The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaum’s Capabilities Approach

The Adaptation Problem: Addressing Charges of Paternalism in

Martha Nussbaum’s Capabilities Approach

TODD SHAW

Oklahoma State University

The capabilities approach has emerged as a legitimate alternative to the Rawlsian social primary

goods approach within the field of human development theory. Martha Nussbaum’s brand of the

capabilities approach has recently attracted criticism from Robert Sugden, who asserts that the

capabilities list’s treatment of adaptive preferences can lead to illiberal restrictions on individual

desire. While Sugden’s central concern for individual autonomy is relevant in weighing the

merits of any human development theory, his interpretation of Nussbaum’s capabilities list is too

narrowly construed. Consequently, Sugden does not view the capabilities approach as allowing

people to act on their own desires if they do not harm others. Nussbaum, however, frames her

capabilities list within a Millian perspective and places it in the context of Mill’s Harm Principle.

Nevertheless, Sugden’s critique is a valuable guide in weighing the merits of future

developments of the capabilities approach.

Introduction

In determining ideal political arrangements at domestic and international levels, political

philosophers, development economists, and other scholars continue to debate what constitutes

the proper metric of justice. This conversation seeks to establish a yardstick with which to

compare differing states of affairs within nations in order to determine their relative level of

justice. Ideally, this metric would aid in crafting legislation and public institutions in such a way

to ensure optimal levels of justice for both the individual and society as a whole. As a recent

essay notes, this conversation has included evaluating the distribution of happiness, wealth, life

chances, and additional combinations of these and other factors.1

Two approaches in determining an appropriate metric of justice have emerged within the past

several decades: the Rawlsian social primary goods approach and the capability approach. The

latter approach continues to gain international momentum, most recently in its influence in

developing the United Nations’ Human Development Index.2 Accordingly, the capabilities

approach has recently invited both praise and criticism from scholars across a variety of fields.

1 H. Brighouse and I. Robeyn, “Introduction," Measuring Justice: Primary Goods and Capabilities (Cambridge,

2010). 2 Ibid., p. 11. Specifically, Brighouse & Robeyn note the functionings and capabilities approach as the foundation

for the UN’s annual Human Development Reports. In addition, hundreds of localized Development Reports have

Todd Shaw

British behavioral economist and philosopher Robert Sugden has published a range of essays

which argue against the normative approach behind the capabilities theory. In particular, Sugden

asserts that Amartya Sen’s approach towards the capabilities theory might lead to restrictions on

individuals’ opportunities to pursue their desires. Sugden takes aim at Martha Nussbaum’s

capabilities list as an example of a way in which collective judgments of the few – even within

the constraints of democratic institutions – could lead to restrictions on individual autonomy. To

explain his objection, Sugden discusses the phenomenon known as the adaptation problem. In

doing so, he presents Nussbaum’s approach as well as a Millian approach, favoring the latter.

While Sugden’s initial concerns with the normative approach of Nussbaum’s project to the

adaptation problem are well-founded, he fails to recognize that Nussbaum herself shares his

sentiment. In particular, Nussbaum frames here solution to the adaptation problem within a

Millian perspective sensitive to the Harm Principle. This paper seeks to further explore the

legitimacy of Sugden’s objections to Nussbaum’s approach, including his treatment of the

adaptation problem. This will include a discussion of whether Nussbaum too hastily assumes that

her solution to the adaptation problem has an ‘overlapping consensus,’ or universalist

perspective.

The Capabilities Approach

As noted, recent scholarship has produced two principal approaches to determining metrics of

justice. These again include John Rawls’ social primary goods approach and Sen and

Nussbaum’s capabilities approach. The first of these focuses on what Rawls identifies as “things

that every rational man is presumed to want” – resources including income and wealth, the social

basis of self-respect, and freedom of movement.3 This approach aims to compare individual

holdings of these resources and presents a method to allocate them to promote justice across

social and economic strata.

In response to Rawls’ method, Sen presents an approach that moves away from a determination

of what resources each individual possesses. The capability approach asks what particular

functionings each individual is able to achieve. Here, the proper metric of justice is not only the

possession of social primary goods, but the opportunity one has to choose a life one has reason to

value.4 Sen thus shifts from Rawls’ approach when he explains that

“[a just] account would have to be taken not only of the primary goods the persons respectively hold, but

also of the relevant personal characteristics that govern the conversion of primary goods into the person’s

ability to promote her ends. What matters to people is that they are able to achieve actual functionings, that

is the actual living that people manage to achieve.”5

And so the capabilities approach departs from an analysis of the holdings of primary goods to

one that examines how individuals are actually able to convert these primary goods into their

own beings and doings. Building on Sen’s movement away from a Rawlsian approach, Martha

Nussbaum expanded the capabilities approach to encompass a definitive list of capabilities.

While Sugden focuses primarily on Sen’s normative approach to the adaptation problem, he uses

been published since the early 1990’s. Furthermore, Germany and Britain have operationalized the capabilities

theory in several approaches to their own policies. 3 John Rawls, A Theory of Justice (Cambridge 1971), p. 54.

4 Amartya Sen, ‘Equality of What?’, Tanner Lectures in Human Values, ed. S. McMurrin (Cambridge, 1980) and

reprinted in Amartya Sen, Choice, Welfare and Measurement (Oxford, 1982). 5 Amartya Sen, Development as Freedom, (Oxford, 1999).

The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaum’s

Capabilities Approach

Martha Nussbaum’s capabilities theory to operationalize his critique of the capabilities theory in

general. Thus, Nussbaum’s project will be further elaborated, including a more comprehensive

description in the following section.

Nussbaum’s Capabilities Theory

Martha Nussbaum’s project is largely an attempt to give the capabilities approach teeth in order

to underpin a set of constitutional guarantees in all nations. Thus, while retaining a large degree

of Sen’s original work in the capabilities approach, Nussbaum’s approach is of a distinct variety.

In assessing a state’s quality of life, Nussbaum examines the deficiencies in three common

approaches in international development work. These include assessing quality of life by

examining GNP per capita, measuring the total utility of the population, and looking at the

distribution of basic resources to identify a fair social and political allocation. Nussbaum

explains all of these as inadequate approaches in assessing the quality of life in any given state.

For example, the GNP approach fails to identify the distribution of wealth and income and can’t

be said to be a proper assessment of how each person in that state is actually doing. The

utilitarian approach also ignores each person in their own right, instead focusing on an aggregate

number that represents a collective utility rather than that of each individual. While more

promising, Nussbaum argues that Rawls’ distributive approach also proves inadequate. This

approach embraces the idea of a just distribution of goods, but fails to acknowledge that each

individual may not be able to convert these goods into actual capabilities. In addition, many

citizens in every state need more of one particular resource than another, and some citizens may

not need resources that others do. So even if these resources are distributed to all, certain

inequalities still may not be catered to. As Nussbaum explains, “if we operate only with an index

of resources, we will frequently reinforce inequalities that are relevant to well-being.” For

example, “a pregnant or lactating woman needs more nutrients than a nonpregnant woman. A

person whose limbs work well needs few resources to be mobile, whereas a person with

paralyzed limbs needs many more resources to achieve the same level of mobility.”6 As these

traditional approaches prove unsatisfactory, Nussbaum advocates an approach that respects each

person’s inequalities and treats each as an end that has worth in their own right.

But rather than ends in their own right, women globally are often treated merely as a means to

another’s end. As a feminist in political philosophy, it is this group of people that Nussbaum’s

capabilities theory has in mind (although not to the exclusion of other groups of people). The

inattention of laws and institutions to disparities in women’s social and political circumstances

results in lives unable to achieve basic human capabilities. Women’s economic security is

continually thwarted, as gender inequality in labor markets manifests occupational segregation

and gender-based wage gaps. Indeed, over 60% of the world’s working poor is women. Other

gender inequalities continue, resulting in unequal social and political circumstances. While a

phenomenon almost exclusive to developing countries, over 70% of the world’s illiterate adults

are women. Other factors work against women’s capabilities, including disparities in political

representation, legal status and property rights. This dearth of political representation, legal

status and property rights is an excellent way to perceive of capabilities: are women in nation x

capable of representing themselves politically?; are they capable of retaining a minimal status in

the law?; are they capable of maintaining property rights?; and so on. In her book, Women and

6 Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge 2000), p. 69.

Todd Shaw

Human Development: the Capabilities Approach, Nussbaum seeks to establish a project that

provides a philosophical framework for detailing basic constitutional guarantees that all

governments should respect and implement. Nussbaum’s study focuses primarily on the lives of

women in developing countries, yet includes all humans in its approach of establishing basic

capabilities.

So while the approach to social and political problems is primarily feminist, Nussbaum grounds

it in a universalist account of human dignity, and more generally, political liberalism. This

approach seeks to establish a normative philosophical theory of humans as ends in their own

right, justified in demanding basic human capabilities from their governments. This normative

theory provides the underpinning in providing constitutional principles whose purpose is to

protect these capabilities. Protecting these capabilities serves as a way to shape public policy,

and in turn solve urgent problems of social and global justice. In establishing a truly workable

theory, Nussbaum concedes that normative concepts that cross cultural, religion, and racial

boundaries are needed. These universal concepts of human dignity are more than beneficial in

comparing capabilities nation to nation, and determining these nations’ successes in promoting

basic human capabilities. Nussbaum argues for this normative framework, stating that “certain

universal norms of human capability should be central for political purposes,” so that these

norms can “provide the underpinning for a set of constitutional guarantees in all nations.”7 But

this task is burdened with intellectual and political troubles across several fronts, and often

persuades a variety of critics to argue against establishing a normative framework. Before

developing the capabilities approach further, Nussbaum considers these critics’ charges against

universal values. The majority of criticism preceded Sugden’s own, and understandably takes a

slightly different tone in their objections.

The first of these criticisms asserts that uses of a universal language of justice are inherently

Western, and that implementation of such a normative framework is a concession to Western

culture and bygones of colonial power. When feminists and other political and social movers

advocate ideas including basic human capabilities, these critics accuse them of Westernizing.

The body of a nation struggling for social and political liberty, then, concedes to fads of foreign

ideas and shows disrespect for their cultural traditions. But, as Nussbaum displays, these critics

seem to act as if those struggling nations were always happy, never enduring human suffering.

This critique presumes of no fundamental rights or political liberties, construing them as alien

colonial ideas. This charge of Westernization appears tenuous, and an argument from culture is

next examined.

The argument from culture asserts that a universalist account of values is insensitive to cultural

norms, and that “we should not assume without argument that those are bad norms, incapable of

constructing good and flourishing lives for women.”8 But if one moves beyond alleged

assumptions, certain cultural norms are demonstrably damaging to human capabilities and

subject women to substandard lives, in many cases devoid of any dignity. So it seems that an

argument from culture fails to legitimize a critique against universal values. A second argument

advocates the good of diversity, reminding us of the richness of our world because of every

culture’s distinctive beauty. If a universalist (and primarily American) approach is taken, the

world would lose its diversity. Nussbaum responds, demonstrating that it is possible to preserve

7 Ibid., p. 35.

8 Ibid., p. 41.



distinct aspects of every culture without holding on to inhumane acts: “We could think that

Cornish or Breton should be preserved, without thinking the same about domestic violence, or

absolute monarchy, or genital mutilation.”9 And so Nussbaum turns towards an argument from

paternalism.

The argument from paternalism states that setting universal norms infringes on fundamental

notions of political liberty, denying people autonomy as free agents. By “telling people what is

good for them,” we disallow them to exercise their own free will. Yet arguments from

paternalism ignore the compatibility of universal values and the respect of people’s choices. A

universalist account takes central human dignity, and fervently advocates human autonomy by

resting its theory on political liberal notions. Arguments from paternalism further ignore the

necessity of a political system actually having to take a stand for human capabilities. Simply

stating capabilities and notions of political liberalism aren’t enough: any state that is taken

serious must take a stand on policies including the distribution of wealth, property rights, and

some interference with activities that some would choose. How else could one exercise those

rights proponents of paternal arguments advocate without the state being in a position to protect

and promote those rights? As Sugden’s primary objections are underscored with paternalistic

tones, Nussbaum’s own responses to such arguments will be further examined.

At last the capabilities approach is elaborated on, said to be a good guidance in addressing

concerns for every person. The capabilities approach as developed by Nussbaum is

recommended to underpin the writing of constitutional guarantees to establish basic political

principles. Central to this approach is the idea that a threshold level of capabilities is available to

every citizen. This threshold is a necessary condition for a just political arrangement. When this

threshold of human capabilities is not met, human dignity is not protected, and it can’t truly be

said that each person can be identified as a true human being. And so this approach is different

from others, as “the capabilities sought are sought for each and every person, not, in the

[previous] instance[s], for groups or families or states or other corporate bodies.”10

The ultimate

goal, then, is to promote the capabilities of each person, so that they may be treated as an end in

their own right.

Sugden on Nussbaum

In a recent essay comparing Sen and John Stuart Mill’s approach to freedom and well-being,

Robert Sugden levels several criticisms at Sen’s normative approach to economic and political

prescriptions11

. In doing so, he evaluates both Amartya Sen and John Stuart Mill’s accounts of

desire, preference, and well-being. Without disagreeing that Mill’s prescriptions would produce

any recognizable differences, Sugden nevertheless argues that Mill’s contractarian approach to

policy offers a distinct advantage. Sugden’s primary concern is that the capabilities approach

could justify illiberal restrictions on liberty. Conversely, Sugden argues that Mill’s normative

approach (in which individuals are given wide latitude in determining their own desires, rather

than – as Sen and Nussbaum’s approach favors – a collective judgment regarding individual

desires) shut’s the door to restrictions on liberty. With the Harm Principle at the center of a

9 Ibid., p. 50.

10 Ibid., p. 74.

11 Robert Sugden, What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on

the Value of Opportunity (Cambridge 2006).

Todd Shaw

normative approach, Sugden explains that the opportunity for these restrictions to arise does not

present itself.

It is true that both Nussbaum and Sen’s approaches are not entirely similar. Both readily

acknowledge this fact throughout their scholarship the last several decades. Most recently,

Nussbaum notes that her approach “departs from Sen’s in several significant ways.” These

differences include Sen’s lack of justification for universal norms, the distinction between

Nussbaum’s capabilities (basic, internal, combined), and Nussbaum’s conception of rights as

understood as supplying side-constraints.12

Yet despite Sugden’s criticism primarily aiming at

Sen’s normative approach, his comments are applicable to Nussbaum as well. Sugden’s central

concern that Sen’s approach in collectively determining individual desires13

might not

necessarily promote the desires individually possess resonates consistently with Nussbaum.

Indeed, Sugden’s criticism may be more relevant to Nussbaum’s flavor of the capabilities

approach in that Sen, unlike Nussbaum, fails to produce an actual list of capabilities. Because of

this, Sugden’s argument against Sen’s approach can be seen as an argument against Nussbaum’s

own approach. Thus, Sugden’s argument accurately reflects concerns with Nussbaum’s

capabilities theory as well.

Sugden seeks to explain a fundamental distinction between the normative approach of Sen – and

through association Nussbaum – and Mill make in their approaches to policy creation. Sugden’s

primary concern is that a particular list of capabilities will render the individual’s desires

irrelevant. Because the capabilities list is presumably underpinned in constitutions via collective

determinations (through democratic instruments, as Nussbaum expresses) rather than individual

ones, there may be instances in which the desire of individuals does not square with their alleged

desires as predetermined in the capabilities list. Sugden’s critique of the normative account of the

capabilities theory begins with a discussion of several commitments shared by Nussbaum and

Mill. These commitments are said to reflect the tone of Nussbaum and Mill’s accounts of human

well-being. The first of these is the idea that freedom is “one of the most important components

of well-being”. In addition, each share a second commitment that the satisfaction and/or

dissatisfaction of desires – a criticism of hard-line utilitarian approaches to comparing states of

affairs - is not a good indicator of well-being. This is the case because “processes of social and

psychological adaptation can erode a person’s desire for what, in reality, will give her well-

being.”14

As British philosopher-economist Mozaffar Qizilbash reemphasizes, these shared

commitments produce a tension which Nussbaum’s capabilities theory seeks to solve:

There is a tension between them. The idea that ‘we’ ethical theorists, can claim to know better than some

particular individual what is good for her seems to open the door to restrictions on freedom. For many

liberals, and particularly for liberal economists – one of the most attractive features of classical

utilitarianism is its robust rejection of paternalism…Bentham [and Mill’s] position[s] [are] attractive in

providing an uncompromising defense of a certain kind of individual freedom – the freedom to act on one’s

own preferences without being required to justify them to anyone.”15

12

Nussbaum, Women and Human Development: The Capabilities Approach, pp. 12-14. 13

Sen explains his proposal as “the basic concern…is with our capability to lead the kind of lives we have reason to

value.” See Sen’s Development as Freedom, p. 285. 14

Sugden, What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill and Sen on the

Value of Opportunity, p. 34 15

Ibid,. original print. Restated in Mozaffar Qizilbash’s, Sugden’s Critique of the Capability Approach, (Cambridge

2011), p. 33.



As a contractarian, Sugden is concerned with Nussbaum’s capabilities theory and its absolute

rejection of a utilitarian preference-based approach to political principles. His fear is that

individuals’ preferences will eventually have no relevance in determining which actions may or

may not be lawful. It appears that Sugden reduces the capabilities theory to what Nussbaum

categorizes as Platonism – the view in which peoples’ desires or preferences lose all application.

According to this view, desires and preferences have no applicability due to our knowledge of

their unreliability as guides to what is actually just. Sugden insists that a Millian approach –

rather than an approach from capabilities – would not need to “provide an argument for the

objective value of the relevant state of affairs that is independent of the fact that people desire or

prefer it.”16

Thus, both Sen’s ‘reason to value’ formula and Nussbaum’s universalist approach to

what constitutes well-being are said to justify “making even radical departures from people’s

actual wants.”

In addition, Sugden criticizes the method in which Nussbaum establishes objective preferences

or desires. Nussbaum explains that “certain universal norms…should be central for political

purposes”17

and that, indeed, universal norms have already been established. In what she calls an

‘overlapping consensus,’ Nussbaum argues that – while a plurality of existing cultures results in

a near infinite amount of desires and preferences – certain desires and preferences overlap across

cultures. This consensus results in a defense of a universal account of desires and preferences.

Nevertheless, Sugden argues that “she does not tell us who participated in the discussion, how

they were chosen, or how it was determined what the consensus of the discussion was.”18

Here,

Sugden’s worry is that Nussbaum has predetermined an overlapping consensus of desires and

preferences and used the alleged consensus to craft a political philosophy that might prohibit

individual actions that fall outside of the scope of the consensus.

Sugden’s concern of the moral-observer position of Nussbaum’s capabilities theory seems to

agree with certain moral intuition. His uneasiness with a list of capabilities reflecting a collective

judgment regarding what an individual ought to desire and prefer is appealing. There is a

palpable tension in the idea of a collective body, whether democratic or not, constitutionally

underpinning a set of political principles which public institutions and the various branches of

government are to respect and enforce.

Most significantly, Sugden argues that Nussbaum too hastily concludes that an ‘overlapping

consensus’ exists regarding capabilities. As he discusses, Nussbaum assumes that universal

rights exist that cross local, national, and transnational political boundaries. But do these rights

truly enjoy such public regard as Nussbaum claims they do? After consideration, it seems that

some just might. While certain capabilities might require more justification than others (e.g. the

capability to enjoy recreational activities and the capability to live with concern for plants), an

overlapping consensus of particular capabilities can be easily observed across a variety of

cultures. These include being able to participate in political choices, protections of free speech,

and the ability to hold property. The burden is on Sugden to explain the normative problems that

arise when democratic institutions codify the individual’s right not to be killed, not to be raped,

etc. These basic capabilities are precisely what Mill has in mind when he articulates the notion

16

Nussbaum, Women and Human Development: The Capabilities Approach, p. 117. 17

Ibid., p. 35. 18


Value of Opportunity, p. 50.

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that the only actions for which man might be restricted are those that impinge on other’s

autonomous actions. Even though a Millian approach takes no particular stance on individual

preferences (unlike Nussbaum’s overlapping consensus, or Sen’s ‘reason to value’ standard),

Mill’s political prescriptions would result in capabilities not entirely dissimilar to Nussbaum’s.19

Indeed, the political process already has determined certain particular capabilities to be desired

by every individual in society. It doesn’t seem altogether reprehensible that laws have been

created which codify particular capabilities. In particular, the capability to possess bodily

integrity forbids assault, battery, and rape, and the capability to possess life forbids the

intentional killing of fellow humans. While the inclusion of these various capabilities does not at

first glance justify their normative existence, they at least give pause to Sugden’s critique that

capabilities – in particular Nussbaum’s capabilities theory - give rise to illiberal restrictions on

individual autonomy.

Another rejoinder would note that Sugden’s critique (that the codification of particular

capabilities in constitutional documents) would actually reverberate particularly well with his

Millian sentiments. Nussbaum’s project is designed in a way to ensure the flourishing of all

humans within society, regardless of their particular desires. Her position simply maintains that

there are innate/universal desires which precede all others. Is this claim of opportunity of

freedom truly as “crucially different” as Sugden suggests? Sugden notes that his attraction to

Mill’s approach is based on “general rules which allow each individual as much freedom as

possible to choose between alternative ways – good, bad, or inefficient – of living her own life.”

One might ask, with this in mind, why he isn’t equally attracted to Nussbaum’s approach. The

codification of general rules to allow individuals freedom to pursue their own desires is the

central goal of Nussbaum’s project. While Sugden has great reservation in normative

assumptions about individual desire, he himself assumes that an innate desire of humanity is to

be able to choose their own desires without interference. What about this assumption is crucially

different than Nussbaum’s? Sugden’s normative account of humanity – that humans ought to be

able to pursue their own desires, within certain constraints – is shared by Nussbaum. The

distinction between Nussbaum and Sugden is Nussbaum’s insistence on including a particular

list of capabilities within constitutional documents, rather than a vague recognition of them with

a single principle (Harm Principle).

The Adaptation Problem and Sugden’s Critique

Nussbaum’s recent work is replete with examples of instances in which individuals’ desires and

preferences stand in stark contrast to objective accounts of what constitutes well-being. Her work

in India highlights three females whose preferences had contorted into such a way that they were

not an accurate reflection of the level of their own well-being. As Nussbaum explains,

“entrenched preferences can clash with universal norms even at the level of basic nutrition and

health”.20

These instances represent the brunt of criticism against Rawlsian approaches in

determining appropriate metrics of justice: applying the metric of utility derived from an

19

It ought to be noted that Nussbaum herself admits that there are particular instances in which functionings, rather

than capabilities, ought to be established. This is outside of the capabilities argument, and is indeed subject to

paternalistic objections. 20

Nussbaum, Women and Human Development: The Capabilities Approach, p. 113.



individual’s happiness, desires, or preferences is not always a suitable basis with which to

evaluate well-being or advantage. Indeed, this phenomenon, referred to by Mozaffar Qizilbash as

the ‘adaptation problem,’ is Nussbaum’s primary impetus in pursuing the capabilities approach

in developing nations. Instances abound in which individual preferences adapt to what outside

observers can recognize as deplorable situations. These contorted desires are known as adaptive

preferences and lead to inaccurate representations of individual states of affairs if taken at face

value. What makes adaptive preferences an adaptation problem is the tension Sugden notes,

mentioned earlier herein.

Another method in understanding the adaptation problem is Jon Elster’s close identification of

adaptive preferences with another phenomenon: ‘sour grapes.’21

As La Fontaine’s version of the

tale goes, the fox – who, dying of hunger believes to see what he thinks are ripe grapes – decides

to abstain from eating the grapes because he decides that they are too green. As Qizilbash notes,

this “fox and grapes example highlights the way in which preferences may not be independent of

the set of feasible options.”22

This example demonstrates the weakness in assessing well-being in

a purely utilitarian fashion. Elster explains this point, noting that “there would be no welfare loss

if the fox were excluded from the consumption of the grapes, since he thought them sour

anyway.”23

In other words, the fox, having desired the grapes and seeing that he can’t get them,

judges that they are sour. Nussbaum comments that Elster’s account of adaptive preferences

accurately reflect the idea that such preferences are “formed without one’s control or awareness,

by a casual mechanism that isn’t of one’s own choosing.”24

The fox-and-grapes tale illustrates the real problem of adaptive preferences in determining

outcomes that will leave one the most well off. Perhaps more illustrating is the example in

which, in 1944, the All-India Institute of Hygiene and Public Health surveyed widows near

Calcutta, India. As Nussbaum notes, a mere 2.5% of widows ranked their health as “ill,” while

none ranked their health as “indifferent.” Of course, by any objective medical standard the

widows’ health was quite worse than the widows themselves determined. Here, adaptive

preferences led to less than ideal outcomes (or in Nussbaum’s language, a lack of knowledge

about what constitutes the universal threshold of available capabilities) which resulted in grossly

inaccurate appraisals of self-well-being. An immediate reaction would be to elevate these

widows from their entrenched state. Nevertheless, a genuine concern for “adjusting” these

widows’ cultural preferences, regardless of these preferences being adaptive or not, without their

consent led to no increase in their capabilities. This, then, is a perfect illustration of the tension

posed by adaptive preferences: real concern for changing individual’s adaptive preferences into

objective accounts of what is universally preferred, without coercing those individuals into

changing their own behavior should they not want to.

Thus, political philosophers, development economists, and others working in the larger field of

social philosophy are confronted between the respect for the freedom or autonomy of the

individual and the desire to raise those suffering from adaptive preferences out of their

entrenched position. The goal, of course, is to establish a state of affairs in which a threshold, or

21

For a full discussion, see Jon Elster’s Sour Grapes: Studies in the Subversion of Reality (Cambridge, 1983). 22

Mozaffar Qizilbash, The Adaptation Problem, Evolution, and Normative Economics (Jena, 2007-2008), p. 4. 23

Elster, Sour Grapes: Studies in the Subversion of Reality. 24


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bare-minimum of well-being is established. In this state, regardless of adaptive preferences,

individuals would be able to pursue a life with a reasonable value of well-being. The ultimate

challenge to those working in the development field, then, is to preserve individual autonomy

while addressing the adaptation problem, without falling into charges of paternalism.

With this objective in mind, Nussbaum explains that the capabilities theory rejects the utilitarian

preference-based approach because it fails to recognize the instances in which individuals fall

into the adaptation problem. Rather, Nussbaum favors the capabilities theory because of its

ability to provide critical scrutiny into situations in which people’s seemingly autonomous

choices are actually mired, leading to a life below any objective measure of well-being. As she

describes, the approach from functioning and capability reveals the “many ways in which habit,

fear, low expectations, and unjust background conditions deform people’s choices and even their

wishes for their own lives.”25

As a result, her approach to the adaptation problem recognizes that

individual preference and desire are not fool-proof metrics of justice. Because of this, her project

of establishing an overlapping consensus, or universal recognition of basic preferences and

desires, is needed.

Nussbaum’s method in solving the adaptation problem without falling into charges of

paternalism is to establish a non-exhaustive list of central human functional capabilities. These

include but are not necessarily limited to the following: life, bodily health, bodily integrity,

senses, imagination & thought, emotions, practical reason, affiliation, relation to other species,

play, and control over one’s political & material environment. These capabilities are phrased in

such a way to provide the opportunity or ability to act on them, within reason. Nussbaum

certainly recognizes the concept of Mill’s Harm Principle, and advocates that one’s capability to

act in such a way has specific parameters. These parameters are the capabilities of other persons.

Ideally constitutionally underpinned as political principles (and enforced proactively),

Nussbaum’s solution to the adaptation problem is complete.26

This approach to the adaptation problem has invited several objections from Robert Sugden.

Concerning Nussbaum’s capabilities theory’s response to the adaptation problem, Sugden poses

three principal objections. The first of these – that the capabilities approach assumes that an

overlapping consensus, or universal account of what people desires exists – has been discussed.

Sugden’s second critique states that in some cases, the capabilities approach in effect decides

which opportunities are to be promoted even when some people (who are adapted or ill-

informed) do not see them as valuable or desirable. Finally, Sugden asserts that the capabilities

approach leads to restrictions of the satisfaction of adaptive preferences by telling people what

they can and cannot do.

Sugden’s primary worry with Nussbaum’s approach to the adaptation problem is that individual

autonomy will not receive an appropriate level of respect if the capabilities approach were

adopted. If it can be observed that one is acting in such a way that runs contrary to an

overlapping consensus of desires one ought to have reason to value, they can be questioned and

in some extreme cases perhaps overridden. Perhaps one finds utility in actions that one ought not

to have reason to value. Drinking, smoking, and other unhealthy habits are an objectively poor

25

Ibid., p. 114. 26

See Nussbaum’s discussion of the current state of affairs in India: quite poor despite a comparatively liberal

constitution. She blames this on poor constitutional recognition throughout the nation.



decision. These decisions can result from a lack of relevant health information, but an adaptation

of preferences seems more relevant an explanation. Nevertheless, these decisions can and do

fulfill the desires of millions of seemingly fully-autonomous individuals. Qizilbash puts it

simply, explaining that “a disadvantaged person may have learnt to find pleasures in small

mercies, and the enjoyment of smoking may be one of the consolations of a difficult life.”27

Sugden worries that in these instances the capabilities theory can devalue and ultimately override

the satisfaction of these desires:

“these are not the sort of activities that are likely to appear on a philosopher’s list of valuable functionings

Indeed, they seem to be just the sort of that that Nussbaum has in mind when she says that ‘[t]o use one’s

senses in a way not infused by the characteristically human use of thought and reason is to use them in an

incompletely human manner.’”28

Instead of a normative approach that might allow restrictions on the satisfaction of desires in

such instances, Sugden advocates a Millian approach. Sugden is very particular in advocating for

political prescriptions that make absolutely no objective account of what one ought to have

reason to value. Instead of establishing an overlapping consensus, he calls for a normative

approach that gives one the opportunity to act on any desire they might have, regardless if they

have reason to value it or not. These prescriptions acknowledge the idea that man ought to have

the ability to extend himself and his abilities as far into the universe as possible, so long as those

extensions do not impinge on others’ abilities to do the same. Sugden argues that this sentiment

would result in neither Sen’s ‘reason to value’ formula nor Nussbaum’s list of capabilities.

Sugden’s various objections to Nussbaum’s approach to adaptive preferences seem to ignore

several components of Nussbaum’s normative account. For example, Nussbaum explicitly

acknowledges and respects the government’s choice to permit actions in which no harm is done

to others. In fact, it is hard (if not entirely impossible) to conceive of instances in which the

satisfaction of one’s desire without harming others would run afoul with the actual capabilities

on Nussbaum’s list. Codifying in some way the capability to live, to possess good health, to

move freely from place to place, to use the senses in a “truly human” way, to love those who

care for us, to affiliate with others, and the remaining capabilities do not seem to impinge on

one’s opportunity to satisfy their adaptive preferences. Nussbaum’s solution to adaptive

preferences is not one of denying the opportunity to satisfy these preferences. This is an

important point that Sugden does not acknowledge. Accordingly, it would seem incompatible

with Nussbaum’s normative approach to restrict the satisfaction of individual desires (again, with

the caveat that these satisfactions concern only the individual).

What Nussbaum’s list fulfills is the opportunity for one to be free from instances in which they

could not pursue these capabilities. This point acknowledges the idea that virtually any law poses

at least some restriction on individual freedom. But this point gives no antecedent reason for

asserting that these restrictions are illiberal in a Millian sense. It appears that Sugden is arguing

that it very well may. Yet Nussbaum freely admits that it might be paternalistic to state that,

“sorry that [action] is unacceptable.”29

She acknowledges that this tells “people how to conduct

27

Qizilbash, Sugden’s Critique of the Capability Approach, p. 42. 28


Value of Opportunity, p. 44, citing Nussbaum’s Women and Human Development: The Capabilities Approach, p.

82. 29


Todd Shaw

their lives with one another, in a way that may run counter to actual desires.”30

Most importantly,

she states that if preventing harm to others demands such admonitions, then “any bill of rights is

‘paternalistic’ vis-à-vis families, or groups or practices…if paternalism means simply telling

people that they cannot behave in some way that they have traditionally behaved and want to

behave.”31

Sugden’s critique that the capabilities list decides which opportunities are to be promoted can be

granted. Insofar as Nussbaum’s approach lists actual capabilities, Sugden is correct on his first

objection. He seems to claim that this point in some way leads to restrictions on one’s freedom to

do whatever they may choose. However, the decision to promote particular capabilities over

others does not necessarily lead to the conclusion that individual preferences will be forbidden.

Nussbaum is careful to explain that the list is non-exhaustive and open for this very reason.

Sugden’s final objection that the capabilities list could lead to restrictions on the satisfaction of

adaptive preferences by telling people what they can and cannot do is rather tenuous. If the list of

capabilities actually told people what to do, the satisfaction of adaptive preferences would be

restricted. But the list doesn’t tell individuals what they can and cannot do – it simply gives them

the capability to do those particular things. This response to Sugden’s critique is made clear

through Nussbaum’s clear distinction between functioning and capability. This distinction pulls

us away from Sugden’s claim that the capabilities approach enforces an objective account of

desires that could lead to illiberal restrictions on individual desires. Nussbaum takes time in

distinguishing between the capability to do or to be and actual functionings. For example, she

states that the capabilities theory is not designed to push “individuals into the function: once the

stage is fully set, the choice is up to them.”32

To the adaptive preferences of enjoying smoke or

drink in excess (and again the majority of instances which do not harm others), Nussbaum’s

approach would not forbid them. It is fundamental to recognize that her goal is capability and not

functioning. If one has – through a constitutional guarantee via the capabilities theory – the

capability to have the “social basis of self-respect and non-humiliation,” their preference for self-

disrespectful or humiliating actions would not be forbidden .33

Additional examples abound. For

example, the mere fact that one has the capability to “be able to have good health” does not

result in the conclusion that a person must refrain from activities that don’t lead to healthy

outcomes.34

Sugden’s narrow interpretation of capabilities would seem to interpret the

opportunity for sexual satisfaction no differently than a decree requiring sexual satisfaction. This

is so because he fails to make a real distinction between capability and functioning. But this

distinction is paramount to understanding Nussbaum’s sensitivity to paternalism. This sensitivity

results in her sentiment that “citizens must be left free to determine their own course.”35

Thus,

she answers in the negative to the question of whether her approach instructs the “government to

nudge or push people into functioning of the requisite sort, no matter what they prefer.”36

As a

result, the general sentiment behind Sugden’s objection s to Nussbaum’s approach to adaptive

preferences is problematic.

30

Ibid., p. 53 31

Ibid., p. 53 32


See Nussbaum’s capability 7.B., Women and Human Development: The Capabilities Approach, p. 79. 34

See Nussbaum’s capability 2, Women and Human Development: The Capabilities Approach, p. 78. 35


Ibid., p. 87.



Conclusion

In large part, this article is concerned with addressing Sugden’s concerns with Sen and

Nussbaum’s normative approach to the capabilities theory framed within the context of the

adaptation problem. In regards to Sugden’s worry that such an approach can lead to illiberal

restriction on individual desire, he can rest assured that a capabilities list as prescribed by

Nussbaum would generally stay within the boundaries of his and Mill’s respect for autonomy. 37

An important question posed by Mozaffar Qizilbash asks if more general lessons can be learnt

about how vulnerable current and future variants of Nussbaum’s specific approach are to

Sugden’s critique. With any human development theory, it is crucial to emphasize the autonomy

of the individual. When collective determinations of desire, opportunity, and capability are made

that violate individual autonomy, charges of paternalism and illiberalism are relevant and require

immediate justification.

37

Such a list would again, generally, not run afoul of Sugden’s primary worry. Nevertheless, Sugden might take

issue with Nussbaum’s assertion that there are instances in which functionings ought to be mandated by the

government. For example, Nussbaum states that meaningful capabilities as an adult requires actual function in

childhood. This would permit the government to enforce certain compulsory actions and would certainly restrict the

scope of individual choices in some situations. However, these situations are restricted to children, and adults who

are incapable of full mental power. An example of the former is a requirement for primary and secondary education.

Todd Shaw

References

Brighouse, Harry, and Ingrid Robeyns. "Introduction." Measuring Justice: Primary Goods and

Capabilities. Cambridge, England: Cambridge UP, 2010. Print.

Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge:

Cambridge UP, 2000. Print.

Qizilbash, Mozaffar. "Sugden's Critique of the Capability Approach." Utilitas 23.1 (2011). Print.

Qizilbash, Mozaffar. "The Adaptation Problem, Evolution and Normative Economics." Max Planck

Institute of Economics, Evolutionary Economics Group (2007-2008). Print.

Rawls, John. A Theory of Justice. Cambridge, MA: Belknap of Harvard UP, 1971. Print.

Sen, Amartya. Development as Freedom. New York: Anchor, 2000. Print.

Sen, Amartya. "Equality of What?" The Tanner Lecture on Human Values. Stanford University, Palo

Alto. 22 May 1979. Lecture.

Sugden, Robert. "What We Desire, What We Have Reason to Desire, Whatever We Might Desire: Mill

and Sen on the Value of Opportunity." Utilitas 18.1 (2006). Print

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The Adaptation Problem: Addressing Charges of Paternalism in Martha Nussbaum’s Capabilities Approach