Foreword: Constitutions and Capabilities: "Perception" against Lofty Formalism
Nussbaum, Martha C., Harvard Law Review
What are people able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved?
What about their environment--material, social, and political? Has it helped them to develop their capacities to be active in important areas of life? If people are like Pindar's vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task?
More specifically, to focus on just one part of our larger question that touches on constitutional law: How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people's abilities to function in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution's promises more like hollow verbal gestures?
The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought--less because intellectuals have favored it than because it has great resonance in the lives of real people.
Appealing though the idea is, however, many things can go wrong when a nation sets up and interprets political principles that define citizens' basic entitlements.
Often, in one way or another, citizens are less like substantially free people, who can choose to act in the ways most pertinent to human dignity, than like prisoners, unable to select modes of activity that are central to a life worthy of human dignity. This happens most obviously when a regime represses choice across the board, curtailing many of the entitlements that are traditionally thought central to such a life.
Sometimes, however, imprisonment is only partial. It does not extend across the entire range of central entitlements, and yet citizens are like prisoners in at least some areas of life--as, for example, when a regime that supports some central opportunities curtails the freedom of religion or the freedom of speech.
Sometimes, imprisonment is partial in a different way: only certain groups are affected. Some (privileged) people are free to select the core set of valuable functions, while other people are not--as, for example, when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor.
Sometimes, these two types of partial imprisonment intersect, as when a regime treats blacks and whites, women and men, equally with respect to voting rights, but denies them equal educational or employment opportunities.
Sometimes, imprisonment is subtle, almost hidden: the words in a nation's constitution may be promising, extending basic entitlements to all citizens on a basis of equality, but the interpretation of these entitlements is so narrow that groups of citizens are not really able to select some crucial activities. In name, they are equally free, but not in actuality.
For example, a group of citizens might have rights to free speech and political participation, but be deprived of educational opportunities that are necessary to exercise those rights on a basis of equality with others. Or they might have the freedom of religion in name, but be unprotected against some common assaults against their equal dignity as citizens with diverse religious (and non-religious) views of the good life. Or they might be guaranteed protection against discrimination on the basis of sex, but discover that their legal entitlements have been interpreted in such a way as to render the meaningful exercise of that right extremely difficult. …