ But how are we to determine which elements of some condition are inessential or separable from

⁶⁰ See §1.7 and §7.9. ⁶¹ Kahane and Savulescu 2016: 777, 776. See §1.7 for further discussion. ⁶² Barnes 2016a: 1. ⁶³ Barnes 2009b: 338. ⁶⁴ Indeed, despite Barnes’s explicit and vocal commitment to a mere-difference view, it might be argued that her approach could be more plausibly seen as a complex-difference or ‘mixed’ view. (E.g. see Stoner 2016: 939.) ⁶⁵ Wasserman et al. 2016a. Also see Wasserman et al. 2016b. ⁶⁶ Silvers 2003: 478.

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it? How, indeed, are we to determine which the ‘undesirable’ aspects are given that different individuals will resent, or dissociate from, different features, and that they will have different impacts on different lives? Certainly, disability should not be reduced to these negative elements, especially given that the correlation between these aspects and the underlying impairment or anomaly depends on the context in which they are experienced. Nor should we assume that an anomaly necessitates a general neediness or vulnerability, or implies that we must experience all potentially undesirable aspects of any form of disablement—for example, that a wheelchair user must be in pain, or that a deaf person is cognitively impaired.⁶⁷ Indeed, we should not assume that even paradigm impairments must result in any disability at all, as Chapter 2 considered at length. Nonetheless, an important part of being disabled involves living in a body, or with a mind, that functions in ways that are atypical—and sometimes uncomfortable, inconvenient, or painful. Such aspects are not all that disability is, but they are an intrinsic part of some experiences of impairment and it does a disservice to those who have these experiences to simply define them away from what it means to be disabled. For individuals who have conditions such as rheumatoid arthritis, fibromyalgia, or Duchenne muscular dystrophy, it is not clear what their disability would consist in if the elements that cause pain and discomfort were removed. Campbell and Stramondo, for example, allow that if pain were ‘an essential feature of some disability, we grant that it is plausible that that disability is intrinsically bad in that respect’.⁶⁸ Yet they also question whether pain really is an essential feature even of disabilities usually ‘defined in terms of . . . pain’, such as fibromyalgia.⁶⁹ They point out that, if a drug were developed that eliminates pain without eliminating other symptoms of the condition, we would not say the drug eliminates fibromyalgia, just as effective contact lenses do not eliminate myopia but merely manage its negative effects. From this they conclude ‘pain is not part of what fibromyalgia is, but is instead a contingently correlated symptom’.⁷⁰ However, this is a rather misleading use of ‘contingent’. It does not merely capture the externally, artificially imposed effects of impairments. Rather, it seems that all effects of all impairments are contingent in this sense: the inability to process auditory information might only be a contingent part of deafness, insofar as cochlear implants or hearing aids might mitigate these (negative?) effects. As such, it is not clear on what ⁶⁷ This point might seem so obvious as to hardly need saying, but many individuals with visible impairments report being treated as though they are needy, suffering, or incapable in all domains. ⁶⁸ Campbell and Stramondo 2017: 157. ⁶⁹ Campbell and Stramondo 2017: 178. ⁷⁰ Campbell and Stramondo 2017: 179.

158       principled basis pain, depression, and other seemingly negative elements should be seen as contingent or inessential to a condition. It is much more illuminating, then, to understand such symptoms as necessary features of various impairments, yet to focus on what impact these effects have on an individual’s life and opportunities. In other words, to allow that impairments encompass multi-faceted, complex sets of difference but to focus on determining whether these impairments are disabling.

5.7 Bad Difference or Complex Difference? We should not, therefore, pursue an account that ignores or sets aside the bad elements of impairments. Yet nor should we overestimate their negative effects.⁷¹ Demonstrating that the two most plausible iterations of the meredifference account seem mistaken, and that impairments may, in some ways, be bad for us, may be sufficient to show that we should take a complex, rather than a mere-difference view. This section will argue that a complex-difference view should also be preferred to a bad-difference view. Other theorists have also defended the view that impairments may have a mix of positive and negative impacts on our well-being. One plausible approach is Ian Stoner’s. He argues that paradigm impairments may make individuals ‘little-w’ worse-off, in that they are ‘hassles’ that cause episodes of frustration and annoyance that life would be easier without. However, they do not make individuals ‘big-W’ Worse-off, since they do not prevent individuals from discovering and pursuing rewarding projects, and so do not impair their ‘prospects for securing the substantive correlates of a good life’.⁷² Similarly, Campbell and Stramondo argue that ‘having a disability does not prevent one achieving any of the major goods of life’, though they argue disabilities are not instrumentally, comparatively, or overridingly neutral.⁷³ I need not defend a specific view here. For my purposes, the important point is that the differences impairments make to individuals’ lives are complex, and ⁷¹ On the dangers of relying on our imagination about what disabled life is like, see e.g. Amundson 2000; Mackenzie and Scully 2008; Shakespeare 1994, 2014. ⁷² Stoner 2016. Note that Stoner’s understanding of being ‘big-W’ Worse-off is closely related to my view about individual entitlements. Whilst individuals are not entitled to be free from hassles, irritations, and annoyances that may decrease their well-being (little-w), individuals are entitled to form and pursue a conception of the good (perhaps, Stoner’s Well-being). Whether this distinction is described as being between different sub-concepts of well-being (as Stoner contends), or between wellbeing and justice, does not seem significant in this context. ⁷³ Campbell and Stramondo 2017: 157. Also see Bognar 2016; Kahane and Savulescu 2016; Schramme 2014; Shepherd 2020; Stramondo 2017; Wasserman and Asch 2014.

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even when they do restrict, or make more difficult, our pursuit of certain opportunities, they are not necessarily disadvantageous. Part of the reason for this is that, as the previous chapter discussed, we are entitled to control in broadly construed domains. Having such control is achievable by a variety of means, and so will require an ability to function at a certain level, but not necessarily the ability to perform specific functionings: hence, mobility does not require the ability to walk, sensory experience does not require using all five senses, communication does not require the ability to talk and listen, artistic enjoyment does not require the ability to experience all modes of creative expression (sculpture and music and paintings and poetry). Each of the individual functionings that achieve the more general end might be valuable, but this does not imply that all of the means to the end are necessary prerequisites to meet the demands of justice (or even for individual welfare).⁷⁴ On the one hand, the claim that certain very specific forms of functioning are neither essential components of a good human life nor necessarily part of our distributive entitlements might seem obvious. Opportunities for leisure and play might be important, but why specify that these must be for football, or swimming, or chess—or indeed, all three? Opportunities to pursue meaningful work might be important, but why specify that we must have the chance to be nuclear physicists, or fighter pilots, or politicians? Yet, on the other hand, some specific options may seem to have a particular value that cannot simply be substituted by some other hobby or career path, especially when we have committed to and deeply value that option. Thus, some would argue that anomalous functioning is a bad difference when it involves functioning loss. It is certainly true that losing the ability to perform a valued functioning can reduce our quality of life. Hence, even the most ardent supporter of a meredifference view would not deny that the process of transition to the loss of a functioning will often be difficult and painful. However, this does not tell us that the end state is bad, merely that adjusting to major change—especially a change that necessitates the sacrifice of a treasured pursuit—will be bad for us, at least temporarily. Individuals, after all, have a considerable capacity to shift their goals, and frequently do so in response to much more mundane setbacks. Further, we should not assume because we are attached to some activity or pursuit that it must be an essential component of every life: my life might be meaningless without access to music, but this hardly means that every decent

⁷⁴ Also see Wasserman and Asch 2014; Stoner 2016.

160       human life must include such access, and even I may adjust my expectations over time.⁷⁵ More importantly, even where a functioning is necessary for an individual’s well-being, this does not mean they must be entitled to the ability to perform this functioning, and so disadvantaged when they lack this opportunity. Again, my primary concern here is with questions of justice. If I am right that individuals are entitled to control in certain broad domains of their life, where this involves having sufficient ability to meaningfully direct the course of their life, then this does not require that individuals have access to every option, nor every option they prefer—hence, mobility but not necessarily walking, or leisure but not necessarily a sports car. As such, it is certainly not necessary that we seek cosmetic normalcy, or superficial functioning equality. In the context of justice, our focus should be on level of functioning rather than a specific mode, and so the inability to engage in a specific form of functioning should not automatically imply that an individual lacks the opportunities they are entitled to. However, objections might be raised to this rather quick dismissal of the significance of losing valuable functionings, especially by those who advocate for bad-difference views exactly on the basis that there is something bad about losing access to valuable functionings. I will focus here on two arguments made by Jeff McMahan. First, McMahan argues that losses of ability only appear neutral because they ‘can be compensated for by other abilities that develop to fulfil its functions’,⁷⁶ such as heightened hearing to compensate for loss of sight. He insists these losses cannot really be ‘entirely neutral’ since if they were ‘they ought also to be neutral in combination; but they are not’.⁷⁷ However, McMahan is wrong to suggest that losing an ability is only nonnegative due to compensation, and wrong, too, to suggest that the fact that losing many abilities ‘would in combination make a life worse’⁷⁸ demonstrates they are individually negative. We would not say that our inability to be a surgeon is ‘compensated’ by our ability to be a teacher: these are different ways of functioning, with different benefits and challenges, and each can contribute to a valuable life. Similarly, sight loss is not compensated for by superior hearing in the sense that, bat-like, individuals can achieve something like the ⁷⁵ I consider adaptation in the context of both welfare and justice much more extensively in the next chapter. ⁷⁶ McMahan 2005: 96. McMahan’s views have frequently been subjected to criticism (e.g. Barnes 2016a: 76–7; Stoner 2016: 938–9; Wasserman and Asch 2014: 156–8). ⁷⁷ McMahan 2005: 96. ⁷⁸ McMahan 2005: 96.

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experience that sight gives us, but through a different sensory function. Rather, blind individuals have their own forms of functioning that may be superior in some respects, and worse in others, but overall are perfectly compatible with leading a good life and having what we are entitled to. Furthermore, the ‘combination problem’ McMahan outlines does not demonstrate that the loss of abilities associated with impairment is not really neutral after all. Again, the analogy with a lack of talent is useful: if we lacked all talents, this would make our life worse, but this does not mean that the ordinarily talented person, lacking several talents, is badly off, or even worse off than the polymath. On the contrary, we might think that a degree of specialism in our abilities could improve our life, insofar as we need not be plagued by the feeling that we are letting our talents in one area go uncultivated when we choose to focus our energies in another direction.⁷⁹ This is not to deny that there are impairments that restrict so many opportunities, or opportunities with such a wide-ranging impact on our lives, that they will make individuals worse off. Yet this does nothing to justify the blanket judgement that any opportunity loss associated with impairment is similarly bad—just as our limited talents need not be harmful or disadvantageous, though complete incompetence in every area probably would be. McMahan’s second argument is that lacking an ability ‘that is instrumentally valuable to those who have it is, in general, an obstacle to the achievement of the full range of goods characteristic of human life’.⁸⁰ Again, this does not seem to be the case. As noted above, a good life does not require access to everything that might make a life good. Further, each addition of individually valuable abilities or options will not always be good for us: at the very least, at some point they are unlikely to make a meaningful difference to our lives since we simply will not be able to make use of every form of potentially valuable flourishing. Indeed, it might even make life worse if it causes us to be paralysed with indecision or filled with a deep sense of regret about our wasted potential. Yet it may be objected that, whilst this may be true of some things (abilities to pursue different careers, say), it is not universally true since there are some abilities that are not interchangeable in this way. Thus, the lack of these will simply make a life go worse. The ability ⁷⁹ A much more plausible way of understanding such cases is in terms of thresholds: below a certain point, a lack of options will be bad for us. However, the fact such a threshold exists does not imply that losses above this threshold are not neutral—as noted, losses might even be beneficial if it is optimal to have options in a range below the maximum. ⁸⁰ McMahan 2005: 96.

162       to appreciate music is one of the most oft-cited examples here. It is not enough, it might be claimed, to have access to some forms of artistic or aesthetic enjoyment: music matters. In response, first, it should be noted that this loss is not uniquely the consequence of impairments usually considered disabling. Individuals who are tone deaf, or merely musically apathetic, also do not partake of this functioning, and we do not generally doubt that these individuals can have a good quality of life, or conclude that they need ‘fixing’. We might argue that it is different to choose not to listen to music because we prefer other art forms than to never have had the chance. However, many individuals who have the ability to hear nonetheless lack the capacity to appreciate music—and it is surely appreciating as opposed to merely hearing music that has value. Thus, we should be cautious of exaggerating the tragedy of the opportunity loss associated with paradigm impairments, and of ignoring the restrictions in experiences and options all people face. Clearly, following sports and supporting teams brings huge value and meaning to people’s lives, for example, yet this is not a form of flourishing I will ever have access to. Eliminating the kind of impairments that concern McMahan would, therefore, do nothing to remove the problem (if it is a problem) that some valuable opportunities and functionings are foreclosed to every person. It may, though, be objected that the problem with paradigm impairments is not merely that they entail the loss of particular options, but that they close a whole domain of valuable experiences (for example, individuals with very severe cognitive impairments may struggle to engage in any meaningful social interactions), or that they are accompanied by negative functionings (most obviously, pain). This is not an objection I can respond to, because these are not claims I deny. I am not, then, attempting to make the strong claim that impairments never make our life worse, or never have bad consequences (beyond those that arise from social and environmental causes). Indeed, I know of no one who defends this strong claim, though it is against this straw man that many of those who argue for the badness of disability pitch their response. Rather, I am defending the much weaker claim that impairments, even when they involve the loss of the ability to perform a functioning that has value in the lives of those who possess it, is not automatically or necessarily bad for us and is compatible with a good life. Further—and far more significantly given that my concern is justice—I contend that having an impairment is, in a great many cases, compatible with having the capabilities we are entitled to, and hence need not be disadvantageous.

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5.8 Conclusion There may be reasons to worry about having some anomalous functionings, then, but this is insufficient to give us reason to believe that the paradigm cases of ‘negative’ or disabling impairment are especially or uniquely bad. First, having access to fewer forms of functioning does not mean that an individual’s functioning achievement is worse, or makes their life go worse overall. It may place individuals at greater risk of lacking what they are entitled to (and of low quality of life) if they have fewer modes by which a level of functioning can be reached. However, this is true of many people: an individual whose happiness and livelihood rest on their capacity to write novels may be at great risk of lacking both well-being and entitlements when faced with writers’ block. Second, being in a functioning minority might sometimes make life more difficult and, in some respects, worse (and not just due to prejudice and bias). For as long as most people communicate verbally, for example, being deaf may remain challenging. In most conceivable circumstances living in chronic pain will, all else being equal, make a life worse. This does not imply, though, that the modes of functioning employed by individuals with impairments—or anomalies—are always worse. In part, it may merely be difficult to be at one end of the spectrum of human variation, whether at the end perceived as positive or negative. The effects of paradigm impairments, then, are often no worse than other forms of difference taken far less seriously. Both mere-difference and bad-difference views can lead to the imposition of blanket judgements about whether these conditions can or must be cured, whether these lives are worse, and whether it is wrong to create individuals who will lead them. Such universal judgements occlude diversity and can be deeply misleading as a basis for policy proposals (as the final chapter considers). Whilst generalisations might sometimes prove to be a useful heuristic, particularly in the context of public policy, we should as far as possible remain sensitive to the diverse impact of contextual and personal factors on individuals’ experience of impairment. It is these effects we should worry about, especially when they restrict people’s access to the opportunities they are entitled to, and not the mere fact that individuals function in a wide variety of ways. Thus, just as we should not assume deafness, Down’s, or paraplegia are to be avoided, nor should we assume additional sensory capacities, heightened cognitive functioning, or improved athleticism should be welcomed. Our unexamined intuitions regarding what constitutes a positive change, enhanced capacities, or superior abilities (and the reverse) should be set aside. Instead,

164       we should analyse the degree to which a form of functioning actually inhibits individuals’ access to acceptable opportunities in central domains of their life. Our focus, then, should be shifted to mitigating and removing the disadvantageous effects of atypical functioning, and not eliminating the difference itself. In short: this approach allows us to campaign against disability (as restriction) without suggesting that we should seek to normalise human bodies and minds (remove impairment), or even identify what is normal and what is ‘deficient’.

6 Disambiguating Adaptive Preferences When, and Why, Should Testimony be Trusted?

6.1 The Dilemma of Adaptive Preferences The idea that impairments are differences rather than deficiencies, and do not, or need not, lead to the loss of opportunities we are entitled to, accords with the views of many people who have impairments widely considered disabling. Many such individuals rate their subjective quality of life highly,¹ resist the suggestion that their conditions should be cured, and refuse cures when offered. They argue for the right to have disabled children, and against policies of pre-natal screening for various disabilities. They march in Disability Pride parades, and insist that disabled lives are not inherently worse than nondisabled lives. Further, as the preceding chapter has maintained, the arguments that supposedly demonstrate that paradigm impairments are necessarily bad differences are unconvincing. Nonetheless, the idea that the functioning difference or restriction associated with disability is disadvantageous—indeed, a tragic way of being—remains a widely held, and apparently common-sense, view amongst most able-bodied (and some disabled) people. Faced with such a divergence of views, whom should we trust? Thus far I have made the implicit assumption that one benefit of my approach is that it is in line with the self-conception of individuals widely considered to be disabled.² After all, disabled people may seem best placed to understand the realities of living with their conditions. As such, we may be tempted to conclude that disabled individuals’ testimonies should simply be relied upon.

¹ This is so surprising to individuals without disabilities, many of whom consider the prospect of becoming disabled as one of the greatest misfortunes that can befall us, that it has been called the ‘disability paradox’ (Albrecht and Devlieger 1999; also see Moller 2011; Mitchell 2018; Ubel et al. 2005). ² In what follows I will sometimes refer to ‘disabled people’ (or equivalent) as shorthand for the more convoluted ‘people who have impairments widely considered disabling’. The meaning should be clear from context—what is relevant here is that individuals are assumed to be, and treated as, disabled in the current context. This should not be taken to conflict with my view that individuals are disabled only when they lack opportunities they are entitled to and that, as such, many of those with impairments widely considered disabling are not, in fact, disabled.

Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0007

166       However, if this were right, then the arguments in the previous chapter would be unnecessary, and we could, instead, simply engage in the empirical task of delineating disabled individuals’ views about their conditions. Yet things are not so simple. In fact, we may think that disabled individuals’ experiences are exactly what give us reason to doubt their testimony. It is widely acknowledged that in conditions of great hardship or deprivation, individuals may cope with their circumstances by claiming to prefer and, indeed, coming to prefer, their situation to any alternative. However, such ‘adaptive preferences’ need not constitute decisive evidence that these conditions are not, in fact, deplorable. We do not, for example, consider women’s support of sexist and patriarchal norms and institutions grounds for justifying them, nor an abused partner’s preference to remain in the relationship a mitigation of this abuse.³ In a similar way, one might suggest that disabled individuals’ apparent satisfaction with their lives is not reliable evidence against the claim that many paradigm impairments must be disadvantageous. Indeed, this suggestion might seem like a neat solution: if disabled individuals’ preferences are simply deformed by the terrible circumstances in which they were forged, then we can treat their positive claims about their impairments as suspect, and maintain our intuition that their lives are tragic after all.⁴ It is certainly a solution that allows many people to maintain their strongly held intuitions. However, we should be cautious about simply ignoring the preferences and beliefs of a group who are already subject to considerable injustice. The silencing or mistrust of already underrepresented groups may constitute a serious epistemic injustice, quite apart from the possibility of being used to justify interference in their lives and choices. There has, on this basis, been a considerable backlash, for example, against the tendency amongst Western feminists to see women in the Third World as the ‘dupes of patriarchy’, whose preferences can be ignored.⁵ Elizabeth Barnes, too, has argued against adaptive preference models of disabled individuals’ preferences on the basis that when ‘misapplied . . . [they] can simply entrench pre-existing biases’.⁶ However, such worries about the misapplication of the concept of adaptive preferences should not lead us to abandon it entirely. Misuse of the term

³ See e.g. Khader 2011; Nussbaum 2001; Sen 1999b; Terlazzo 2016. ⁴ My focus is cases where merely preferring a life with an impairment is thought to cast doubt on the reliability of an individual’s testimony. Thus, I am concerned with physical and cognitive impairments that are not considered, in themselves, to radically undermine an individual’s capacity for autonomous agency. I do not consider the issues raised by severe cognitive impairment (nor take a view on which should be considered ‘severe’). ⁵ Narayan 2002: 418. Also see Khader 2011, 2012, 2013, 2019; Jaggar 2005. ⁶ Barnes 2016a: 137.

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should indeed be guarded against, but if we were to simply take individuals’ claims to be satisfied with their lot at face value, this may mean that mistreatment, injustice, and oppression are neither recognised nor rectified. If those subject to oppression do not identify their own mistreatment, they may not be entitled to redress. Indeed, it may not be considered mistreatment at all, since ‘no one complains’. Rather than opting for one or other horn of this dilemma, I suggest that a balance must be struck between taking individuals’ preferences for their current way of being as definitive, and ignoring them entirely. In other words, a theory of disability or disability justice that took no account of disabled individuals’ views would be unacceptable; yet justifiable worries about the epistemic injustice of unwarranted diagnoses of adaptive preferences should not lead us to simply take individuals’ testimony at face value. A further problem with diagnosing adaptive preferences, less frequently acknowledged, is the vagueness of the term, and the breadth of phenomena it can be used to cover. A wide variety of experiences and attitudes can be roughly grouped, and rejected, as adaptive preferences, though many of these may not seem much like preferences. Further, we might reasonably think that if the defining characteristic is adaptation, then all preferences formed in response to our circumstances should be included. It should be clarified from the outset, then, that ‘adaptive preferences’ as the term is used in the literature is both broader and narrower than an intuitive understanding of the concept. Broader because it includes not just preferences, but something like ‘evaluative states’,⁷ and narrower because it includes only those adaptations that are, in some sense, unreliable. However, even accepting these restrictions, ambiguity remains: in particular, concerning what constitutes relevant unreliability. My goal in this chapter, therefore, is to respond to the problems of both misapplication and vagueness by clarifying the various phenomena loosely categorised as adaptive preferences. In particular, I distinguish between adaptive preferences that are an unreliable guide to individuals’ interests (‘wellbeing adaptive preferences’), and those that are a poor guide to just policy and, in particular, to distributive entitlements (‘justice adaptive preferences’). Drawing this distinction allows us to see the different ways in which individuals’ preferences may be unreliably adaptive, and the different responses that may be appropriate. It also makes clear that we should not simply distinguish individuals with adaptive preferences from those without, nor should we ⁷ As Terlazzo (2016: 206) notes, the term incorporates both ‘comparative preferences proper’ and ‘non-comparative states like desires, judgements of values, etc.’

168       distinguish preferences that are adaptive (for all purposes, in all contexts) from those that are not. Many, if not all, individuals possess some form of adaptive preferences at some time, yet it is only a subset of these (justice adaptive preferences) that warrant exclusion from determining the content of an account of just policy. Further, whilst all adaptive preferences are nonautonomous, only well-being adaptive preferences are irrational. As such, preferences may be deemed unreliable from the perspective of justice, without impugning individuals’ rational capacities. Thus, correctly diagnosing an individual’s preference as adaptive need not constitute epistemic injustice, nor insultingly malign their capacities as a rational agent. I will begin by outlining how traditional, procedural accounts of adaptive preferences differ significantly from the kinds of adaptive preferences that raise concerns in the context of social justice (§6.2). I then outline how these proceduralist accounts of adaptive preferences—which I call well-being adaptive preferences—should be understood (§6.3). Next, I argue that it is important to maintain an account of adaptation of this form, even if our concern is primarily those forms of adaptation relevant to justice (§6.4). Identifying those adaptive preferences that are relevant to justice requires a more substantive approach than pure proceduralism can provide (§6.5). However, such substantive accounts should not come at the expense of identifying procedural flaws in preference formation: both approaches are needed to understand the different ways in which individuals’ preferences may be unreliably adaptive (§6.6), and the different responses that may be appropriate (§6.7).

6.2 Adaptation and the Political Project Well-being adaptive preferences are adaptive preferences as classically understood. Roughly, individuals adapt to constrained options in ways that render their resulting preferences procedurally irrational and non-autonomous, and so undermine their possessor’s authority about their own well-being. These classic accounts of adaptive preferences, developed by Jon Elster and his critics, are modelled on the ‘Fox and Grapes’ parable.⁸ On realising he cannot reach the grapes he desires, the fox insists ‘grapes are too sour for foxes’, and he did not want them anyway. It is assumed this response is irrational, and not a reflection of his best interests.

⁸ E.g. Elster 1987; Bovens 2002; Bruckner 2009; Colburn 2011; Zimmerman 2003.

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These accounts root this irrationality in procedural flaws in the process of preference formation. For example, that the preferences were formed (necessarily) unconsciously in light of the diminished options, or do not cohere with our other beliefs and preferences (in the case of the fox, regarding the ideal sweetness of fruit).⁹ They focus on capturing the idea—central to our intuitions about the fable—that the fox’s preference is unreliable because he is unconsciously ‘fooling himself ’: he has failed to acknowledge his limitations, or to recognise that the real reason he no longer prefers grapes does not concern their sourness. After all, he would still happily consume more easily accessible grapes. But if, instead, the fox responded to being unable to reach the grapes by consciously cultivating a taste for a sweeter, lower-hanging fruit, and so would no longer consume grapes even when offered, then this would not be an adaptive preference, but conscious, rational, and autonomous character planning. It is suggested, on such accounts, that we should not distrust such preferences in the same way, since even though they are formed in reaction to our circumstances (and hence are adaptive in a sense) they can more plausibly be considered a new but genuine preference that reflects our new goals and character. In addition to the literature focused on procedural flaws in the formation of adaptive preferences, and their resulting lack of autonomy, there has also been considerable discussion of how the problem of adaptation operates in realworld contexts, with particular focus on situations of economic deprivation and gender-based oppression.¹⁰ It has been widely observed that individuals express happiness and satisfaction in the face of deprivation, oppression, and suffering when they become used to such circumstances, and that apparent improvements in their material circumstances do not always translate into reports of higher levels of happiness or satisfaction. This can be observed at the societal level: for example, whilst richer individuals within a country tend to report greater levels of happiness, improvements in the wealth and income in a country as a whole do not improve average reported happiness.¹¹ It can also be illustrated with more specific, individual cases. Sen, for example, famously discusses ‘the hopeless beggar . . . the dominated housewife, the hardened unemployed . . . [who] take pleasures in the small mercies and manage to suppress intense suffering for the necessity of continued survival’.¹² ⁹ These are the views of Colburn (2011), Elster (1987), and Bovens (2002) respectively. ¹⁰ The most prominent voices here are, perhaps, Nussbaum (e.g. 2000a, 2001), Sen (e.g. 1988, 1999b), and Khader (e.g. 2011, 2013). ¹¹ This is the Easterlin paradox (see e.g. Moller 2011 for further discussion). ¹² Sen 1988: 45–6.

170       Given that these cases are also referred to as adaptive preferences, it might be natural to assume that these are also of the procedurally flawed, ‘sour grapes’ form—especially given that a clear alternative account is often not provided. Yet examples such as Sen’s belie this.¹³ These individuals are not obviously ‘fooling themselves’. Indeed, many seem well aware of their suffering, and make considerable conscious effort to suppress it. Further, unlike the fox, these do not seem to be cases in which forming these preferences is irrational. We might say the same of individuals who revise their expectations up in light of improved prospects in their country: there is nothing obviously procedurally irrational about this process. Such cases are part of the widespread phenomenon of hedonic adaptation, wherein, after a change in circumstances—whether winning the lottery or losing the use of one’s legs— ‘people tend to adapt fairly quickly to the state they are in . . . and adjust their reported utility accordingly’.¹⁴ Sometimes, such realigning of our standards in light of our particular circumstances seems perfectly appropriate and benign: it is rational for individuals to expect more when the standard of living in their country increases. At other times, the realignment seems to conceal injustice: unemployment does not cease to be a concern if individuals become ‘hardened’ to the suffering it entails. The standard, procedural accounts seem ill-placed to distinguish such problematic adaptive preferences from benign adaptation (or, ‘adapted preferences’ in Polly Mitchell’s terminology¹⁵). As such, they will be inadequate in various social justice contexts. First, standard accounts are over-inclusive, since they may include as adaptive preferences those that are unconsidered yet do not seem unreliable from the perspective of justice, and would not warrant public mistrust or political interference. For example, we may mistrust a woman’s unconsidered preference to undergo female genital cutting (FGC), but not a similarly unconsidered preference not to undergo FGC. Second, these accounts are under-inclusive, since they fail to include many paradigm cases, such as those listed by Sen. As noted, these frequently lack the relevant procedural flaws in their formation. For example, we may mistrust a choice to undergo FGC that is procedurally autonomous and rational, if it is made against unjust background conditions—if, say, it is the only means to marriage, which in turn is necessary for economic security or social status— ¹³ See Khader (2011: 8–10, 42–6) for discussion of the discrepancy between Sen’s examples and Elster’s account. ¹⁴ Mitchell 2018: 1007. Also see Kahneman 2000; Kahneman and Sugden 2005; Dolan and Kahneman 2008. ¹⁵ Mitchell 2018.

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just as we mistrust the preferences of Sen’s beggar, housewife, or unemployed person. Note that such mistrust does not involve questioning individuals’ rational capacities (as §6.6 will consider at length). On the contrary, my point is that observing that a preference or choice like this does meet the requirements of procedural rationality does not end discussion on whether justice has been done and whether there may be a case for state intervention. We must also take account of the social norms and wider context that determine what preferences and decisions may become rational amongst a constrained option set—one in which FGC is the best alternative, for example. Given these problems, we may be tempted to conclude that, in the context of social justice, these procedural accounts of adaptive preferences are simply useless. Indeed, this is the conclusion many of those writing in this context have come to. Martha Nussbaum, for example, rejects proceduralist accounts, arguing that ‘[Elster] needs something he does not give us, a substantive theory of justice and central goods’,¹⁶ if we are to be able to distinguish the adaptations relevant to justice from those that are not. Serene Khader has also argued against such accounts on the basis that they will lead us to mistrust preferences that are not ‘worthy of public interrogation’,¹⁷ thus generating conclusions about when public mistrust and interference are appropriate that are inconsistent with our intuitions.¹⁸ Such concerns are well summarised in Rosa Terlazzo’s insistence that all accounts of adaptive preferences must meet the following criterion of ‘political efficacy’: An account must provide us with a valuable tool for combatting marginalization and oppression, by explaining which preferences deserve social suspicion and why they do so. It must include paradigm cases of adaptive preference and exclude preferences that have nothing to do with the political project.¹⁹

Traditional, proceduralist accounts will undoubtedly fail this test. As discussed, they will include preferences that have nothing to do with justice and the political project—for example, the unconscious decision to reject FGC, and the fox’s rejection of the inaccessible grapes (and other more realistic but similarly trivial examples). In addition, and as the next section will discuss further, they will exclude preferences that are relevant to justice and do deserve ¹⁶ Nussbaum 2001: 79. ¹⁷ Khader 2011: 75. ¹⁸ Khader 2011: 74–106; Khader 2009. ¹⁹ Terlazzo 2016: 210. Also, see Nussbaum 2000a, 2001; Barnes 2016a, 2009a.

172       social suspicion. Yet this failure is hardly surprising given that they were never designed to pass such a test, concerned as they are with procedural rationality rather than social justice. I agree, therefore, that we need an account of adaptive preferences that is politically efficacious, and it is for this reason that I offer an account of justice adaptive preferences: preferences that are a poor guide to individuals’ entitlements. However, it does not follow that there is no value in maintaining an account of adaptive preferences as procedurally non-autonomous and irrational, and so a poor guide to individuals’ interests. That is, an account of what I call well-being adaptive preferences. Some justice adaptive preferences are rational (and so not also well-being adaptive), whilst others are both justice and well-being adaptive. Justice and well-being adaptive preferences, then, are overlapping but distinct categories, and both should play a role in our understanding and diagnosis of adaptive preferences since different responses will be appropriate in different sorts of case (§6.7).

6.3 Well-Being Adaptive Preferences If, then, an account of procedurally non-autonomous preferences is needed, how is such an account to be cashed out? Elster saw the distinctiveness of adaptive preferences in the fact that they are formed unconsciously, or ‘behind our backs’, in light of diminished options.²⁰ Nussbaum, amongst others, has argued convincingly that Elster’s account is likely to be over-inclusive even by his own lights, demanding conditions of procedural rationality few of our preferences meet. As she points out, we are not—and should not be— ‘suspicious of any desire that is formed through [unconscious] adjustment to reality’.²¹ This is not simply the criticism that this account cannot pick out adaptive preferences relevant to social justice, but the broader claim that it cannot distinguish unreliable preferences in any context. Too many of our preferences are unconsciously formed for this account to be useful: for example,‘[t]he desire for food is not normally induced through conscious hunger creation’.²² This is true, too, of more significant preferences: for example, abandoning our childhood career aspirations for reasons we are unconscious of, is not usually thought to cast doubt on the rationality or reliability of our commitment to our adult occupation.

²⁰ Elster 1987: 117–19.

²¹ Nussbaum 2001: 78.

²² Colburn 2011: 57.

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Other authors have offered alternative accounts of why fox-and-grapes cases of adaptation tend to be irrational, whilst character planning is not. For example, Luc Bovens argues that adaptive preferences are irrational because they do not cohere with our other beliefs and preferences.²³ As such, these preferences cannot be reflectively endorsed by an agent. I focus here, though, on Ben Colburn’s autonomy-based account, since this seems to best capture the problem with these kinds of cases. In brief, Colburn argues that adaptive preferences are the result of ‘covert influences’. By this he means that the reasons for our adaptive preferences are necessarily hidden from us, such that they could not explain our commitments if we were conscious of them—we would either adduce independent reasons for our preference or repudiate it. Thus, the fox’s claim that grapes are sour could no longer explain his preference not to eat them if he were aware that the real (and covert) cause of this preference was their inaccessibility. He would need another reason to reject the grapes, or must give up the repudiation of them. Colburn’s account does not imply that all unconsciously formed preferences are adaptive (as Elster’s account seems to), nor that any influence on our preferences is suspect. Rather, we should be suspicious of adaptive preferences because they result from influences their possessor does not, and would not, reflectively endorse, given their current disposition and convictions. The fox does not believe being difficult to access is a good basis on which to form preferences about fruit. More realistically, imagine that we realise that the reason we have revised our career aspirations is that we lack the talent to pursue our original dream, and possess the aptitude for our current path. This need not cause us to doubt our goals. Although we may have been unconscious of the reason for our career choice prior to reflection, this is a reason most would accept on becoming aware of it (that is, they would reflectively endorse this influence on their preferences). Compare this with a case in which we only abandoned our dream of being a scientist due to being subtly undermined by a sexist science teacher. We do not endorse his view (that ‘women are not cut out for science’), so this could not justify our preference for non-scientific pursuits. Possessing an adaptive preference of this sort—one arising from covert influences—involves a lack of procedural rationality, since we are acting for reasons we could not accept. More significantly, these preferences lack autonomy, understood as ‘deciding for oneself what is valuable, and living one’s life in accordance with that decision’.²⁴ Deciding for oneself, Colburn argues, ²³ Bovens 2002. Bruckner (2009) offers a similar account. Also see Zimmerman (2003). ²⁴ Colburn 2011: 61; 2010: 19.

174       requires both that we would endorse our values if we were to reflect on them, and that our decisions and values are formed free from factors that undermine our independence.²⁵ It is the independence condition that cannot be met when an individual is subject to a covert influence: we cannot be said to be deciding for ourselves when our reasons for actions are necessarily hidden from us. Thus, individuals’ autonomy is undermined. This may be most obvious in cases such as subliminal advertising and hypnotic suggestion, but also captures cases such as the woman who has rejected science due to the more subtle machinations of her teacher. It also seems that our well-being would improve if we were no longer subject to covert influences. In other words, we would be better off if we were to revise the resulting preferences (or our reasons for holding them) such that we no longer possessed preferences or desires for reasons we could not accept. On a simplistic, hedonic conception of welfare this may not be true. After all, individuals might genuinely experience a state of happiness or satisfaction even when they have been subject to covert influences: the above individual may feel real pleasure pursuing her new career even if she is necessarily unconscious of her reason for choosing it. However, this may simply seem to constitute evidence that well-being should not be reduced to positive mental states given the malleability of what can produce these states.²⁶ On the contrary, it is plausible to believe that individuals’ well-being consists in their life going well according to standards they could consciously accept. This is a subjective view insofar as our well-being depends on what we individually value, and not on our ability to access a particular set of goods in which we might see no value.²⁷ However, it does not imply that well-being is reduced to the achievement of some positive mental state, irrespective of the means by which this is reached (be it brainwashing, hypnosis, or acclimation to long-term deprivation). Thus, even if someone is able to reliably report whether they are experiencing a state of happiness or satisfaction, this does not imply that they are also a reliable guide to their own well-being in this wider sense. An autistic individual excluded from most face-to-face socialising by exclusionary social norms that stigmatise their unusual behaviours (stimming, limited eye-contact, direct manner, say) might experience genuine happiness in the online communities and relationships they engage with instead. Nonetheless, it seems plausible to suggest they would be better off if they ²⁵ Colburn 2010: 25; 2011: 63. ²⁶ As Sen (1999a: 63) e.g. has convincingly argued: ‘the mental metric of pleasure or desire is just too malleable to be a firm guide to deprivation and disadvantage’. ²⁷ As per Arneson’s (2000a, 2006) view; see §4.6 for further discussion.

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were not pushed into expressing their sociability in this manner for reasons they cannot endorse. In other words, their well-being would increase if they could form (and fulfil) their preferences regarding social relationships without covert influences. Since my interest is in questions of justice, I will not get too side-tracked by the debates over the various conceptions of well-being.²⁸ However, I will say a little more in support of the claim that we should not assume that fulfilling preferences formed as a result of covert influences will improve their possessor’s well-being. First, these preferences are unstable insofar as they are based on reasons the possessor could not endorse, and so will be subject to change whenever the true root of these preferences is made known to them. Relatedly, we can expect that individuals would prefer a situation in which they had preferences for reasons they could endorse, perhaps even if this is one in which they were less satisfied. Our well-being surely depends on achieving goods or goals that we believe are valuable. Well-being adaptive preferences, arising from covert influences, do not reflect our values. Instead, they depend on norms, actions, or circumstances that we could not agree to be good reasons for our current preferences. This is not to say, however, that those who are subject to covert influences must disavow the resulting preferences. Even if we originally embarked on a particular path or life plan for reasons we could not have endorsed, it may be that after pursuing it for a sustained time we can now give independent reasons for our current preference that we could endorse. Returning to our dissuaded scientist example: we might not endorse the (sexist) reasons that led us to begin pursuing philosophy instead, but if we now see more value in philosophy than science, then we can endorse our current preference for it. The same goes for the autistic individual now immersed in online communities. We can escape the impact of the covert influence and decide for ourselves that our goals are valuable. If we do so, this would cease to be a well-being adaptive preference, and achieving this goal would contribute to our well-being. There will, of course, be borderline cases in which it is difficult to determine whether someone really is necessarily unconscious of the reason for their preference. Imagine, for example, a disabled individual who learns, perhaps in therapy, that they have some preference (not going to university, say) as a result of being subject to stigma. Yet despite ‘knowing’ the primary cause of their preference, they do not attend to it, push it to the back of their mind, and ²⁸ For a useful discussion of well-being and adaptation see van der Deijl (2017, 2020).

176       deceive themselves into thinking they have this preference for other reasons. In a sense they are conscious of the real reason for the preference (the stigma). However, insofar as they continue to deceive themselves about the reason for their preference, fail to take on board or internalise the additional evidence they now have, and are unable to adduce reasons to continue to hold this preference that they could accept, then they are both not truly conscious of this influence and—more importantly—could not continue to hold the preference if they were to become properly conscious of it (absent further reasons). Thus, insofar as the covert influence continues to operate, it seems that this remains a well-being adaptive preference.²⁹ It may be objected at this point that my view of well-being could open the way for unjustified paternalism. I have suggested that we should not assume that preferences and desires are a reliable guide to an individual’s well-being if they are necessarily unconscious of their reason for holding them, regardless of their mental state. Instead, well-being depends on autonomously identifying and pursuing a conception of the good, and the covert influence underlying adaptative preferences prevents this. But, some may object, if people are happy or satisfied, what business is it of ours how they came to be that way, and why should the state intervene to disabuse them of the real causes of their preferences? Fleurbaey and Blanchet, for example, argue that ‘the correct attitude about this phenomenon [of adaptation] is to worry about the ills to which people do not adapt, such as pain and noise, rather than insisting that the ills to which they do adapt are still priorities’.³⁰ However, such worries misidentify the goal of this account. As §6.2 discussed, diagnosing a preference as wellbeing adaptive need not imply that state intervention is justified. As I will argue at length, it is justice adaptive preferences that warrant such interference, and well-being adaptive preferences may, but need not, be justice adaptive. Thus, there certainly will be cases in which the state has no business either questioning the autonomous basis of individuals’ happiness or attempting to improve their well-being by improving the autonomy of their preference formation. However, this, I contend, is because it is not the state’s business to attempt to maximise individuals’ well-being (as the next chapter will discuss). It is, however, the business of the state to ensure that individuals are not deprived of opportunities they are entitled to as the result of covert influences, especially when this influence is itself exerted through unjust

²⁹ Thanks to Adam Cureton and David Wasserman for raising, and pushing me to address, such cases. ³⁰ Fleurbaey and Blanchet 2013: 169.

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means. That not all well-being adaptive preferences warrant public intervention, then, does not mean none of them do or that they should never be the priority of the state, as §6.6 will show. Whilst Colburn’s account does a good job of capturing the phenomenon that motivated Elster, it is not, as we have seen, a good candidate for achieving the goals of a political project. Not all well-being adaptive preferences should be a political priority, but in addition, some paradigm adaptive preferences, meriting intervention, are not well-being adaptive. As we will see, being well-being adaptive is only one way in which a preference may be relevantly unreliable. Before concluding this section, it is worth briefly considering how this discussion of well-being adaptive preferences relates to Barnes’s ‘discordance view’, since hers is perhaps the only other account of adaptive preferences developed directly in relation to disability. Barnes argues that preferences are unreliably adaptive if there is ‘a clear disconnect’ with ‘the rest of the person’s life’, including ‘what produces things like anxiety, fear, and antipathy in their lives’.³¹ This may, therefore, seem to capture a similar phenomenon to Colburn’s focus on covert influences. If these preferences are not compatible with, or connected to, an individual’s other commitments—and, indeed, cause negative feelings in other contexts—then we may not be able to consciously endorse our reason for holding them. Like Colburn, Barnes is not focusing on the context of justice or attempting to provide an account that fulfils the criterion of political efficacy. Like Colburn’s account, then, Barnes’s does not seem able to capture all the cases we would want to capture in the context of a political project. For example, an abused woman might, as Barnes points out, experience anxiety, fear, and depression. However, women who have internalised more mundane forms of sexist oppression may not experience such cognitive dissonance. This surely would not give us reason to overlook such adaptation from the perspective of justice, yet the fact that these women experience no anxiety is sufficient to conclude, on Barnes’s view, that this is not an adaptive preference. These preferences would also not be well-being adaptive, on the Colburnian account I have adopted, insofar as the individuals could endorse the reason for their preferences—they really believe a woman’s place is in the home, say. As such, these preferences may be a reliable reflection of the women’s interests and values, given the norms they currently ascribe to. Thus, satisfying this preference could improve their well-being. Nonetheless, as I will argue, such preferences may still warrant public concern (they may be justice adaptive). ³¹ Barnes 2016a: 140.

178       A further problem with Barnes’s account is over-inclusivity, first, in a way mirroring the objection to Colburn’s and other pure proceduralist accounts, whereby trivial cases of adaptation (the fox, or tastes for particular food or music) may be well-being adaptive, but do not warrant public scrutiny, mistrust, or interference. In addition, though, Barnes’s account faces a further over-inclusivity objection. Situations and conditions we on the whole prefer can cause stress, anxiety, and fear, yet such preferences are not obviously unreliable (from the perspective of either justice or well-being). We may hate public speaking, avoid it whenever we can, and feel great anxiety at the prospect of it, yet choose to engage in it in pursuit of a goal about which we feel deeply passionate. There seems no reason to distrust the preference to engage in public speaking in this case. It is worth emphasising that Barnes’s primary concern is the testimonial injustice entailed by unwarranted attributions of adaptive preferences—in particular, that our negative identity-prejudicial stereotypes of disabled individuals cause hearers to give an unduly deflated level of credibility to their testimony.³² Barnes characterises the inclination to set aside disability-positive testimony as ‘merely adaptive’, and hence untrustworthy, as an instance of the general phenomenon of the failure to respect disabled individuals as trustworthy, credible givers of knowledge. Avoiding misdiagnosis and overapplication of an adaptive preference model is certainly important. The harm of not being respected as a giver of knowledge has been amply demonstrated,³³ and disabled individuals are often subject to this harm. Nonetheless, as it stands, her positive proposal provides insufficient guidance as to when adaptive preference diagnoses are warranted, and failing to diagnose genuine adaptive preferences may, from the perspective of justice, be as much of a problem as misdiagnosis.

6.4 Why Identify Well-Being Adaptive Preferences? To summarise, well-being adaptive preferences are procedurally irrational (since we act for reasons we could not endorse) and non-autonomous (since they are the result of covert influences, and so lack independence). For this reason, they seem to be a poor guide to individuals’ interests (if independent reasons cannot be adduced for them). As such, fulfilling these preferences may not improve individuals’ well-being as I understand it (achieving ends they ³² See Barnes 2016a: 135–9; Fricker 2007.

³³ E.g. Fricker 2007; Dotson 2012; Matthes 2016.

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endorse as having value) even if doing so makes them happy. In the context of social justice, however, this concept is both under- and over-inclusive. First, it excludes preferences that are rational, autonomous, and so not well-being adaptive, but which nonetheless are a poor guide to our distributive entitlements and so should be overlooked for the purposes of justice.³⁴ For example, the preferences of disabled individuals not to enter exclusionary institutions of higher education may be rational, and a good guide to their interests in these unjust circumstances. They may be consistent with their other views (about wishing to avoid oppressive relationships or demeaning situations) and they would endorse the reason for these preferences. Yet their satisfaction should not imply justice has been done. Second, an account of well-being adaptive preferences includes preferences that are irrelevant to justice. The fox, for example, has a well-being adaptive preference, but this does not seem to be an injustice the state should rectify. As a more concrete case, consider preferences for particular aesthetic experiences. Deaf individuals, for example, may come to prefer a life without music as a result of influences they would not reflectively endorse. To be clear, this is likely true of many individuals’ tastes, and there is no reason to think that individuals with impairments are particularly vulnerable to such covert influences: hearing individuals’ preferences for some of the dominant styles of music in their culture may be of a similar form. As Chapter 4 discussed, whilst justice entitles individuals to certain opportunities—maybe even opportunities for aesthetic experiences—it does not entitle individuals to every possible opportunity in a domain, or even the opportunities they would most prefer (assuming scarcity of resources). Thus, if deaf individuals have access to other forms of aesthetic experience, their inability to hear music is not a concern of justice, so nor is it a concern of justice if their preference not to listen to music is well-being adaptive—no more than people’s preferences for certain musical styles is. Given that an account of well-being adaptive preferences fails to pick out cases of adaptation that are relevant to justice, it may seem that we should follow in the footsteps of others working on adaptive preferences in the context of social justice and simply abandon any attempt to identify such preferences. I disagree. First, the arguments in favour of doing so tend to be based on the assumption that diagnosing a well-being adaptive preference will ³⁴ I suggest that there are three categories of such preferences: non-autonomous character planning, justice adaptive choices, and the coherent internalisation of oppressive norms, in addition to preferences that are both well-being adaptive (hence irrational) and also relevant to justice. All four categories are discussed in §6.6.

180       wrongly imply that its possessor is unusually irrational or unreflective, or that their preferences warrant public concern or interference.³⁵ However, since well-being adaptive preferences are not intended to meet the criteria of political efficacy, they need not (and cannot) capture only paradigm cases where interference seems justified. We can, therefore, acknowledge that many— perhaps all—people have well-being adaptive preferences.³⁶ Adopting an account of well-being adaptive preferences, then, does not require reaching the dubious conclusions that only oppressed and mistreated individuals have them, nor that they are less reflective or worse at reasoning than others, nor that possessing well-being adaptive preferences justifies state interference. Furthermore, there are positive reasons to adopt such an account. Most obviously, it is useful as a means to achieving conceptual clarity. If, as I contend, the term ‘adaptive preferences’ is used to capture two distinct phenomena—wherein those discussing adaptive preferences in the context of social justice have in mind something quite different from those discussing adaptive preferences in the context of autonomy and rational choice—it is worth making this explicit. There are also important practical benefits to distinguishing well-being and justice adaptive preferences. Justice adaptive preferences need not also be well-being adaptive, but the two categories do overlap and, as §6.7 considers, we should treat rational justice adaptive preferences differently from justice adaptive preferences that are also wellbeing adaptive.³⁷ Drawing this distinction also makes clear that having a justice adaptive preference need not imply we are irrational, and that not having any justice adaptive preferences does not necessarily mean our preference set is fully rational and autonomous. Moreover, given that domains of justice might change, it is worth identifying well-being adaptive preferences that are now irrelevant from the point of view of justice, since they may cease to be so. In the past, ensuring access to aesthetic experiences and leisure may have been considered to be beyond the scope of government activity—in future, other things might be included. Finally, whilst well-being adaptive preferences may not warrant direct state action, acknowledging the irrationality of many of our preferences may guide

³⁵ Khader (2011: 80), for example, objects to autonomy-based accounts on the basis that they entail the ‘dangerous and unwarranted empirical assumption . . . that people with adaptive preferences reflect on their behaviour less than everyone else’. ³⁶ However, whilst well-being adaptive preferences are likely to be common, individuals who are subject to oppression are more likely to have justice adaptive preferences as well, as we will see. ³⁷ Specifically, the former case may simply require an alteration of circumstances so that an individual’s choices can reflect their preferences, whilst the latter may require deliberation, discussion, and consciousness-raising, alongside the provision of options.

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individual behaviour: encouraging us to critically reflect on our preferences and, if we cannot find reasons for them we would reflectively endorse, change them. Further, though it may be unjustifiably paternalist for a state to interfere in an individual’s well-being adaptive preferences, if they are widely prevalent the state may legitimately attempt to reduce this prevalence—for example, with measures that promote individuals’ capacity for reflection or which create opportunities for reflection. This might include public information campaigns outlining the benefits of unconsidered options, such as careers, exercise, or leisure pursuits unfamiliar to, or overlooked, by at least some groups.³⁸

6.5 Perfectionism, Justice, and the Need for a Substantive Approach If our goal is to combat injustice, and ensure that preferences that endorse and perpetuate oppression are disregarded, then a more substantive account of adaptive preferences is needed: one that takes account of the content of preferences, and not merely the process by which they were formed. At the far end of this spectrum is Nussbaum’s account, according to which adaptive preferences are simply those with the wrong content: preferences for what we ought not to prefer, formed in light of diminished options.³⁹ Hence, for Nussbaum, identifying adaptive preferences requires ‘a substantive theory of justice and central goods’.⁴⁰ For her, whether a preference is rational, ‘considered’, or even formed in the presence of substantive conditions, such as ‘an absence of traditional hierarchy, absence of fear, and a sense of one’s worth and dignity’, is not decisive in determining whether it is reliable.⁴¹ As Barnes explains Nussbaum’s view: a ‘change in preferences is only problematic insofar as it leads to a preference for something which one should not, ceteris paribus, prefer’.⁴² Thus, if an unconsidered preference is for a good way of life (economic empowerment, say) and a considered preference is not (for physical abuse, for example), it is the former that is reliable.⁴³ ³⁸ This seems to be required by Colburn’s (2010: 94–8) ‘autonomy-minded liberalism’ (also see §7.8). ³⁹ Nussbaum 2001; 2000a: 122–42. On some interpretations, this is Sen’s view too (e.g. Barnes 2016a; 2009a). However, Sen’s approach is complex and not always clearly defined, and I will not take a stand on how it should best be understood here (see Qizilbash 2007). ⁴⁰ Nussbaum 2001: 79. ⁴¹ Nussbaum 2001: 74. ⁴² Barnes 2009a: 5. ⁴³ E.g. ‘[a] habituated preference not to have an item on the list [of central functionings] . . . will not count in the social choice function, and the equally habituated preference to have these things will count’ (Nussbaum 2001: 84). Although Nussbaum insists that, since ‘desire is not brutish, but an intelligent reaching-out-for-the-good, we ought to show it some respect . . . in the process of

182       Nussbaum’s perfectionist approach will certainly allow us to identify paradigm cases, and provide a tool for combating oppression. We may worry, however, that this approach will be overly narrow, including as reliable only preferences for what has been predetermined to be valuable. Thus, as Terlazzo has argued, ‘persons whose conceptions of the good reject the items on the perfectionist list will not be shown the respect granted to those with “proper” preferences’.⁴⁴ Particularly worrying in the current context, it may lead to the exclusion of disabled individuals’ preferences if disability or impairment is taken to be suboptimal, since a preference for these forms of functioning or ways of life will not be deemed ‘proper’. Indeed, Barnes has argued that this is exactly the implication of adopting Nussbaum’s substantive perfectionist approach. She contends that since ‘[p]hysical disability represents, according to the capabilities approach, an absence of one or more basic goods (bodily integrity, physical health etc . . . )’,⁴⁵ then it ‘cannot be as optimal as a relevantly similar non-disabled life’.⁴⁶ Thus, disabled individuals’ preferences for their life cannot be considered reliable on this view. As I have argued both in earlier chapters and elsewhere, the capability approach need not evaluate disability so negatively.⁴⁷ Nonetheless, even if disability-positive testimony is not automatically deemed unreliably adaptive, the general worry remains that Nussbaum’s approach excludes those who dispute her conception of value, and ‘counts a number of widely and sincerely-held conceptions of the good as necessarily non-autonomous’.⁴⁸ In light of these problems, both Khader and Terlazzo offer substantive proceduralist accounts of adaptive preferences, both of them devised for the development context and focusing on the preferences of women in the developing world. Both set substantive conditions on preference formation, but aim to avoid ruling out any preferences on the basis of their content alone. For Khader, ‘APs are preferences incompatible with an agent’s basic wellbeing . . . formed under unjust conditions’.⁴⁹ Khader, then, is more willing to focus on content, seeing adaptive preferences as any ‘behavior or belief whereby an individual perpetuates her deprivation’, though this must be ‘causally related justification’, this merely involves giving individuals’ desires ‘a heuristic role . . . [and] a modest ancillary role in political justification’ (Nussbaum 2004: 200). Whilst Nussbaum is optimistic that proceduralist, informed-desire accounts will coincide with her substantive approach, then, such proceduralism does no serious justificatory work. Given this, it may seem that Nussbaum is not ‘relying’ on preferences at all. However, it has been argued that proceduralism should be given a greater justificatory role in her account (e.g. Jaggar (2006: 309–20)). ⁴⁴ Terlazzo 2014: 186. ⁴⁵ Barnes 2009a: 2. ⁴⁶ Barnes 2009a: 6. ⁴⁷ Begon 2015. It is possible, though, that this is an implication of Nussbaum’s account (e.g. Nussbaum 2006a: 155–223). ⁴⁸ Terlazzo 2016: 214. ⁴⁹ Khader 2012: 302.

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to her deprivation’, in the sense that it ‘would disappear upon exposure to superior conditions and/or information’.⁵⁰ As such, we have special reason to worry about preferences with specific content—those that perpetuate deprivation, independently and substantively defined—but they are only adaptive preferences if they arose in particular circumstances. On this view, preferences formed in the same circumstances but with different content are not adaptive preferences (an oppressed woman’s preference for pineapple over mango); nor are preferences ‘nonconducive to basic flourishing’⁵¹ formed in conditions conducive to flourishing (endangering one’s life by engaging in extreme sports). Terlazzo argues that individuals should engage in critical reflection on their preferences, and do so in the presence of recognised alternatives that should be both valuable and ‘live’, in the sense that individuals can reasonably see themselves exercising them given their current values and ambitions.⁵² The substantive element of this procedural approach concerns the specification of these valuable live options. Further, to meet the criteria of political efficacy she argues that we should restrict the category of adaptive preferences to ‘core preferences: that is, preferences that are centrally important to a person’s broader plan of life or sense of self ’.⁵³ Terlazzo is particularly concerned to remain neutral about the content of adaptive preferences, but whilst she does not necessarily rule out any conceptions of the good, she does contend that a ‘unifying characteristic’ of all adaptive preferences will be that they are ones that people would be ‘highly unlikely to want to have were they to reflect on their own preferences in a considered way and in better circumstances’.⁵⁴ This may suggest an implicit judgement about their likely content. Both Khader and Terlazzo emphasise that having adaptive preferences need not be irrational, or imply an agent lacks the capacity for autonomy. Khader delineates different forms of adaptive preferences.⁵⁵ She allows for the existence of ‘paradigmatic adaptive preferences’, wherein someone ‘perpetuates injustice against herself because of a near-completely distorted worldview’.⁵⁶ More often, though, individuals are mistaken in some domains, but do not entirely lack the capacity for autonomous choice and critical reflection. For example: individuals may internalise some aspects of their oppression but question others; they may be mistaken about facts, but not values; or they may engage in forced trade-offs amongst well-being in different domains of their

⁵⁰ Khader 2013: 313. ⁵³ Terlazzo 2016: 216. ⁵⁶ Khader 2013: 311.

⁵¹ Khader 2011: 17. ⁵⁴ Terlazzo 2014: 195.

⁵² Terlazzo 2016: 215. ⁵⁵ Khader 2013: 317–20.

184       lives. Along similar lines Terlazzo emphasises the distinction between global and local autonomy: individuals can have the global capacity for autonomy despite occasional failures to exercise it locally.⁵⁷ Yet though they delineate various ways in which preferences may be unreliable, these approaches still aim to provide a unified account, identifying a single central feature that typifies all adaptive preferences.⁵⁸ They make a binary judgement between preferences that are adaptive and unreliable, and those that are not adaptive and are reliable. Such proceduralist accounts therefore obscure the different ways in which preferences may be adaptive. Nonetheless, as I will argue, a substantive proceduralist account will play an important role in identifying when preferences are justice adaptive.⁵⁹

6.6 Justice Adaptive Preferences On at least some welfarist accounts of distributive justice, no tenable distinction can be drawn between well-being and justice adaptive preferences: if individuals’ interests directly determine their entitlements, then if their preferences are a reliable guide to their best interests, they are also a reliable guide to their distributive entitlements (and vice versa). Further, this distinction— and, indeed, any discussion of adaptive preferences at all—will also have no role in, or relevance for, objectivist theories that understand individuals’ entitlements (and perhaps also their well-being) to be determined entirely independently of their preferences. However, many theories of distributive justice do not fall into either of these camps: whilst individuals’ entitlements are not reducible to what would make them happy or satisfied, neither are they determined wholly independently of the views and values of those to whom they are provided. In this group we might include Dworkin’s equality of resources, Nussbaum’s capability approach, Arneson’s luck egalitarianism, Cohen’s equal access to advantage, Rawls’s theory of justice—and, of course, the version of the capability approach outlined in Chapter 4, on which I will focus here.⁶⁰ Preferences play two primary roles in such theories of distributive justice. First, preferences play some part in determining the content of our distributive ⁵⁷ Terlazzo 2016: 217–20. Also on this distinction, see Colburn (2010: 4, 21). ⁵⁸ This is also true of Barnes’s (2016a; 2009a) account, discussed above. ⁵⁹ Also see Begon (2015: 248–9). ⁶⁰ On the former approaches, see e.g. Dworkin 2000; Nussbaum 2000a; Arneson 2000b; Cohen 2011; Rawls 1999.

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entitlements. Broadly, I accept that preferences and other evaluative states have epistemic value, providing evidence of what is good for people, and so which capabilities ought to be central. Nussbaum, for example, hopes that if individuals undergo a process of reflective equilibrium, testing their considered moral judgements against their conception of what a flourishing life entails, we can reach an overlapping consensus on the functionings that are central to human life amongst a large, cross-cultural group. However, whilst I accept this general approach, it is worth flagging some key differences with my position. First, since I have argued that capabilities should be conceptualised as opportunities to control domains of our life (rather than abilities to function), I suggest the consensus should be reached on these central domains, rather than central functionings: mobility not walking, communication not speech, to return to our previous examples. Next, I agree with Wolff and de-Shalit’s emphasis on ensuring the process of reflective equilibrium is public: that is, taking the theories and intuitions of the general public as ‘a fundamental point of input’.⁶¹ In this context, particular care should be taken to incorporate the views of those who have experience of living with an impairment or caring for those who do. Finally, as noted above, Nussbaum uses this process as a heuristic device to confirm, rather than independently identify, the content of the list of central capabilities: ‘the independent moral argument must take priority’.⁶² For Nussbaum, then, ‘when the moral approach we favour seems to clash with people’s desires’, we can permissibly conclude that ‘ “what the majority desires here is wrong” ’, and should not lead to the elimination of a central capability.⁶³ I favour giving this process a more independent role, assuming an appropriately wide range of views is incorporated.⁶⁴ Adaptive preferences in this context might limit the content of our entitlements, and the realm of state assistance. Insofar as our goal is to reach an overlapping consensus amongst a large group, anomalous individual cases may not pose too great a challenge: if a few individuals come to believe that control over their mobility, education, health, or bodily integrity is unimportant this may not seem to undermine the wider consensus on the value of these opportunities. However, insofar as oppressive practices and structural injustices often work to covertly influence groups of individuals with shared characteristics, by pressuring them or limiting their opportunities, this raises the ⁶¹ Wolff and de-Shalit 2007: 43. ⁶² Nussbaum 2004: 200. ⁶³ Nussbaum 2004: 201. ⁶⁴ See Wolff and de-Shalit 2007; Jaggar 2006. Since what is advocated is a process of reflective equilibrium, the suggestion is not that the unexamined views or intuitions of the majority should simply be decisive in determining the content of our entitlements.

186       possibility that there will be larger groups who reject what might otherwise be deemed central capabilities. Such challenges to the content of the list of central capabilities might seem to occur only if we simply accept people’s unexamined judgements about what is valuable. The inclusion of a process of reflective equilibrium is, of course, designed to avoid this: putting pressure, for example, on the consistency of the claim that control over bodily integrity is important in general, but not when it comes to women’s (especially disabled women’s) control over their reproductive rights. Indeed, the reason to adopt substantive proceduralist accounts, such as those of Khader and Terlazzo outlined above, is to weed out adaptive preferences and their influence on limiting the scope of our entitlements. Thus, the point here is not that adaptive preferences will inevitably restrict the realm of distributive entitlements. Nor does this give us a reason to abandon the use of views and testimony in identifying the central capabilities.⁶⁵ Rather, adaptive preferences present a problem that can, and should, be avoided, and so are a factor we should be mindful of when designing our deliberative processes. This need not lead us to adopt a substantive, perfectionist view of the preferences that are bad for us and so should be ignored (qua Nussbaum) or treated with suspicion (qua Khader). However, as I will consider, it will require the adoption of a substantive proceduralist account that requires, inter alia, that individuals have some experience of the capability to control that they are rejecting before their rejection is taken to be reliable.⁶⁶ The second role for our preferences is to determine whether we make use of the opportunities or resources to which we are entitled in a particular case. Liberal approaches are unlikely to compel individuals to function, both because the intervention required would be illegitimately paternalist, and because an individual’s autonomous decision not to exercise an opportunity legitimates its absence. Recall that one of the central insights of the capability approach is that a starving, but not a fasting, individual is necessarily a concern of justice. The problem with adaptive preferences in this context is that they may lead us to wrongly consider some instance of self-harm or selfsacrifice to be voluntary, and hence not unjust. For example, we may fail to recognise that an individual who is apparently malnourished by choice does not really have the capability to be nourished, perhaps because they have ⁶⁵ As e.g. Nussbaum (2000a, 2004) and Arneson (2000b) do. ⁶⁶ Note that this does not mean individuals must have experienced some functioning, predetermined as valuable, since capabilities to function are not what individuals are entitled to. Thus, we can have experience of the capability for mobility without walking, communication without talking, forming social relationships without neurotypical social engagement, and so on. (See §6.7.)

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adapted to and internalised norms that demand that women give up their food to male family members. Their claim that they are choosing to make this sacrifice may be insufficient to demonstrate they are really exercising control here. The well-being adaptive preferences on which I have primarily focused can potentially cause problems in either of these two roles: whenever we adapt in response to covert influences, our views on the content of our entitlements, and on whether we take up these entitlements, will be procedurally nonautonomous and irrational, and not a reflection of our considered judgements. Any resulting limitation on the scope of our entitlements or instance of selfsacrifice is thus suspect. However, as I have noted repeatedly, certain adaptive preferences may be a political priority, even if they are not well-being adaptive, in that they should neither determine our general entitlements nor justify selfsacrifice as voluntary. Preferences that are thus problematic from the perspective of justice, I call (naturally enough) justice adaptive preferences. In addition to well-being adaptive preferences that are also justice adaptive (category iv), I identify three further categories of justice adaptive preferences: (i) nonautonomous character planning (where individuals consciously downgrade opportunities they have been wrongly denied), (ii) justice adaptive choices (where individuals’ counterfactual preferences are autonomous and reliable, but their choices are rendered non-autonomous by the limitations of their circumstances), and (iii) the coherent internalisation of oppressive norms (where individuals internalise a self-conception according to which they are not entitled to certain opportunities). I shall consider all four in turn.

6.6.1 Non-Autonomous Character Planning When discussing traditional accounts of adaptive preferences, I noted that they are usually defined in direct contrast to conscious, rational, and autonomous character planning. We cannot trust the fox who could not accept that the reason he believes grapes are sour is their inaccessibility, and has no further autonomous reason for this preference; but this is not true of the fox who consciously and autonomously cultivates a preference for sweeter, lowerhanging fruit. However, the stark contrast in this example may be misleading. Consciously revising our preferences in light of diminished options can be autonomous, but it need not be, depending on the degree to which our options are constrained. For example, someone who has adapted to ableist biases in hiring practices, and concluded that they do not really need opportunities for

188       meaningful work, may prioritise personal relationships and hobbies instead. Further, they may be aware of the reasons for this change of priorities, or would not repudiate them if they were. Such preferences are rational, and do not demonstrate a failure of the individual’s autonomous capacities. Indeed, these preferences may function as a reliable guide to their interests (in these unjust circumstances)—they are not well-being adaptive. Nonetheless, we surely should not use them to conclude either that the opportunity for meaningful employment is, in general, not a concern of justice, or that this individual has voluntarily chosen to forgo this opportunity. The reason to thus distrust this preference is indeed that it is not autonomous, but not because the individual who has formed it is a defective agent, who lacks, or has misused, the capacity for autonomous choice. Rather, their circumstances have prevented them from being autonomous: from deciding for themselves what is valuable, and being able to pursue it. Specifically, these circumstances, and other circumstances in which individuals are unjustly constrained, undercut individuals’ independence: they are subject to factors that undermine their ability to ‘decide for themselves’.⁶⁷ Yet in this case, their independence is not undermined by covert influences (as §6.3 considered) but by a lack of acceptable alternatives, which the agent may be well aware of. This example makes clear the need for a form of substantive proceduralism to identify preferences that are non-autonomous, and thus unreliable, in this way. There are two ways in which we could understand individuals’ options in such cases as being unjustly constrained. First, they have been prevented by unjust processes from having options they would otherwise have—in other words, the circumstances determining the availability of options were unjust. Second, they lack options they are entitled to—in other words, it is the content of their options that is objectionable. Whilst both conditions are met in the above case, I believe it is the latter that is decisive. Imagine an individual who adapts to the lack of opportunities for meaningful employment (understood in the broadest possible sense, and not necessarily connected to monetary remuneration) because (implausibly) we lack the technology or resources to enable them to participate in any possible occupation in our society. Although the process of exclusion is not unjust, the adaptation here is still relevantly unreliable. We have, I contend, no reason to conclude that this is not a capability we should seek to provide to all people ⁶⁷ For a discussion of independence as a necessary component of autonomy, see Colburn (2011: 26–31).

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and to which they are entitled, nor that the individual who gives up on this realm of their life has made the sacrifice voluntarily.⁶⁸ Thus, this example begins to demonstrate the importance of first allowing individuals to have opportunities to exert control in central domains of their life (having access to all the central capabilities) before their rejection of the capacity for such control can be fully trusted.

6.6.2 Justice Adaptive Choices The second category can be called ‘justice adaptive choices’. When individuals engage in character planning, their underlying preferences change. However, there are also cases in which we can distinguish what people choose (given limited options) from what they counterfactually prefer. For example, a disabled individual may choose not to pursue higher education on the basis that the institutions in which it is offered tend to be exclusive and unaccommodating. This may be consistent with their further preferences (not wishing to associate with people or institutions that mistreat them), and being aware of their reasons need not lead them to change their mind. However, they may prefer a situation in which accessible higher education was available. In such a case, neither the choice nor the preference should be diagnosed as a well-being adaptive preference: both are rational, and may be a good guide to their interests given the available options. As above, such cases do not impugn the individual’s capacity for autonomous choice, but, also as above, their circumstances prevent them from being autonomous, and thus scrutiny, mistrust, or even intervention may be warranted. It may be objected that such individuals do not really have adaptive preferences at all, since their counterfactual preferences are autonomous, and reliable from the point of view of justice. This is certainly true, and it is important to acknowledge that, when options are constrained, individuals’ choices may only reflect their preferences in a very local sense—I choose not to go to university because I prefer not to attend these (exclusionary) universities. As such, their counterfactual preferences can inform a theory of justice: we have no reason to doubt their testimony in determining an account of our

⁶⁸ Recall that a capability can be amongst our distributive entitlements even if it is not currently feasible to provide it to all individuals (see §2.4). This individual still retains a conditional entitlement to the capability: they should be provided it if it were possible, and the state should work to make it possible.

190       general entitlements, and no reason to think these individuals would threaten the consensus on the value of certain domains of control. Circumstances undermine the independence, and so autonomy of their choices (regarding whether to go to university, in this case), but not the autonomy of their wider judgements or preferences (control over life-long education, say). Nonetheless, sometimes individuals’ choices are the only guidance we have regarding their preferences, and when they are rendered nonautonomous in this way they should be deemed justice adaptive. That is, their choices should not be used to suggest that what they choose to forgo is generally unimportant, or that their choice to forgo it is voluntary. For example, if an individual with a mobility impairment is forced to choose between modifying their home so they can move around it more easily, and pursuing leisure activities, the fact that they choose the former is not evidence that they dispute the value of leisure in human life, nor that they have voluntarily chosen not to pursue it.

6.6.3 The Coherent Internalisation of Oppressive Norms In other cases, individuals’ reasons to acquiesce in their mistreatment are more deep-rooted, and are not accompanied by counterfactual preferences for a more just alternative. For example, if the above individual has internalised a conception of disabled people as ‘not worthy’ of higher education, they may not prefer it to be available in an accessible form since they simply think ‘it’s not for people like me’. Further, the internalisation may be sufficiently complete that this view coheres with their other beliefs and preferences, and they would not change under conscious examination, or repudiate the cause of their preference if they were aware of it. After all, they may now really believe higher education, say, is not for the likes of them. Or, imagine that the sexist science teacher in §6.3 was so successful that we, on being made aware of the reasons we gave up science, would say that the teacher did the right thing, since science, after all, is ‘not for women’. Indeed, in such cases, acquiescent individuals may be right that they would not be able to flourish in such environments, though this does not confirm the truth of their general conviction that they lack the capacity or ability to learn the skills or complete the tasks such institutions aim to teach. It may be objected that this is psychologically implausible—experience of oneself and others as competent and intelligent will be incongruent with such a conception of disabled people (or women). Nonetheless, it is possible for sustained

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oppression to lead to a consistent conception of oneself as worthless, at least with regards to certain opportunities.⁶⁹ These preferences would not fall foul of Colburn’s covert influence criteria, since these individuals can and would consciously accept the reason for their preference and may even think those who influenced them acted correctly. Thus, as in the case of justice adaptive choices, we may have no reason to doubt their possessors’ authority regarding their well-being given their current preference set.⁷⁰ In the case of justice adaptive choices, we make a choice that does not reflect what we would ideally prefer because it is the best option available: our preferences are a reliable guide to our interests but we are unable to satisfy them. In these cases, we have shifted our complete set of preferences and values in light of external oppressive influences. Thus, if we accept that individuals’ wellbeing depends on their current priorities and values (as §6.3 suggested), then their lives will go better if these preferences are satisfied. Yet accepting this does not imply that these preferences are reliable from the perspective of justice. What matters here is whether these preferences should determine (and indeed limit) individuals’ distributive entitlements at either the general or individual level, and I contend they should not. Although this influence on our preferences or choices is not covert (we are not necessarily unconscious of it) it surely undermines their independence, and so their autonomy. When individuals exist in a context in which they are railroaded into one particular (and very restricted) view of their abilities and their options, they have hardly been enabled to identify a plan of life for themselves. Again, this does not impugn their capacities, but merely acknowledges how circumstances can undermine the autonomy of our choices and preferences. Thus, allowing that individuals may be rational and a reliable guide to their interests even when their self-conception is seriously undermined does not mean that their acquiescence will be deemed autonomous, nor their oppression legitimised. Only when they have had access to the capability to control their life in central domains should their rejection of options be treated as reliable.

6.6.4 Justice and Well-Being Adaptive Preferences As the last three cases have demonstrated, justice adaptive preferences need not also be well-being adaptive, but this does not mean these two categories ⁶⁹ See Khader (2011: 13–17; 2012: 307) on partial and complete losses of self-worth. ⁷⁰ For discussion of similar cases, see Baber (2007: 199–200).

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6.7 Responding to Justice Adaptive Preferences Part of the reason that it is so important to disambiguate the various ways in which, and the reasons why, preferences may be adaptive, is that different forms of intervention will be called for in different cases. Broadly speaking, when the problem is rooted in individuals’ circumstances rather than their mistakes or deficient capacities, then our interventions should focus on altering these circumstances. Of course, in many cases these cannot be simply pulled apart since circumstances can problematically influence individuals’ judgements. The distinction can be most clearly seen in cases where only individuals’ choices are adaptive, and their counterfactual preferences are reliable. Here, our focus should be on providing the acceptable alternatives that they lack. Moreover, we should engage in a process of deliberation with the affected individuals to determine what the content of these alternatives should be, since we have no reason to discount their counterfactual preferences. For example, reforms to higher education institutions ought to be informed (inter alia) by those who currently choose not to enter these institutions due to their exclusionary character. Thus, the state should not ⁷¹ Assuming our entitlements are conceptualised as domains of control, and assuming (plausibly) that the capacity for the specific functioning of listening to music is not required to have control in any domain, whilst completely and non-autonomously opting out of engagement in the political sphere does imply a lack of control in a domain in which we ought to be able to decide for ourselves.

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intervene in individuals’ adaptive choices (on the grounds that they are adaptive choices), but should provide the conditions that allow them to choose in a way that reflects their underlying preferences. However, in at least some cases of non-autonomous character planning, the coherent internalisation of oppressive norms, and well-being and justice adaptive preferences, it is likely that the provision of further options will be insufficient. In these cases, individuals’ adaptation to diminished options may have led to some degree of value distortion. Those who have undergone nonautonomous character planning have consciously devalued the opportunities they have been deprived of. Those who have undergone the coherent internalisation of oppressive norms have internalised a conception of themselves as not entitled to, or worthy of, or fitted for various opportunities. And those who have irrational justice adaptive preferences reject certain opportunities for reasons they could not, themselves, accept. The provision of acceptable alternatives may nonetheless be of benefit in these cases too. The core of all cases of justice adaptive preferences is that they are non-autonomous, and thus unreliable, as a result of constrained options, and that they concern content relevant to justice. Providing access to the ability to exercise genuine control in central domains is not just what individuals are entitled to then, but also provides the preconditions for reasoning about the content of these entitlements and determining whether and how to use them.⁷² When we have an acceptable range of options and the real freedom to choose between them then we will not have to engage in character planning to prefer those few options we do have (category (i)); will be less likely to internalise the oppressive norms that may be causing this restriction (category (iii)); and will be less likely to be subject to covert influences on preference formation (category (iv)). (As well as individuals’ choices being able to reflect their counterfactual preferences—category (ii).) Nonetheless, when value distortion has occurred, mere provision of alternatives may be insufficient to undo the damage, and prevent these preferences from being justice adaptive. To demonstrate this point I will consider how such value distortions can undermine the reliability of preferences in the two roles for them I have outlined in the context of justice. These are, first, their effect on the content of our general entitlements, and second, their use in determining whether an instance of self-deprivation is really voluntary. ⁷² Whilst there is a degree of circularity here, it need not be vicious. Rather, it is the simple claim that the preconditions of coming to a reflective equilibrium on the content of our theory of justice should take place in ‘conditions favorable for deliberation and judgment in general’ (Rawls 1999: 42). (Also see Begon 2015.)

194       First, then, an individual may repudiate the value of an opportunity or capability entirely. Such a preference might take the form: ‘I live well without x, so x cannot be essential to a decent life’. For example, autistic individuals may question whether certain forms of social interaction are as essential as neurotypical individuals assume; deaf individuals may question whether hearing is essential; and paraplegic individuals may doubt the importance of being able to walk. I have suggested that we should adopt a form of substantive proceduralism, at least requiring that individuals experience control of the relevant sort before their rejection of the value of a distributive entitlement should be taken as a reason to consider vetoing its inclusion from a list of such entitlements. It is important to emphasise from the outset, though, that if we accept the conclusions of Chapter 4, then our entitlements should be conceptualised at a relatively high level of abstraction: as capabilities for control, not capabilities to function. If this is the case, then individuals who repudiate, for example, the importance of being able to walk or hear, will not threaten the possibility of overlapping consensus. The relevant opportunities here are for mobility and aesthetic experience, and these individuals have not been deprived of these capabilities, nor do they repudiate their value. Nonetheless, when individuals do reject the capability to control a domain of their life in the absence of experience of it, we may have warrant to set this preference aside as unreliably adaptive: we should not discard widely shared intuitions about the control central to a decent human life solely on the basis of the intuitions of individuals who have never had such control. Disabled individuals who reject the value of work, education, or relationships simply because they have been deprived of them as the result of ableist biases, for example, should not lead us to conclude that these opportunities are not a concern of justice.⁷³ As we have seen, the loss of opportunities and control that is frequently experienced by disabled individuals most often occurs as the result of external environment and social norms. Whilst paradigm impairments (like more mundane inabilities) generally involve the loss of specific functionings, most need not lead to the loss of more general control, and thus need not be disadvantageous.⁷⁴ In many cases, then, we have no reason to think that disabled individuals will possess justice adaptive preferences that pose a threat to the breadth of our distributive entitlements. Consider, again, Helen Keller’s description of the depth and value of her sensory experience: ⁷³ I argue for this approach in greater detail elsewhere (Begon 2015). ⁷⁴ As Chapter 5 has argued.

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My world is built of touch-sensations, devoid of physical colour and sound; but without colour and sound, it breathes and throbs with life. Every object is associated in my mind with tactual qualities which, combined in countless ways give me a sense of power, or of beauty, or of incongruity.⁷⁵

Far from implying that individuals with sensory impairments cannot possess or value control of their sensory experience, it surely shows just how valuable and important control over this domain can be, regardless of whether some particular functionings are closed to us.⁷⁶ Thus, the preferences of individuals with non-disabling impairments, who do not lack opportunities they are entitled to, have been formed in the right circumstances: with experience of the central capabilities. As such, we have no reason to question the reliability of their preferences in the context of justice. Yet we also have no reason to want to find some rationale for distrusting their preferences, since we have no basis for thinking that they have any reason to repudiate the central capabilities. Indeed, even individuals who do lack all control over some part of their life seem unlikely to insist that such control lacks value. Yet, if they did, it does not seem insulting to suggest they need to have this experience before their repudiation should be decisive in determining the value of a domain. Especially, perhaps, given that the experience that is required is of general control (mobility, say), and not of specific putatively valuable functionings (such as walking). As such, we will only diagnose individuals’ preferences as justice adaptive in relation to determining general entitlements in a very narrow range of cases. It may seem more likely that adaptive preferences grounded in value distortions will lead to problematic adaptive preferences in the individual domain. If individuals are taught that ‘people like them’ are not worthy of some valuable opportunity or the ability to control some part of their life, this may not cause them to doubt the value or importance of such control in general, but could lead them to repudiate its value in their life. Such preferences might take the form: ‘x might be good for others, but it’s not for people like me—and I’m happy without it’. For example, an individual with Down’s syndrome might take the view that education is valuable, but conclude that ‘it’s not for them’ if their educative environment is not an inclusive one.

⁷⁵ Keller in Barnes 2009a: 15. See §4.4. ⁷⁶ This is contrary to Barnes’s (2009a) claim that individuals with impairments (or, in Barnes’s terminology, disabilities) would be unable to possess certain central capabilities.

196       These individuals’ preferences may be used to determine the opportunities that are relevant to justice, but should not be used as evidence that an individual has what they are entitled to: the individual with Down’s does not dispute the value of education, but their ‘choice’ or preference not to engage in it should not lead us to conclude that justice has been done. The capability to control part of our life does not merely require formal freedom from interference, but far more substantive conditions (as §4.2 discussed). Importantly in this context, making a choice or forming a preference in some domain will require both that acceptable alternatives are available to an individual, and that these choices are considered live options, such that individuals have a genuine ‘internal capability’.⁷⁷ Exactly how these meaningful opportunities can be provided is a complex question, but it will likely require some form of deliberation with affected individuals, which involves consciousness-raising (such that they understand the significance and potential value of certain options) as well as the provision of opportunities. In summary, justice adaptive choices can be avoided by providing individuals with options that reflect their preferences, where they are entitled to these as a matter of justice. However, insofar as other justice adaptive preferences involve value distortions, avoiding these requires both that individuals have acceptable options open to them (to ensure their values are not distorted by a lack of exposure to reasonable alternatives in the first place) and being taught to see why these options might be valuable and, more importantly, to see themselves as the kind of people who can and should be able to exercise them.

6.8 Conclusion: Distrust without Insult? Having a (justice) adaptive preference, then, need not involve a failure of procedural rationality or the suggestion that an individual is fooling themselves. However, although not all adaptive preferences are irrational, they are all non-autonomous. Thus, we may worry that the account remains vulnerable to the objection that diagnosing adaptive preferences has the insulting implication that individuals with adaptive preferences are defective agents or ‘dupes’. This is of particular concern given that I have suggested that individuals who are subject to injustice—including individuals with many paradigm impairments—will be more likely to have justice adaptive preferences. It is important to emphasise, therefore, that acknowledging adaptive preferences ⁷⁷ E.g. Nussbaum 2011b: 20–3, and see §4.2.

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are non-autonomous does not imply that diagnosing someone as having one must be insulting.⁷⁸ First, in many cases adaptive preferences are a rational response to unjust circumstances. In these instances, autonomy is undermined by limitations of circumstance rather than defects in individuals’ capacities. Second, having a value distortion on some particular issue does not imply an individual is wholly unreliable, or lacks the capacity to make autonomous choices or form reliable preferences in any area of their life. The fact that individuals have faced restrictions in their options in one domain, making the autonomy of their goals and preferences in this domain suspect, gives us no reason to think that this will spill over into areas in which they have not faced these restrictions: again, because the problem lies in circumstances rather than defective agential capacities. Finally, many (all?) individuals will possess some well-being adaptive preferences: preferences we hold for reasons that are necessarily opaque to us. Insofar as these preferences are irrational, they do indicate flawed reasoning in a sense. However, this does not imply that individuals with irrational justice adaptive preferences are unusually irrational or incapable of formulating consistent preferences. We all adapt to restrictions in our options, and many of us do so in irrational ways (we have well-being adaptive preferences). Indeed, there is ample evidence that our decision-making is often flawed and overly reliant on heuristics, and the real reasons behind our choices are frequently obscure to us: for example, post-hoc rationalisation, present bias, and the phenomenon of anchoring.⁷⁹ In the context of the political project— that is, our decisions about what individuals are entitled to and whether their decisions to reject some offered opportunity for control is truly voluntary— most of these mistakes are as irrelevant as the reason why the fox has given up his desire for grapes. Yet for those individuals unfortunate enough to face restrictions as the result of oppression and mistreatment, the resulting adaptations are more likely to be a concern of justice (hence, justice adaptive preferences). The reason individuals in unjust circumstances are more prone to justice adaptive preferences is not, then, that they are more defective agents, and whilst it might seem (literally) to add insult to injury to doubt the preferences and testimony of individuals already subject to injustice, the alternative is

⁷⁸ I do not mean to downplay individuals’ experiences, and do not deny that (especially given currently unjust social circumstances) this may be experienced as insulting. ⁷⁹ E.g. see Kahneman (2011); Kahneman et al. (1982); Le Grand and New (2015).

198       worse. If we fail to acknowledge the ways in which individuals’ values may be distorted as a result of mistreatment, indoctrination, and restriction of options, and that this can prevent them from effectively pursuing those options they prefer, then we are in danger of perpetuating and upholding the unjust status quo that restricts these options in the first place. I began this chapter with a dilemma: on the one hand, we do not want to simply disregard members of oppressed groups as untrustworthy agents, yet on the other, we do not want to allow that cases in which individuals have adapted to deprivation no longer constitute injustices. By clarifying what is entailed by a diagnosis of adaptive preferences, I have demonstrated that such a diagnosis does not imply dismissing someone as a ‘dupe’, and whilst misdiagnosis should be avoided this does not mean all views and preferences should be beyond question.

7 Don’t do it for my Sake Providing Control, Avoiding Paternalism, and Applying the Justice Account of Disability

7.1 Introduction Disability, as I have defined it, involves lacking the capabilities we are entitled to. More specifically, lacking the ability to control central domains of our life as a result of an impairment (anomalous, not deficient, physical or cognitive functioning) in combination with various features of our circumstances (social, political, and environmental), our individual resource shares, and other personal features. From this it follows that when individuals are disabled by their impairments they are owed state assistance to ensure that they do have the opportunities they are entitled to, and hence will cease to be disabled, as far as possible, though they may remain impaired. Yet the relationship between disabled individuals and the state institutions that ought to ensure their just treatment has a deeply troubled history. All too often disabled individuals are portrayed as passive recipients, on whom a beneficent state chooses to bestow assistance to compensate them for the misfortunes that they face—if the state takes the needs of disabled individuals seriously at all. There is much to object to in this portrayal. First, as I have already argued, much state assistance is not supererogatory—which it can choose to bestow or not—but morally required, not least because disability is often the result of unjust institutional structures, social norms, and environmental circumstances the state designs, upholds, or fails to rectify. Even when this is not the case, a commitment to the capability approach I have outlined implies individuals are entitled to acceptable options in a domain, even if this requires additional resources in light of their atypical functioning capacities. Second, the state’s goal should not be to counterbalance or offset the effects of some perceived misfortune, by attempting to ‘cure’ impairments if possible and providing individuals with some equivalently valuable good if not. As I have also argued, whilst impairments can cause limitations we are currently unable to rectify,

Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0008

200       in many cases they are not the only or most significant cause of individuals’ disadvantage. Rather, we should focus on ensuring all individuals can reach an acceptable level of functioning, whatever atypical mode this takes, rather than enabling identical opportunity sets. We should not, therefore, assume impairments are the problem nor should our goal be to neutralise their effect as much as we are able. Justice demands the elimination of neither the diverse ways of being that impairment enables nor their negative effects on well-being (though these tend to be much less extensive than the able-bodied assume). My concern in this chapter is with the third element of the above characterisation: of disabled individuals as passive recipients on whom help is bestowed. It is an unavoidable feature of any redistributive scheme that it will involve some degree of intervention with its members. This is the basis of right-libertarian objections to such systems. However, there need be nothing objectionable about state policies that in some way restrict our options when the goal is to enable both us and the rest of society to have greater capacity to direct the course of our own lives. To pick the most obvious example: taxation reduces our freedom to spend the totality of our income as we wish, but state spending on infrastructure, education, healthcare, and law enforcement (amongst much else) provides the context in which we are able to earn and securely possess that income in the first place. Controversy might arise when individuals dispute the goals of state policy or the means by which they pursue them. Yet my concern here is not with ensuring that all individuals are entirely satisfied with, or wholly approve of, every policy pursued by the state, but that individuals are appropriately respected as autonomous agents. This, I argue, requires (at least) a commitment to anti-paternalism. The importance of the commitment to antipaternalism is particularly relevant in the context of disability. As the previous chapter has made clear, disabled individuals are particularly vulnerable to being considered too unreliable to have their preferences and agency respected. However, as that chapter has also shown, there is no reason to think disabled individuals are more prone to failures of rationality or autonomy than other individuals (except insofar as their circumstances reduce their options and may thus deform their choices or preference formation). Continuing this book’s central theme, then, a focus on disability allows us to recognise a more general point about theories of justice: that our justification for redistributive policies should include a commitment to anti-paternalism. The goal of this chapter is to defend a particular account of antipaternalism, to show why paternalism can be objectionable, and to demonstrate that my own version of the capability approach is not objectionably

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paternalist. First, then, whilst the language of paternalism is common—and commonly used to criticise disability policy—providing a definition has been a matter of considerable and ongoing debate. I will reject the popular ‘insult account’ of paternalism in favour of the authority view, according to which individuals have authority over their own good which paternalist policies fail to respect. Thus, a commitment to anti-paternalism means believing that individuals’ well-being cannot be used as a reason for action, or as justification for a policy, if those individuals repudiate the putative benefit, since doing so will fail to show appropriate recognition respect to autonomous agents in two ways (§7.2). I next consider why individuals may not permit their good to be used as a reason (§7.3), and what respecting this authority requires in the context of distributive justice (§7.4). It might seem that the capability approach can never advocate paternalist intervention, since it does not advocate intervention at all—it simply offers individuals opportunities. I show that these offers can constitute intervention in the relevant sense (§7.5, §7.6), but that they can be justified without unauthorised appeals to individuals’ good (§7.7). Hence, paternalism can be avoided. I then argue that when individuals are acting non-autonomously they may lack absolute authority over their own good, and thus, that our anti-paternalism should be soft paternalism: there is not the same strict prohibition on interfering with non-autonomous choices (§7.8). Finally, §7.9 briefly considers the implications of my account for parental decisions regarding their current and future children. When policies are pursued that do not track the preferences of the individuals they are supposed to serve, this is undoubtedly objectionable. However, I will argue that is especially objectionable when these policies are justified— and perhaps can only be justified—by appeal to the interests of supposed beneficiaries who repudiate these benefits. Yet paternalist redistribution is not merely objectionable because it misuses individuals’ good, but because it mistakes the very aim of redistribution. As I have argued repeatedly, the goal of the state should not be to benefit individuals as much as they are able, but to ensure they can control the course of their lives. Thus, if the state were to promote well-being it must have the authority of putative beneficiaries to do so, but this should not be the state’s goal. Redistributive paternalists go wrong, then, not merely by misusing well-being, but by having well-being promotion as their core objective. Our goal should, instead, be providing people with the capabilities to control central domains of their lives. Providing this control and allowing people to be self-directing will leave plenty of scope for individuals to make mistakes, but this is what respecting people as autonomous agents demands.

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7.2 Defending Anti-Paternalism Before considering how paternalism can be avoided, it is essential to understand how it should be understood. In general terms, paternalism involves an action (interference, very broadly construed), performed for some particular reason, (the good of the person interfered with), and without their consent. Or, as Kalle Grill puts it, to be paternalist, ‘an action must be unwelcome, interfering, and benevolent’.¹ Anti-paternalism involves accepting that a ‘consideration of a person’s good should not ever count in favor of limiting her liberty’—again, without her consent.² Grill helpfully describes the antipaternalist commitment as a filter preventing certain reasons (the promotion of a person’s good) functioning as a reason to limit their liberty.³ Yet we may wonder why the use of such a reason is objectionable. After all, acting to promote others’ good ordinarily seems laudable. To foreshadow my later argument, I defend an authority view and argue that this suggests a dual account of the wrong of paternalism. First, insofar as individuals are authoritative regarding their own good, using their good as a reason contrary to their wishes will mean that any interference made on this basis lacks the very justification it claims. As we will see, how serious this is will depend on the nature of the interference, and what other reasons justify the action if motives are mixed. Second, ignoring an individual’s authority over their good and impermissibly using it as a reason demonstrates a lack of recognition respect for them. That is, it involves a failure to show someone the basic level of respect to which we are all entitled as moral equals.⁴ Arguably neither feature is unique to paternalism, but I suggest that the combination of the two captures the core of what is objectionable about paternalism.⁵

¹ Grill 2018: 54. On paternalism as an action-reason, see Grill (2007). This definition is not uncontroversial, but I believe Grill is right that it captures the normative core of paternalism. For alternative accounts see e.g. Dworkin (2013, 2014), Archard (1980), Begon (2016b), Coons and Weber (2013), Cornell (2015). ² Grill 2015: 49. Some might consider this final caveat unnecessary: if the interfered with individual consents then we will not need to limit her liberty. However, assuming we allow individuals to make binding decisions about their future selves, then this will not necessarily be true. For example, the sailors limited Odysseus’s liberty, arguably for his own good, but given he consented this does not seem to be a case of paternalism. (For more on paternalism and consent, see Husak 2015.) It may also be objected that individuals need not actively consent that their good be used as a reason: we can act on the presumption that others’ goods are available as a reason unless an individual exercises their right to refuse (see Parry 2017: 357–8). As I argue below (§7.7), whilst active consent might not be required, mere absence of refusal may also be insufficient, at least in cases of state paternalism. ³ Grill 2015: 52. ⁴ Darwall 1977. Also see Fox (2019) for an application to paternalism, discussed further below. ⁵ Some contend the latter element is unique to paternalism. However, I believe we should restrict the category of paternalism to cases that plausibly involve interference with the paternalised individual, and

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Before defending this view, however, I will briefly outline some of the debate on this topic.⁶ One common justification of anti-paternalism is that paternalism is, in some way, self-defeating. First, we may believe individuals’ wellbeing is partly constituted by autonomous choice: the act of setting and pursing our own goals is valuable in itself. Or, as Mill famously puts it: a person’s ‘own mode of laying out his existence is best, not because it is best in itself but because it is his own mode’.⁷ Therefore, paternalist interference with someone’s decisions will not, in fact, promote their well-being. Second, we may hold that individuals have unique epistemic access to information about what is in their best interests and how their well-being can best be promoted. Since outsiders will tend to be mistaken about these facts, paternalist interference will often be misdirected, and so again will not promote well-being. To return to Mill: when the public interferes with personal conduct ‘the odds are that it interferes wrongly and in the wrong place’.⁸ Third, it might seem that, even if the paternaliser does manage to accurately identify and promote aspects of their object’s well-being, the harms of intervention will outweigh any benefits bestowed—for example, the harm of resentment might offset any gains received. Thus, paternalist interference will still not promote overall well-being. These arguments draw attention to important considerations for any putative paternalist: autonomously forming and pursing a conception of the good is an important part of a good human life, individuals are often in an epistemically privileged position regarding what is in their interests and what will best promote them, and paternalist interventions are often misdirected or ultimately self-defeating. Concerns of this sort may provide a good basis on which to object to many putatively paternalist policies. However, they do not provide principled reasons to reject to paternalism. The latter two arguments are contingent, and do not rule out paternalism if it were better informed and more sensitively imposed. The first argument relies on the controversial assumption that persons’ choices seldom set back their own well-being. But this seems implausible given all we know about people’s tendency to irrationality, short-sightedness, and weakness of will, as well as our propensity to prioritise things other than our own well-being. Further, it is clear that sometimes very minor interferences can generate very big an individual’s good might be used as a reason for actions other than interfering with them. Most obviously, and most relevantly in the context of devising redistributive policies, as a reason to interfere with others—for example, by taxing them. I discuss these third-party cases further below. ⁶ I have done this in much greater detail elsewhere (Begon 2016b). ⁷ Mill 1974 (1859): 133. ⁸ Mill 1974 (1859): 151.

204       welfare gains.⁹ Thus, whilst we must balance the benefits of any paternalist intervention against its complete costs, it is implausible to insist that paternalism will never work. Indeed, there would be little reason to debate the merits of pursuing paternalist policies if there was simply no such thing as successful paternalism. So, if a commitment to paternalism merely requires that ‘intervention is permissible when, all things considered, it serves the target’s best interests’,¹⁰ then the question that remains for the anti-paternalist is: why not make people better off? The most common answer is that there is something uniquely insulting about such paternalism, even if successful. It involves treating an adult as if they were a dependent child, or ‘as if he or she (at least temporarily) lacks the ability to rationally pursue his or her own good’.¹¹ Paternalism, it might seem, involves the substitution of the paternaliser’s judgement for the paternalisee’s on the assumption that the former’s judgement is superior, and hence the latter’s in some way inferior.¹² It is certainly natural to find it objectionable when someone forms such a ‘negative judgement’ about our practical reasoning, willpower, or emotion management.¹³ No one wants to be treated as if they are ‘too stupid to run their own lives’.¹⁴ However, it is not clear that this apparent ‘insult’ is either unique to paternalism or unjustified. One way of understanding the insult of paternalism is that it demonstrates a lack of appraisal respect: that is, respect grounded in a positive appraisal of a person’s competence or aptitude.¹⁵ Judgements about individuals’ inferior reasoning ability or willpower certainly seem to indicate a negative appraisal, but are we wronged by others when they form such judgements? Not obviously. After all, ‘we are not morally entitled to demand that others think well of us’.¹⁶ Further, given that it has been amply demonstrated that mistakes in reasoning and weakness of will are common, such judgements might only indicate that someone has determined our ‘rationality is imperfect, and so is open to the kinds of error we all are’.¹⁷ Moreover, as David Enoch has argued, whether or not someone has the ability to deliberate and act rationally is ‘a factual question, and whether or not we should believe this is, arguably, fully ⁹ The various ‘libertarian paternalist’ or nudge policies are perhaps the most obvious example here: altering the placement of healthy or unhealthy options in a cafeteria, or changing a pension plan from being opt-in to opt-out may produce significant benefits, yet will arguably involve no loss of liberty at all (see e.g. Sunstein and Thaler 2003; Sunstein 2014; Thaler and Sunstein 2008; and for discussion see e.g. Bovens 2009; Goodwin 2012; Grüne-Yanoff 2012; Kelly 2013; Le Grand and New 2015; Mills 2013; 2015; Mitchell 2005; Wilkinson 2013). ¹⁰ Hanna 2018a: 228 (my emphasis). ¹¹ Quong 2011: 101. See Begon (2016a: 361–7) for discussion of insult accounts. ¹² Shiffrin 2000: 218. ¹³ Quong 2011: 81–2. ¹⁴ Anderson 1999: 330. ¹⁵ Darwall 1977. ¹⁶ Fox 2019: 325. ¹⁷ De Marneffe 2006: 80.

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determined by the evidence’.¹⁸ Thus, our judgement of someone’s capacities and whether they have ‘manifested characteristics that make [them] deserving of . . . positive appraisal’¹⁹ is an epistemic question. We should not be insulted by an appropriately informed and well-supported negative appraisal of us, even if we would prefer its content were otherwise. It is worth briefly flagging that, even if we allow that the process of reaching a negative judgement is an epistemic question, this does not imply that questions of (in)justice are entirely irrelevant. We may not always form a judgement that reflects the relevant evidence, and the failure to do so may not indicate a mere lack of epistemic virtues. If our negative judgement results from a prejudicial stereotype, we may be guilty of testimonial injustice.²⁰ This is particularly relevant in the context of paternalism directed towards disabled individuals since, as the previous chapter discussed, prejudicial stereotypes regarding disabled individuals’ incompetence, irrationality, and untrustworthiness have frequently led to their testimony being ascribed an unwarranted degree of unreliability, and hence being easily and regularly dismissed. This is an important reminder that much of what is objectionable about paternalism concerns its (mis)application in practice, which can happen all too easily. However, I am assuming that successful paternalism is possible, and can grant that this will be paternalism free of testimonial injustice—in part, because testimonial injustice generates harms,²¹ so any resulting paternalism is unlikely to advance an individual’s interests all things considered. Yet even if paternalism grounded in a negative prejudicial stereotype did promote wellbeing, we can grant that the most plausible defence of paternalism would eschew apparently successful paternalist interventions that instantiate injustice or violate some other normative constraint. Leaving aside these cases, then, we can conclude that our low appraisal of someone’s ability to successfully promote their own good might be justified. Perhaps a proponent of the insult view could respond that the problem with paternalism is not judging someone incompetent, but acting on this judgement: not believing someone is child-like, but treating them as if they are. However, this approach also faces problems. First, it does not seem to capture

¹⁸ Enoch 2016: 29. ¹⁹ Darwall 1977: 38–9. ²⁰ Fricker describes testimonial injustice as occurring ‘when prejudice causes a hearer to give a deflated level of credibility to a speaker's word’ (Fricker 2007: 1). For further discussion, see e.g. Dotson 2012; Piovarchy 2021; Wanderer 2012. Note, I am not concerned here with epistemic paternalism, according to which ‘we are sometimes justified in interfering with the inquiry of another for her own epistemic good without consulting her on the issue’ (Ahlstrom-Vij 2013: 4), but testimonial injustice committed in pursuit of ‘standard’ paternalism. ²¹ Fricker 2007: 43–59.

206       the spirit of many defences of the view, which rely on the intuition that being judged stupid, incompetent, or irrational is insulting. Indeed, one prominent proponent of the insult view—Jonathan Quong—denies that interference is a necessary component of paternalism.²² Second, it does not seem to identify something that is uniquely wrong about paternalism.²³ Exactly the same analysis would apply to cases in which we interfere with someone not for their sake, but for someone else’s. For example, imagine we take it upon ourselves to check and alter a colleague’s lecture slides out of a (justified) low assessment of their competence, and consequent fear they will impart incorrect information to students about essay deadlines or seminars times. We tend to think there is something specifically wrong about paternalism, but on the insult account such third-party cases would be wrong (when they are) for exactly the same reason.²⁴ More fundamentally, it is not clear that the insult view identifies a feature of actions that is wrong-making. This may be how we assess the above lecture example: the interfering lecturer did nothing wrong. Or, for a clearer case, consider judges withholding information from jurors for fear it will bias their decision-making process. Assuming this is done for the sake of giving the defendant a fair trial—and not for the epistemic good of the jurors—this is not a case of paternalism.²⁵ Nonetheless, it instantiates the supposedly core wrong of paternalism on the insult view—interference with an individual justified by a negative judgement about their capacities—yet does not seem wrong. Such examples illustrate that there need be nothing insulting—or wrong—about either forming or acting on the belief that people may make mistakes in reasoning. This is especially evident when the judgement is grounded in general beliefs about flawed human reasoning, and not the incompetence of specific individuals, as is true of most state paternalism. I believe that the problem with paternalism is, indeed, acting on a negative judgement and not merely forming it. In other words, we cannot expect others not to make (justifiably) low assessments of our capacities, but we can expect them not to act on this basis—we might not always direct our lives well, but they are still our lives to direct. The insult view cannot explain why this is so,

²² Quong: 2011. ²³ Fox 2019. ²⁴ This is a point that Shiffrin (2000) acknowledges, and which leads her to conclude that such thirdparty cases are normatively equivalent to paternalism. Yet no other authors are willing to bite this bullet, likely because this moves us away from what seems paternalism’s distinctive feature: that the paternaliser acts benevolently to the paternalisee. ²⁵ Kristoffer Ahlstrom-Vij (2018) uses this as a core example of epistemic paternalism. However, on the action-reason view of paternalism, the reason for the judge’s interference matters, and without the benevolent motive is not paternalist.

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but the authority account of anti-paternalism can. The problem is not the lack of appraisal respect shown to our judgements as the insult view suggests, but the lack of recognition respect demonstrated by acting on them, as I will explain. The insult view perhaps remains so plausible because it can indeed be insulting when we are not shown appropriate recognition respect, but this does not mean the core wrong can be grounded in this insult. According to the authority account we are authoritative over what is best for us regardless of whether we are always right. As such, we have the right to act as we will in matters concerning our own good, and a right to control whether anyone is permitted to use our good as a reason. The former point may be more familiar. As Daniel Groll argues, if individuals are competent their will should be structurally decisive: ‘it is meant to supplant the reason-giving force of other considerations not because it outweighs those other considerations but because it is meant to silence or exclude those other considerations’.²⁶ Treating someone’s will as authoritative can be contrasted with treating it as part of an all-things-considered assessment of their good—i.e. as substantially decisive. This latter approach should be reserved for those whose will is not ‘intact’—for example, some individuals with dementia—and so lack the relevant authority over their own good.²⁷ Having our will treated as merely substantially (and not structurally) decisive need not involve interfering with someone’s decisions given that, for the reasons noted earlier, this may not actually promote their well-being. For example, interventions may be physically and psychologically distressing, and even for individuals who lack competence, part of what makes their life to go well may be that their will plays a central role in determining its shape.²⁸ Yet even if we act in accordance with someone’s will because it is their will there seems to be something objectionable, indeed paternalist, about treating competent individuals as if it is just one reason amongst others²⁹—for example, a doctor weighing someone’s refusal to undergo a medical treatment amongst its pros and cons, rather than the refusal simply ending the discussion. The idea, then, is that we do not need to believe that individuals choose well, but we must nonetheless treat their will as authoritative in matters concerning their own interests. Groll focuses on how this should silence other considerations: if I have made a decision in some sphere over which I have legitimate control, any further considerations are simply irrelevant. This same authority

²⁶ Groll 2012: 701. ²⁷ Groll 2012: 718. ²⁸ Groll 2012: 704. ²⁹ For Groll, having one’s will treated as only substantially decisive is always paternalist, but only impermissible if an individual is competent. I will consider issues of competence in §7.8.

208       over our interests also implies our good cannot be utilised as a reason without our consent—the idea captured by Grill’s anti-paternalist filter.³⁰ We are the sole authority over the use of our own good, and, without permission (however understood), others simply cannot use this good when deciding how to treat us. Jonathan Parry has helpfully described this right as the Power of Prudential Exclusion (PPE). As he puts it: individuals have a normative power to control whether others may act to promote their good. Just as others may not use my body and property without my authorization, they may not justify their actions by appeal to reasons grounded in my good if I validly refuse to be benefited.³¹

If we grant individuals this authority, it will be impermissible to use the benefits to an individual as a reason to act if they repudiate these benefits. As mentioned at the outset of this section, this raises two problems for the paternalist: first, paternalist intervention will lack its putative justification and so fail to show appropriate recognition respect for its object qua unjustified intervention; and second, using an individual’s good as a reason without their authority violates their PPE, constituting a further failure to show appropriate recognition respect. First, then, the paternalist interference will lack the justification the paternalist takes it to have if their appeal to individuals’ benefit is illegitimate. As such, it will be wrong in the way any unjustified interference would be in the absence of a legitimate reason. This helps to provide a response to the paternalist objection that anti-paternalists fetishise individuals’ autonomy at the expense of their good.³² After all, paternalists insist, our ‘status as an independent adult’ is not undermined by every violation of liberty: being required to wear our seatbelt, for example.³³ Whilst it might seem that some interferences are too minor to worry about, this thought usually comes with the qualification when it does enough good. Even small interventions are objectionable when arbitrary and lacking justification. Our status as an independent adult does seem to be undermined by a state or individual engaging in a series of petty intrusions in our life—wear a seatbelt, consume less salt and sugar, save for retirement, don’t smoke inside

³⁰ Grill 2015. Note that Grill does not endorse anti-paternalism, but merely argues that the filter is the best way to understand it. ³¹ Parry 2017: 362. Groll (2018) also outlines a similar view. ³² E.g. Archard 1994; Arneson 2005: 264, 278; Sunstein and Thaler 2003: 1165. ³³ De Marneffe 2006: 84.

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public places, drink less alcohol—if there is no legitimate reason for these interferences. Of course, our intuitions about such cases are complicated by the fact that there are often many good reasons for such intrusions. Even if we accept that individuals have authority over the use of their own good, and that some of the targets of these interventions repudiate these benefits, we may still consider these policies justified on the basis of their benefits to targets or third parties who welcome them, in at least some cases (as §7.3 considers). Note that my goal here is not to engage in a ‘project of reconciliation’, as Peter De Marneffe describes the attempt to find anti-paternalist justifications for seemingly paternalist policies.³⁴ Instead, my point is simply that certain actions (interferences) should not be performed for a certain reason (the good of the person interfered with). That does not necessarily rule out the same action being paired with some other reason and being permissible. This thought is not uncommon: it would be wrong to shove a person aside in order to secure a better seat in the cinema, but permissible to do so to prevent them stepping on a child or knocking into a treasured vase. The disagreement amongst antipaternalists and paternalists concerns whether providing a repudiated benefit constitutes the right sort of reason. For the authority approach anti-paternalist who denies that it is, the intervention is objectionable not because it demonstrates an insulting failure to positively appraise the target’s capacities (lack of appraisal respect), but because we fail to appropriately respect her status as an autonomous moral agent (lack of recognition respect). We cannot demand that others believe we are never mistaken, but we can expect to be treated as the kind of being who is entitled to control our life and, perhaps, make our own mistakes. We are not properly respected when subject to paternalist, and hence unjustified, interference: ‘[t]o interfere in a context where I ordinarily have the right to be the one in charge is to call my status into question’.³⁵ To emphasise, this interference need not be restricted to undermining particularly valuable liberties or central capacities.³⁶ A more serious unjustified intervention might be more objectionable, but any such interference will entail a lack of recognition respect to an autonomous agent. This lack of respect is not unique to paternalism: it is displayed in any intervention in an agent’s legitimate sphere of agency that lacks proper justification. What is ‘special’ about paternalism is that we are not interfered ³⁴ De Marneffe 2006. ³⁵ Fox 2019: 323. ³⁶ Contra e.g. Fox (2019), De Marneffe (2006, 2013); Shafer-Landau (2005).

210       with callously or negligently, we are not ignored by someone pursuing their own project, or used as a means to some wider goal. It is our interests that the paternaliser is trying to promote. We may believe, as Carl Fox has argued, that this benevolent motive mitigates the wrong of the interference: ‘[i]f disrespecting the agency of a human being delivers a deep insult to her, then . . . it is partially mitigated if it comes from a place of fellow-feeling and concern’.³⁷ I disagree. Whilst the care shown for our target may demonstrate that we mean well, the use of their good as a reason represents, I believe, an additional lack of recognition respect in many contexts. I consider when we might have authority to use someone’s good as a reason in §7.7, but it is worth flagging now that the degree of explicit consent necessary will vary by context. For example, in the context of close personal relationships, or when serious danger is imminent, we may have presumptive authority in the absence of explicit refusal. I suggest this presumption does not apply to state justifications of public policy. This is the second prong of my dual account of the wrong of paternalist interference: ignoring an individual’s authority over their own good— violating their PPE—also fails to respect their status as an autonomous agent. The object of paternalism is wronged both by the use of their good as a reason without their consent, and because this does not constitute the right sort of reason, meaning the intervention lacks justification. It is this further lack of recognition respect that sets paternalism normatively apart from other instances of unjustified intervention. This means that, even in cases in which some interference is all-things-considered justified (by some other reason), there is still reason to object to the action performed for the paternalist reason (or, the paternalist action-reason): the paternalisee has not been considered appropriately authoritative over the use of their good as a reason. However, arguably, using someone’s good without their authority need not only occur in cases of paternalism. This reason may also be employed to justify interference with others—for example, using a putative (and repudiated) benefit to some as a reason to tax others. As noted, insofar as paternalism involves interference with someone for their own good, interfering with third parties for their sake will not count as paternalism. Intuitions differ on these cases, as §7.6 will consider, though my own view is that such cases share one of the distinctive wrongs of paternalism but not the other: they fail to respect individuals’ authority over the use of their own good, but do not involve interfering in an individual’s legitimate sphere of agency without (appropriate) ³⁷ Fox 2019: 329.

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justification. Thus, paternalism is not normatively unique because it wrongs individuals in a way that is never replicated in non-paternalist acts. The combination of wrongs does seem unique, however. Both are grounded in what individuals are entitled to as autonomous, self-directing agents, but there are two different ways in which paternalist action-reasons fail to respect this. The committed paternalist may, at this point, remain unconvinced. Nonetheless, I hope to have demonstrated the possibility of a coherent and consistent account of anti-paternalism—the authority view—and to have provided some reasons why paternalist action-reasons might be objectionable. On this view, the commitment to anti-paternalism is rooted in the broad conviction that autonomous individuals should be shown appropriate recognition respect as self-directing agents who have authority over their own good. This tends to be grounded in the further belief that individuals should be positively enabled to form and pursue their own conception of the good, as well as being permitted to make their own mistakes. Paternalism is just one barrier to this goal, but an important one, especially for individuals considered unreliable, irresponsible, or incompetent, as disabled individuals often are.

7.3 State Assistance and the Anti-Paternalist Filter What are the implications of a commitment to anti-paternalism in the context of distributive justice? The two failures of respect I have identified might both be exhibited in redistributive policies. To see how, let us begin with an example. Imagine that a state is trying to determine how it should fulfil its obligations to deaf individuals. We can assume that, in this context, individuals with this impairment lack the capabilities they are entitled to. Hence, they are disabled, and are owed assistance to rectify this injustice. Imagine, further, that the government concludes that the problem here clearly results from the fact that deaf individuals cannot hear, so resolves to fulfil their obligation by funding research and development into cochlear implants that can be successfully used at any age and for any form of hearing loss. This is an expensive programme, but they decide that it can be justified on the basis of the benefits it will bring to the entire deaf community. Now imagine that a significant proportion of deaf individuals repudiate these benefits. If we were only to take account of the benefits to those who welcomed such a ‘cure’, the gains would be insufficient to justify the considerable costs. The state is aware of this but decides to pursue the policy anyway, reasoning that ‘they’ll thank us in the end’.

212       There is much to unpack in this case. Perhaps the most natural response to such an example is to object that the supposed beneficiaries will not be ultimately grateful: they are best placed to know what is in their interests, and if they believe implants are not good for them then they are not. Further, as a purely practical matter, we might think that if people do not want to be cured then they will not utilise the treatment when it is available. Thus, it will necessarily not benefit them, and the time and money spent on research and development will be wasted. Note that since the major expense is assumed to involve the invention of the implants and not their individual production, low take-up will not significantly lower the costs. As such, the costs will remain high and the pool of beneficiaries will shrink as individuals opt out, meaning the benefits no longer justify the expense. In other words, we might simply object that this attempt at paternalism will be unsuccessful. This is an important consideration, and is certainly one good reason not to ignore the views of supposed beneficiaries. It is likely to be especially relevant in such cases given the much-discussed tendency of able-bodied individuals to overestimate the ‘badness’ of impairment, and so assume the best solution is always to eliminate impairment if we can. However, as discussed, whilst we must guard against failed paternalism we should also allow that successful paternalism is possible. Thus, we should grant that in at least some cases policy-makers will get it right or ‘know better’, and those they aim to help would actually benefit.³⁸ Perhaps if the implants are widely available, individuals will be persuaded to follow the crowd, accept the implants, and find that they do actually increase their well-being. Perhaps the mere availability of an alternative is beneficial in some cases. If this point is granted, then we might next wonder whether this example proves exactly the opposite of what I intend: instead of showing how objectionable redistributive paternalism might be, it merely demonstrates the implausibility of employing the anti-paternalist filter in this context. Employing the filter means that if an expenditure could only be justified on the basis of the benefit to some disadvantaged group but a sufficient number do not authorise the use of their good as a reason, then the pursuit of this goal cannot be justified after all. But why, we might ask, should some of the prospective beneficiaries get to ‘veto’ the provision of this benefit, and prevent its being provided to those who would welcome it? Indeed, we might think

³⁸ Recall that on my view this means they are benefited according to standards they can accept (see §6.3). This does not rule out successful paternalism: even if we assess individual’s best interests against their own values, they may lack the knowledge or ability to promote these interests for themselves.

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that the entire group ought to allow their good to be counted in the costbenefit calculation to ensure that those who welcome the benefit will be provided with it. Parry has considered a similar worry in a rather different context. He argues that individuals’ authority over the use of their good—their PPE—implies that defending others is morally justified only ‘if those to be defended do not validly refuse defensive intervention’.³⁹ As such, otherwise permissible cases of otherdefence will be rendered impermissible if a sufficient number of victims refuse to be saved, given that we should ‘treat victims’ refusal as morally equivalent to their nonexistence’.⁴⁰ For example, if we can only redirect the standard runaway trolley away from the five people and towards the one at this ratio, and one of the five rejects this benefit, then it will no longer be permissible to save the other four. The analogous objection here is that given that our consent (seriously) affects others we may be morally required to consent, and further, if it would be wrong to refuse to consent then any refusal would be morally invalid. However, refusing to consent does not just needlessly withhold a benefit from those who desire it—or merely cause the deaths of four individuals on a trolley-track. The reason that the good of those who repudiate the benefits is needed to justify the action is that it is also associated with significant costs: directing the trolley away from the five will kill one person on the side-track. In our example, sinking significant resources into developing cochlear implants will mean less can be spent on the provision of other benefits, on any plausible assumptions regarding the scarcity of resources (see §7.6). If these costs cannot be justified with reference only to the good of those who authorise its use, it is not clear why those who do not welcome the benefit should be compelled to create a situation in which the cost-benefit analysis falls out in favour of the willing beneficiaries.⁴¹ No more than there is any reason for people to become or remain deaf to increase the beneficiary pool. If we grant individuals’ authority over their own good and an action cannot be justified without it, they are under no obligation to allow their benefit to count.⁴² I have the right to decide what is done for my sake.

³⁹ Parry 2017: 357. ⁴⁰ Parry 2017: 387. ⁴¹ See Parry (2017: 388–94). As he puts it: ‘if the preexisting reasons in favor of killing the innocent are insufficiently weighty to justify doing so, then how can this generate any reason to add additional considerations in favor of harming to the scales in order to tip the balance?’ (Parry 2017: 393). ⁴² Plausibly, however, they are permitted to have their benefit count. If an individual’s authority over their good allows them to control how it is used, we may be allowed to consent altruistically. If this is

214       Next, we may wonder why individuals would want to repudiate an offered benefit. On the one hand, they may simply be mistaken about what would be best for them. As the previous section noted, a core commitment of antipaternalism involves respecting autonomous individuals’ capacity to be selfdirecting, which includes accepting that sometimes they will head in the wrong direction. Thus, the possibility of mistakes will not deter an anti-paternalist.⁴³ We might, however, raise the deeper worry that the mistaken rejection of the benefit is involuntary or non-autonomous: perhaps because an individual is ill-informed, perhaps because they have been pressured by some covert influence (§6.3), perhaps because they have had to adapt to a constrained set of options (§6.6), or perhaps because they are experiencing an emotional or psychological crisis. As Joel Feinberg points out, such choices may be as ‘alien to [us] as the choices of someone else’.⁴⁴ Certainly, the anti-paternalist commitment to respect individuals as autonomous agents only applies when they are acting autonomously. Thus, any plausible version of anti-paternalism will be soft paternalist, meaning that whilst we should not interfere with voluntary choices (regardless of their consequences), involuntary choices may sometimes be subject to intervention. The most famous example in support of this view is Mill’s individual about to cross a rotten bridge unawares: surely no anti-paternalist would prohibit intervening to ensure they were aware of the bridge’s state, so their decision to endanger their life was really voluntary.⁴⁵ For now I will assume that individuals’ repudiation of the benefits is genuinely voluntary or autonomous, and briefly return to cases where it is not in §7.8. On the other hand, though, this repudiation need not be indicative of a mistake—autonomous or otherwise. Individuals may simply be committed to

true, this would provide an explanation for Grill’s suggestion that in cases of group consent ‘altruistic consenters that consent or not in conflict with their own interests will count for less than those who consent or not consistently with their own interest’ (Grill 2009: 156). In the case under discussion, this means deaf individuals voting for the cochlear implants for the sake of those deaf individuals who welcome them would ‘count for more’ than hearing individuals with similarly altruistic motives. The reason this would be so is that deaf individuals can choose to have their good included in the calculus, whilst hearing individuals have no benefit they can add to the balance of reasons in the same way. It might be responded that, if deaf individuals repudiate the benefit, they also lack a benefit to add to the calculus. However, if we are assuming the paternalist aim will be successful, this is not so. ⁴³ Note that this may mean that those who choose poorly are not only worse-off than they could have been but worse-off than those capable of choosing better. Thus, anti-paternalism may seem to contribute to anti-egalitarian outcomes, and Arneson (2005) objects to anti-paternalism on this basis (see Voigt 2015). Given individuals’ have an ongoing entitlement to control, on my view, this limits how bad the consequences for bad-choosers will be. However, it is true that respecting autonomy, and providing access to capabilities rather than trying to achieve functionings, will entail greater inequality of outcome than some more interventionist approaches. ⁴⁴ Feinberg 1986: 12. ⁴⁵ Mill 1974 (1859): 166.

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values other than doing what maximises their welfare. Most obviously, in the case of impairments, individuals may value it as constitutive of their identity, or value the associated membership of a particular community or group. It is true of many features of our identity that our life might be better without them—things are perhaps easier for straight, white, able-bodied men, but this does not mean we would choose to forgo features of ourselves that do not conform to this model. This analogy perhaps also helps to make clear what is so objectionable about the opening example for those who do not feel its immediate intuitive pull. Imagine, instead, that conversion therapy was the policy under consideration for non-heterosexual individuals (and try to imagine, too, that it would actually make its targets all-things-considered better off ). Many people would find it repellent that the state would fund such a policy (though could perhaps reconcile themselves to it insofar as some genuinely and autonomously welcomed it). Yet the idea that this policy is justified—indeed, could only be justified—by reference to its benefits to recipients who repudiate it, surely represents a grievous insult and lack of respect. My right to determine my conception of the good demands not just the provision of opportunities and an absence of unjustified interference, but also that this good is not used, without my consent, to justify benefits I reject. Redistributive policies justified by unauthorised appeals to individuals’ good thus encapsulate both core elements of the wrong of paternalism: failure to respect individuals’ authority over their good, and interference without justification.⁴⁶

7.4 Anti-Paternalism in a Theory of Justice The main danger point for paternalism in theories of distributive justice is not ordinarily taken to occur during the practical business of determining how individuals’ entitlements are to be fulfilled, as in the earlier example. But, instead, at the prior level of determining what these entitlements are. If this involves a perfectionist commitment to items that are essential to any good human life, then even if freedom is amongst these, it will always be something to be weighed in the balance and potentially outweighed. This is part of the reason I have repeatedly emphasised the importance of distinguishing well-being and justice. As §3.3 and §3.4 discussed, we might believe that both ⁴⁶ As §7.5 will demonstrate, even the provision of options, as in the examples discussed here, can constitute intervention of the relevant sort.

216       well-being and justice should be conceptualised in terms of capabilities without grounding our entitlement to capabilities in the fact that they are components of well-being (contrary to many approaches⁴⁷). My claim is not that the selection of domains of control will be unrelated to what makes a life go well. Indeed, part of what it is to say that controlling our health, our mobility, our social relationships, or our sexual life is central to human life is to say that decisions in these areas will have significant impacts on well-being. Rather, my point is that a theory of justice should not be aiming to ensure some defined level of well-being, nor need every principle of justice directly promote well-being. If well-being were our goal, then given all we know about how poorly people choose it would surely be unwise to remain committed to capabilities rather than functionings, as so many critics have noted.⁴⁸ After all, if we have agreed that a good life involves performing particular functionings, and justice requires that we ensure people are living good lives, surely there will be times when functioning ought to be encouraged, or even compelled. Welfarist positions, including such iterations of the capability approach, will, therefore, always be vulnerable to sliding into paternalism: if the state is in the business of welfare promotion, there are likely to be times when it will be appropriate to directly promote welfare. If our goal is to equalise or maximise welfare, we simply will not be able to leave the bad choosers alone. Even if we are committed only to equal opportunity or capabilities to function well, it may be difficult to remain committed to individuals’ absolute authority over their own good when we believe we know that is really in their interests, and especially when they might sign away their future capacity for choice. Thus, as we have seen, many theorists do permit the promotion of functionings in some circumstances—perhaps as a mere short-term means to encourage future functioning or perhaps more long-term—and those who do not are criticised for leaving people worse off than they might be.⁴⁹ My own, capability-to-control account (defended in Chapters 3 and 4) avoids a commitment to the value of specific functionings, and so avoids the ⁴⁷ For example, the Stanford Encyclopaedia entry on the capability approach opens by asserting: ‘The capability approach is a theoretical framework that entails two normative claims: first, the claim that the freedom to achieve well-being is of primary moral importance and, second, that well-being should be understood in terms of people’s capabilities and functionings’ (Robeyns and Byskov 2020). A capability approach to justice need not accept either. ⁴⁸ Except perhaps contingently: because actually endorsing functionings is important, or because the badness of an intervention will always outweigh any benefits it brings (see Olsaretti 2005; Arneson 2006; §4.6). ⁴⁹ See Claassen 2014a for an overview, also Arneson 1999, 2000a; Carter 2014; Deneulin 2002; Nussbaum 2000a, 2011a; and §4.3.

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conflict that plagues capability-to-function approaches (if we know what’s good for people, why not give it to them?). It is grounded in the claim that individuals have the authority to direct their own lives and that a theory of justice should enable them to do so. As such, it is not mysterious why capabilities are our goal. Indeed, by identifying domains of control rather than endorsing the value of particular functionings it avoids ‘the perfectionist view that some functionings are objectively good’, which some have claimed the capability approach ‘cannot avoid’.⁵⁰ The remainder of this section will outline the benefits of this approach at the level of selecting a capability list: since it requires no commitment to a particular view of what is good for people, there is no danger that individuals’ authority over their good will be overridden to paternalistically enforce this. Nonetheless, states cannot provide every possible opportunity, so as §7.5 and §7.6 demonstrate, the possibility of paternalism may still threaten my approach at the level of policy specification. In §7.7 I argue that this, too, can be avoided. To briefly reiterate what earlier chapters have argued, there are two core problems raised by identifying a list of capabilities by appealing to a set of valuable functionings all individuals should have the chance to perform. First, arriving at a single list of valuable functionings in the face of persistent disagreement amongst conceptions of the good will exclude individuals who do not value or cannot perform these functionings, as well as making an expressive judgement that their way of life is inferior. Further, insofar as the inclusion of these items depends on their (near) universal value, then this might seem to entail using these individuals’ good as a justification without their consent. For example, many deaf and blind individuals repudiate the benefit of using all five senses, many autistic persons repudiate the benefits of neurotypical social interaction, and many asexual individuals repudiate the benefits of sexual satisfaction. Thus, the process of selecting a capabilities list may be in danger of violating individuals’ authority over their own good. Second, focusing on the opportunity to achieve specific functionings rather than providing more content-neutral freedom will mean individuals are not truly enabled to form and pursue their own conception of the good when this does not involve performing functionings identified as valuable. Most obviously this will mean that individuals will not be positively enabled to achieve their goals when these are not amongst the functionings deemed valuable. More worryingly, this may lead to individuals being encouraged or forced into doing what is ‘best’ (see §4.6). As noted above, while a commitment ⁵⁰ Khader 2018: 210. Also see Carter 2014; and §4.5 for discussion.

218       to substantive perfectionism does not necessarily entail its paternalistic imposition, it often does so. Further, as the next section will argue, merely endorsing and enabling specific options without compelling their uptake may itself constitute (potentially paternalist) intervention. One response to the first worry would be to argue that we need not claim that performing each and every one of the central functionings would be necessary to all good human lives. Thus, we need not utilise the good of dissenters as a means of including items on the list.⁵¹ However, this would not be a plausible response for versions of the approach that assume the central functionings are those that people would, in general, benefit from performing (even if they should not be forced to do so).⁵² This indicates that the entitlement to specific capabilities is grounded in the (near) universal value of the functioning, such that if it became clear that the functioning was valueless to a sizeable minority then its status on the list would be reasonably questioned. This implies an appeal is being made to the good of individuals who repudiate the supposedly beneficial functioning: the capability for sexual satisfaction should stay on the list, for example, because this functioning is an important part of human life, even for asexual individuals (regardless of their views). Yet even if the appeal to dissenters’ good can be avoided, it remains the case that justifications for capabilities to function tend to be based on the potentially insulting assumption that some ways of being are simply superior, so those who are necessarily incapable of engaging in them are inferior and those who choose to reject them are mistaken (§4.3). By focusing on capabilities to control, not function, my own approach is less vulnerable to these worries. Avoiding a commitment to the value of specific functionings means the justification of the approach need not involve an appeal to the general value of a restrictive list of functionings, and so is more inclusive of those who choose to, or must, function in non-standard ways: even those who repudiate central functionings can be part of an overlapping consensus on the more general value of control. Further, providing control in central domains—an acceptable range of options rather than the ability to choose whether to perform a specific functioning—grants more content-neutral freedom. Individuals are enabled to be mobile, form relationships, control their

⁵¹ Note that merely using an individual’s good despite their refusal is not paternalist until it is employed as a reason for action. However, capability lists are not intended as mere philosophical exercises, but as guides to state action. ⁵² E.g. Arneson (2010, 2006) and Olsaretti (2005) explicitly, but arguably Nussbaum too (e.g. Nussbaum 2000a: 55, 74, 87–93; 2004: 199; 2011a: 25; and see §4.3).

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sexual life, use their senses, and engage in leisure, without any claim about what exercising control in these areas should involve. Yet it might nonetheless be objected that, since I am only committed to providing control in specific central domains and not simply ‘capability as such’,⁵³ then I will also have to appeal to individuals’ good. After all, why are mobility, sociality, sexuality, sensory experience, and leisure amongst the concerns of justice except insofar as these areas are claimed to be important for good human lives? I need not deny that my account allows for some small degree of perfectionism. What matters is that it is not exclusionary in the way that thicker versions of perfectionism can be and, more importantly, that it will not justify an unacceptable degree of paternalism. First, then, we need only be committed to a very thin conception of a good human life: one according to which it is important to be able to exert autonomous control, by choosing amongst acceptable options, in certain sorts of domains. Few functionings are necessarily ruled out or in, since most functionings could be subsumed under some broad domain.⁵⁴ Further, I claim only that individuals should be able to live autonomously, not that they must do so. Believing individuals are entitled to direct their life need not entail a commitment to the view that they must choose an autonomous life. Thus, individuals may exercise their control by choosing to lead a non-autonomous life—by ceding their control. The scope of justice is restricted, then, not by specifying the shape of a good life, but because individuals need only have an acceptable range of options in a domain, and not every functioning or their most preferred functioning. Hence, we can have all we are entitled to if we have control over our mobility, relationships, and so on, even if there are certain modes of functioning closed to us. Given that so few substantive commitments are required, it is difficult to imagine the coherent rejection of the value of control, even if it will simply be exercised to give up that control. Thus, it is plausible that formulating our list of capabilities-to-control will not require an appeal to individuals’ good without their assent. More significantly, merely identifying central domains in which individuals should be able to exercise control is not, itself, paternalist. Whilst a list of capabilities to function offers reasons for particular actions (providing capabilities to function), a list of domains of control remains neutral about the offers that will be made and the policies pursued. Yet this might seem like a ⁵³ Carter 2014: 91; §4.3. ⁵⁴ I am more interested in how capabilities should be conceptualised than in devising a capability list, but I am happy to broadly endorse Wolff and de-Shalit’s modification of Nussbaum’s list, as §4.7 considered (Wolff and de-Shalit 2007: 45–62; Nussbaum 2011b: 33–4).

220       distinction without a difference, and it may be objected that my view simply shifts the problem rather than solving it: for as long as resources are scarce we are going to have to make decisions about which options individuals can choose amongst when they are exercising their control. Thus, the state may end up in the position described earlier: deciding how to provide individuals with what they are entitled to where this will involve offering some opportunities within a domain and not others. At the level of specification, then, paternalism may threaten in two ways. First, the state selection of options within a domain might involve a justificatory process that makes an unauthorised appeal to the good of putative beneficiaries. Second, this justification may then be paired with an action that involves interference with said beneficiaries. In other words, we may fail to respect the anti-paternalist filter on the use of reasons, and this may generate a paternalist act.

7.5 Intervention beyond Interference However, what is the intervention here? We are merely identifying opportunities individuals will be offered, not constraining their freedom or forcing them to live ‘well’. Can the offer of a capability—especially the mere capability to exercise control in some domain of our life—really constitute an intervention? If not, the possibility of paternalism seems to be entirely off the table, whatever reasons are used to select offered opportunities. Failure to respect individuals’ authority over their own good may always be objectionable, but, on the account I have defended, it is not paternalist unless we use this good as a reason to interfere. Paternalism involves both a violation of individuals’ PPE and an intervention that thus potentially lacks justification. Whilst the most serious interventions will involve direct coercion, the imposition of force, or the complete removal of options, this is not, as Kristin Voigt points out, ‘the only—and perhaps not even the most common—way to interfere paternalistically with someone’s decisions’.⁵⁵ Drawing on this broader account of intervention, I will argue that there are three ways in which the state offering opportunities may constitute interference. First, providing some opportunities generally involves not providing others, so some individuals’ preferred options are not enabled and may be more expensive. Second, offering opportunities may constitute an endorsement of their value, and even persuade individuals to pursue them. Third, and most directly, many people will be taxed to fund ⁵⁵ Voigt 2015: 94.

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them. (Additionally, option provision will involve interfering with others, most obviously through taxation. Whilst I have suggested such third-party cases are not paternalist, they do share a failure to respect individuals’ authority over their good.) The expansive account of intervention motivates the concern that despite my effort to focus on content-neutral freedom as control, the need to specify capabilities leaves open the possibility of objectionable paternalism. §7.7 argues that this can be avoided. I will begin by outlining some common examples of non-coercive paternalism before applying them to the case of capability provision in §7.6.

7.5.1 Raising and Reducing Costs Paternalism may involve making options more expensive: for example, imposing ‘sin taxes’ on high-sugar or high-fat foods and drinks, or on cigarettes. Indeed, arguably all government policies are of this form, where at the far end of the scale the ‘price’ of an option is imprisonment.⁵⁶ The state can rarely directly force individuals into making some choice or completely remove some option. They can make actions and substances illegal, and impose various penalties for breaking this law, but this cannot rule out the possibility of illegally pursing this option. This is true of most interpersonal paternalism too: we can rarely truly force someone, and even more rarely successfully promote their good all-things-considered if we did. Thus, for example, we might try to stop a friend breaking their vow of quitting smoking by buying up their favourite brand of cigarettes in nearby shops for a few days. This might make them better off. Spending a few days forcibly pulling cigarettes out of their mouth is a much less plausible candidate for successful paternalism (or successful friendship). The central lesson here is that intervention should be understood to involve attempts to change an individual’s behaviour or improve their character by altering their option set. We might achieve this by making options not only more expensive but also ‘cheaper’ or more desirable. For example, subsidising healthy foods or gym memberships, or offering tax-free bikes. Relatedly, we might change an individual’s menu of options by adding items. For example, Seana Shiffrin argues that, if there are options an individual would prefer not to have (perhaps because they find too much choice overwhelming, or worry about yielding to temptation), then to provide these options anyway (perhaps ⁵⁶ See Voigt 2012, 2015.

222       because we think they would have a better character if tested, or that the option they are trying to avoid is a good one) can be paternalist.⁵⁷ For example, offering drinks to a friend who is trying to stay sober because we think they would enjoy themselves more if they accepted a pint. This, too, involves an effort to ensure an individual acts in the way that we deem to be best for them by altering their option set, so should also be counted as intervention in this context.

7.5.2 Pre-emption: Information and Persuasion Decisions about whether and how to provide information may also constitute interference. If we accept the soft paternalist aim of allowing individuals to set and pursue their own goals when they do so voluntarily, it may seem that providing information can hardly interfere with this. We might interfere by acting against their choice, ensuring they act in line with their choice, or acting on their behalf before they have had a chance to make a choice, but can providing information they will use to make a better-informed choice really constitute intervention? It seems that it can. Whilst there may be nothing paternalist about ensuring someone does not accidently expose themselves to harm or the risk of harm, many people will choose to engage in risky activities, and this may involve not wanting to know the details of the risks they face. As Arneson says: ‘a person’s settled values, attitudes, and desires may include a disposition to impetuous decision-making’.⁵⁸ Contrary to the standard assumption that education simply cannot be paternalist,⁵⁹ foisting information on people or even pushing them to carefully consider their decision can constitute an intervention, which might be paternalist. For example, requiring individuals to attend road safety courses, having mandatory cooling-off periods for contracts and purchases, or placing health warnings on cigarette packets might all be paternalist if engaged in for the sake of the paternalisee’s good. ‘The choice not to gather information is, after all, a choice’⁶⁰—and interference with that choice is interference. Thus, providing unwanted information in a way that is hard to avoid constitutes intervention.

⁵⁷ Shiffrin 2000: 213–14. ⁵⁸ Arneson 2005: 267. He continues: ‘and an aversion to the careful consideration that renders choices voluntary’. My focus is on autonomous choice, which requires that decisions are made independently and that the individual can endorse the end were she to reflect on it. This does not rule out spontaneity, and does not imply ill-considered choices are non-autonomous (see §6.3 and §7.8). ⁵⁹ E.g. Abel et al. 2021: 51–2. ⁶⁰ Hanna 2018a: 158.

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Further, a commitment to soft paternalism does not rule out allowing individuals to autonomously make ill-considered, ill-informed, spontaneous choices. Yet more controversially, some rational persuasion has been argued to constitute a potentially paternalist intervention. George Tsai has claimed that the provision of reasons may pre-empt someone’s deliberative activities, and undermine their ability to be self-directing.⁶¹ For example, if we are playing a board game and as soon as it is your turn I lay out all the reasons why some particular move is the best one, I prevent you from making a decision yourself. I do not force you to act, or even change the profile of your option set, but by reasoning for you before you have had a chance to consider the matter yourself, I thwart the exercise of your agency. In a similar vein, withholding information might also be paternalist. For example, a doctor choosing not to disclose information about an unsubsidised medication to a patient because they believe being aware of such an unaffordable possibility would be detrimental to their well-being.⁶² Again, this action prevents someone deciding for themselves. Thus, we should add that relevant interventions involve attempts to change behaviour or improve decision-making by not only altering an option set but also undermining our ability to choose amongst those options for ourselves. It should be emphasised that I am not claiming such interventions can never be justified, only that they should not be performed for a paternalist reason. There may be many legitimate reasons why information should be withheld, for example: not least, that it is infeasible to provide all information, and that judgements about relevance and appropriateness must be made. To reiterate, a distinctive feature of my dual account of the wrong of paternalism is that it does not require that the intervention itself be presumptively impermissible. Interventions that are presumptively permissible may still be wrong when performed for a paternalist reason, since they do not demonstrate appropriate recognition respect, both by falling to respect individual’s authority over their own good, and by intervening—even if in a very minor way—without appropriate justification.

7.5.3 Refusals to Assist The same could be said about our final example: refusals to assist. These too may be performed for a variety of reasons, and though I claim they ⁶¹ Tsai 2014: 92–5.

⁶² Voigt 2015: 94–5.

224       can constitute an intervention, this does not imply that they constitute a presumptively impermissible intervention. Consider, for example, refusing to help someone build some shelves because we think it would be good for them to learn carpentry, and do not trust them to learn without this push.⁶³ Or refusing to lend someone £50 out of fear they will use it to fund their heroin habit.⁶⁴ These cases will be classed as paternalist only if the reason for refusal concerns the good of the individual interfered with, and not, say, a selfregarding reason: the inconvenience of providing help or being unable to comfortably do without £50. Yet it may be objected that merely refusing to assist does not constitute intervention since these acts are within the paternaliser’s sphere of agency—it is their time or their money. This is Quong’s view. Thus, in order to include these cases as paternalist he drops the requirement that paternalism must involve interference. Instead, according to his ‘judgemental definition’, paternalism simply involves an attempt to ‘improve the welfare, good, happiness, needs, interests or values of agent B with regard to a particular decision or situation that B faces . . . motivated by a negative judgement about B’s ability’.⁶⁵ This opens the possibility that attempting to improve someone’s welfare by interfering with someone else constitutes paternalism: for example, your paying off my competitors in a race because you do not trust me to win otherwise. As noted, my own view is that such cases share a failure to respect individuals’ authority over their own good, but are not themselves paternalist. However, there is surely a scale here, rather than a clear binary distinction between interference and non-interference. Insofar as refusals to assist involve changing the profile of an individual’s option set and, if successful, altering their behaviour (causing an individual to practise their carpentry or refrain from using heroin), this does seem like a case of interference.⁶⁶ Such interference might not stand in need of much justification, but this does not mean it is unobjectionable in the absence of a legitimate one, which I contend paternalist intervention lacks. Insofar as interfering with the race does not change my ⁶³ Shiffrin 2000: 213. ⁶⁴ Quong 2011: 79–80. ⁶⁵ Quong 2011: 80. I have also rejected the view that paternalism is distinguished by an insulting negative judgement in favour of the authority account (paternalism distinctively involves violating individuals’ authority over their good). ⁶⁶ Remember that if our reason for refusal is different—we do not want them to buy heroin with our money, but do not believe our refusal will decrease the likelihood of the purchase being made, say— then the refusal would not be paternalist. This is closely analogous to Shiffrin’s discussion of the unconscionability doctrine: whilst the anti-paternalist filter should rule out an appeal to the good of the exploited as a reason for this policy, the state may uphold the doctrine because it does not want to be involved in enforcing contracts whose terms are one-sided, exploitative, or unfair (Shiffrin 2000: 221–4, and see Grill 2015: 58–9 for discussion).

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options or ability to choose between them, but only changes the significance of my actions (my race-time is now the winning one), this does not seem to cross the threshold of interference. Yet it may be argued that if sufficiently thoroughgoing it does change my options: now I cannot but win. Indeed, it may be objected that, in many thirdparty cases, if benefits are successfully bestowed, then the benefited individual will have their options altered, or their capacity to choose amongst them restricted. Even when this it true it seems worth separating the two elements of these cases—the paternalist interference (with an individual for their own sake) and the third-party interference (for another’s sake)—even if both are instantiated in a single action. This seems to me to allow greater clarity, meaning, for example, that we can judge one action-reason pair permissible and the other not. Yet intuitions on these cases vary widely, and ultimately little hangs on whether third-party cases are labelled paternalist. What matters is that the wrong is rooted in the violation of an individual’s PPE and the lack of justification for the interference.

7.6 The Paternalism of Unwanted Offers The category of interventionist actions that may be performed for a paternalist reason is, therefore, broad, including at least: increasing options’ costs, adding options, or making them cheaper; pre-empting judgment via information provision, or via rational persuasion; and refusing to assist. This can be broadly summarised as actions that aim to change an individual’s behaviour or improve their character by altering their option set, or undermine their ability to choose amongst those options for themselves. I will now outline three ways in which the provision of capabilities can be included as interventionist actions. First, when resources are scarce the decision to fund some means of assistance will inevitably come with opportunity costs. Thus, the decision to offer cochlear implants is not just a decision to offer cochlear implants, but also a decision not to pursue various other avenues by which the disadvantage faced by deaf individuals might be mitigated—improving and providing speech-to-text software, for example. Recall that, in the example I describe, much of the cost arises from the process of developing the technology. This is not merely a convenient thought experiment: many assistive technologies involve such one-off costs. This means costs will not depend on level of uptake and cannot simply be reduced depending on the number of individuals who

226       wish to utilise them. Thus, we may not be able to fund the development of multiple alternatives. Further, though the opportunity costs need not necessarily be borne by deaf individuals, if the costs of developing implants can only be justified on the basis of the benefits to all or most of the deaf population, and insofar as the government understands this as the way it will provide the deaf community with the opportunities they are entitled to, then it is plausible to think that this will reduce their inclination to fund alternatives. The choice to spend resources developing cochlear implants, then, will make the preferred, alternative options of many deaf individuals more expensive than they might otherwise have been. Of course, whether these options are ‘more expensive’ will depend on the relevant counterfactual. The software, say, will be more expensive than it would be if it were government subsidised, but if individuals only have an entitlement to control in a domain and not to some specific way of exercising that control, then it is not clear that this is the relevant comparison. To this, we could respond that, if some individuals do not consider cochlear implants an acceptable option, then we have not actually succeeded in enabling them to have control. There may be controversy, in some cases, in determining what constitutes an acceptable option. Certainly, we cannot allow individuals to demand that they will not settle for less than some outrageously expensive option (‘I can only be mobile in a Lamborghini’). Indeed, part of the motivation behind the development of the capability approach was to avoid welfarist commitments to simply taking ‘account of wants only as they are given’,⁶⁷ and to provide certain opportunities regardless of the welfare they generate and regardless of the resources they require (§3.3). However, an opportunity to have control only at the expense of removing what many consider a central feature of their identity can hardly be considered within the realm of the acceptable. A judgement call will be needed in many cases, and there may be instances in which individuals are deemed to have the control they are entitled to, though they are only provided with offers they would reject: perhaps a ‘cure’ is all that can be offered in cases where we lack the resources or technology to mitigate the effects of an impairment by any other means. However, this is clearly not true of the example of deafness under consideration. Thus, insofar as some individuals lack what they are entitled to when only cochlear implants are offered, it does not seem unreasonable to compare this with the equally achievable scenario in which they are provided with control when assessing the comparative expense of their options.

⁶⁷ Elster 1982: 237.

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By making other options more expensive, this falls into the first of the above categories of intervention. Of course, it does not follow this must be paternalist, never mind all-things-considered impermissible. Pursuing an option that leaves some impaired individuals without the control they are entitled to (i.e. disabled), or able to achieve this control only at greater expense, may be the best or only option (hence permissible), and need not be justified by an appeal to the benefits to those who repudiate it (hence not paternalist). As §1.3 considered at length, we may simply be unable to prevent all impairments from being disabling, even when the cause of disablement is external, social, and contingent. When the needs of individuals with different impairments conflict, we might need to make difficult decisions based on the number affected, the level of disadvantage, and the benefits of the proposed policy. The outcome may leave some disabled, when a different decision would have avoided this, and that may be permissible. What is not permissible is determining this outcome on the basis of benefits to individuals who would repudiate it. That is, funding an option individuals reject because of the benefits it would bring to them. Further, even if we conclude this does not make the non-state-funded options more expensive, it may still constitute a failure to assist. Understood in this way, too, not providing an option may affect individuals’ options sets and the ability to choose between them. A second way in which offers may constitute intervention is by encouraging people to make particular choices. Most obviously, and mirroring the above discussion, this will make some options cheaper (as others were made more expensive), or available when they otherwise would not have been. Additionally, by offering particular forms of functioning and not others the state endorses, explicitly or implicitly, the value of these options. For example, if cochlear implants are the state-funded response to deafness, then this is the option medical professionals will tend to discuss with deaf individuals (or their parents or carers). They are likely to emphasise the benefits of this option and may persuade individuals of the advantages of this course of action. They may withhold information about other, unsubsidised alternatives. By having a trusted professional simply present cochlear implants as ‘what we do in such cases’, such policies may pre-empt individuals’ ability to decide for themselves. It is possible that in some cases the impact will be even greater, such that the default option is not merely promoted but becomes the only feasible alternative. For example, if individuals with hearing-loss tend to opt for the new implants, it may cease to be cost effective to provide and research other forms of accommodation. Further, Sign might be less widely used and so may become a less tenable form of communication. It is such scenarios many

228       Deaf individuals fear, and which lead them to object to the current promotion of cochlear implants as having the potential for ‘cultural genocide’.⁶⁸ The third, and perhaps most direct, way in which the state provision of an option will involve interference arises from the collection of taxation to fund it.⁶⁹ Most obviously, if individuals pay tax, then they will be directly funding the benefit they repudiate. Even if they are not a taxpayer, if we understand contribution to, and membership of, a scheme of social cooperation more broadly, then we might think that all participating members of society are contributing to the provision of state-funded benefits even if they do not make a direct monetary contribution. Note that my point here is not that people should not have to fund benefits they disagree with: for example, that those with particular religious convictions should not have to fund contraception, or that libertarians should not have to fund any redistributive policies (see §4.5). I have argued that all individuals are entitled to exercise control in central domains of their life, and we can neither opt out of this scheme of cooperation nor decide for others how they should exercise this control. What is objectionable about the case of paternalist taxation is not that I am being asked to help someone else in a manner I disagree with, but that I am being compelled to help myself in a way I reject. In other words, and to reiterate, my authority over my own good is not being respected in such cases, and, if the resulting intervention can only be justified on this basis, I am being interfered with without justification. In summary, then, despite being mere offers of opportunities, the state provision of capabilities does involve various forms of (interrelated) interventionist actions, which may be paired with a paternalist reason.

7.7 Specifying Capabilities without the Good Thus far I have argued that paternalism involves intervening with an individual to provide them with a benefit they repudiate. This fails to respect their

⁶⁸ See Sparrow (2005) for an overview. ⁶⁹ A further objection to paternalist policies of this sort might be that they undermine relational equality. Whilst I have rejected the view that paternalism necessarily involves an objectionable lack of appraisal respect, it may nonetheless be the case that systematically ignoring some individuals’ views about what would best promote their interests might demonstrate a negative judgement about their capacities that could ultimately undermine their ability to relate to others as equals. As Voigt notes: ‘whenever individuals find that particular choices are blocked for paternalism-for-equality type reasons, this will indicate to them that the options they would have chosen were considered to reflect poor judgement’ (Voigt 2015: 98).

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authority over their own good, and any interference performed for this reason may lack justification. Intervening with an autonomous agent without justification demonstrates a further lack of respect. Merely providing opportunities to exercise control in central domains initially seems not to endorse a thick perfectionist account of the functionings that are good for people, nor prone to interfering to impose its values. However, given the practical requirement to select opportunities to make available now, and to choose where to engage in research and development to determine what will be made available, then it seems some choices must be made about which functionings to offer. And merely providing capabilities to function can constitute interference, especially when these comes at the expense of other alternatives. How, then, can paternalist intervention be avoided? The most obvious answer is to refrain from unauthorised appeals to individuals’ good. I have, so far, been fairly non-committal about when individuals’ good can be used as a reason. This is because there is no simple answer. One approach would be to assume, as a baseline, that we may use it unless an individual withdraws their consent. This is plausible in cases in which the benefit is obvious, few would not so consent, and consultation is impractical: for example, shoving an individual out of the path of a car. It is also plausible in the context of close personal relationships. Indeed, part of what characterises such relationships is the presumption that we can (and perhaps should) use each others’ good as a reason, though of course this permission can be withdrawn. This is less plausible in the state paternalism cases that concern us here: this does not involve a close relationship, there is rarely univocal support for policy responses to impairment, so we can expect that at least some of the intended beneficiaries might withhold their consent for their good to be counted, and it is unlikely that consultation is impossible. However, whilst beneficiaries should be canvassed, requiring explicit consent from every individual may be overly demanding. (Indeed, impossible if some of the beneficiaries are yet to be born, as is often true when embarking on a long-term research programme.) Thus, a less individualised approach may be used. For example, if consulting with a sample of the deaf community regarding the desirability of cochlear implants demonstrates that views are heterogeneous—some would welcome them, some consider them a threat to their culture and identity—and the benefit can only be justified by appeal to all or most deaf individuals, then clearly the policy should not be pursued. If the calculations are more finely balanced, further consultation might be needed. If we fear our consultation process is not representative of all intended beneficiaries—perhaps it is dominated by long-established Deaf activists, at

230       the expense of those who are newly experiencing hearing-loss; or dominated by hearing parents of deaf children at the expense of the hearing impaired— then the process should be improved. That this would be an implication of my account is surely a benefit rather than a cause for concern. It is not unreasonable to hold that respecting all citizens as democratic equals should involve taking their views about policies designed to benefit them seriously. Indeed, such consultation is valuable not merely as a means of respecting individuals’ authority over their good. Without it, any attempt to make people better off is likely to be ineffective: those living with an impairment are well-placed to know the kinds of changes that would improve their quality of life, and when benefits are provided in opposition to beneficiaries’ values and commitments then often they simply will not be used. ‘Nothing about us without us’ is a central slogan of the Disability Rights Movement for a good reason. Thus, even pro-paternalists should accept such consultation if they hope to be successful. More fundamentally, though, I contend that the goal of distributive justice is not to promote a predetermined conception of individuals’ good, but to enable them to form and pursue their own conception of the good. As has already been considered, if equalising or maximising welfare was our goal, capabilities—and especially the broadly construed capabilities for control— would be a poor choice as a means to achieve it (see §3.4 and §7.4). Few are a perfectly reliable guide to what would be in their best interests in every scenario, and fewer still will always reliably stick to the path that would leave them best off once identified. If our goal is not to ensure that people live well but to enable them to live according to their own plans and by their own volition, the reason to focus on capabilities is clear. And this focus should be maintained when deliberating about how the rather abstract capabilities for control should be operationalised as policy: again, the goal should not be bestowing all the benefits we can, but enabling control via the provision of acceptable options. As discussed, we cannot determine what is acceptable without some consideration of individuals’ interests and the options they consider viable. However, our aim should not be ensuring individuals have what they most prefer, but to allow them to set and pursue ends in central areas of their life. As such, the justification for including a specific option is that it is valued rather than valuable. The implications of this are, first, that this implies no judgement regarding how people should choose and so no suggestion that we are mistaken if we fail to opt for some particular functioning, or if our preferred option is not amongst those offered. Second, the process of selecting these

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options will not involve an unauthorised appeal to individuals’ good: both because the process will involve consultation, and because it will not seek to identify what is generally good for people in any case. Thus, we should not be seeking individuals’ views on whether they have any thwarted preferences or if there is anything the state could do to improve their quality of life. Rather, we should seek the views of potentially disadvantaged individuals on whether they have what they are entitled to (control), and what they would require to rectify this lack.⁷⁰ For example, if we were to consult with deaf individuals, our goal should not be to ascertain whether they would prefer to hear, but whether being deaf deprives them of control they are entitled to. Thus, we should not be attempting to determine how they feel about their deafness—for example, ‘are you satisfied?’ or ‘do you wish your hearing were better?’—but what they are able to do—for example, ‘do you have access to adequate education in an appropriate form?’, ‘can you access leisure activities?’, or ‘do you have chances to form social relationships?’—and what they might need to have those opportunities they lack. Recall that our goal should be to provide control to a threshold level rather than enabling specific functionings, so there is nothing inherently or necessarily disadvantageous about being unable to hear—or being unable to perform various other specific functionings (§2.7). We should resist the ‘ableist preferences’ that ‘uncritically assert that it is better for a child [or anyone] to walk than roll, speak than sign, read print than read Braille, spell independently than use a spell-check, and hang out with nondisabled kids as opposed to other disabled kids’.⁷¹ In other words, we should resist the push to normalise, and instead aim to ensure that individuals can be fully participating members of society regardless of their atypical modes of functioning (§5.4).⁷² Thus, there is no reason to assume that the only, or the best, means of enabling control will involve the elimination of impairment. However, this also does not imply ‘cures’ are ruled out. The point of this chapter’s central example is decidedly not to suggest that cochlear implants can never be offered in the absence of universal support. In a majority-hearing society, depending on other available technology, it may be amongst the best ways to offer some

⁷⁰ As I have argued elsewhere (Begon 2021b). ⁷¹ Hehir 2002: 3. ⁷² As Ashley Taylor points out: ‘if people with disabilities are to be fully included in political decision making, their differential means of expression and communication would need to be recognized both within schools and in broader society’ (Taylor 2012: 119). However, the scope of our concern should be broader: it is not only capabilities for inclusion in political decision-making that individuals are entitled to.

232       people control. In general, my contention that curing impairments should not be the default option does not imply funding this can never be justified. Crucially, what must be avoided is the assumption that individuals would be better-off if they could function normally (hear, in this example), that making people better-off should be goal of justice, and that the benefits of this functioning can justify the policy regardless of the views of those on whom it is bestowed. We should not fund implants if they are not welcomed by enough people to justify the expenditure, but we also should not fund them simply because enough people would welcome them. Ultimately justice does not demand that we offer implants simply because enough people would prefer to hear, any more than the state is not obliged to offer cosmetic surgery just because enough people would prefer to be beautiful. Considerations of individuals’ good should be subsidiary rather than central to specifying the requirements of distributive justice: determining whether individuals have the acceptable options they need for control in a domain, rather than being an end in itself. Returning to our example, given the deep objections many deaf individuals have to cures (echoed by those with many other impairments), it is highly unlikely they will have what they are entitled to simply because they are offered an undesired opportunity. So even if justified as one response to deafness, this is unlikely to be sufficient for the state to fulfil its obligations to deaf individuals.⁷³ Reaching such determinations about what is required to provide individuals with capabilities to control will not require violating the anti-paternalist filter by making unauthorised appeals to individuals’ good. As such, the resulting offers will not constitute paternalist interventions. Thus, individuals will be shown appropriate respect as autonomous agents, as well as being enabled to exercise control over their lives.

7.8 Soft Paternalism, Autonomy, and Background Conditions However, it may be objected that the problem with allowing such control is that those who have it will misuse it. As frequently noted, individuals can make mistakes. Indeed, as Chapter 6 argued, adaptation to restricted options

⁷³ Recall that this might fulfil state obligations if no alternatives were available. Although, as §2.4 discussed, this does not preclude an obligation to develop new options: the parameters of the feasible are far from fixed.

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may influence individuals’ decisions, causing some to fail to utilise, or even value, the opportunities they are entitled to. It is unsurprising that people reject various functionings when they have been forced to adapt to their absence—for example, deciding that education or meaningful work or social relationships are ‘not for them’.⁷⁴ Should recognition respect really be prioritised over living a good life? Should being able to direct our life be prioritised over having our life go in the right direction? One immediate line of response here would be to reiterate that our version of anti-paternalism should be soft paternalist. In other words, to insist that only autonomous choices should be immune from interference. As noted earlier, it would be implausible indeed to insist that we cannot interfere even if an individual is being coerced or lacks knowledge of relevant empirical facts—regarding the rottenness of a bridge, for example. Determining exactly at what point on the scale of autonomy intervention is warranted is not straightforward.⁷⁵ Crucially, though we also should not set overly demanding conditions for a decision to count as autonomous—as Feinberg arguably does by excluding choices made in a disturbed emotional state, based on mistaken reasoning, or not carefully considered.⁷⁶ We should not attempt to rule out spontaneous, ill-considered, and ill-informed choices when embarked on autonomously, if our goal is to allow people to be self-directing (see §7.5.2). The thinly perfectionist liberalism I advocate implies that we should aim to ensure people act with second-order autonomy: actively and willingly choosing an overall way of life without compulsion or influence. However, the state should not demand that people express autonomy in every decision they make and every rule or norm they follow. Thus, individuals can be allowed to act without first-order autonomy, which may include making risky and spontaneous decisions, or becoming a member of a group that requires adherence to rules they do not critically endorse.⁷⁷ Hence I would rule out ⁷⁴ Adaptive preferences may also have an influence on, and potentially render unreliable, individuals’ views regarding the more general scope of our distributive entitlements (§6.6). However, my concern here is with the specification and exercise of our entitlements. ⁷⁵ Depending on the decision, this may seem to either allow interference in an overly broad range of cases (Fateh-Moghadam and Gutmann 2014; Hanna 2018a; Mullin 2014) or else be too permissive to choices that are just autonomous enough (Arneson 2005; De Marneffe 2006, 2013; Shafer-Landau 2005). For discussion see Begon (2016b). ⁷⁶ Feinberg 1986: 104–6. To mitigate this problem, Feinberg qualifies that it is only when such choices are harmful that they can be subject to intervention. However, this raises the further thorny issue of determining what constitutes a harm, which may allow for the further imposition of a thick perfectionist conception of the good (see Begon 2013). For example, if we assume losing our hearing is a harm and gaining it is not, there may be a much higher bar for a decision to refuse a cochlear implant than the decision to get one. ⁷⁷ For a useful discussion of this distinction, and a defence of more thickly perfectionist liberalism see Chambers (2008).

234       allowing someone to ignorantly cross a rotten bridge unmolested if their ignorance is chosen.⁷⁸ Employing Colburn’s account of autonomy (outlined in §6.3) means choices should meet the endorsement and independence conditions, such that individuals decide for themselves what is valuable and are able to pursue it. This may include them deciding that what is valuable is a life that does not involve the expression of first-order autonomy. Thus, the soft paternalism that I advocate allows interference only with choices that lack second-order autonomy. Soft paternalism can be misused to exclude individuals with impairments by setting conditions for autonomous choice they cannot meet: perhaps mere diagnosis of a cognitive impairment is taken to warrant a judgement of autonomy deficit; perhaps a preference for an impairment is taken as of evidence of mistaken reasoning. Such assumptions must be avoided. We should focus on an individual’s capacity in a particular context, and not assume this is identical, across all contexts, for all people with the same impairment. And we should not assume that the content of a decision means it cannot reflect an autonomous choice. Individuals with impairments are as capable of choosing and acting autonomously as everyone, but also as capable of failing to. Thus, the possibility of abuse should not dissuade us from a commitment to soft paternalism. As with other normative powers, an individual’s PPE is only binding when autonomously expressed. Does this mean that nothing can be done to correct apparent mistakes if individuals meet the autonomy threshold? Not quite. Individuals are owed capabilities, understood as substantive opportunities or ‘real freedoms’ (§4.2). If the reason someone rejects these opportunities is systematic bias and oppression, ensuring access to these capabilities would speak in favour of eliminating this. This implies that in the long run, a system designed according to the principles of the capability approach would work to eradicate the systematic injustice that distorts individuals’ expectations and views of their capacities. Only by doing so can capabilities for control be provided. Specifically, this would involve working to ensure all individuals have experience of accessing the central capabilities (§6.7).

⁷⁸ There are many ways in which this case can be complicated, with which I cannot engage fully here (see Hanna 2018a, 2018b, 2012). For example, what if the bridge-crosser does not want to cross a rotten bridge but did not want to expend the effort required to discover which bridges are rotten? Should this risk be considered autonomously chosen, and thus immune to intervention? In brief, my view is that insofar as they wish not to expend the effort of educating themselves, but do not wish to cross the bridge in ignorance, intervention would be permissible by a soft paternalist (contrary to Jason Hanna’s interpretation of the case).

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Yet it is important to emphasise that our goal is not to ensure that people never make mistakes—or even to determine what constitute mistakes—but to ensure that they choose autonomously and authentically. In other words, to allow people to make judgements that have arisen in sufficiently favourable circumstances that they can be said to be authentic to the individual’s personality, that they would endorse on further reflection, and would not reject if more informed of relevant empirical facts.⁷⁹ Whilst I have argued that we should not allow the views of individuals who have not experienced the central capabilities to determine what these capabilities are (§6.6), many individuals with such justice adaptive preferences will be neither irrational nor nonautonomous. As such, they retain authority over their good. It is only when individuals have non-autonomous, well-being adaptive preferences (see §6.3) that a commitment to soft paternalism may mean interference is warranted. Those who have merely comprehensively adapted to diminished options, and so reject seemingly valuable options as a part of an autonomously formed and coherent set of preferences and values, retain their PPE. Thus, for example, we would not excise the capability for forming social relationships from the list of entitlements on the basis of its rejection by those who have not experienced it, but would not use their lack of experience as a reason to persuade or force them to engage in it. In brief: when they are choosing autonomously, we should allow people to decide how to make the best of a bad situation, whilst also working to improve that situation. For example, if an individual chooses to accept cochlear implants as the only way to enter the job market or form relationships, we should not interfere with this decision. The decision may lack global or second-order autonomy—they are influenced into choosing an overall way of life as a hearing, rather than a deaf, person due to the lack of accommodation—but can still instantiate local autonomy—it authentically reflects their view about how to balance the options that are available to them. However, insofar as our goal is to enable people to have second-order autonomy, the fact that the state should not paternalistically interfere with the decision does not mean the situation creates no obligation to act. The state should enable individuals to actively and autonomously choose their overall way of life, and not require them to choose between their impairment and the capabilities they are entitled to. The same reasoning applies to many other cases, including an individual contemplating conversion therapy: the decision

⁷⁹ See Dworkin 2000: 160.

236       should not be interfered with when locally autonomous, but the wider circumstances that push people into making it should nonetheless be altered. In the short run, then, interference would not be permissible even if individuals’ autonomous and authentic preferences involve the repudiation of apparent benefits. If we value autonomy and avoiding paternalism then we should allow people to make decisions for themselves even when we think their choices are mistaken, and even when their decisions are grounded in distorting influences that justice demands should ultimately be eliminated.⁸⁰ Allowing individuals to truly decide for themselves what is valuable, and giving them the ability to pursue it might require allowing individuals to autonomously choose both non-autonomous ways of life, and forms of functioning that leave them worse off than they might otherwise have been.

7.9 Cures and Parental Paternalism The central case on which I have focused concerns a state decision to offer a cure for an impairment to adults, who will be free to use this or not. However, curing impairments is more commonly considered in the context of parental decisions on behalf of existing children, or regarding whether to bring children with impairments into existence, via pre-implantation genetic diagnosis (PGD) or selective abortion. Insofar as these decisions concern children, it may seem that these are not cases in which worries about paternalism apply. Indeed, these may seem to be cases in which paternalism is exactly appropriate. There is no autonomous agent to whom recognition respect is owed in the case of infants, foetuses, and (especially) yet-to-be-implanted embryos, and parents must make decisions on their children’s behalf, and should aim to promote their welfare when doing so. Nonetheless, many of the same considerations will be significant, and can provide guidance in these cases too. They may lack autonomous capacities now, but they can still be respected as future autonomous agents. Centrally, this requires that the state ensures all people have what they are entitled to. The guiding consideration behind state policy, therefore, should be guaranteeing not only children’s welfare but also their future ability to have central capabilities for control. Further, whilst we might allow parents some

⁸⁰ See Begon (2021b). A benefit of an approach, like my own, where people collectively determine the content of entitlements is that all continue to be entitled to opportunities even if a minority do not utilise them. This may encourage their future uptake and further undermine distorting influences.

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discretion in how to best promote welfare, access to future capabilities should, as far as possible, be assured. Possessing these capabilities will give people the chance to have a decent quality of life but, as we have seen, may not give them the best possible life, especially if they make bad decisions. More generally, being justly treated is no guarantee of high quality of life, and unjust treatment need not always be bad for our welfare. For example, experiencing ‘solidarity in indignation’ may improve the well-being of individuals subject to legal discrimination, whilst those used to privileged treatment might experience reduced well-being if treated as a ‘mere’ equal.⁸¹ The relationship between disability and well-being is not, therefore, predetermined by my account: disabled individuals definitionally lack what they are entitled to, but need not have low quality of life. The relationship between impairment and wellbeing is even more open to variety, as Chapter 5 explored.⁸² More importantly, merely having an impairment does not necessarily prevent individuals from having what they are entitled to, and as such, there is no general requirement to eliminate impairments—in adults or children. However, whilst we should not assume impairments usually considered disabling warrant cures or removal, we should also avoid generalising in the other direction, and insisting, like Barnes, that there is no discrepancy between causing and removing any impairment.⁸³ As I have repeatedly emphasised, the effects impairments have on individual lives in different circumstances are diverse, and we must be attentive to specific features of cases to determine their probable effects (see §1.7, §5.6). I will make two broad claims regarding parental decisions. First, concerning selection, I suggest that we should not select for disabling impairments (those that prevent us having what we are entitled to), but can select for or against non-disabling impairments. This accords with Joseph Stramondo’s conclusion that parental decisions regarding PGD should be limited by the requirement that the child has ‘an acceptable opportunity range’ if reasonable accommodations are made.⁸⁴ This leaves considerable scope for parental discretion if we accept the complex-difference account of disability, defended in Chapter 5, since ‘many modes of functioning

⁸¹ Schemmel 2011: 140–1. ⁸² As McBryde Johnson (2003) succinctly summarises: ‘the presence or absence of disability doesn’t predict quality of life’. ⁸³ Barnes 2014. ⁸⁴ Stramondo 2017: 476. The ‘reasonable accommodation’ clause included by Stramondo (2017: 485–90) is important to give us some guidance on the large grey area, covering impairments that are disabling only due to a failure of state institutions or those that are not but in danger of becoming so (under a new administration, say).

238       can still allow for a plenty broad complement of life opportunities’, though of course not ‘any mode of functioning will do this’.⁸⁵ Second, causing or removing impairments raises a number of additional complexities which I will not pursue in detail here. I merely contend that impairments should be treated analogously with other forms of human variation, some of which will have no significant impact on our access to our entitlements, some will mean our access to them will be restricted in current circumstances, and some will make it extremely difficult to ever have the control we are entitled to. If we think parents should not alter innocuous features like hair colour, or contingently disadvantageous features like sex, race, or sexuality in discriminatory contexts, then the same should go for impairments in these classes. Some will believe that parents should be permitted to select or engineer their children to ensure they have some desired suite of ‘features’, others that doing so conflicts with the unconditional welcome children are owed, or that a child’s right to an open future requires that we do not make significant inessential alterations to their body or mind until they have the capacity to understand the consequences of these decisions.⁸⁶ On the one hand, respecting individuals’ authority over their good does seem to require refraining from making inessential decisions grounded in assumptions about what will be best for them. Yet, on the other, much of parenting involves making just this sort of decision. I will not, therefore, take a view on the correct position here, only that the relevant aspect of the feature we are selecting for or against should be its effect on the child’s ability to have the control they are entitled to. The mere fact that it is an impairment, and so will render their functioning atypical, provides no justification for treating it differently to any other form of variation.

7.10 Conclusion Disabled individuals are all too often treated like children, and like children this can entail the assumption that it is appropriate to act in what the state believes to be their best interests, rather than allowing them to direct their own life. Yet in the vast majority of cases, individuals with impairments are, and should be treated as, autonomous agents. This means that policies designed to ⁸⁵ Stramondo 2017: 484; §5.6. ⁸⁶ For some competing views on this point, see: Asch and Wasserman 2005; Bou-Habib and Olsaretti 2014; McMahan 2005; Savulescu and Kahane 2009; Stramondo and Campbell 2020; Wasserman 2009.

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benefit them should not be justified by unauthorised appeals to their good. Yet they also should not be justified by authorised appeals to their good, since the goal of just public policy should not be welfare promotion. The state must ensure all individuals can direct the course of their own lives, not guarantee them a particular level of well-being, contrary to their autonomous decisions. The problem with the state acting as if it knows what is in the best interests of those it aims to assist without consulting them might seem clear: often it does not, and its policies will therefore be ineffective. Whilst frequently this is indeed the case, I have argued that even when the state gets it right—engages in successful paternalism—it would still not be justified in doing so. First, policies that appeal to the good of their beneficiaries and yet are repudiated by these beneficiaries are paternalist. As such, they fail to show appropriate recognition respect, both by using individuals’ good as a reason without authority, and then potentially intervening in their lives without adequate justification. Second, they mistake the proper goal of just policy, which is not to achieve some level of well-being, but to enable people to have what they are entitled to. On my view of entitlements, this means allowing people to choose and pursue their own goals in central domains of their life. These might not always make their life as good as possible. However, sometimes well-being is not what we care about, and even when it is, we ought to have the freedom to risk it, and to make our own mistakes. Consultation with those affected by a policy prior to implementation is essential, then, but not to make sure we are effectively increasing welfare, but so policies meet the demands of justice and secure central capabilities for those they are designed for.

Conclusion When thinking about disability in the context of justice, our focus should not be on the ways in which people’s bodies and minds function differently. Instead, I contend that we should shift our focus to the limitations that this leads to—for particular people, in particular contexts—and, I claim, only a subset of these limitations matter. Specifically, those that prevent individuals from having control in certain central domains of their life, by restricting the availability of acceptable options or the ability to freely choose between them. The problem that disability raises is not the mere fact of difference, but the ways in which that difference is accommodated (or not) and the limitations it may cause. Our focus, therefore, should not be on whether someone has received a particular diagnosis, or on the most visible deviations from what we take to be the species norm, but on whether people have access to central capabilities. Yet it may be objected that by focusing so narrowly on whether individuals lack what they are entitled to as a matter of justice, I leave out much that is central to the experience of disability. There are various ways in which this concern could be cashed out. On one iteration, an opponent might agree that disability should be understood as lacking what we are entitled to, but dispute limiting the scope to what we are entitled to as a matter of justice, and not what morality more broadly construed might demand. Alternatively, it may be objected that focusing on an absence of entitlements is too narrow, however broadly this is understood, because doing so ignores features of the disabled experience that cannot plausibly be explicated in the language of entitlements. I begin with the latter worry, which can itself be split into two concerns. First, individuals will not be disabled by losses that they are not, in any sense, entitled to, but which may nonetheless be valuable or contribute to their wellbeing. Second, it may seem objectionable that disability is defined entirely in terms of the lack of valuable capabilities, and so does not definitionally include more positive elements of the disabled experience: access to community, sources of communal solidarity and identity, diverse ways of experiencing, understanding, and interpreting the world, acquiring new skills and abilities, and so on. Disability Through the Lens of Justice. Jessica Begon, Oxford University Press. © Jessica Begon 2023. DOI: 10.1093/oso/9780198875611.003.0009

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However, though neither well-being losses nor these more positive elements are constitutive of disability on my view, this need not imply that these elements cannot be accounted for, in the sense of being acknowledged as significant elements of many disabled people’s experiences. Disability is defined as lacking opportunities we are entitled to as a result of impairment (as atypicality not deficiency). The connection to impairment is essential to avoid disability being synonymous with disadvantage, whatever the cause. However, this also means that disability is defined both as lacking what we are entitled to, and as functioning atypically. This latter component may lead to losses of well-being that are not matters of entitlement (for example, a lack of valuable sensory experiences), and may lead, too, to many positive experiences both as a direct result of the atypical functioning (for example, new experiences, understanding, and skills) and those more indirectly related to it (for example, community membership, solidarity, and pride). Thus, disability on my account is acknowledged to involve experiences both difficult and desirable; both unpleasant and life-affirming. An account of disability that excluded such elements would certainly be objectionable. However, there are also problems with making these elements of disability central to our definition. Whilst disability can be associated with well-being losses, it need not be, and atypical functionings that inhibit wellbeing are not always appropriately characterised as disabilities. Indeed, as §1.6 argued, defining disability by its contribution to well-being loss will render the category entirely ubiquitous, and so of little use in identifying a significant dimension of disadvantage and the individuals who experience it. Attempting to identify some positive experiences that can provide a plausible grounding for the category of disability will be similarly unsuccessful, given the diversity of such experiences—even all those entitled to membership in the disabled community (Barnes’s criteria, §1.7) will not be part of this community, nor have identical experiences within it if they are. Further, insofar as we want to identify disability as useful in the context of recognising and rectifying injustice, it is essential to include those who do not share any of the many positive experiences of living with impairment. Of course, such arguments assume that our account of disability should be useful in the context of justice and, again, I leave open whether in different contexts and for different purposes, a different account of disability might be more appropriate (see §1.8). My core point here is simply that insisting that some part of the disabled experience should not be written into the definition, as a constitutive component of disability, does not mean the significance and prevalence of these experiences will be occluded. Indeed, my neutral account

242       of impairment makes clear the range of physical and cognitive experiences and ways of being—both positive and negative—that may be part of disability. I turn now to the second objection: that there is no reason to restrict disability to diminished abilities to do what we are entitled to as a matter of justice, as opposed to what we are entitled to be able to do as a matter of morality more broadly. Insofar as we believe the domain of morality is broader than the domain of justice, it may seem to render my account of disability unjustifiably narrow to restrict it only to the loss of justice-relevant entitlements. This concern was raised by a reviewer of the manuscript, and it is worth considering a version of the counterexample they raise to appreciate the full force of this worry. Imagine, then, an individual with Down’s syndrome. She lives in a society in which everyone studiously respects her rights, treats her with basic civility, complies with relevant laws, helps her when she needs it, and so on. However, everyone also has no interest in forming bonds of friendship or love with her, snubs her, fails to get to know her, does not appreciate her or her interests, and does not have special trust in her. The criticism goes that this individual lacks the genuine control over her close personal relationships that she is morally entitled to. However, on the assumption that justice is not concerned with the intricacies of special relationships (beyond a basic opportunity to form them) then she will have all she is entitled to as a matter of justice, and so will not be disabled on my account. I agree that it would be implausible if such cases were excluded from my account, yet I believe they can be accommodated. Ultimately, the disagreement arises from a different understanding of the scope of justice employed in the example. First, adopting a capability metric of justice allows for the inclusion of apparently private matters as entitlements of justice. Second, and more fundamentally, we must determine what is meant by justice and how this differs from the demands of morality. Whilst I accept the standard view that justice is what we are owed from the state, this is open to a variety of interpretations. I suggest that the realm of state responsibility should be broadly construed. Not only does this seem the best interpretation of justice, it will also avoid an overly narrow account of disability. I consider each point in turn. First, then, it is worth reiterating the significance of our selection of a particular metric of justice. As Chapters 3 and 4 argued, I believe we should adopt a version of the capability approach, according to which all individuals are entitled to exercise genuine control in central domains of their lives. Simply accepting this metric immediately calls into question the claim that justice does not apply to the intricacies of special relationships. Whilst it is true

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that the state should not be concerned with the ‘intricacies’, in the sense of micro-managing personal interactions (more on this below), our relationships are nonetheless incorporated into a capability approach to justice in two ways. First, relationships are included directly, as items on the list of central capabilities: for example, ‘affiliation’ and ‘emotions’ on Nussbaum’s list, or ‘doing good to other’s’ on Wolff and De-Shalit’s modification of it (which I broadly adopt, see §4.7). Second, indirectly, as the preconditions for having the genuine control necessary for other capabilities, since this requires both the external and internal preconditions of choice. As Chapter 6 argues, being in oppressive relationships or subject to unjust norms can distort the process of preference formation: unattainable opportunities may be consciously or unconsciously downgraded, individuals’ choices may not reflect their preferences, or individuals may internalise a self-conception according to which they are not entitled to certain opportunities (see §6.6). All of this can undermine the degree to which individuals can exercise genuine control. If, as in the above example, an individual with Down’s syndrome is raised in a context where they are excluded from caring or loving interactions, then this is likely to affect their sense of self-worth such that they lack not only capabilities such as affiliation but also less directly affected capabilities, such as participating effectively in political choices, having the real opportunity to hold property or to seek employment. They may, for example, consider themselves ‘unworthy’ of engaging in such pursuits or (consciously or unconsciously) lower their judgement of their value. Thus, on a capability view, the demands of justice are not exhausted by mere compliance with the demands of basic civility, absence of rights violations, and obeying the laws. Without access to some others who have at least some interest in forming the bonds of special relationships, individuals may directly lack some capabilities—to live with and toward others, to love those who love and care for them. And due to the distorting influence on their capacity to form and act on their preferences that living in a condition of constant ostracisation can be expected to have, they are likely to lack other capabilities too. As Kimberley Brownlee has convincingly argued, having ‘minimally adequate opportunities for decent or supportive human contact including interpersonal interaction, associative inclusion, and interdependent care’ is an essential part of a minimally decent human life.¹ Further, such supportive interpersonal contact is not merely intrinsically valuable, but also instrumentally valuable as a means to the ‘development and the maintenance of . . . ¹ Brownlee 2013: 199.

244       cognitive, physical, emotional, linguistic, and social abilities’,² which in turn are necessary to exercise many capabilities. Brownlee focuses primarily on cases of extreme isolation or brutal treatment, but even more mundane social exclusion, such as persistent coldness or standoffishness, can undermine such capacities, especially of those who are otherwise vulnerable. Detailed arguments in favour of a capability approach to justice have already been given, but it is worth noting that this highlights another of its benefits: its ability to accommodate the importance of relationships, and acknowledge the ‘potential problem of justice’ when differences in power and status lead to unequal relationships.³ It places central emphasis on the harms of ‘social subordination’, and of denying some members of society ‘the status of full partners in interaction, capable of participating on a par with the rest’.⁴ I will not attempt to reiterate the arguments of relational egalitarians and recognition theorists in favour of including a concern for how we relate to each other within the realm of justice here. Rather, I merely note that the capability approach accommodates the concerns of relational theories in the two ways outlined: as components of particular capabilities, and the preconditions of having them. Further, the capability approach demonstrates that, contrary to the claims made by some of these theorists, we need not choose between a distributive or relational theory of justice. Indeed, though often framed as a distributive theory (distributing capabilities), it is also employed by relational egalitarians (most obviously Anderson).⁵ Thus, insofar as it is concerned both with how individuals stand in relation to each other, independently of the knock-on effects on wider quality of life, and with the distribution of valuable opportunities and the ability to make use of them, it seems best characterised as a ‘pluralist egalitarian’ account of justice.⁶ However, even if capabilities are accepted as the metric of justice, and so relationships are potentially within its scope, it may be objected that cases like the ostracised individual with Down’s syndrome still cannot be accommodated, because all the state can do to secure relationships is to allow the freedom to form them and basic opportunities to do so. Once this is done, the individual has all they are entitled to as a matter of justice, and so will not be considered disabled by their remaining exclusion on my view. The second ² Brownlee 2013: 200. ³ Schemmel 2011: 125. Note, too, that the capability approach need not endorse the perfectionism Schemmel (2011: 141) attributes to it. As Chapter 4 argued, our commitment to enabling all individuals to exercise control in their life need not be grounded in the assumption that exercising particular functionings, or even having the capability to do so, will be good for people. ⁴ Fraser 2000: 114. ⁵ For example: Anderson 1999; 2010b. ⁶ Following Kasper Lippert-Rasmussen’s (2015, 2016) terminology.

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point of disagreement, then, concerns the various possible interpretations of the claim that justice is ‘what we are owed from the state’. The strongest interpretation is that a claim of justice must be correlated with a duty that could be enforced against a specific state, which is currently able to fulfil it. This leads to the narrowest understanding of the scope of justice and, in particular, means it will primarily be restricted to action in the public, not the private, sphere—and hence exclude cases such as the individual with Down’s. This is because if demands of justice must be both realisable (i.e. meet the feasibility constraint) and achievable via direct state action, this leads to at least three limits on what they can encompass. First, the enforcement tools of the state tend to be rather blunt: universally applicable legal sanctions, education programmes, or changes in the design of public spaces, for example. These are slow-acting and general in application, and thus unlikely to be effective in regulating problematic personal interactions. Thus, even if some morally acceptable methods of intervening in such interactions did exist, these may not be available within the apparatus of the state. Second, a possible intervention may be rendered morally unacceptable if performed by the state. That is, even if the state could engage in fine-grained interventions in our personal lives and relationships we may not want the state to reach into such private matters, especially by means we would consider morally unacceptable, such as constant, invasive surveillance, or insulting assessments of the quality of our choices. Third, there will be cases in which no means of meeting a putative claim of justice are available to any agent. For example, as I discuss in §2.4, we may lack the resources, technology, or knowledge to enable some individuals with serious impairments to exercise control in some central domains of their lives. On a narrow reading of justice, then, cases in which the state cannot fulfil a duty, the state should not fulfil a duty, or no one can fulfil a duty would all fall outside its scope. However, this is not the view that I endorse. In §2.4 I reject the feasibility constraint on justice, arguing that entitlements should be understood as conditional entitlements. My focus there was to argue that the third set of cases above should be included: it may be unjust that individuals are deprived of access to central capabilities, even if the lack cannot be rectified. However, these arguments apply more broadly, since cases of infeasibility also include those in which claims can be fulfilled, but not (permissibly) by the state. For similar reasons, I contend that these too may be instances of injustices. It is important to emphasise that this is an interpretation of the claim that justice is the realm of state responsibility, rather than a rejection of this claim.

246       My contention is that ascertaining the boundaries of this realm should not depend on whether a specific state can currently fulfil some claim, but rather a counterfactual or conditional test: if the state could deploy some permissible method to rectify a putative injustice, then should it? Answering in the affirmative is, I believe, sufficient for judging something to fall within the scope of justice, even if there is little chance of the former clause being met—either because we cannot imagine it ever being possible for the injustice to be rectified, or because we cannot imagine the state could find a morally permissible way to rectify it. For example, the gendered, unequal division of domestic labour is unjust, even though the state should not directly intervene in the distribution of household chores. This does not lead the realm of justice to collapse into morality more generally, since a meaningful distinction is retained from cases of wrongdoing that are simply not the business of the state. Individual instances of promise breaking, or failures of courtesy, for example, are not things the state is obliged to rectify (regardless of the availability of morally acceptable means).⁷ This can be contrasted with cases of structural oppression (such as the previous) or consistently disrespectful treatment of some class of people. For example, an individual instance of having one’s credibility wrongly deflated is not unjust, whilst having it consistently deflated, across time and context, on the basis of a negative prejudice attached to an identity feature, would constitute a (testimonial) injustice. The same can be said of individual instances of being treated disrespectfully by some unpleasant individual (a moral failing on their part), compared to being constantly and consistently overlooked, ignored, or otherwise disrespected. The latter cases, unlike the former, are injustices, and are apt for state intervention—on the condition that morally permissible means are available. It is also important to emphasise that more means are available to the state than have traditionally been assumed. The state either cannot or should not engage in constant policing of individual interactions to ensure, inter alia, courtesy, fair and respectful treatment, appropriate attributions of credibility, and an openness to marginalised hermeneutic resources. Yet this only means that the state cannot prevent specific manifestations of such structural injustices, and not that they cannot work to undermine the embedded norms and practices that generate them. For example, returning to the individual with

⁷ It would also exclude those inequalities that do not seem to generate any entitlements, and thus corresponding duties of rectification, such as Salieri’s complaint regarding Mozart’s superior musical talents (Anderson 2010b: 10).

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Down’s syndrome, it is likely true that the state cannot act to ensure either a desirable functioning outcome (they have social relationships), or, more importantly, that this particular individual has the capability to form such relationships (the genuine, not merely basic, opportunity, see §4.2). If not actually impossible, any such attempt would likely be impermissibly interventionist. Nonetheless, there are actions the state should take—for example, education programmes to battle social norms that lead to the reluctance to engage with individuals with Down’s; or screening applicants for stateprovided social work, healthcare, and education to ensure that they are not prejudiced, guaranteeing some access to individuals with whom social bonds may form. Such actions would, at least, reduce the possibility of future occurrences and may even enhance this individual’s future capabilities. In other words, and returning to the first point, if our metric is capabilities, then much more of the private realm is implicated within the scope of justice, since justice is interpreted as requiring that we have the substantive ability to exercise control in many parts of our life—including the personal—and genuine control usually requires freedom from interpersonal oppression. Indeed, it seems likely that when someone is disadvantaged—that is, lacks the capabilities they are entitled to—as a result of an impairment, then this will be due to structural injustice. Outside of the realm of philosophical thought experiments—someone with Down’s only happens to meet individuals who just so happen not to want to associate with them, as the result of their idiosyncratic preferences, not traceable to any systematic bias or hierarchical systems—disadvantage as the result of an identity feature, such as impairment, does not simply happen due to individual moral failings but due to systematic marginalisation and exclusion. Thus, in such cases, we should assume, until given evidence to the contrary, that there is a structural injustice the state can and should work to rectify. The adoption of the capabilities metric therefore reduces the significance of the disagreement over whether duties of justice must be realisable by a particular state, insofar as it expands the realm of state duties. Nonetheless, it does not resolve the dispute. Even if there are more cases in which the state can feasibly do something it certainly will not be able to fully rectify every disadvantage, and sometimes there will simply be nothing at all the state can (permissibly) do. Yet I would still contend that these constitute injustices because, if the state could provide the absent capabilities, then they should do so. Thus, even if the state is unable to prevent the ostracisation of the individual with Down’s, for example, it remains unjust—if the state could rectify it, it should. (Of course, if a misanthropically minded individual,

248       impaired or otherwise, chooses to reject such opportunities, then there would be no injustice in the subsequent absence of functioning achievement.) No doubt some will find this interpretation of justice counterintuitive, but I believe rejecting it has equally counterintuitive consequences. If Dworkin is right that justice is, at its core, about showing equal concern and respect to all people, then the narrow account of justice would exclude many instances of apparent injustice. It is surely unjust, for example, when individuals live in societies in which people like them are considered and treated as less capable of contributing usefully, less likely to be trusted or more difficult to understand when attempting to communicate, or simply not a viable prospect as a friend or romantic partner. There may be no simple way for the state to dissolve the social hierarchies that lead to such treatment, but whatever it can (permissibly) do, it should. To some extent, though, the disagreement may merely be semantic insofar as it would be possible to agree regarding the content of disability, but insist that this includes a lack of what we are entitled to as a matter of justice and (some of) morality. What is substantively important, and what leads me to talk in terms of justice, is the core distinction between disability as the systematic deprivation of what we are entitled to, and the loss of opportunities that would simply improve our quality of life. I believe that the opportunity to form meaningful personal relationships should be placed squarely in the former category. The ability to interact with, and be recognised as equals by, our fellow human beings is an essential part of a decent life, and one which all individuals are entitled to as a matter of justice. As reflection on capability deprivation in disabled lives illustrates, lacking control in central domains of our life seems best characterised as injustice, even when we can identify no state able to eliminate it. Nonetheless, if others prefer to talk in terms of ‘justice plus’ some other moral entitlements, they may do so. Crucially, though, the combination of my broad account of justice—as capabilities for control, and jettisoning the feasibility constraint—and my definition of disability—as lacking what we are entitled to as a matter of justice as a result of an impairment— does not exclude the kinds of disadvantages the state cannot immediately provide. Thus, though in some ways the arguments advanced in the various chapters are independent—a reader may agree that disability involves lacking what we are entitled to as a matter of justice, but disagree about what we are entitled to; they may agree that we are entitled to capabilities for control, but disagree that this should ground our understanding of disability; they might agree impairment should be understood as atypicality, but dispute its relationship to

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disability, and so on—I believe (unsurprisingly!) that they work best together. Combined with some accounts of justice my definition of disability would be implausibly narrow (though so too would be such accounts of justice). Combined with an understanding of impairment as deficiency, my account of disability may obscure the positive elements of disabled experience, or suggest impairments should be eliminated. This is not, of course, my view. On the contrary, my central claim has been that our goal should not be to normalise, should not be to remove atypical forms of functioning, nor to ensure that all have the opportunity to perform the functionings we deem valuable or best. We should not view disability with an eye to what is regrettable, or what makes life harder—and not just because we get this so wrong when it comes to disability. Everyone has difficulties to struggle with and barriers to overcome, and it is not the state’s business to try and flatten them all on our behalf. What the state should do, is to ensure that we all have the substantive opportunity to choose amongst options, and the ability to pursue them. We should, in other words, provide individuals with the chance to control their functioning in central areas of their life, without specifying the use they should make of this control or ranking various ways of functionings as superior and inferior. It is possible that forcing or persuading people to function in certain ways may sometimes make them better-off, but giving everyone the best possible life should not be the goal of the state. Rather, it should be to meet the demands of justice. Reflecting on disability and impairment has helped us to see that this requires the provision of choice, and not attempting to secure uniformity in people’s mode of functioning. Yet these lessons are applicable beyond the context of achieving disability justice. The goal of a theory of justice should be to support a diversity of abilities, of needs, and of preferences, and to allow all people to choose for themselves, make mistakes for themselves, and live their lives as autonomous agents.

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Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. Aas, Sean 38, 141–2 ableism 15, 31, 120–1, 155–6, 187–8, 194, 231 abuse adaptive preferences 165–6, 177 bad functionings 75–6 and entitlement to perform functions 76–7 and obese individuals 63n44, 64 partner abuse examples 75–6, 78, 124, 165–6, 177, 234 and wheelchair users 16 WHO example 22 achondroplasia 62 adaptive preferences. see also justice adaptive preferences Arneson 184 Barnes 166, 177–8, 181–2 benign adaptation 170 Blanchet 176 borderline cases 175–6 Bovens 173 Cohen 184 Colburn 173–4, 176–8, 191 core preferences 183 covert influences 174–5, 187–8, 191, 214 critical reflection 183–4 disability paradox 165n2 divergent views 165–8 Dworkin 184 Elster 168–9, 171–3, 176–7 Fleurbacy 176 formation 168–72, 176 ‘Fox and Grapes’ parable 168–73, 179, 187–8, 192–3 insulting implications 196–8 justice proceduralist accounts 168, 184–92, 214 Keller 194–5 Khader 171, 182–4, 186 misapplication of the concept 165–7

Mitchell 170 Nussbaum 171–2, 181–2, 181n43, 184–5 Rawls 184 reflective equilibrium 184–6 Sen 169–71, 174n26 substantive approach 168, 181–4 substantive proceduralist approach 154–5, 182–4, 194 Terlazzo 171, 182–4, 186 as unreliable 176–8, 182, 184 vagueness 167–8 value distortion 193, 195–7 well-being adaptive preferences 168, 172–81, 187–8, 214 Wolff 185 aesthetic enjoyment adaptive preferences 179–81 blindness 46–7 justice adaptive preferences 191–2 justice-based account of disability 44–5 music appreciation 161–2 aesthetic experiences deaf individuals 46–7, 59, 179, 191–2 altruism 122, 213n42 amputation of a healthy limb. see body integrity identity disorder (BIID) Amundson, Ron 149–50 Anderson, Elizabeth 56–7, 80–1, 81n29, 85 antidiscrimination legislation 22 anti-paternalism 202–11 Arneson’s objection 214n43 authority approach 206–7, 209, 211 cochlear implants 211–13, 213n42, 232 and consent 202, 213 covert influence 214 cures 211–12 Grill 202, 207–8, 213n42 and justice theory 215–20 and liberty 202 Mill’s rotten bridge 214

268  anti-paternalism (cont.) mistakes 211, 214–15 state assistance 75n16, 200–1, 211–15 will as decisive 207 Arneson, Richard 118–22, 184, 214n43, 222, 222n58 arthritis. see pain conditions Asch, Adrienne 111 asexuality. see also sexuality as deficiency 105n36 exclusion example 32–3 functioning of sexual satisfaction 101–4, 107, 110, 218 rejection of the benefit of sexual satisfaction 217 atheism 105 authority approach 8–9, 200–2, 206–7, 209 Autistic Spectrum Conditions (ASC) adaptive preferences 194 amusement park example 80–1 capabilities for control 102–5 covert influences 174–5 deficiency vs diversity 141–2 defining disability 11–12 dysfunction vs difference 142–3 exclusion from education 66 functioning better trade-off 146–7 and impairment 110, 130, 132–3, 138–42 as not disabling 62, 128, 145 social interaction 50–1, 146–7, 174–5, 217 solitary confinement example 51 as transient disorder 152 autonomy ability to express agency 85–6 adaptive preferences 165–70, 173–4, 176–7, 183–4, 189–90 capabilities for control 93, 107–9, 112–13, 117–18, 121, 123–4 Colburn’s account 173, 233–4 disabled as autonomous agents 8–9 forming social relationships 235–6 maximizing one’s welfare 214–15 non-autonomous character planning 168–9, 173, 187, 193 and paternalism 201 state assistance 219, 222–3, 222n58, 232–6

Barclay, Linda 18, 81n29 Barnes, Elizabeth on adaptive preferences 166, 181–2 causing and removing impairment 237–8 concept of negative impairment 151–2 deviation from normal functioning 140 disability and impairment 12 discordance view 177–8 mere-difference view 155–6 objections to the concept of impairment 132–4 social constructionist approach 32–5, 241 value of distinguishing difference to disability 134–5 Bickenbach, Jerome 138–9, 141–2 BIID (body integrity identity disorder). see body integrity identity disorder (BIID) Blanchet, Didier 176 blindness aesthetic experiences 46–7 Braille 5, 108–9, 121–2, 231 classification as disability 111 context 19 control 108–9 dysfunction 141–2 ‘engineering away,’ 104n34, 238 entitlements 47–8 impairments 12, 18 and natural reference class 139–40 as not disabling 62 opportunities 46–7, 116 rejection of the benefit of all five senses 217 sensory compensation 160–1 sensory experiences 5, 46–7 treatments 108–9 board games example 223 bodily integrity capabilities for control 50, 101–2, 114, 124, 125nn82, 84, 185–6 rape example 124 in substantive perfectionist approach 182 body dysmorphia 144–5 body integrity identity disorder (BIID) 33–4, 62–3, 114–16, 144–5 Boorse, Christopher 139–40 Bovens, Luc 173

 Browne, Kimberly 243–4 Brunning, Luke 101n25 Buchanan, Allen 24–7 Campbell, Stephen M. 35n85, 157–8 cancer examples 85, 103–4 capabilities for control Arneson 118–21 autonomy 93, 107–9, 112–13, 117–18, 121, 123–4 basic capabilities 92 bodily integrity 50, 101–2, 114, 124, 125nn82, 84, 185–6 Brunning 101n25 capability for bodily health 106–7 capability sets 97–8 Carter 114–16 central domains 91, 95–6 Cohen 94, 117 content-independent freedom 95 dealing with limited resources 122 de-Shalit 96n13, 97, 124–5 in domains of choice 90, 218–19 elimination of impairment 108 fertile functionings 96, 125n83 Fleurbacy 117 formal freedom 196 impairment treatment as offensive 105–6, 108–9, 218 issues with capabilities to function 91, 99–106 Johnson 112 judging capabilities 91, 123–6 Keller 110–12 Kittay 104n34 McKeever 101n25 Nussbaum 92–3, 99–103, 104n34, 105, 109–10, 113–14, 118 overlapping consensus 99–101, 103, 106 over/under-emphasis on 91, 96–7 Pettit 94–5 problem with capabilities to function 94–5 real freedoms to pursue functionings 91–9 risk and real freedom 95–6 Robeyns 96–7, 102n29 robustness 96–7 scarcity 122–5

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security 95–6 Sen 91–2, 94–5, 117–18, 122n77 set-consistency 97–9 on social institutions and impairments 104n34 Vallentyne 120–1 value of capabilities 91, 97–9, 118 ‘wasted opportunities,’ 120–1 Wolff 96n13, 97, 124–5 capability approach 69–70. see also mobility accommodate the importance of relationships 244 Anderson 56–7, 80–1, 85 anti-paternalist state 75n16 Browne 243–4 capabilities compared to functionings 70, 72–5, 215–16, 226 capability equality 85–6 capability theory of justice 70–2 Claasen 85 Cohen 43–4, 49–50 compared to resourcist approach 70, 81–6, 88–9 discrimination 74–5, 79–80, 81n29 and distributive justice 69–70 Dworkin’s resourcist approach 84n38, 87–8 educational provisions 57–8 functioning 77 functioning achievement 75 functionings 76–8 functionings (doings and beings) 70–1 Gay 63–4 Gilabert 49–50 Johnson 56 negative capabilities 78 negative capabilities (lack of access) 77 negative functionings 78–9 Nussbaum 71, 85, 184 opportunities vs achievements 73 as overly demanding 84–6 and paternalism 216 Pogge 81n29, 82, 84–6 primary goods as resources 86–7 Rawls’s primary goods 86–7, 87n44 relevant functionings 71–2 resourcism 86–8 Robeyns 71–2

270  capability approach (cont.) Sen 76–7, 84–5 Silvers 57–8 Stanford Encyclopaedia entry 216n47 and the state 72 trivial functionings 75–6, 78–80 Vallentyne 76, 78 valuable capabilities 70, 75–81, 215–16 Wolff 55–6 capability to function approach 216–17 careers. see also employment adaptive preferences 172–3, 180–1 ballet dancer example 79 capabilities 79, 98–9, 120–1 dissuaded science teacher example 173, 175, 190 engineering example 82 mobility 21 opportunities 119–20, 159 park ranger example 21 singer example 79 carpentry example 223–5 Carter, Ian 114–16 celibacy examples 100–1, 107–8, 118–19 chronic pain. see pain conditions cigarettes, paternalist examples 221–3 Claasen, Rutger 85 cochlear implants consultation process 229–30 as contingent impairment 157–8 curing the dysfunction 138–9, 232 d/Deaf individuals 8–9, 59, 108–9, 225–30 entitlements 59, 232 as genocide 104–5, 227–8 opportunity costs 225–6 state assistance and anti-paternalism 211–13, 213n42, 232 as a state endorsed value 227 Cohen, G. A. 43–4, 49–50, 94, 117, 184 Colburn, Ben 173–4, 176–8, 191, 233–4 conversion therapy 214–15, 235–6 cures. see also cochlear implants Parry 213n42 paternalism 226, 236–8 policy development 230–1 state assistance 211–12, 236–8 cystic fibrosis example 139, 156

Davis, Alison 15–16 Deaf community 104–5, 167, 228–30. see also cochlear implants; hearing impairment deaf individuals. see also cochlear implants; deafness adaptive preferences 194 aesthetic experiences 46–7, 59, 191–2 cochlear implants 8–9, 59, 108–9, 225–30 communication 46–7, 58–9, 130 consultation 231 justice adaptive preferences 191–2 rejection of the benefit of all five senses 217 state assistance 211, 213n42, 231–2 deafness. see also deaf individuals capabilities 5 communication 163–4 as disabling 19 ‘engineering away,’ 104n34 Harris 28n49 as impairment 11–12 as not a disability 41, 66–7 as not disabling 62 opportunity to be unhealthy 116 and well-being 33–4 De Marneffe, Peter 222 dementia examples 148–9, 207 depression 26–7, 62–3, 140–1, 151–2, 157–8, 177 de-Shalit, Avner 96n13, 97, 124–5, 184–5, 243 diabetes 63, 149–50 disability, defining Aas 38 ameliorative approach 36–9, 241–2 the Ashley treatment 29 Barclay 18 Barnes 12, 17, 32–5 Buchanan 24–7 contextual factors 17–19, 21–4, 82 Davis 15–16 disability rights movement 13–14 due to just and unjust social causes 19–20 elimination of impairments 13 external factors 21–4 Gregory 25n44, 26n46

 Haslanger 36, 38 Howard 38 the hybrid model 20–4, 131 and impairment 11–15, 34 justice 29–30 Kahane 28–30, 31n60, 33–4 Kittay 29 as neutral 35n85 Oliver 17n20 performing tasks 10, 24–5, 39 public policy 30 Rawls 30 Riddle 37 Savulescu 28–30, 31n60, 33–4 Shakespeare 18, 37 Smith 16 the social model 13–15, 17–20, 38–9 species norms and impairment 11, 24–7 terminology 165n2 Terzi 27, 28n49 Watson 37 welfarist approach 12, 28–31, 33–4, 36, 39, 55–6 what is valuable or essential to life 26 WHO 11n7, 12–13, 21–4 Wolff 12 disability pride 6, 129–30, 143–4, 165 disability rights movement. see also neurodiversity movement Barnes on defining disability 32–3 conceptions of impairments 129–30 on consultation 230 defining disability 13–14 distinguishing impairment and disability 131–2, 134–5 indeterminacy 33 over-inclusiveness of impairment 144–5 the social model 14 discrimination. see also antidiscrimination legislation Anderson 81n29 Barclay 81n29 capabilities for control 93 capability approach 74–5, 79–80, 81n29 impairment 150–64, 238 informal institutional practices 22, 82 justice-based account 50–1 Pogge 81n29

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restricts abilities 64 solidarity in indignation example 236–7 distributive justice theories 43–4, 230 domestic labour example 245–6 Down’s syndrome examples capabilities 50 defining disability 37–8 education 66, 195–6, 246–7 ‘engineering away,’ 104n34 forming relationships 242–8 and natural reference class 139–40 as not disabling 62, 163–4 personal factors 21 Duchenne muscular dystrophy example 157 Dworkin, Ronald 84n38, 87–8, 184, 248 dyslexia distinguishing impairment from disability 135, 145 the immigrant girl example 67, 151n47 institutional practices 22 reading on paper 18 state funding 122 as transient disorder 152 economic deprivation 169 education accessible course materials 121–2 Anderson’s public schools vs Amusement parks 80–1 assumed to not be paternalistic 222–3 Braille 5, 108–9, 121–2 Down’s syndrome 66, 195–6, 246–7 enrollment numbers 122–3 entitlements 120–3 justice adaptive choices 189–90 justice adaptive preferences 192–3 justice-based approach 57–9 paternalism 222–3 taxation 200 Elizabeth Bennett example 52–3 Elster, Jon 168–9, 171–3, 176–7 employment. see also careers; unemployed person example; workaholic examples ableist hiring practices 187–8 autism 65–6 capabilities 96, 110 Down’s syndrome 243 functionings 70–1, 96

272  employment (cont.) leprosy example 17, 40 ME 67 meaningful 93, 188–9 opportunities 50–1, 119 empowerment 118n65, 119–20, 181 Enoch, David 204–5 epistemic paternalism 205n20, 206n25 fasting individual examples 73–4, 91–2, 100–1, 111, 186–7. see also nourishment fatigue examples amusement parks 80–1 and disability status 67–8 multiple sclerosis 96–7 performing functionings 26–7, 61, 97–8, 138–9 welfare deficits 43–4 feasibility and the justice-based account 45–8 the feasibility constraint on justice 48–50, 53–4, 245, 248 Feinberg, Joel 214, 233 female genital cutting (FGC) examples 114, 170–2 feminism 32–3, 166 Fleurbacy, Marc 117, 176 forming relationships and adaptive preferences 235–6 capabilities 83 Down’s syndrome examples 242–8 entitlements 41–2 Fox, Carl 202n4, 209–10 Francis, Leslie 151–2 freedom of movement 50–1, 65, 86–7 Gay, Roxanne 63–4 gender 21, 38 gender-based oppression 169 gender dysphoria 137 gendered domestic labour example 245–6 gender identity 6, 27, 31, 132–3, 143–4, 152–3, 153–4 genetic diagnosis. see pre-implantation genetic diagnosis (PGD) genetic enhancement example 148 Gheaus, Anca 49n12 Gilabert, Pablo 49–50

Gregory, Alex 25n44, 26n46 Grill, Kalle 202, 207–8, 213n42 Groll, Daniel 207–8 guide dogs example 122–3 Haslanger, Sally 36, 38, 153n53 hearing impairment 19–20, 57–9, 131. see also Deaf community hearing loss. see cochlear implants hedonism 43–4, 170, 174 heroin example 223–5 HIV-positive person example 150 holding property example 243 homosexuality examples. see sexuality Howard, Dana 38 hydrocephaly example 149–50 impaired vision. see blindness; vision impairments impairment. see also blindness; capabilities for control; disability, defining; hearing impairment; vision impairments Aas 141–2 Amundson 149–50 as anomaly 129, 137–43, 231 ‘atypical functioning’ and race 152–3 bad difference 130, 158–62 Barnes 12, 132–5, 140, 151–2, 155–6 Bickenbach 138–9, 141–2 ‘big-W’ Worse-off 158 Boorse’s uniform functional design 139–40 Campbell 157–8 complex difference 130, 151–2, 158–62 definition 1–2, 10–13, 128–9 discrimination 66, 150, 238 disembodied view of disability 133–6 distinguished from disability 129, 131–6 distinguishing disability from other disadvantages 152–4 enhancements 147–9 entitlement to control 158–61 Francis 151–2 functioning better than normal 146–9 Haslanger 153n53 hidden pathologies 137, 143–4, 149–51 Kahane on enhancements 147–8 Kingma’s appropriate reference class 139–40

 losing ability to perform a function 159–62 McMahan 160–2 medicalisation of disability 131–2, 135, 138 negative impairments 128–9, 141, 151 over-inclusiveness 129–30, 137, 143–54 physical and cognitive reality 133–4 Savulescu on enhancements 147–8 sex-based differences 153 Silvers, Anita 156–7 social norms and entitlements 60 Stoner 158 Stramondo 157–8 value of distinguishing difference to disability 129, 134–6 insomnia 151–2 insult adaptive preferences 7–8, 167–8, 196–8 capabilities to function 126–7 curing impairment 105 functionings 115n58 and impairment 22, 27 paternalism as 204–5 insult account 200–1, 205–7 Johnson, Harriet McBryde 56, 112 judges withholding information example 206 justice adaptive preferences 184–92. see also deaf individuals adaptive preferences 51n20, 165–8, 171, 177, 180 choices 187, 189–90, 193 internalisation of oppressive norms 169, 187, 193, 243 mobility 190 non-autonomous character planning 168–9, 173, 187, 193 oppression 186 responding to 168, 180, 192–6 and well-being adaptive preferences 7–8, 167–8, 172, 176, 184, 187, 191–3 justice-based account access to education 57–9 access to entitlements 42–5 access to opportunities 44–5 bias 65–6 and capability approach 55–6

273

changing disability status over time 66–8 cognitive impairments 65 difficulty performing functionings 61 disabled/impaired compared to disadvantaged 246 disadvantaged compared to disabled/ impairment 42 discrimination 50–1, 66 entitlement identification 48–54, 245 entitlements without hierarchy 54–7 feasibility 45–8 the feasibility constraint 48–50, 53–4, 245, 248 impairments and restriction of opportunities 65–6 internal capabilities 64 levelling-down entitlements 46–7, 51 minimal functioning 57–61, 80 mistreatment 50–1 norms 65–6 Nussbaum 64n50 paradigm cases 62 reasonable expectations about decent human life 52–3 relevant opportunity loss 56 social norm approach 61 species norm approach 52–3, 61 state assistance assumptions 62, 241 sufficientarian approaches 47–8 thinning-out entitlements 47–8 treatment of impairments 60 unjust behaviour 49–51 welfarist approaches 55–6 justice proceduralist accounts 168, 184–92, 214. see also proceduralist accounts; substantive proceduralist approach Kahane, Guy 28–30, 31n60, 33–4, 147–8 Keller, Helen 110–12, 194–5 Khader, Serene 171, 182–4, 186 Kingma, Elselijn 139–40 Kittay, Eva Feder 29, 104n34 lecture slides example 205–6 leisure activities adaptive preferences 180–1, 190 capabilities for control 98–9, 108–9, 118–20, 124 consultation 231

274  leisure activities (cont.) control in central domains 218–19 entitlement 44–5, 52–3, 58–9 functionings 71, 83 opportunities 63–4, 159–60 leprosy examples 11–12 liberalism 112–13. see also perfectionist liberalism; political liberalism libertarian paternalism (nudge policies) 204n9 life expectancy, lowered 51, 139–41, 156–7 list of capabilities and functionings 217, 219–20 Nussbaum 109–10, 124–5, 243 paternalism 217–19, 218n51 relationships 243 revision 109–10 locked-in syndrome examples 47–9, 54–5 marfanoid habitus 140. see also Phelps, Michael marginalization 171 McKeever, Natasha 101n25 McMahan, Jeff 160–2 the medical model 3, 11, 15–17, 21, 27, 36–7, 131 menstruation examples 139–40, 151, 153–4 migraine example 67 Mill, John Stuart 203, 214 misanthropes 30, 101, 247–8 Mitchell, Polly 170 mobility capabilities for control 90–1, 115 entitlements and species normal 52–3 individual who cannot walk example 115–16 justice adaptive preferences 190 locked-in syndrome examples 47–9, 54–5 paraplegic individuals 44, 47, 55–6, 97–8 selection of domains of control 215–16 toe wiggling examples 75–80 value of opportunities 78 walking as inessential 78–9 wheelchair use 5, 18, 55–9, 61, 65, 78–9 mobility impairment entitlement to state assistance 59 as not a disability 66–7

morality 240, 242, 245–6, 248 Mr. Darcy example 52–3 multiple sclerosis (MS) examples 96–7, 125–6, 156 myopia. see vision impairments neurodiversity movement 102. see also disability rights movement nourishment achieved passively example 117 bad functionings 75–6 capabilities 78, 91–2, 111 capability approach 69–71 capability sets 97–8 entitlements 49–50 fasting individual examples 73–4, 91–2, 100–1, 111, 186–7 metabolism example 82 pregnant women example 72–3 and real freedom 91–2 risk and real freedom 95–6 starvation examples 73–4, 77–8, 91–2, 100–1, 186–7 Nussbaum, Martha C. adaptive preferences 184–5 capabilities to live a decent life 85 capability approach 85, 184 ‘dark’ capabilities 113–14 on Elster 171–2 expressive subordination 105 functions essential to decent human life 71 goal of legislation and public planning 99–100 internal capabilities 64n50 list of capabilities 109–10, 124–5, 243 opportunities for sexual satisfaction 101–2 overlapping consensus 103 overlapping consensus of value of capabilities 99–101 perfectionist approach 181–2, 186 on social institutions and impairments 104n34 three forms of capability 92–3 on tolerating the intolerant 113 value of capabilities 118 value of opportunities and outcomes 73

 obesity example 38, 62–4 Oliver, Mike 17n20 oppression. see also gender-based oppression; state oppression; structural oppression adaptive preferences 171, 177, 180 internalisation of oppressive norms 187, 190–1, 193, 243 norms 7 perfectionist approach 182 self identification of 7, 166–7 option sets 110–11, 170–1, 221–5 pain conditions arthritis examples 37–8, 136, 140–1 capability sets 97–8 chronic pain examples 17–19, 26–7, 61, 163 contingent symptom vs disability 156–7 fibromyalgia example 157–8 rheumatoid arthritis example 157 welfare deficits 43–4 paralysis examples 17, 30–1, 78–81, 161–2 paraplegia adaptive preferences 194 avoiding assumptions 163–4 Barnes’s conception as disability 133 capability sets 97–8 entitlements 44, 47 as impairment 133, 135, 141 as not disabling 62 relevant opportunity loss 55–6 resourcism 84n38 parental paternalism 201, 236–8 parenthood examples 97–8, 119–21, 150–1, 229–30, 236–8. see also sterilisation park ranger example 21 Parry, Jonathan 207–9, 213, 213n42 paternalism. see also epistemic paternalism; libertarian paternalism (nudge policies); parental paternalism; putative paternalism; redistributive paternalism; soft paternalism; successful paternalism adaptive preferences 176 and anti-paternalism 202–11 and autonomy 201, 232–6

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Barnes 237–8 Colburn’s account of autonomy 173, 233–4 consent 209–10, 229–30 consultation 229–30 content-neutral freedom 217–21 costs 221–2 cures 226, 236–8 defined 202 Feinberg 233 Grill 202 insult account 200–1, 205–7 as insulting 204–5 interference 201–3, 205–6, 219–25 intervention 201, 203–4, 208–9, 217–18, 220–5, 229 list of capabilities 217–19, 218n51 mistakes 201, 204–5, 234 negative judgments 204–7, 224, 228n69 option sets 214, 221–5 persuasion 222–3, 233 and Power of Prudential Exclusion (PPE) 220, 225, 234–5 providing information 222–3 Quong’s judgmental definition 224 refusal of assistance 207, 213 refusing to assist 223–5 Shiffrin 221–2, 224n66 specifying capabilities without the good 201, 209–10, 220–1, 228–32 Stramondo 237–8 Tsai 223 unwanted offers 201, 210–11, 213, 225–8 value of capabilities 121 Voight 228n69 and welfarist approach 216 paternalist intervention. see paternalism patriarchal norms 7, 165–6 perfectionist approach 181–2, 186, 216–17, 219, 228–9. see also Nussbaum, Martha C. perfectionist liberalism 233–4. see also liberalism; political liberalism Pettit, Philip 94–5 PGD (pre-implantation genetic diagnosis) 236–8 Phelps, Michael 140, 146–7 photosensitive individuals example 150–1 pluralism 124–5

276  pluralist egalitarian 244–5 pluralist welfarism 43–4 Pogge, Thomas 81n29, 84–6 policy. see cures; disability, defining; justice adaptive preferences; state assistance political liberalism 113, 114n51. see also liberalism; perfectionist liberalism pollution example 82 poverty tourism (poverty appropriation) functionings and capabilities 74–5 Power of Prudential Exclusion (PPE) and paternalism 220, 225, 234–5 state assistance 207–10, 213, 220 power relations 83, 88–9, 244 pregnant woman examples 72–3, 120–1 pre-implantation genetic diagnosis (PGD) 236–8 Premenstrual Dysphoric Disorder example 151 proceduralist accounts 171–2, 178. see also justice proceduralist accounts; substantive proceduralist approach putative paternalism 203–4 Quong, Jonathan 205–6, 224 race (running) example 224–5 rape example bodily integrity 124 Rawls, John 30, 86–7, 87n44, 184 recognition theorists 244 redistributive paternalism 201 reflective equilibrium 1, 38–9, 69, 125, 184–6 relational egalitarians 244 religious conservative example 107, 112 religious convictions example 228 religious expression example 105 resourcist approach compared to capability approach 70, 81–4, 88–9 Dworkin 84n38, 87–8 expanding the definition 86–8 as less demanding than capability approach 84–6 paraplegia 84n38 Pogge 82, 84–6 Riddle, Christopher 37 Robeyns, Ingrid 71–2, 83–4, 96–7, 102n29 runaway trolley example 213

Savulescu, Julian 28–30, 31n60, 33–4, 147–8 schizophrenic individuals example 65 seatbelt example 208–9 Sen, Amartya capabilities and the independent individual 94–5, 117–18 famines 122n77 fasting and starving individual 91–2 hopeless beggar example 169–71 personal characteristics 76–7 on positive mental states 174n26 value of opportunities and outcomes 73 sexuality. see also asexuality celibacy examples 100–1, 107–8, 118–19 conversion therapy examples 214–15, 235–6 homosexuality examples 34, 38–9, 132–3 selection of domains of control 215–16 sexual satisfaction asexuality 101–4, 107, 110, 218 capabilities to control 112 celibacy 100–1 Shakespeare, Tom 18, 37 Shiffrin, Seana 221–2, 224n66 shoving a person examples 209, 229 sickle-cell anaemia example 139–40 Silvers, Anita 57–8, 156–7 singing example 76–7 the single mother example 107n39 Smith, Steven 16 smoking. see cigarettes, paternalist examples sobriety, paternalist example 221–2 the social model Barnes’s rejection of 32 criticisms of 36–9 defining disability 10–11, 13–15, 17–20, 36, 38–9 impairment 131 social status 23–4, 74–5, 170–1, 244 soft paternalism 201, 214, 222–3, 233–4 spina bifida example 15–16 sports car example 115 spousal abuse examples 75–6, 78, 124, 165–6, 177, 234 starving individuals examples, see nourishment state assistance. see also taxation anti-paternalism 201, 211–15 and the anti-paternalist filter 209

 Arneson 222n58 assumption that impairment must be disadvantageous 62 and autonomy 232–6 costs 221–2 cures 212, 231–2, 236–8 De Marneffe 222 disability, defining 29 disabled people as passive recipients who are bestowed help 200 domains of control 218–20 enforcement tools 245 Enoch 204–5 entitlements 59 Feinberg 214 Fox 209–10 a good life 219, 232–3 Grill 202, 213n42 Groll 207–8 intervention and interference 220–5 interventions as morally unacceptable 245 limiting of Odysseus’s liberty 202n2 as morally required 199–200 Parry 207–9, 213 paternalism as threat 216–17 persuasion 222–3 Power of Prudential Exclusion (PPE) 207–10, 213, 220 Quong 205–6 redistributive paternalism 201 refusing to assist 223–5 specifying capabilities without the good 228–32 testimonial injustice 205 unwanted offers 225–8 value of control 148 Voight 220 well-being 215–16 state oppression 43–4. see also oppression state policy, goals Arneson’s objection to antipaternalism 214n43 sterilisation 98–9, 120–1. see also parenthood examples stigma adaptive preferences 175–6 Barnes 151 body characteristics vs deficiencies 132–3

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difficulty eliminating 138–9 disability as internal 138 as disabling 17 employment 93 functionings 145, 153–4 Haslangerian account 38 HIV-positive example 150 impairment distinguished from disability 135–6 obese individuals 62–4 opportunities 151–2 privileged social groups 74–5 from social position not medical need 141–3 Stoner, Ian 158 Stramondo, Joseph 35n85, 157–8, 237–8 structural injustice 186, 246–7 structural oppression 246 substantive approach 168, 181–4. see also substantive perfectionist approach; substantive proceduralist approach substantive opportunities (capabilities). see capability approach substantive perfectionist approach 182, 217–18 substantive proceduralist approach 154–5, 182–4, 194. see also justice proceduralist accounts; proceduralist accounts successful paternalism 8–9, 203–5, 212, 221, 239 sufficientarian approaches 47–8 taxation 195, 210–11, 220–1, 228 Terlazzo, Rosa 171, 182–4, 186 Terzi, Lorella 27, 28n49 Tiny House Movement example 74–5 trans women examples 32–3, 153–4 Tsai, George 223 unemployed person example 169–71. see also employment Vallentyne, Peter 76, 78, 120–1, 125–6 vision impairments. see also blindness entitlements 3–4, 19–20, 59–60, 67 myopia 134–5, 157–8 short-sightedness 3–4, 59–60, 111, 134–5 Voight, Kristin 220, 228n69 voting examples 118–23

278  Wasserman, David 111 Watson, Nicholas 37 welfarist approach 43–4, 241. see also Arneson, Richard; Vallentyne, Peter accounts of disability 12, 28–31, 33–4, 36, 39, 55–6 accounts of justice 43–4 capabilities 119, 123–4 opportunities 118–19, 226 and paternalism 216 well-being 184 what is valuable or essential to human life 26 wheelchair use assumptions 157 capabilities 47, 61

capabilities for control 90–1 environmental factors 22, 64–5 as impaired 13–14 mobility 5, 18, 55–9, 61, 65, 78–9 relevant opportunity loss 56–7 restriction of abilities 65 social norms 15–16 WHO defining disability and impairment 11n7, 12–13 external factors 21–4 personal factors 21 Wolff, Jonathan 12, 55–6, 96n13, 97, 124–5, 184–5, 243 women pursing careers 82, 173, 175, 190 workaholic examples 118–20