Women and Positive Rights

Women bear the face of human poverty in most developing nations. Why? One reason, unarguably, is that some cultures perpetuate gender inequality. Indeed, to promote and protect human well-being, constitutional arrangements need universal values of humanness to respond to the challenge of pluralism in a very positive way. Martha Nussbaum’s capabilities ethic fills in this need. By suggesting a constitutionally guaranteed “threshold of capabilities”, her proposal is a step beyond Amartya Sen because it is something that concretizes the approach to inequality in society. The question is – how? In many countries, constitutions usually enshrine the negative rights of people. But a right to non-interference is not a guarantee to a life worthy of being human or to a life one “has reason to value”. In this paper, I will argue for the translation of the essential capabilities into concrete positive rights which should be embodied in constitutional reforms by governments as a benchmark of entitlements that people should enjoy.

Human Poverty and the Capability Approach

Material poverty is only the surface of a deeper suffering of the world’s poorest of the poor. At the core of their being, the poor suffer because they are not really free. The poor are downtrodden not only because of corrupt leaders or unjust global structures – the poor, especially women, are systematically exploited by an enemy that lurks in front of them – cultural prejudice. Thus, in order to effect real change, a politically plausible development framework is one that should survive the challenges of a pluralistic and masculine world.

While Sen develops the Capability Approach from the perspective of economics, Martha Nussbaum attempts to employ a more philosophical account of a Capabilities Ethics. First, I will briefly explain the Capability Approach. By capability, Sen refers to the “positive freedoms of people”. Positive freedom means the ability or power to achieve certain things in life. Subsequently, the entitlement to any one of these capabilities can be denoted as a positive right. According to Nussbaum, Sen uses the concept of capability to make comparisons regarding the quality of life, which intends to advance the idea that it is in asking what people are “able to do or to be”, and not in their “level of satisfaction” nor the “amount of resources” they are “able to command that the quality of human life is best understood” (Nussbaum 2000, p12). But in contrast to Sen, Nussbaum’s stated goal in her version of the Capability Approach is “to go beyond the merely comparative use of the capability space to articulate an account of how capabilities can provide a basis for constitutional principles that citizens have a right to demand from their governments” (Ibid.).

To achieve its purpose as a theory of justice, Nussbaum intends to make her version of the Capability Approach “real and complete” rather than “abstract” (Ibid. pxvi). The prevalence of cultural bias against women in many countries where they are subjected to difficult, depressing, and demeaning circumstances makes the Capability Approach an important political device. For instance, Nussbaum says that “no country treats its women as well as its men according to a complex measure that includes life expectancy, wealth and education” (Ibid. p2). In this view, Nussbaum’s idea of a “threshold of capabilities” or the idea of a “social minimum of capabilities” is a realistic framework for policy making and development planning. Nussbaum tells us that “Sen nowhere uses the idea of a threshold” (Ibid. p12).

It must be noted that Sen’s version of the Capability Approach is deliberately incomplete and abstract. As a matter of principle, Sen proposes “a thin ethic so that his concepts can be useful for other types of substantive thick ethic that differs from him in various respects” (Sen 1993, pp47-48). This flexibility thus provides the opportunity for Nussbaum to approach it in a way that serves her philosophical purposes. Thus, while both agree on the idea that aggregate income cannot be an adequate basis for the assessment of well-being Nussbaum goes beyond the use of the Capability Approach in the economic assessment of human welfare by constructing it as a theoretical framework that serves as a “good basis for a specifically political conception and a specifically political overlapping consensus” (Nussbaum 2000, p14).

Poverty constrains most women in developing countries from having the time for self enhancing activities. Due to the difficult patriarchal environment they are in, women are in many instances systematically rendered powerless as exemplified by the fact that they are denied the chance of attending school or pursuing a career because their role is defined by a society dominated mostly by men. In the Philippines, many women in rural areas end up as domestic helpers and even a number of those who are educated work abroad as domestic servants in pursuit of economic opportunities. The effects are disheartening and the repercussions to one’s life are immeasurable. For instance, the experience of working abroad is emotionally traumatizing because most of these women are mothers who leave their own children to the care of parents-in-law who are at times too old and sickly. Children suffer because of this – many of them alienated from the love and attention of a complete family.

Women suffer. One reason for this, according to Nussbaum, is that women lack support for leading lives that are fully human and this lack of support is frequently caused by their being women (Ibid. p3). Simply put, many women in poor countries don’t have a choice. Poverty forces mothers to sacrifice for their families. But to say the least, a life without choice is “a life that is less human”. This reflection brings me to the realization that poverty is not simply material in nature; rather, in a very substantial way, poverty is really the impoverishment of human freedom.

Rights and Constitutional Entitlements

The real enemy of the poor is not the scarcity of income or wealth but their lack of meaningful options in life. It can be said that many women in patriarchal societies are deprived of the chance to express themselves creatively and choose the good life because they lack the opportunity for critical and imaginative activities. When women are prohibited from attending school because they need to work at an early age or are forced to marry against their will, they are faced with substantial impediments to attaining well-being. In the absence of positive freedoms or the capabilities that enable women to flourish and empower them to choose the good life, one can say that women are deprived of a life they deserve as a matter of universal right. Sen says in Freedoms and Needs:

The importance of political rights for the understanding of economic needs turns ultimately on seeing human beings as people with rights to exercise, not as parts of a stock or a population that passively exists and must be looked after (Sen 1994, 38).

The passage above implies that individuals are entitled to certain universal rights in order to live a life that is worthy of the dignity of the human person. Human life is not reducible to a mere number in a census data; which is the case of thousands of Filipina domestic workers abroad. Nussbaum says that “it is profoundly wrong to subordinate the ends of some individuals to those of others, that is, at the core of what exploitation is to treat a person as a mere object for the use of others” (Nussbaum 2000, p73). To empower women and liberate them from any form of exploitation means to envision “a society in which persons are treated as each worthy of regard, and in which each has been put in a position to live really humanly” (Ibid. p74).

In what way can the issue above be addressed politically? I think that constitutional reforms can be the battle ground for uplifting the lives of women and the poor in the third world. As a legal apparatus, constitutions should contain a “threshold of the essential human capabilities” which embodies the positive rights of people. Generally, national constitutions contain features which manifest the negative rights of people. By definition, a negative right is “a right to non-interference”. For instance, the rule – that “no person shall be deprived of life, property or liberty without due process of law” – exhibits this right to non-interference. Basically, the Bill of Rights enshrined in many countries fundamental law seeks to ensure that our negative rights are not violated. It is a matter of basic justice that these rights are constitutionally protected.

However, non-interference is not an assurance that one actually achieves real well-being. For instance, a poor woman may not have experienced any form of violence in her whole life, but she may continually be living in misery because her capabilities, for instance her critical thinking and other creative faculties, may not have been fully realized because she is unschooled. The way forward, in order to liberate her from the fetters of poverty, is to constitutionally promote and protect her positive right to education. Education empowers a woman to be able to express herself, fully and as a human person, which means, that for instance, she should have a right “to be heard”, “to be given attention”, “to be cared for”, or in a way, she must also possess the “right to be angry”, if indeed, these are forms of self-expression.

The real challenge is to make the entitlement to this benchmark of positive rights politically acceptable to people of different religions, beliefs, and cultural backgrounds as a guiding principle that ensures a decent way of life for each and every person in society. A decent way of life is a kind of life where each person is treated as an end. This requires, according to Nussbaum, “to take a stand on some values that will be made central for political purposes” (Nussbaum 2000, p58). Thus, the answer to the challenge of pluralism is setting a threshold or benchmark of core entitlements which manifest human values. This benchmark will thereby serve as a guiding principle for governments “as we think about what it really is to secure a right to someone” (Nussbaum 2006, p287). Pursuing this benchmark means that people are “entitled to not only mere life, but to a life compatible with human dignity, and this means that the relevant goods must be available at a sufficiently high level” (Ibid. p292).

The benchmark, or what Nussbaum calls the “ten central human capabilities”, includes “life”, which means that “one must live out that span of life normal to the species”; “bodily health”, implying one’s “being able to have good health and in order to obtain this, adequate nourishment and shelter”; “bodily integrity”, or one’s “being able to be physically secure, and with rights over one’s own body, e.g. not forced to lose capacity for sexual satisfaction or forced to conceived or bear children”; the “senses, imagination, and thought”, and thus the need to be “able to use the senses, imagine, think and reason, and to do this in a truly human way: adequately educated, informed and free from repression”; the “emotions”, implying that one is “able to have attachments for other people and things”; “practical reason”, or the capacity to “form a conception of the good and to engage in critical reflection for the planning of one’s life”; “affiliation”, which refers to “being able to interact well with other people, and to imagine and empathize with their situation” and “having the social bases for self-respect and non-humiliation; not being subject to discrimination on the grounds of race, sex, etc.”; “other species” or “being able to live with concern for the natural world”; “play”, for people need to “play and laugh”; and “control over one’s environment”, meaning to say, one is “able to participate in political processes” and one is “able to have possessions and seek employment” (See Nussbaum 2000, p78-80).

To truly realize our human potentials, which means in a very practical way, to provide a “standard of living” worthy of the dignity of the human being, the above universal human values should be expressed as positive rights serving as basis for policies and/or constitutional essentials. From a political end, in order to bring about real change in the lives of the poor, I will elaborate on three basic entitlements. I argue that the benchmark of human capabilities should be translated to people’s rights to housing, universal health care and basic education which should be made constitutionally obligatory for governments. Realizing these entitlements will make possible the actualization of the above mentioned universal values even in a pluralist setting. As a minimum requirement, these three positive rights or entitlements are absolutely necessary in liberating women and the poor from their difficult, depressing and demeaning conditions.

First, housing should be constitutionally obligatory for governments. Nussbaum says, “an adequate house or other shelter seems to be inherent in the idea of human dignity, and it seems right that constitutions all over the world are beginning to recognize the right to housing as a constitutional entitlement” (Ibid. p293). In my view, the idea of providing decent housing to poor families is one item where a pluralistic consensus is possible. It can be said that there is no greater social anomaly than seeing a few people live in huge mansions while a big number of indigents dwell on the streets. When a government implements a housing programme for the poor, it provides the family, whether one is Catholic, Protestant or Islam, or an atheist, a dignified place to feel secure, enhance one’s creativity, play, enjoy the diversity of the human environment, or develop one’s potentials as a rational being.

Secondly, it is obvious that if one suffers from the constant threat of disease without access to reliable medical support, life can never be well-lived. For example, women bear the agony, their emotions shattered, when they see their children burdened by diseases. Universal health care will eliminate the unnecessary deaths of children from preventable diseases. Once health care is prioritized by governments, people will have productive lives because they will be secured in their health and bodily integrity, and thus they will be able to use their limited resource for many other things, or thereby concentrate on other creative activities which enhance the quality of human life.

Health is essential for human development. But this is taken for granted by governments who choose to invest primarily on big infrastructure projects while making health care secondary. Loans are granted to third world countries in building airports, seaports and dams but not much is invested on the improvement of health facilities, the training of doctors and the provisions for free vaccines and medicines. Fast and effective medical attention is only available at expensive private hospitals while public health facilities are in decrepit conditions. Constitutional reforms should rectify this mistake by making health care a fiscal priority.

Finally, to fully realize education as an essential human right, basic and high school education should be made compulsory and fully funded. Illiteracy results to unemployment and poor living conditions. To a great extent, poverty bears the face of a young girl, wounded and defeated by the travails of human life because she spends the day helping her mother find ways to augment the family income instead of reading books, thus, her senses, imagination and thought are not used to their full potential. In most rural areas in the Philippines where men don’t earn enough, poor women are forced to do double jobs, one at home and another outside, for instance by selling goods and becoming domestic servants. A woman does these menial things because she lacks the requisite education for a better kind of work. In some instances, young women are sent to the home of rich people to work as servants as payment for unpaid debts. Poverty leaves poor families with no choice, and the only way to secure the good future of young children is for the government to see to it that all children are in school. There should be no other option for parents. It is their absolute moral obligation.

The lack of education hinders the achievement of one’s full humanness, for those who are left out in the dark cave of ignorance will feel that they can’t appear in public or take the stage, for they will feel discriminated and stigmatized by their being “illiterate”. Thus, parents have the negative duty not to harm their children by keeping them out of school, and the government has the positive duty to fully finance public education. Nussbaum tells us forcefully that “women in much of the world lack support for fundamental functions of a human life” for “they are less well-nourished than men, less healthy, more vulnerable to physical violence and sexual abuse”, and as such, “they are much less likely than men to be literate, and still less likely to have pre-professional or technical education” (Nussbaum 2000, p1).

People are the “most important asset of the state”. They are, as Mahbub Ul Haq said, “the real wealth of the nation”. A country like the Philippines or Myanmar for instance may have enormous wealth in terms of natural resources, but unless the government provides for the necessary conditions of a decent way of life, people will continue to suffer from the kind of life not worthy of being human. Enhancing the quality of life people have should be the moral end of just constitutional arrangements. The problem of poverty and social inequality engenders too much suffering and thus, public action requires holistic and concrete steps. From the perspective of government leaders and policy makers who seek political reforms in order to achieve the most politically realistic development goals for their people, enshrining the above positive rights in their constitutions can be a good starting point. In a very substantial way, having the respect for human dignity and the capability of people as value orientation can help in planning, implementing, assessing and prioritizing important social, economic and human development goals and programs.


References
Gasper, Des, 2004. The Ethics of Development. Edinburg: Edinburg University Press.

— 2002. Is Sen’s Approach an Adequate Basis for Considering Human Development? Review of Political Economy 14 (4): 435-461.

— 2000. Development as Freedom: Moving Economics beyond Commodities: The Cautious Boldness of Amartya Sen. Journal of International Development 12 (7): 989-1001.

— 1997. Sen’s Capabilities Approach and Nussbaum’s Capabilities Ethics. Journal of International Development 9 (2): 281-302.

Giri, Ananta, 2000. Rethinking Human Well-being: A Dialogue with Amartya Sen. Journal of International Development 12 (7): 1003-1018.

Nussbaum, Martha, 2006. Frontiers of Justice. Cambridge, MA: Harvard University Press.

__ 2000. Women and Human Development. Edinburg, Cambridge: Cambridge University Press.

— 1986. The Fragility of Goodness. Cambridge: Cambridge University Press.

Sen, Amartya, 1999. Development as Freedom. Oxford: Oxford University Press.

— 1997. On Economic Inequality. Oxford: Oxford University Press.

— 1992. Inequality Reexamined. Oxford: Oxford University Press.

— 1993. Capability and Well-being. In: Amartya Sen and Martha Nussbaum (eds.). The Quality of Life. Oxford: Oxford University Press.

— 1987. The Standard of Living. Malden, MA: Blackwell.

— 1987(b). On Ethics and Economics. Cambridge: Cambridge University Press.