Framing social justice through the capabilities lens: examining post-conviction labor market barriers

This thesis relates two bodies of existing research: (1) the use of capabilities as the basis for a theory of justice and (2) labor market reentry barriers created by conviction history. The capabilities approach is an alternative analytical framework to understanding social justice than alternatives such as utilitarian, luck egalitarian, or contractarian conceptions. The discussion of economic implications of conviction history on labor market opportunities already exists in economic literature. However, research which has been done to this point has predominantly utilized a limited neoclassical framework. This results in analyses which do not convey the full picture of justice. Capabilities consider a broader range of human functioning while remaining rooted in the economic concerns of decision making and resource distribution. Literature in other social-sciences (such as sociology and criminology) has dealt with the non-monetary implications of conviction history for labor-market entry. As the capabilities approach remains on the margins of economic discussion, I argue for its fitness to examine economic issues of social justice. I take the opportunity to introduce this approach to the subject of post-conviction labor market barriers. By using the capabilities lens to examine this topic, I aim to demonstrate its effectiveness beyond theory. To fully discuss the labor market-related capability deprivations caused by conviction history requires international comparisons. The U.S. context can (and must) be compared to other cultures and nations. Italy is a country of comparative interest to me, but this is by no means a strict limitation. The potential implications of using the capabilities lens extend globally and are promising for the development of justice-aware policies in all aspects of increasingly modern and iii globalized societies. Current discussions, research, and policy relating to topics of social justice stand to benefit greatly from the depth of understanding and codified language afforded by capabilities scholarship.

FRAMING SOCIAL JUSTICE THROUGH THE CAPABILITIES LENS: EXAMINING POST-CONVICTION LABOR MARKET BARRIERS By Jack L. Gambassi A Senior Honors Thesis Submitted to the Faculty of The University of Utah In Partial Fulfillment of the Requirements for the Honors Degree in Bachelor of Arts In Economics Approved: ______________________________ Richard Fowles, PhD Thesis Faculty Supervisor _____________________________ Thomas Maloney, PhD Chair, Department of Economics _______________________________ Gabriel Lozada, PhD Honors Faculty Advisor _____________________________ Monisha Pasupathi, PhD Dean, Honors College August 2023 Copyright © 2023 All Rights Reserved ABSTRACT This thesis relates two bodies of existing research: (1) the use of capabilities as the basis for a theory of justice and (2) labor market reentry barriers created by conviction history. The capabilities approach is an alternative analytical framework to understanding social justice than alternatives such as utilitarian, luck egalitarian, or contractarian conceptions. The discussion of economic implications of conviction history on labor market opportunities already exists in economic literature. However, research which has been done to this point has predominantly utilized a limited neoclassical framework. This results in analyses which do not convey the full picture of justice. Capabilities consider a broader range of human functioning while remaining rooted in the economic concerns of decision making and resource distribution. Literature in other social-sciences (such as sociology and criminology) has dealt with the non-monetary implications of conviction history for labor-market entry. As the capabilities approach remains on the margins of economic discussion, I argue for its fitness to examine economic issues of social justice. I take the opportunity to introduce this approach to the subject of post-conviction labor market barriers. By using the capabilities lens to examine this topic, I aim to demonstrate its effectiveness beyond theory. To fully discuss the labor market-related capability deprivations caused by conviction history requires international comparisons. The U.S. context can (and must) be compared to other cultures and nations. Italy is a country of comparative interest to me, but this is by no means a strict limitation. The potential implications of using the capabilities lens extend globally and are promising for the development of justice-aware policies in all aspects of increasingly modern and ii globalized societies. Current discussions, research, and policy relating to topics of social justice stand to benefit greatly from the depth of understanding and codified language afforded by capabilities scholarship. iii TABLE OF CONTENTS ABSTRACT ii INTRODUCTION 1 DEFINITIONS AND TERMS 6 LITERATURE REVIEW 9 ANALYSIS 26 DISCUSSION 87 CONCLUSION 90 REFERENCES 92 iv 1 INTRODUCTION The “land of the free” might be due for a rebranding. In 1997, the Bureau of Justice Statistics (BJS) estimated that a newborn Black child in the U.S. had a greater than 1 in 4 chance of going to prison during his lifetime compared to 1 in 23 for a White child (Bonczar and Beck, 1997). While that statistic may be striking in and of itself, it does not even account for jails. Today, tremendous racial disparities are still found among the estimated 2.12 million people in prisons and jails with Black men accounting for nearly 40 percent of the state prison populations (Klein et al., 2023, p. 344). In 2008, greater than 1 in 3 Black men without a high school diploma were behind bars, and the U.S. had more than 2.3 million between federal and state prisons and jails, with over 5 million in the probation and parole system (Dhondt, 2012). As of 2021, my home state of Idaho has an incarceration rate of 761 (per 100,000 citizens); Utah, where I currently attend university, has an incarceration rate of 435. If those two states were compared to global incarceration rates, they would rank 1st and 8th in the world, respectively. Italy has an incarceration rate of just 89. In fact, U.S. states would account for the top 35 positions in global rankings (Widra & Herring, 2021). Most of those individuals who move through the carceral system will eventually be released and join the more than six million adults in the U.S. who have served prison time in the past. Unemployment issues and racial bias plague that population. According to Beasley & Xiao (2023), unemployment “was 27.3% for formerly incarcerated people in 2008 compared to 5.2% for the general population” (p. 1). Moreover, on top of War on Drugs policies which fuel extreme racial disparities, labor-market barriers violently exacerbate those racial disparities in a multitude of ways. Existing research does a 2 commendable job of looking at these issues, but it either does not tell the full picture or lacks the focus necessary for driving changes. Mainstream techniques in economics are often restricted by using a conception of value based on wealth or income—this work is very important but cannot be used on its own to make policy decisions. Other fields of research aim to fill this gap by broadening discussion to include non-monetary facets of the issues, but, as a collective body of research, can lack the focus or agreement over what non-monetary aspects are valuable to assess the situation. What can be done to address this? One promising and relatively new approach to understanding issues of social justice, such as this one, is to consider them in the space of capabilities. The capabilities lens allows us to critically reconsider our existing perspectives on the labor market barriers faced by the unemployed and underemployed who have a history of conviction. By expanding our focus beyond an incomplete view (happiness or material resources an individual has) and capturing what that human can actually do or be, the resulting image is more comprehensive and better suited to act as a basis of policy. Not only does the lens help us to better understand the issues of this particular application of social justice but also issues of social justice on a grander, international scale. In other words, evaluating one’s potential for achievement solidifies the foundation upon which to promote justice, equity, and empowerment. This thesis will consider two primary bodies of scholarship: (1) Labor market barriers for individuals impacted by the criminal legal system, and (2) the capabilities approach and associated theories of justice. The discussion and development of the capabilities approach will be of particular interest to researchers in fields across the social 3 sciences—such as economics, criminology, sociology, gender studies, anthropology, psychology, political science—, the humanities—such as history, philosophy, political philosophy—, education, business, law, medicine, social work, and more. In addition, an understanding of the family of theories united by the capabilities approach will be of potential benefit to anyone interested considering an alternative value system or getting a new perspective on what capabilities are relevant to living as a participant in our contemporary society. The capabilities approach is relevant to those who operate on a daily basis in government including state and national legislators, court justices, and legal practitioners. The merits of the capabilities framework (and its organized language for discussing the character of a human life) might extend even to journalists or documentary filmmakers. As far as discussion of the labor market barriers for unemployed or underemployed individuals with a history of conviction, this capabilities-based inquiry deals with issues related to many groups. Of course, the affected population of jobseekers, employers, non-profit organizations and volunteers involved in reentry and support, and psychological and social support professionals. In the literature review, I will establish the main theoretical veins of the capabilities approach to give an overview of the development of the family of approaches which focus on capabilities. The lens in the capabilities space can be considered to be bifocal; one focus is evaluative, the other is prospective. I make this distinction out of inspiration from capabilities scholar Ingrid Robeyns’ (2018) who, in her chapter for the Oxford Handbook of Distributive Justice, stresses that when engaging with the arguments of capabilities scholars, it is crucial to understand the distinction between the capabilities 4 approach (core) and capabilities theories (extensions for a particular application, like justice). I engage with both forms of literature in this argument. At the end of the review, I will state which aspects of the theories I will adapt for this application. In my analysis, I expound the philosophical bases of Amartya Sen and Martha Nussbaum’s establishment of the capabilities approach, as well as Elizabeth Anderson’s creation of a capability theory of justice upon Sen and Nussbaum’s platform. The critique and discussion of each vein will be detailed, as will the orientation of this theory of justice in relation to others such as utilitarianism, resourcism, and Rawlsian justice. This will involve real and hypothetical international considerations of the theory, both in its foundations and extensions. I will distinguish between the value of capabilities approach as a positive framework (capabilities as metric) and the value of the ensuing capability theories of justice as normative frameworks (capabilities theories of redistributive justice). I will also analyze existing research related to employment-seeking with a criminal record, drawing primarily from American but also including international literature. In that analysis, I start off by considering why the capability of employment is necessary for an equal participant in civil society, and then add texture to that importance with the context of reentry into the labor market after conviction. Next, I consider both supply- and demand-side labor market barriers in the space of capabilities and finish with a discussion of job seeking adaptations and the obligations of the democratic state to address this injustice. Overall, I seek to marry ideas from the capabilities theories of justice with that existing employment research to better understand the implications of conviction on the job search. 5 In my discussion, I recap the lessons learned from examining the literature within the capabilities space. I note, primarily, that these issues are best dealt with on the front end, before incarceration happens in the first place and that—in addition to reentry programming which fosters social support networks—broad economic interventions to keep unemployment low may be the best way to assist these populations. Lastly, a note in support of the economic implications of this thesis: This economics thesis deals substantially with theories of distributive justice in the academic realm of political philosophy. As the capabilities approach is an alternative method to consider social justice and the just distribution of resources, I believe that it is prudent to establish the viewpoint of this exploration in philosophical bases which are outside of mainstream economics. From this angle, I can more clearly scrutinize and reconsider the economic questions at play in the discussion of labor market barriers. “Some economists are in fact becoming more sensitive to the importance of facing fundamental philosophical questions about their starting points. This sensitivity needs to become far more widespread.” ― Lal Jayawardena, first director of the United Nations’ WIDER 27 August 1990 6 DEFINITIONS AND TERMS By “economy,” I refer to the entire productive sphere of the society to be the economy— including non-wage labor within the home, following in line with the work of economists like Amartya Sen, Martha Nussbaum, Hazel Henderson, Elizabeth Anderson, and Marilyn Waring. This is not to be confused with either the “market” or the “labor market” in specific, which each typically consisting of only monetized employment. The term, “capabilities space,” refers to an abstract realm of evaluation which uses capabilities and functionings as its yardstick to measure and evaluate issues of all kinds. A “distributive rule” is a principle or mechanism which determines the fair allocation and distribution of resources, opportunities, and benefits within a society. In this thesis, “normative” refers to theories, statements, or claims made with an expression of value judgements rather than a description of how the economy functions. “Positive theory” or “positive approach” refers to those which are objective and based on facts and empirical evidence. The term, “theory of distributive justice,” refers to a fully complete theory which uses both a metric (i.e., a base measure of value such as capabilities or happiness) and a distributive rule (e.g., egalitarianism, sufficientarianism, etc.). It may be used to assess social justice issues or to make assertions for how resources ought to be distributed. “Criminogenic,” refers to social, material, political, or economic factors which increase the risk that an individual will commit a crime—possibly, but not necessarily, in an attempt to meet basic capability thresholds. 7 “Option luck” refers to the luck or unluck which occurs when a person had some responsibility in how the events unfolded in order to get them their good or bad luck. For example, for the strict luck egalitarians, bad option luck would include if one’s parent was aging, and they had to quit their job to take care of their dependent parent. The luck is bad, but they have “opted” for it in a way. “Brute luck” refers to the luck or unluck which might be also characterized as involuntary luck. For example, being born with a mobility constraint would be a condition of bad brute luck. From Anderson (1999): “Civil society is the sphere of social life that is open to the general public and is not part of the state bureaucracy…Enterprises engaged in production for the market are also part of civil society, because they sell their products to any customer and draw their employees from the general public” (p. 317). “The democratic state is nothing more than citizens acting collectively, it follows that the fundamental obligation of citizens to one another is to secure the social conditions of everyone’s freedom” (p. 314). “A person’s capabilities consist of the sets of functionings she can achieve, given the personal, material, and social resources available to her” (p. 316). From Weiman (2007): 8 “The notion of a marginal offender has two distinct connotations. Criminologically, it refers to those who commit fewer, less serious violent crimes per time period. Economically, they are literally on the margin between legal and illicit work and allocate their time between the two depending on the rewards and risks of each” (p. 579). 9 LITERATURE REVIEW The capabilities approach does not stand as a particularly well-known field of study in economic circles. Relatively young, the theory was born in the 80s through the work of Amartya Sen in his studies of famines and Martha Nussbaum’s study of Aristotelian ideas of human functioning and Marx’s use of them. Sen and Nussbaum’s seminal contributions were joined by the contributions of many later theorists. This review will discuss the origins and development of this approach. The former focuses on the literature establishing the philosophical bases of capabilities and comparison with alternative conceptions of justice (e.g., utilitarianism, Rawlsian justice); the latter will consider one distributive theory of justice which has been extended from the foundations of the theory. Those topics are discussed as they relate to the capabilities space and to the critical commentary of capabilities scholars. Throughout the ‘80s and ‘90s, the foundation of the approach and its conception of value-goods developed. Since the concept of the capabilities space became incorporated into the Human Development Reports of the United Nations Development Programme (UNDP) in the ‘90s, increasing numbers of researchers are now using the metric of capabilities to discuss issues relating to their own fields of expertise. In concert with other scholarly work on distributive theories of justice, it became possible for researchers to examine concrete issues of social justice within the space of capabilities. Recently, it has even been applied to topics such as transport justice by Giovanni Vecchio and Karel Martens, as seen in their November 2021 article, “Accessibility and the Capabilities Approach.” The body of scholarly work relating to the space of capabilities has developed enough to be organized into two groups: capabilities as a positive metric of quality of life and capabilities as a normative 10 theory of justice. Despite disagreements between theorists and policy makers in the exact, normative application of the approach, it has already been used in many aspects of human development, particularly in developmental and feminist economics. The lens—to my knowledge—has not been extensively used to evaluate, analyze, or make policy suggestions for issues of social justice relating to labor barriers for inmates. Of acute personal interest to me are the fields of drug policy, drug addiction, incarceration, or recidivism. Issues of social justice in the US and around the world stand to benefit from the application of capabilities-based theory. I begin this review with Sen’s establishment of the capabilities approach which are borne from his research in development economics studying famines in developed and productive countries. The seminal scholarship of the capabilities approach is Sen’s 1979 lecture, “Equality of What?” which prompted him to critique the existing measures of equality that were used in economics of development. Primarily, he critiques three popular metrics of equality and puts them through hypothetical and real tests, which he calls the case-implication critique. Many of those metrics fail or lead to worrying conclusions. Those metrics are utilitarian equality, total utility equality, and Rawlsian equality (Sen, 1979, p. 197). His critique of utilitarian equality deals with act consequentialism, welfarism, and sum ranking. Act consequentialism is a form of normative ethics which constrains an individual to consider the moral worth of an action based on the outcome of that action. Utilitarianism uses this ethical foundation as it focuses on the outcomes of an action and then makes an assertion that the agent should act in whichever way the overall good will be maximized. One counterpart of act consequentialism is deontological ethics, which 11 uses moral rules or principles to guide an agent, regardless of the outcome of the action. Act consequentialism does not necessarily specify what type of goods should be maximized, which is where utilitarianism enlists welfarism. Welfarism, in determining a value-object to be its ultimate metric, unduly focuses on the psychological state of happiness. Sen critiques this metric and considers it to be very poor for measuring equality or making an assertion about justice. Measuring welfare permits even individuals who are victims of profound states of inequity or violence (including domestic violence) so long as they have adjusted their psychological states to be happy; Sen calls this phenomenon adaptive preferences (Sen, 1982; Sen, 1985). While Sen does mention happiness in the space of capabilities the form of happiness is not based in a psychological state but rather based in Aristotelian eudaimonism, which views happiness as associated with actions and what a person is able to do or be in a specific context (e.g., health in the context of medicine, victory in the context of strategy) (Alexander, 2016, p. 72; Sen, 1995). Finally, regarding utilitarianism, Sen critiques sum ranking, which ties very closely with act consequentialism. Sum ranking is a method for measuring the value-good (in this case, utility or welfare) which considers the sum of each individual’s value in the society. All together they make utilitarianism a theory of equality which asks, “what action results in the greatest good for the greatest number of people?” This method fails to consider individuals as ends in and of themselves and can alienate them from their freedoms (Sen, 1985; Nussbaum, 1992, p. 231). Utilitarianism, due to its prioritization of utility maximization for the group as a whole, allows for situations where one or more of the individuals might be deprived of basic human dignities, as long as the sum utility is maximized. The utilitarian society could be happy, but this is no guarantee that it is just. 12 This is utilitarianisms flawed logic of sacrifice. Sen (and Nussbaum) reject this in the capabilities space, insisting that each individual cannot be alienated from their freedoms to achieve basic human functionings, even if the group would be better off for it. Much of Sen’s 1979 piece considers the work of John Rawls who created an alternative conception of justice after finding many of the same flaws in utilitarian conceptions of equality. While Rawls’ approach aligns with the capabilities approach more than does utilitarianism, Sen still had some concerns. At the core of Rawls’ conception of justice are primary goods, which are a form of resource fundamental to individuals pursuit of a valuable life and consist of the following: “basic rights and liberties, freedom of movement and choice of occupation, powers and prerogatives of offices and positions of responsibility, income and wealth, and social bases of selfrespect” (Alexander, 2016, p. 33). Rawls’ approach is a liberal approach to justice, in which the state avoids making an intrusive decision on the “correct” conception of the good. Rawls’ theory of justice as fairness “gives priority to the right over the good” and thus does not assert any particular conception of the good (Alexander, 2016, p. 49). For Sen, the issue is that Rawls places the most importance on evaluation of primary goods and not considering capabilities. Sen asserts (along with other capabilities scholars) that the primary goods are valuable for their instrumental use in helping people achieve actual human functionings. This is an issue as the theory of justice as fairness does not consider the wide berth of human functionings which can alter the ability of two different individuals to convert their primary goods into true functionings. Sen also brings up issues with Rawls’ difference principle, which says that any social and economic inequalities must “be to the greatest benefit of the least advantaged members of 13 society” (Sen, 1979; Mulhall et al., 1994; Alexander, 2016, p. 34). Sen questions who Rawls considers to be the least-advantaged members of society, how does justice as fairness measure who is least advantaged? If it looks at primary goods alone there are some issues which Sen raises and can be seen in the analysis section of this thesis. A caveat to the comparison of the capabilities theory of justice with Rawlsian justice is that, in reality, capabilities theory is concerned with a broader scope than Rawlsian justice, which is an element that takes part in a greater and more “complex theory of institutional justice”. Rawlsian justice is idealistic in its aims, establishing a “just (yet ‘realistic’) utopia” which is distinct from the capabilities approach which does not have this aim. In fact, Rawls developed the approach considering a simplified society first which did not consider the implications of disability (Robeyns, 2018, p.116). Rawls’ did this on purpose to establish his theory and then remove the level of abstraction later. In short, difficulties are introduced when attempting to directly compare the two, because they have nonuniform scope or goals. Also, the two theories are not so alien from one another in the grand scheme of the literature of political philosophy and conceptions of justice. The core structure of Sen’s approach was established in Sen’s 1982 article, “Rights and Agency.” Sen sought to establish an alternative theory of equality which neither measures welfare or primary goods nor constrains citizens to strict deontological conceptions of what is good. He strikes a balance with his goal rights system and extends basic capability equality (Sen, 1979, p. 219; 1982). It is in this article that the term “capability rights system” was coined. Upon Sen’s early work, the approach today still uses many of the same concepts which Sen established in the ‘80s. The most important of which are capabilities (human potential to do or be) and functionings (what people 14 actually do or who they are). Sen follows Rawls in the consideration of certain capabilities and functionings as having a certain lexical priority, while not actually defining a singular list of capabilities. The refusal to provide a list is something which Sen has maintained as the capabilities approach has developed, for a couple reasons: to stay in line with his idea that citizens should not be constrained to strict deontological conceptions of the good and to argue that the capabilities approach can be mobilized before it is theorized as a full theory of distributive social justice. Along with the latter, if he were to extend his theory and argue for one capabilities theory of justice, it would limit the dynamic ability of capabilities as a metric (or space for evaluation) to apply to diverse cultural, social, and temporal situations. Instead, Sen refers generally to relevant capabilities throughout his scholarship without endorsing “one list to rule them all,” if you will. There are a few approaches for deploying the approach in application even before it is a fully fleshed out theory of justice: the direct approach which, “directly analyses and compares vectors of functionings or capabilities,” the supplementary approach which consists “of supplementing the more traditional income comparisons with capability considerations,” and the indirect approach which uses “traditional income comparisons but calculating incomes ‘adjusted’ by capabilities” (Alexander, 2016, p. 74). This thesis makes positive assertions about the barriers faced by people with conviction history using the supplementary approach. Criticisms of capabilities theory include under-theorization, individualism, and problems with being a sufficientarian theory. Sen’s defense against the critique of undertheorization will be considered to a greater extent using the metaphor of an engine, but for the purposes of this lit review, I will describe the objection in a more succinct way. 15 Many theorists (capabilities scholars and non-capabilities scholars) have critiqued Sen’s decision to not provide a list of relevant capabilities alongside his arguments for the use of capabilities to measure equality. His theories have also been critiqued for their focus on the individual. Individualism is a critique which both Rawlsian justice and mainstream economics (homo economicus) must face. This critique comes mainly from communitarians who see the focus on individuals as alienating from our natural human tendency to organize and function in social relationships. It is perceived that to focus on the individual as an end, that a capabilities space will unduly marginalize important concerns relating to community and “their embeddedness in communal values and tradition” (Alexander, 2016, p. 38). Sen and Rawls’ approaches can be defended in that the individualism which they endorse takes the form of ethical individualism and should not be confused with ontological individualism. For the latter, atomistic individuals participate in society for the purpose of individual advancement to fulfill their desires (for utilitarianism or welfarism, this desire is utility maximization as is the case for the infamous homo economicus). On the other hand, the former is employed by Sen and Rawls only to argue for the consideration of “individuals and their interests as the basic unit of moral analysis” which protects the theory from issues present due to the sumranking of other theories of equality. As a sufficientarian theory which looks at providing agents with capabilities to reach a certain threshold of functioning, Sen’s work is criticized for the lack of information for a couple circumstances. First, some individuals are extremely unable to be brought to the level of threshold unless they are provided with enormous amounts of resources (and even then, to create feasible capability thresholds for the state to subsidize, the level might be too low to provide sufficient human 16 functioning). Sen does emphasize that efficiency in the space of capabilities is important as well as meeting capability thresholds, indicating his attention given to other aims of society, which counters this critique. Second, it is criticized for being indifferent toward inequalities above the sufficient threshold. This is an area which calls for further consideration by the capabilities approach, and highlights its under-theorization in another way, because (in its form as a space for evaluation) it cannot not make an assertion as to how resources above the threshold should be distributed, or how to deal with inequalities that lie above the threshold. The only explanation for this is that Sen (and Nussbaum) spend the majority of the concern of their writing considering the issues of the people with the highest degree of deprivation and emphasize the importance of bringing them up to the threshold. The absence of significant discussion about inequalities above the threshold is not an indication that capabilities scholars do not care about those inequalities. In any case, later capabilities scholars like Elizabeth Anderson do choose to address this critique. Martha Nussbaum’s contributions added the strength of classical philosophical bases and extended the approach into her version of the capability theory of justice. Nussbaum’s path started independently of Sen, and it was not until the two met in 1986 that their approaches collaborated. From the standpoint of the philosophical basis, it is crucial to understand that the capabilities approach as discussed by Nussbaum develops from her studies of Aristotelian essentialism. Essentialism is a philosophical approach which asserts the universal and unchanging aspects of innately human characteristics and flourishing. Essentialism stands as the opposite approach to relativism, which Nussbaum critiques quite heavily. She details those critiques in her 1992 essay, “Human Functioning 17 and Social Justice,” which is described in further detail as part of the analysis section. The most important contribution to the capability approach was Nussbaum’s use of essentialism as a universal basis for developing a list of capabilities which are necessary to allow human life to flourish. She has further developed and extended those ideas in her later work, forming the list into a fully developed theory of justice which can be applied to her work in constitutional philosophy. So how does Nussbaum’s approach differ from Sen’s? To better understand this, it is relevant to consider the viewpoints from which each scholar saw capabilities (Nussbaum – classical philosophy, Sen – development economics). The major difference, as alluded to with her theory’s roots in Aristotelian essentialism, is her choice to include a list. This, in terms of how a capabilities theory should select relevant capabilities, is an argument for the objective-list route. Sen’s position on the other hand, supports the democratic deliberation route and does not endorse a list. In his 2011 article, “Making Capability Lists: Philosophy versus Democracy,” Rutger Claassen discusses the large cleft in capabilities scholarship formed between Sen’s argument for how a list should be developed (the democratic position) and Nussbaum’s argument for how a list should be developed (the philosophical position) (Claassen, 2011). The evidence of this rift is also discerned by Ingrid Robeyns in her 2003 article, “Sen’s Capability Approach and Gender Inequality: Selecting Relevant Capabilities” (Robeyns, 2003). But what does Nussbaum’s list select as relevant capabilities, then? Her list includes the capabilities for life, bodily health, bodily integrity, senses, imagination and thought, emotions, practical reason, affiliation, other species, play and control over one's 18 environment (Nussbaum, 2006, pp. 76-8) Robeyns explains the importance of a comprehensive and fully theorized approach. For Nussbaum’s contributions to the philosophy of the good life and on constitutional design, it is more important to bring a comprehensive list to the argument. This is unique from Sen’s roots in development economics and social choice, which lead him to adopt the democratic deliberation route for the selection of relevant capabilities. Nussbaum’s approach is also a sufficientarian approach, but it differs from Sen’s in that it does not advocate for any kind of lexical ranking of capabilities. For Nussbaum, all of the 10 capabilities in the list are essential to a flourishing human life, and the deprivation of any of them denies a person in an unjust way. In this way, one capability cannot supplant another or be valued above any of the others. Nussbaum’s approach is criticized for being too utopian and unrealistic, with critics asserting that “One might dismiss it under the pretext of being insensitive to the human condition of scarcity and the necessity of having to make difficult choices between conflicting values” (Alexander, 2016, p. 70). This is indeed an important criticism to make of the approach, though it does not make it fruitless to consider the approach in another way on account of this criticism. In my eyes, there is not a reason to throw this list away even if it is difficult, or even impossible to achieve right now. There are very valuable aspects about approaching conceptions of justice from an essentialist view, that Nussbaum is quite convincing of in her critiques of relativism. Also, Nussbaum must appease concerns that her list is indeed logically drawn from essentialist theory as well as sensitive to real-world cultural experiences. This evidence would defend against the critique that Nussbaum’s approach is just an adoption of 19 popular liberal and western positions. Robeyns writes, ‘the process by which the list has been created itself needs to be legitimate. If the people to whom the list will apply reasonably feel that it is imposed on them, then the list will lack the necessary legitimacy that is needed for the list to have any political effect’ (Robeyns, 2005, p. 199). Elizabeth Anderson’s theory of democratic equality stands apart from Nussbaum’s approach because, like Sen, it avoids specifying an immutable and extensive list of relevant capabilities. The level of detail in Nussbaum’s list is critiqued for being overspecified and paternalistic. The critique argues the line that her list is illiberal and paternalistic, on account of its specification of capabilities relevant to a life which is characterized as flourishing. Robeyns explains one potential reason for Nussbaum’s continued defense of her list despite the critique. To do so, a distinction is made between Sen and Nussbaum’s theoretical platform and aims. Having come from Nussbaum’s essentialist research and commitment to a universal understanding of the human being, and as mentioned before, Nussbaum’s list is an example of the “objective-list” route to determining relevant capabilities (Robeyns, 2003, p. 68; 2018, p. 121). Theorists of the democratic position reject this approach for their own theories, as they believe a list of capabilities should ultimately be established by democracy by those who will be subject to the determined theory of justice. While I don’t take a stand myself in the debate, I do worry that an uninformed public perception of a predetermined list would threaten the application of capabilities at all. On the other hand, if the selection of relevant capabilities were left to democratic deliberations entirely, the approach runs the risk of being incorrectly applied (as 20 Nussbaum is worried about) or failing to be agreed upon at all. However, whatever list is selected must genuinely avoid paternalistic tendencies and must be grounded in a feasible and specific reality. By feasible, I mean within the means of a given democratic state and its productive capacity. Referring to Sen’s 1985 work, Commodities and Capabilities, Elizabeth Anderson writes, “It might be thought that poor societies cannot afford even basic capabilities for all workers. However, Sen’s studies of the standard of living in India and China show that even extremely poor societies can supply an impressive set of basic capabilities—decent nutrition, health, literacy, and the like—to all of their members, if they apply themselves to the task” (Anderson, 1999, p. 325). This indicates that feasible lists need not be bare boned or lacking in protections for basic capabilities. By specific, I refer to the consideration of culture dependent capabilities; for example, the capability threshold for literacy would be context dependent because a U.S. specific capability threshold could be defined as basic English literacy, while in the Trentino-Alto Adige province of Italy, a capabilities threshold of both German and Italian literacy (a prerequisite for many jobs in the area) would be more specifically suited to the context. To do so those who create lists would need to form their lists in the ‘real world’—making them philosopher-investigators, using Claassen’s term (Claassen, 2011, p. 505). Nussbaum’s formulation of a list through reflective equilibrium is antithetical to the investigator approach to list creation. As for other extensions of the capabilities approach into the form of a full-fledged theory of distributive justice, there are a few scholars who have taken these steps, including Elizabeth Anderson, Ingrid Robeyns, Rutger Claassen, and John Alexander. Due to the scope of this review and the aim of this thesis to evaluate a specific context of 21 social justice, I have chosen to focus primarily on the work of Anderson in the development of her democratic equality. The other authors are cited throughout this thesis primarily for their critiques and contributions to Sen, Nussbaum, and Anderson’s theories. Elizabeth Anderson’s contribution to capabilities scholarship originates from her article, “What is the Point of Equality?” In this 1999 piece, Anderson offers a strong and convincing critique of luck egalitarianism (which she notes is often mistakenly attributed to Rawls). On the surface, luck egalitarianism (also called equality of fortune) aims to equalize the undeserved good luck of the fortunate with the undeserved bad luck of the unfortunate. To do this, luck egalitarian scholars measure their value good and distribute the goods among citizens on account of their bad luck. Only the victims of bad brute luck (naturally unlucky) are entitled to the support of the system, while victims of bad option luck (hold some degree of responsibility for their unluckiness) are not given support. At the core of the critique Anderson asserts that equality of fortune under-supports the people who suffer as a result of bad option luck—even if their decisions were prudent— and over-supports (by means of condescending disrespect) people who suffer as a result of bad brute luck. The kinds of people who fall into each category are examined and the implications of luck egalitarianism called into question. Democratic equality (Anderson’s alternative) is based primarily in Sen’s capability approach and resembles his foundation more than it resembles Nussbaum’s. For Anderson, there are 3 types of capabilities: capability of functioning as a human being, capability of functioning as an equal participant in a system of cooperative production, and capability of functioning as a citizen. This method of selecting relevant capabilities is classified by Claassen as the “criteria route” (Claassen, 2011). The 22 democratic state (that is, all citizens working together in organized fashion) is obligated to provide one another with resources and social conditions which ensure the ability of all to function in those three ways—the goal of which is to allow citizens to overcome oppression and exploitation. In addition, citizens are obligated to secure for their fellow citizens the capabilities required to participate on an equal footing in democratic society. Anderson’s relevant capabilities are less extensive than Nussbaum’s list which is rooted in the concept of human flourishing. Though from a policy perspective, I believe that Anderson’s list is more feasible to measure and apply. As mentioned earlier, this is no valid reason to ditch Nussbaum’s list, which is more comprehensive and should stand as a clear goal for society to move towards. In this way, the temporal aspect of each list could be utilized. The list of democratic equality seems equipped enough to be implemented now, with the tools which we have. Nussbaum’s essentialist list should remain as the aspiration, even if it has less clear of a path to effective implementation. Democratic Equality is an extension of Sen’s argument that any list of capabilities should be the result of common democratic will. Though it falls alongside the democratic position (as evidenced by Claassen), it cannot avoid discussion in philosophical questions that allude to relevant capabilities. For example, the assertion of the inalienability of capabilities to function as a citizen on equal footing in democratic society would represent some degree of predetermination of relevant capabilities (though, like Sen, Anderson is careful to avoid paternalism). Compared to previous capabilities scholars, Anderson more adequately develops the productive sphere of society, which cannot be dismissed. Nussbaum does not give the productive sphere “special attention” in the way which Anderson does. This is a weakness in Nussbaum’s capability theory of justice that 23 leaves it vulnerable to utopian classification because it focuses disproportionately on what capabilities people are entitled to and not where they come from or who is obligated to provide them. The tenth capability, “Control Over One’s Environment” does not clearly convey the importance of effective and meaningful “participation as an equal in a system of cooperative production,” though Nussbaum does discuss the importance of forming meaningful social relationships in the workplace. The focus on capability to work on equal footing is more than just preference, democratic equality is obliged to address oppression and exploitation wherever it appears, including in productive relationships (Alexander, 2016, p.70). It is crucial to note that this protects all workers— not just those in the market sector who earn paid wages but also the work of dependent caretakers. It also is concerned with establishing equal footing above the threshold, which protects even the relatively well off from oppression or exploitation (such as women in corporate management roles who are denied employment opportunities which their male counterparts secure). In this way, Anderson’s egalitarian theory of justice avoids some of the issues with other theories’ indifferences to injustices above a threshold of capabilities. For Anderson, the interdependence of citizens in our globalized society renders them, as consumers of goods produced by the others in the productive sphere, responsible for ensuring that no individual loses the conditions of their freedom (Anderson, 1999, p. 329). Do not mistake this entitlement as entitlement to the achievement itself. The capabilities approach and its theories of justice are not equality-of-outcome theories, which place responsibility for the actual achievement of the individuals on everyone else. By stopping at the guarantee of the freedom to achieve or function, the capabilities framework leaves the responsibility to achieve in the hands of those individuals. For 24 example, the democratic state must provide an individual with resources enough to be on equal footing as peers (say in career advancement), but it does not change the fact that the individual will have to apply themselves to a great and competitive degree in order to achieve promotion. In other words, people are still responsible to contribute productively and make meaningful efforts to function if they wish to take advantage of a capability secured for them—they are in no means obligated to reach that functioning if they do not desire to do so. WHICH THEORY OF JUSTICE WILL I EMPLOY? As all capabilities theories of justice, by nature, use capabilities as their basic metric for justice, there is no way to employ a theory which does not find a solid base in the contributions of either Sen or Nussbaum. Robeyns writes that the comparative advantage of Nussbaum’s list might lie not in socio-economic policy creation, but in “other discussions, mainly those concerning moral philosophical principles that might result in legal rights and political declarations, or in qualitative analyses of how people can cultivate their capabilities” (Robeyns, 2003, p. 75). My investigation into labor market barriers across international borders aims toward the realm of policy implications and the concerns of economics as a social science. For this reason, I formulate my argument in Sen’s less constructed space of capabilities which will allow me to engage critically and dynamically with the primary social justice scholarship. To be able to make clear, normative assertions about the justice of any real-world issue of social justice, the Sen’s capabilities approach, as a metric of justice, requires pairing with a distributive rule. There are many options to choose from, but due to the immediacy of impact and 25 feasibility of democratic equality for policy-related issues, I follow the promising route of Elizabeth Anderson. 26 ANALYSIS THE BIRTH OF THE CAPABILITIES APPROACH Amartya Sen noted in 1979 the inaccuracies of existing frameworks for judging quality of life and development. His work on social welfare, economic inequality, poverty, and famines made evident those inaccuracies. For example, how can a country rich in production with a high GDP have a famine? These famines studied by Sen were not the result of a simple lack of food available. Sen felt no reason that, despite their deep roots and popularity, these mainstream approaches to understanding economic development should not face the same kind of critique as any other economic theory. As part of the Tanner Lectures on Human Values, he introduced this critique in his 1979 lecture, “Equality of What?”. Sen focuses his critique on three popular lenses used by economists to assess equality: (1) utilitarian equality, (2) total utility equality, and (3) Rawlsian equality (Sen, 1979, p. 197). Sen discusses the shortcomings of each lens as well as asserting that they cannot be combined to achieve an adequate one. Instead, he introduces and then advocates for his own alternative— one he calls “basic capability equality” (Sen, 1979, p. 218). This is the birth of the Capabilities Approach as it is discussed today. Though this lecture was momentous, the limitations of the other three approaches are not ones which would necessarily come as a surprise to certain groups of people. Sen uses what he calls the case-implication critique which takes his audience through the actual outcomes when a lens is applied. For example, the Rawlsian assessment of equality using primary goods when considering someone in a wheelchair who has the same primary goods as someone not in a wheelchair. Sen critiques Rawls’ idea here for its assertion that the two individuals are equal; it overlooks the fact that the 27 former needs more resources (material and social) to reach similar levels of mobility or protection from social discrimination as a result of their disability. This is not a new concept that Sen points out, as many wheelchair users face mobility difficulties on a daily basis. What Sen contributes however, with this lecture, is the language and structural seeds for an organized discussion about what makes these two people unequal. Sen states, “what is missing in all this framework is some notion of ‘basic capabilities’: a person being able to do certain basic things” (Sen, 1979, p. 218). And while the Rawlsian difference principle which concerns itself with the “least advantaged” (in terms of primary goods) overlooks the wheelchair user’s “marginal utility disadvantage… severely alone,” utilitarianism would not only overlook them, but it would actually give them “less income than to the physically fit” (Sen, 1979, p. 217). The total utility equality principle would help this person provided that their other utility features do not surpass the total utility of the physically fit person. Sen mentions this utility advantage could be a “jolly disposition” or feelings of religious satisfaction. Though it critiques Rawlsian justice for its focus on goods, Sen admits that his basic capability equality (BCE) is, in many ways, simply an extension “from goods to what goods do to human beings” (Sen, 1979, p. 219). By doing this he positions his own contribution somewhat in alignment with Rawls’ ideas and distances itself from ideas of utility (both marginal and total levels). Sen seeks to bolster the work Rawls has contributed by highlighting the conversion from goods to capabilities, noting that our differences cause equality in goods to not necessarily be indicative of equality in capability (or functionings, a concept developed in later capabilities scholarship). 28 The one major hurdle faced by BCE, as Sen admits in his foundational lecture, is how to answer the question “which basic capabilities matter?” The answer in his eyes is dependent on the culture which adopts the approach (something which Nussbaum and Anderson disagree with); thus, Sen steers clear of suggesting a clear index of capabilities. The concept of weight also applies to these capabilities, meaning that any given culture will place more emphasis upon certain basic capabilities over others. In the lecture, however, Sen doesn’t give any examples of how this plays out in practice. He closes the address by clarifying that other types of equality are not irrelevant, and that BCE simply aims to broaden our comprehension of equality using a measure other than utility or goods. I have given considerable attention to this work due to its crucial role as the progenitor of the capabilities approach, but several others have made invaluable contributions that have cultivated its growth. A few years later in 1982, Sen published his article, “Rights and Agency,” in which he discusses goal rights (rights to certain capabilities) as an alternative to welfarist consequentialism (aim for the outcome with the highest welfare even if rights are violated) or constraint-based deontology (constraints on actions which would violate rights i.e., rights must not be violated). Discussions of the inadequacies of these two approaches are out of the scope of this review, though they may be found in sections I-III of the article (Sen, 1982, pp. 4-15). It is Sen’s discussion of goal rights systems and capabilities which pertains more closely to the narrative of the capabilities approach. In section IV, Sen lays the groundwork for a system which is neither exclusively sensitive to rights nor to consequences but to both. The sensitivities of the goal rights system changes depending on the circumstances, but more generally Sen specifies that the key aspect of 29 the goal rights system is that it is expansive enough to consider rights to contribute as valuable parts of the “goals themselves” without excluding instrumental considerations. Sen ties goal rights to his 1979 concept of BCE by pointing out that “If all goal rights take the form of rights to certain capabilities, then a goal rights system may be conveniently called a capability rights system” (Sen, 1982, p.16). He brings the reader through a few variants of a moral dilemma faced by an individual named Donna. Simply put, Donna can prevent her friend Ali from facing utility consequences if she breaks into the room of another (Charles). In some cases, the welfarist approach of utilitarianism would lead Donna to the same conclusion as the capability rights system. However, if Donna’s actions were different depending on what kind of utility cost faced by Ali, that must mean that she follows a system which weighs the type of cost differently (e.g., the capability rights system) (Sen, 1982, p. 19). Though this piece falls solidly under the umbrella of political philosophy, I believe that it is important to understand as a basis for using the capabilities approach in the realm of social justice because it captures the nuance of real economic decisions and the way we spend our resources. Welfare consequentialist and constraint-based deontological systems seem inadequate for dealing even with simple (yet deceptively difficult) ethical and moral decisions (e.g., the trolley dilemma). Sen, while discussing capabilities and advocating for their use as a metric for evaluation, avoids defining a list of his own. Why? Many other capabilities scholars such as Nussbaum see the list as a crucial part of the theory. There are a few reasons, but before discussing them in detail, it is prudent to establish a distinction made in the 30 scholarship of capabilities. I adopt Richard Arneson’s metaphor for a working theory of justice: A theory of distributive justice can be compared with an engine, in which the capability approach provides only one part, or ‘module.’ Not all theories of justice have exactly the same modules, yet theories of distributive justice must specify at least two things: a metric and a distributive rule. The ‘metric of justice’ is the good possession of which by individuals is to be compared when making statements of distributive injustices; hence, the metric of justice identifies the dimensions in which the interpersonal comparisons that are an integral part of claims of justice are made. The distributive rule specifies what justice requires in terms of the distribution of that good between people. (Robeyns, 2018, p. 111) The approach (i.e., the metric) provides the first module, while the second module is supplied by the specific distributive theory chosen. The critique follows that alone, the approach cannot operate as a working theory. Sen admits that his approach should be further developed for normative applications but resists endorsement of any particular distributive rule that he would argue is the “right” one. This is not necessarily a weakness of the capabilities literature. Sen’s theorization of the capabilities approach is better understood not as an unfinished, non-working theory but as simply the first module in the greater engine. Allow me to extend the metaphor. Consider Sen to be both a design engineer of the capability-as-metric module as well as one of its salesmen. Consider a person interested in the progression of social justice (possibly a social scientist, politician, or layperson) to be a car manufacturer. Here, the car represents a framework intended to bring 31 justice to society. Consider a working framework of justice to be a car which can move from point A to point B, and the specific social application to be the terrain which the car moves over. The manufacturer is in the process of developing new engines and needs to purchase two modules for their engine: a “metric” module and a “distributive rule” module. The car manufacturer sells two models of their car: off-road and racetrack. They both serve the purpose of getting from point A to point B, but each is terrain specific. As design engineer, Sen’s job is to develop the “metric” module and optimize it for its specific role within an engine. It is designed for use in both engine types. Once again, both models require a “metric” module. He is convinced of the general effectiveness of module C, which “runs on” capabilities. It is not designed to perform the function of the “distributive rule” modules. Other design engineers focus on those modules. The egalitarians created “distributive rule” module E and the Sufficientarians created “distributive rule” module S. As a salesman, Sen must “sell” module C to the vehicle manufacturer. To do so, he must explain how and why his module works better than their current supplier who develops the metric module, U, which runs on utility. While marketing his “metric” module—module C— to the manufacturer, he might endorse a combination of his “metric” module with any particular “distributive rule” module. This makes his own module more versatile and attractive to other car manufacturers. Say the (C, E)-type engine works well in an off-road context but would be poorly suited to a racetrack. Vice versa, an (C, S)-type engine could be inappropriate for use in the offroad context but very useful on the racetrack. 32 Sen will not permanently combine his capabilities-as-metric module with any particular “distributive rule” module because he can promulgate the module created in the capabilities space more effectively if it is less constrained by definitions. His module is designed to be adaptable to many different engine types, so he certainly does not object to others creating their “distributive rule” modules to be used in conjunction with his. Ingrid Robeyns writes on Sen’s unwillingness to endorse one definite list of capabilities. For Sen’s approach, there cannot be a single, catch all list. Each list in the capabilities space is “context dependent, where the context is both geographical area to which it applies, and the sort of evaluation that is to be done” (Robeyns, 2003, p. 68). I argue that “context” also includes a temporal aspect as well, because a list applied twice—even if it were carrying out the same sort of evaluation, in the same geographic area both times—would be subject to cultural differences which had developed between the first and second application. On the temporal aspect, for example, there may be unexplored terrain which current engines are not well-suited to provide travel over, like icy or snowy terrain. Future “distributive rule” modules may be designed and combined with Sen’s capabilities-based module. Ultimately, in his eyes (and many other scholars), the selection of relevant capabilities must be left to democratic deliberation. Sen ensures both the temporal and cultural adaptability of his approach by keeping it “undertheorized,” and without one official list of capabilities. Rutger Claassen and Ingrid Robeyns both discuss the considerations made by various capabilities scholars in the decision on how relevant capabilities will be decided upon (Claassen, 2011; and Robeyns, 2018, p. 120). 33 NUSSBAUM’S ARISTOTELIAN ESSENTIALISM: “One may also observe in one's travels to distant countries the feelings of recognition and affiliation that link every human being to every other human being.” Aristotle, Nicomachean Ethics, 1155a21–2 “It will be seen how in place of the wealth and poverty of political economy come the rich human being and rich human need. The rich human being is simultaneously the human being in need of totality of human life-activities – the man in whom his own realization exists as an inner necessity as need. Karl Marx, Economic and Philosophical Manuscripts of 1844 Throughout the ‘80s and ‘90s, and independently of Sen, Martha Nussbaum was engaging with ancient philosophy about human function and value put forth by Aristotle, Socrates, and Philolaus. Her version of the capabilities approach stems from the meeting of the two in 1986 at the World Institute for Development Economics Research, where they discovered that Sen’s ideas in development economics coincided with Nussbaum’s in Aristotle scholarship. Building off of this meeting in her 1992 essay, “Human Functioning and Social Justice,” Nussbaum addresses the readers of Political Theory in defense of Aristotle’s concept of “essentialism.” Essentialism is, Nussbaum argues, outwardly denounced by people who are “deeply committed to the good of women and men in developing countries” despite their own anti-essentialist views converging with “positions of reaction, oppression, and sexism” (Nussbaum, 1993, p. 204). This 34 opposition is something which she seeks to correct, which is important for the capabilities approach as it is not entirely liberal in its application, due to its determination of certain core capabilities as essential to all human life across cultural and historical bounds. She does not discard all critique of essentialism, as much of it has served to assist in the strengthening of the foundations of the theory. Three main arguments against essentialism accepted by Nussbaum are that it represents (1) a neglect of historical and cultural differences by the trampling of unique understandings of human life, (2) a neglect of autonomy and the right of individuals to choose for themselves what constitutes a desirable life due to the deterministic nature of essentialism, and (3) a system at risk of prejudicial application which can exclude the powerless, should they not express the determined human essence. Arguments which Nussbaum does not accept are the blanket objections of essentialism as ignorant of the voices of women, minorities, and history. Opponents often lump essentialism together with “patriarchal,” racist, and sexist thinking while propping extreme relativism up as the key to social progress. In her essay, she addresses both the irrational and rational objections to essentialism, citing her previous work developing a “historically sensitive account” of essentialism. Before addressing the legitimate opposition later in the essay, Nussbaum highlights the collapse of progressive thought into reactionary subjectivism which upholds much of the harmful political rhetoric in the US. Specifically, she compares subjectivism’s inability to morally distinguish between a torturer and a user of contraception (Nussbaum, 1992, p. 211). She refutes the hypocritical utilitarian attack on normative value judgements and its self-proclaimed open-mindedness, progressiveness, and secularity. The Chicago School is “neither new nor especially progressive” but rather 35 at risk of the above subjectivity and power games. Essentialism, thus, protects a society from falling into the disarray of a “free play” system in which women, minorities, and the poor are subject to oppressive social forces. The deterministic elements of the Capability Approach are rooted in essentialism, so the progress made by Nussbaum on this front is key to legitimizing the capabilities approach (especially helpful during its early development). Then, she acknowledges the aforementioned critiques of other essentialists as being valid but does not accept that all forms of essentialism must fall short in the ways noted by its critics. Nussbaum argues that there is a form of the essentialist account which provides the necessary moral sentiments to a compassionate and respectful world— something which extreme relativism cannot do. This suggested form of essentialism is provided in the essay, establishing what she calls “The Basic Human Functions” (Nussbaum, 1992, p. 214). This is the basis and explanation for the list of capabilities cited by Nussbaum in her later work. She says of the basic human functions that they are not purported to be value neutral facts but inquisitive and basic queries about ourselves. They also are distinct from Rawls’ “primary goods” because the capabilities are “ends” (in an Aristotelian sense) while the primary goods are a form of “means”. These specific details are foundational to the discussion of the capabilities approach because they distinguish this approach from other critiques, particularly Rawlsian theory, which overlaps often with the capabilities approach but is indeed different. Nussbaum defends the use of a list which is “generally right” to guide public policy creation due to the risk of “precise wrongness” that could emerge during public policy creation. This assertion positions Nussbaum’s argument for the capabilities 36 approach adjacent to Sen’s, which does not advocate for an explicit list of his own, due to cultural and social differences. Nussbaum’s list of Basic Human Functions, however, cuts across “religious, cultural, and metaphysical gulfs” in its attempts “to be as universal as possible” (Nussbaum, 1992, p. 215). So, Nussbaum strongly believes that an essentialist list can be developed, but how does she attempt to do so? For her, the answer lies in the imagination of herself and others. In the examination of what defines a human life, she advocates for establishing not just a biological understanding, but also a social and cultural one, which looks to cross cultural patterns among stories which give us clues. One example Nussbaum provides is that of the Greek gods, who could take the human form but were nevertheless inhuman in their immortality and lack of limits. This example, in turn tells us that there are certain natural limits which make us the beings that we are. This account aims for objectivity as it derives not from outwardly evident cultural practices, but “from features of humanness that lie beneath all local traditions and are there to be seen whether or not they are in fact recognized in local traditions” (Nussbaum & Sen, 1993, p. 243). In this way, Nussbaum’s essentialism stems from Aristotle’s argument for the existence of universal human qualities. Using this methodology, Nussbaum created her “Thick Vague Conception” of human life starting with “Level 1: The Shape of the Human Form of Life,” which broadly includes mortality, the human body, a capacity for pleasure and pain, cognitive capability, early infant development, practical reason, affiliation with other humans, relatedness to other species and to nature, humor and play, and separateness (Nussbaum, 1992, pp. 216-221). She follows up the first level with a second level that moves from 37 what defines a human into a list which defines a “good” human life. The caveat added by Nussbaum is that our conception of “good” human life is subjective, which creates a challenge for implementing the capabilities approach. Nevertheless, she creates a preliminary list, which she refers to as “Basic Human Functional Capabilities,” and they are the following: Level 2 of the Thick Vague Conception: Basic Human Functional Capabilities 1. Being able to live to the end of a complete human life, as far as is possible; not dying prematurely, or before one's life is so reduced as to be not worth living. 2. Being able to have good health; to be adequately nourished; to have adequate shelter; having opportunities for sexual satisfaction; being able to move from place to place. 3. Being able to avoid unnecessary and nonbeneficial pain and to have pleasurable experiences. 4. Being able to use the five senses; being able to imagine, to think, and to reason. 5. Being able to have attachments to things and persons outside ourselves; to love those who love and care for us, to grieve at their absence, in general, to love, grieve, to feel longing and gratitude. 6. Being able to form a conception of the good and to engage in critical reflection about the planning of one's own life. 38 7. Being able to live for and with others, to recognize and show concern for other human beings, to engage in various forms of familial and social interaction. 8. Being able to live with concern for and in relation to animals, plants, and the world of nature. 9. Being able to laugh, to play, to enjoy recreational activities. 10. Being able to live one's own life and nobody else's; being able to live one's own life in one's very own surroundings and context. This is the most crucial contribution which Nussbaum makes to the capabilities approach discussion with this essay. It is critical that a semi-agreed upon list (Nussbaum specifies this concept as “overlapping consensus”) can be a sort of metaphorical “dough recipe” that theorists and policy makers around the globe can knead into a working product. These communities may choose to apply unique flavorings or cooking methods, but the key is that they use the same base dough recipe. Starting with this base allows for more effective “ongoing debate and reformulation” (Nussbaum, 1992, p. 223). Ongoing debate and reformulation are necessary for application of the capabilities approach across the globe. But this overlapping consensus can only be achieved if Nussbaum can assuage the concerns mentioned earlier. Due to the vague aspect of her theory, she insists that it allows for “the possibility of multiple specifications of each of the components” (Nussbaum, 1992, p. 224). This brings a certain respect for historical and cultural differences, while also asserting that there is sufficient overlap in our common humanity to create an essentialist list. It also is both plural and local in its specification. Plural in 39 that it allows for individuals to adopt their own specific methods in achieving those functionings and local in that it allows for each application to adapt to a region’s culture and geography. This might be exemplified with the capability of freedom of movement, which for a city like Stockholm, surrounded by rivers, could specifically include public transit via water but in the case of Salt Lake City, could include more buses. This is in opposition to implementing some specific law into the essentialist list that says everyone should be capable of water transport (something Nussbaum would consider to be “precisely wrong” when applied to Salt Lake City) (Nussbaum, 1992, p. 215). Indeed, the “internalist” essentialism would be non-liberal if it were to declare that any and all humans must exhibit the listed items otherwise the government is failing. However, Nussbaum notes four things: (1) that the “Government is not directed to push citizens into acting in certain valued ways; instead, it is directed to make sure that all human beings have the necessary resources and conditions for acting in those ways. It leaves the choice up to them.” (2) The respect for choice is baked into the list itself with “the architectonic role it gives to practical reasoning.” (3) John Rawls’s liberal view that satisfactions must stem from one’s own choices for those satisfactions to carry moral worth are agreed upon by the capabilities approach. (4) The Aristotelian marries one’s ability to choose with the material and social conditions they find themselves in (in contrast with other liberal theories, which see choice as “pure spontaneity”). In other words, by caring comprehensively for a life to flourish in many diverse ways, the Aristotelian essentialist promotes choice (Nussbaum, 1992, pp. 225-226). The third concern about prejudicial application of Nussbaum’s Aristotelian essentialism is something that she admits is a hazard. A person may adopt the Aristotelian 40 conception of human capabilities, but if they were to dehumanize a minority group, they would not afford that group the protections inherent in the list of capabilities. But, as Nussbaum notes, this is not a shortcoming of the concept of Aristotelian essentialism; it is a shortcoming of the individual themselves who do not consider those groups to be fully human. It does not mean that the conception of the human as deserving of basic moral obligation is flawed, just that that individual is. She even argues that to define and understand the shared human traits across the globe would render more difficult the act of denying another’s humanness more clearly. It will likely still occur, though impossible “with full and honest and consistent reflection” (Nussbaum, 1992, p. 227). Nussbaum also addresses the distinction between a level of basic capabilities which determine whether we should concern ourselves with the functionings and a higher level of functioning that provides that human with the ability to affect their social and governmental environments. She cautions of the extreme risk of abuse of this distinction, as has been done with IQ testing (Nussbaum, 1992, p. 228). To avoid these distinctions, she considers any offspring of two human parents to be entitled to the distinction of humanity’s most basic capabilities, only determining that human to be unfit to reach the higher capability level in extreme cases (she cites irreversible senile dementia and permanent vegetative condition as examples). This would simply lead a society not to treat them harshly or without humanity nor expect them to achieve the higher-level capabilities if the society were to pour resources into the effort. This discussion would fall to “other moral arguments,” notes Nussbaum. After addressing the concerns of relativists and establishing her “thick-vague” theory of justice, Nussbaum strongly argues for the implementation of essentialism in 41 public policy. The argument here forms the basis for how the capabilities approach might be used in the context of social justice. Her arguments echo those of Sen against “extremely crude” measures of justice and quality of life, such as the widely used GDP per capita (Nussbaum, 1992, p. 229). Both Sen and Nussbaum stress that measures of productive levels divided by the number of individuals falls very far short of understanding the true economic issues of how resources are distributed and the downstream implications of that distribution on the daily lives of citizens. Nussbaum adds to this critique that the use of production and wealth purports to be value neutral, but it is, in fact, a perverted value system which fetishizes more money and resources as the determinant of quality of life. She then critiques utilitarianism, as Sen does, for its narrow understanding of “subjective expressions of satisfaction” that is susceptible to the highly malleable nature of desire and satisfaction. On both ends of the scale of wealth, people adjust their conceptions: The rich and pampered become accustomed to their luxury and view with pain and frustration a life in which they are treated just like everyone else. The poor and deprived frequently adjust their expectations and aspirations to the low level of life they have known; thus, their failure to express dissatisfaction can often be a sign that they really do have enough. (Nussbaum, 1992, p. 230) This concept is known as adaptive preferences and is one of the most compelling reasons for avoiding utilitarianism as a conception of justice. Even when scientific or objective measures point to deficiencies (in health, for example), the individual may inaccurately perceive their own degree of health (Nussbaum gives the example of widowers and widows in India). 42 In his 2016 work, “Capabilities and Social Justice: The Political Philosophy of Amartya Sen and Martha Nussbaum,” John Alexander adds an important caveat to the phenomenon of adaptive preferences. He writes, “It is perhaps unwise and even illiberal and harmful to lump together all preferences which appear adaptive as a point of departure for social engineering,” because some limitations to capability sets which are self-imposed are done so deliberately. Social efforts to address capability deprivations should be limited to true adaptive preferences, which are “formed without one’s own awareness and control” (Alexander, 2016, pp. 14-15). The capabilities approach further distinguishes itself from utilitarianism by its rejection of a single valuable thing which, for the utilitarian, is sometimes known as the imaginary good, the “Util”. For the capabilities theorist, as Nussbaum points out, no single “good” but rather a plurality of them is essential to a valuable human life. Peak human functioning under the essentialist’s list of capabilities is achieved by the right quantity of resources, not necessarily more. Furthermore, the utilitarian attaches a utility value to the relevant human functionings, meaning that should utility of an alternative method outweigh the utility of upholding the human functioning, the utilitarian approach advocates for the denial of the human functioning and instead opts for the method of higher utility. For the Aristotelian, this alienates human functionings which are essential to the process of considering ourselves human. Nussbaum writes, “To treat deep parts of our identity as alienable commodities is to do violence to the conception of the self” (Nussbaum, 1992, p. 231). Lastly, Utilitarianism sums the group utility and measures that when considering a decision, rather than understanding each person as an end in and of 43 themselves, who first require attention to raise them all up to a threshold of capability to function well before resources can be devoted to those already at that threshold. As with Sen, Nussbaum needed to address the liberal theory set forth by John Rawls and Ronald Dworkin. Interestingly, Nussbaum considers the Rawlsian approach to be an alternative to the Aristotelian essentialist approach (capabilities) while Sen, as mentioned above, sees the capabilities approach as an extension of Rawls’s. Nussbaum agrees with Sen’s concern that human beings require variable needs for resources. To exhibit this, Sen points to the wheelchair-user’s greater need for resources to aid mobility and, in addition, Nussbaum mentions the nutritional needs unique to a pregnant person v. a non-pregnant person or to a child v. an adult. The existence of people with limited mobility, varying care requirements, or different dietary needs are “not just rare exceptions; they are pervasive facts of life” (Nussbaum, 1992, p. 233). The importance of this issue arises because of the frequency with which the Rawlsian approach fails to address it. Nussbaum also rejects the notion of primary goods as beneficial in their own right and the Rawlsian failure to tie these primary goods to actual human functioning in the real world. This idea is highlighted even by Adam Smith in The Wealth of Nations. He defines a necessity not just as “the commodities which are indispensably necessary for the support of life” but also those which permit the owner to have reached a certain level of decency, even if they are “of the lowest order”. The specific example he gives displays the international comparison function of the capabilities approach. Smith writes: Custom … has rendered leather shoes a necessary of life in England. The poorest creditable person, of either sex, would be ashamed to appear in public without 44 them … In France, they are necessaries neither to men nor to women; the lowest rank of both sexes appearing there publicly, without any discredit, sometimes in wooden shoes, and sometimes barefooted … Under necessities, therefore, I comprehend, not only those things which nature, but those things which the established rules of decency have rendered necessary to the lowest rank of people. (Smith, 2006, p. 423) The phenomenon at play here is exactly what the capabilities approach attempts to make known regarding the importance of resources: the accumulation of material wealth in the form of commodities are only necessary for the purpose of advancing human functioning (which, for the English includes leather shoes, but, for the French does not include leather shoes). This means that even when one society is wealthier in material or monetary terms than another, each society’s degree of wealth in terms of human functioning is not necessarily different at all (Englishmen with leather shoes reach the threshold to retain decency, while Frenchmen reach the key social threshold with less material wealth). Let me fit this together with Nussbaum’s list of capabilities in level 2 of the thick-vague conception; one can see that a Frenchman lacking leather shoes would not face any sort of capability deprivations on account of his sociocultural context’s view on leather shoes, while the Englishman would have capability deprivations in #7—Being able to live for and with others, to recognize and show concern for other human beings, to engage in various forms of familial and social interaction—and #9—Being able to laugh, to play, to enjoy recreational activities. In other words, for the Englishman, a pair of leather shoes is a kind of necessity, or a good which is useful insofar as it helps to overcome existing social barriers and expand functioning; while, for the Frenchman, leather shoes are a 45 luxury, and, wearing them or not, the functioning of their human lives would not change substantially. The third contention Nussbaum brings up the key to this thesis’s evaluation of barriers to labor reentry, which is that the liberal approach “fails to go deep enough in imagining the impediments to functioning that are actually present in many human lives” (Nussbaum, 1992, p. 233). Barriers erected by social and political institutions curtail ability to function; they are found in labor and class relations, as well as gender and race relations. As an extension of her point from above, she posits that visible, material wealth is not the full picture of quality of life and can be quite deceiving; in cases of social justice where material needs may be met, an individual may still find themselves deprived of the capability to achieve “fully human use of their faculties” (Nussbaum, 1992, p. 233). So, after having addressed the antiessentialist viewpoints, Nussbaum gives us insight into her exposure to alternatives other than hers. Other alternatives range from medical and healthcare settings to education and peace-work. Most importantly, though, she mentions Amartya Sen’s work in development economics related to capabilities, specifically aligning the arguments presented by herself in “Human Functioning and Social Justice” with Sen’s own, as I have done in the preceding review of her contribution. The interplay of these two authors represents essential development for the capabilities approach and lays the groundwork for its next foundational text. 46 COLLABORATION OF THEORIES: SEN AND NUSSBAUM The Quality of Life (1993) is edited by both Nussbaum and Sen functions as one of the first comprehensive texts outlining the approach, with Part I. arguing for its implementation as well as positioning it alongside alternatives (e.g., Swedish welfare research and Gerald Cohen’s conception of “access to advantage” which can be found in his 1989 piece, “On the Currency of Egalitarian Justice”). Created for the World Institute for Development Economics Research, this study combines Sen’s interest in finding an alternative method of assessing the economic development of nations with Nussbaum’s Aristotelian theory of justice (based in philosophy). In this work, Sen and Nussbaum work a great deal to standardize the theory and offer succinct and clear definitions for topics already set forth by their earlier work, such as capability, functioning, and freedom. Sen acknowledges that Nussbaum’s introduction of Aristotelian thinking into the theory represents a stronger philosophical basis than he had written about earlier (primarily works of Smith and Marx). The caveat noted by both Sen and Nussbaum regarding Aristotle’s own writing is that Aristotle believed that there was a singular list of functionings that give rise to “good” human living, which contrasts with their own conceptions that leave flexibility in their “lists” (Sen, still, doesn’t proffer a defined list, while Nussbaum does) on account of cultural and international differences. (Nussbaum & Sen, 1993, p. 46). Unlike Nussbaum, Sen remains hesitant to provide a list, as he indicates that the core of the capability approach can still be argued for and discussed for its pertinence to valuation of life. 47 Before wrapping up the paper, the incomplete nature of the capabilities approach is admitted, stating that it requires the assistance of other methodologies to determine relative weights for each basic capability. At this point in its development, the capabilities approach was being argued, by Sen, for its conceptions of value-objects (e.g., functionings and capabilities rather than utility, primary goods, or resources). The admission of incompleteness, however, is not one to be ashamed of. It can be viewed as a unique advantage that discussion can be alive and fruitful above the “reasoned agreement” that functionings and capabilities are the core value-objects. Nussbaum supports this idea as well writing, “the capabilities can be the object of an overlapping consensus among people who have otherwise very different comprehensive conceptions of the good” (Nussbaum, 2000, p. 5). Debates over the exact importance of certain capabilities versus others or mechanisms for application of the theory will strengthen the capabilities approach and increase its plurality. Also, efforts to develop the approach with a complete and static list are vulnerable to attack when their weighted valuations are not agreed upon—running the considerable risk of losing support for its central theme. Sen concludes his portion by emphasizing the plurality of the approach and discussing the “potentially wide relevance of the capability perspective.” It is nascent from this notion that my own paper (as well as the recent applications of others) seeks to provide evidence for the fitness of the capabilities approach as “a particular space for the evaluation of individual opportunities and successes” (Nussbaum & Sen, 1993, p. 50). Nussbaum’s written contribution comes in part II: Traditions, Relativism, and Objectivity, where she writes on non-relative virtues. In strong conversation with the works of Aristotle and following Hillary Putnam and Michael Walzer’s contributions on 48 the concept of objectivity, Nussbaum makes the case that virtues might be what philosophers are seeking after feeling dissatisfied with the remoteness of popular ethical theory. She writes, “Aristotle's work seems, appealingly, to combine rigour with concreteness, theoretical power with sensitivity to the actual circumstances of human life and choice in all their multiplicity, variety, and mutability” (Nussbaum & Sen, 1993, p. 243). However, she must defend her own position of essentialism against the relativist readings of Aristotle which were seen in her 1992 piece (discussed above). Parts III and IV are important for the discussion of quality of life and deal with gender justice and welfare policy assessment, respectively. These contributions in this volume, while necessary and important for the social justice issues at hand, remain outside the scope of my review of the capabilities approach literature. In the late ‘90s, Sen published Development as Freedom. Here he advances the pillar of the capabilities approach concerned with evaluation of quality of life. He critiques, as he has done in his previous work, the existing and still primary methods for this evaluation. The fetishization of the singular growth metric of GNP is called out here for its extremely narrow view. Instead of resource quantity (or GNP per capita) being the single value-object (as discussed in Quality of Life, 1993) to aspire to for development, Sen argues to consider development “as a process of expanding the real freedoms that people enjoy” with the value-objects being those real freedoms (i.e., human capabilities and functionings). As the capabilities approach was still seeking purchase in the mainstream use, Sen cushions his critique by not wholly dismissing GNP as a factor to consider but pivoting its role from the end product of the development calculation (i.e., useful for policy creation) to an important input in the formula (in a somewhat algebraic 49 way, if you will). Sen writes, “Growth of GNP or of individual incomes can, of course, be very important as means to expanding the freedoms … But freedoms depend also on other determinants, such as social and economic arrangements … as well as political and civil rights” (Sen, 1999, p. 3). Development is important for the fact that substantive freedoms grow for the citizens, not just that production is increasing. It may even be the case, as Sen notes, that massive productive growth occurs while real freedoms remain poor (e.g., nutrition, remedy for illness, clean water, clothing shelter) or are violated (e.g., denial of political and civil liberties, restrictions on participation in social, political, and economic life). Can we, in good conscience, call this development? Sen and Nussbaum would not. In this way, poverty is established by Sen as more than a simple comparison of material wealth to some arbitrary threshold. Sen establishes a few claims for the application of the capability approach to poverty; (1) intrinsic importance: capability deprivations are intrinsically important to human functioning, in contrast to low-income which is “instrumentally significant” in functioning, (2) intersectionality of influences: there are influences on capability deprivation other than income level, and (3) variable relation: the relationship between income level and capability level is “variable between different communities and even between different families and different individuals” (Sen, 1999, pp. 3-4). This presents a major problem for the assessment of quality of life, and one that is completely overlooked when GNP or income is the end-all-be-all of the formula. The ability to compare cross-cultural poverty or wealth in absolute terms rather than relative ones is one of the capability approach’s greatest strengths. For example, a person living in relative poverty in the United States may have greater material wealth 50 than a person in another country while remaining poorer in terms of human capabilities and functionings. Sen backs this up, “Being relatively poor in a rich country can be a great capability handicap, even when one’s absolute income is high in terms of world standards” (Sen, 1999, p. 89). The concept here calls back to the example given by Adam Smith regarding leather shoes vs. wooden shoes. Using standard conceptions of material wealth, an Englishman with wooden shoes would be considered wealthier than the Frenchman without any shoes. However! If the concept adopted by the capabilities approach is employed, it becomes evident that the Englishman is actually poorer than the Frenchman, because the former, on account of his wooden shoes, cannot appear “in public without shame” while the latter, without any shoes at all, can appear in public without shame (Sen, 1993, p. 37). Also key to the topic of my own exploration and established by Sen, are the ideas of coupling of disadvantages, unequal distribution within a family, and relation between unemployment and capability deprivation. First, the coupling of disadvantages is tied to Nussbaum’s critique of Rawlsian justice in her 1992 piece. Her critique pointed to the pervasive and varying needs of individuals to achieve a basic level of functioning (e.g., mobility in a wheelchair or child v. adult nutrition requirements). Sen builds upon this concept in the sphere of real poverty. In cases where an individual requires more resources than another to achieve a certain functioning threshold (due to old age or disability, for example), the income level alone becomes a less accurate measure of real poverty. These individuals are prone to two-fold impacts: their condition reduces their ability (1) to find work or to earn income in the first place, and (2) to convert that income into functionings. When this discussion occurs in the capability space, “real poverty” 51 faced by an individual is more salient than when it occurs in the income space. This is “of crucial concern in assessing public action” (Sen, 1999, p. 88). One goal of my own contribution is to ask whether having a criminal conviction or having spent time incarcerated could be a factor in the coupling of disadvantages, and how that helps us to understand sentencing. Second, unequal distribution within the family pertains both to resource and labor distribution. Sen specifically mentions the sex-bias prevalent in Asia and North Africa (Sen, 1999, p. 89). Family income alone does not accurately describe the capability deprivations that women and girls more commonly face when distribution of resources are not equal. This can be understood in conjunction with Nussbaum’s example of health outcomes for widows and widowers in India. Also, key to this thesis’s partial fulfillment of my World Languages and Cultures degree is Sen’s mention of Italy, which is affected by this aspect; he writes, “Italy has one of the highest ratios of ‘unrecognized’ labor by women vis-à-vis recognized labor included in the standard national accounts” (Sen, 1999, p. 89). Third, regarding unemployment: If income loss were all that were involved in unemployment, then that loss could be to a great extent erased—for the individuals involved—by income support … If, however, unemployment has other serious effects on the lives of the individuals, causing deprivation of other kinds, then the amelioration through income support would be to that extent limited. There is plenty of evidence that unemployment has many far-reaching effects other than loss of income, including psychological harm, loss of work motivation, skill, and self-confidence, increase in ailments and morbidity (and even mortality rates), disruption of family 52 relations and social life, hardening of social exclusion and accentuation of racial tensions and gender asymmetries. (Sen, 1999, p. 94) Western European countries have managed to avoid much of the income inequality present in the U.S. context. When considered from this perspective, Western Europe might have an excuse to be smug. However, Sen points out that, over the 30-ish year period before his writing of this piece, unemployment woes which have hit Western Europe have not hit the United States; “in the period 1965-1973, the unemployment rate was 4.5 percent in the United States, while Italy had 5.8 percent, France 2.3 percent, and West Germany below 1 percent. By [1999] all three—Italy, France, and Germany—have unemployment rates that hover around 10-12 percent” (Sen, 1999, p. 95). In 2023, those numbers are currently US – 3.6 percent 1, Italy – 7.6 percent 2, France – 7.1 percent 3, Germany – 2.9 percent 4. As evidenced here in the space of capability, unemployment is likely a key factor to consider in economic inequality beyond income level alone. It is also the primary focus of this work’s examination. The remainder of Sen’s 1999 text contains very interesting and important discussion of topics such as the importance of democracy, women’s agency, and human rights, though those topics are tangential to this review. At the turn of the century, Nussbaum’s book, Women and Human Development: The Capabilities Approach, pushed the theory beyond merely a tool for positive 1 From BLS of U.S. Dept. of Labor report, Friday, July 7, 2023. Occupati e disoccupati (dati provvisori)—Maggio 2023. (2023, June 30). https://www.istat.it/it/archivio/286225 3 In Q1 2023, the unemployment rate was stable at 7.1%—Informations rapides—124 | Insee. (n.d.). Retrieved July 16, 2023, from https://www.insee.fr/en/statistiques/7622067 4 Statistics | Eurostat. (n.d.). Retrieved July 16, 2023, from https://ec.europa.eu/eurostat/databrowser/view/UNE_RT_Q/default/table?lang=en 2 53 comparison and critique. She argues that, instead, capabilities must be used for normative political proposals and become a partial theory of justice (Nussbaum, 2000, p. 6). But what makes the theory a partial theory of justice? It is the fact that Nussbaum is concerned firstly with distribution of resources in order to reach capabilities thresholds, but the capabilities approach does not make any normative assertions of its own volition regarding the distribution of resources above the thresholds. She purposefully designed this conception in order to remain compatible with many varying accounts of distribution. Nussbaum’s own conception of the approach is by no means an adoption of Sen’s. It is, rather, developed in her own way with important distinctions between the theories of each. In Women and Human Development, Nussbaum gives a useful review of how their work overlaps and how it differs. First off, the weaker use of the approach, in Nussbaum’s eyes, is for comparison of life quality (Nussbaum, 2000, p. 6). In contrast, Sen’s primary use is toward the comparative abilities of the approach. Sen does not use the notion of thresholds in his work while Nussbaum does. “Sen has explicitly endorsed the Rawlsian priority of liberty. [Nussbaum’s] view holds that all capabilities are equally fundamental” (Nussbaum, 2000, p. 12). The theorists agree that personal and social liberties should never be subservient to economic goals. They agree that capabilities are important for all individuals as ends in and of themselves, and they agree that cultural relativism is not a functional theory for development policy. Nussbaum goes further, as we have seen in her 1992 piece, to critique relativism in an explicit way. As noted before, Nussbaum’s theory is not quiet about endorsing a concrete list of capabilities and sees the main strength of the approach in its ability to critique social injustice where a particular capability threshold is not met for an individual. The detailed list of capabilities, in 54 particular, is a contribution made almost exclusively by Nussbaum. Some of Sen’s examples of capabilities overlap with Nussbaum’s, though he never provides a list of his own. Sen’s thread employs a distinction as well between well-being and agency that Nussbaum avoids in her own work for the sake of clarity. And, at the level of style, Nussbaum sometimes uses narrative style to convey her theory with “emphasis on the political importance of the imagination and the emotions”, in a way that Sen does not (Nussbaum, 2000, pp. 13-15). For the purposes of this thesis, I will work directly with capability thresholds from Nussbaum’s list, as it offers the most practical way of applying the capabilities approach to the topic of labor reentry barriers after conviction. This is, no doubt, a function of Nussbaum’s efforts to operationalize the approach and put it in practice for policy implementation. Nussbaum’s list of capabilities, which comes as an updated form of Nussbaum’s level 2 of the thick-vague theory is as follows: 1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living. 2. Bodily Health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter. 3. Bodily Integrity. Being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction. 4. Senses, Imagination, and Thought. Being able to use the senses, to imagine, think, and reason – and to do these things in a ‘truly human’ way, a way 55 informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training. Being able to use imagination and thought in connection with experiencing and producing works and events of one’s own choice, religious, literary, musical, and so forth. Being able to use one’s mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise. Being able to have pleasurable experiences and to avoid non-beneficial pain. 5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one’s emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial in their development.) 6. Practical Reason. Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life. (This entails protection for the liberty of conscience and religious observance.) 7. Affiliation a. Being able to live with and toward others, to recognize and show concerns for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another. (Protecting this capability means protecting institutions that constitute and nourish 56 such forms of affiliation, and also protecting the freedom of assembly and political speech.) b. Having the social bases of self-respect and non-humiliation; being able to be treated as a dignified being whose worth is equal to that of others. This entails provisions of non-discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin. 8. Other Species. Being able to live with concern for and in relation to animals, plants, and the world of nature. 9. Play. Being able to laugh, to play, to enjoy recreational activities. 10. Control over one’s environment. a. Political. Being able to participate effectively in political choices that govern one’s life; having the right of political participation, protections of free speech and association. b. Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers. 57 DEMOCRATIC EQUALITY: ELIZABETH ANDERSON’S THEORY OF DISTRIBUTIVE JUSTICE After having reviewed the philosophical and structural bases of the capabilities approach, it is important to mention that the work done by Nussbaum and Sen is not the only work that is going on with the capabilities approach. Work done by Partha Dasgupta in his text, Well-Being: Theory and Realization, relates to well-being, from its value basis to its measurement. Dasgupta challenges the feasibility of Nussbaum’s approach due to difficulties measuring variance of needs, noting that assessing a government’s distribution of resources may be all that is possible. Despite this, he, “would not deny that human flourishing is what is ultimately of value” (Dasgupta, 1993, p. 55). Other landmark developments for the capabilities approach come from Elizabeth Anderson and Ingrid Robeyns. Each seeks to distinguish their own form of the approach from those of Sen and Nussbaum. Anderson’s seminal contribution is her 1999 article, “What is the Point of Equality?”. Anderson’s version of the theory is centered around democratic equality, which is a normative extension of the capabilities space. She staunchly critiques “luck egalitarianism” which has lost sight of what she says are the original egalitarian aims (Anderson, 1999, p. 287). Luck egalitarians push for a theory which seems great on the surface, but results in serious issues when put in application. A surface level understanding would consider it to be the redistribution of resources from the well off to the less well off. However, the main issue of equality of fortune is that it assesses resource distributions contingent on the prudence of decisions and the responsibility attributable to an individual who was unlucky. In general, luck egalitarian theory is 58 particularly harsh toward those subject to bad “option luck” which is loosely defined to be bad luck which was somewhat in control of the person (including, as Anderson mentions, victims of natural disasters such as hurricanes, or tornadoes on account of their having chosen to live in a place with a risk of that disaster; or even dependent caretakers who choose to forego the wages of spending their labor in another way). By lumping together of dependent caretakers with those whom luck-egalitarian scholars consider to have voluntarily expensive tastes, luck egalitarianism encourages an individualistic and self-centered society. It discourages forming social relationships where an imbalance of care labor might be called for. For example, in our treatment of our elders, leading children to alienate themselves from relationships where they might feel morally obliged to provide social support for their aging parents. This threatens to undermine the enormous amount of unpaid social care labor expended by women upon which stands the entirety of the so-called “productive side” of the economy—a fact made evident by feminist economists such as Marilyn Waring and Hazel Henderson (who developed the economic layer cake model). Anderson words it well: “Equality of fortune, in representing the dependency of caretakers as voluntary deviance from a falsely universalized androcentric norm, ends up justifying the subordination of women to male wage earners” (Anderson, 1999, p. 311). On the other hand, those subject to bad “brute luck” or luck out of their control receive substantial compensation; this, of course, includes severely disabled individuals, but it also includes those who are who lack ability to a lesser degree due to factors like general stupidity, ugliness, or lack of talent (Anderson, 1999, p. 305). Luck egalitarians also run into issues as a result of being a “starting gate” theory which seeks to equalize 59 opportunity and resources before the course of a life but allows for the suffering and depravity of individuals who don’t qualify for support after they have left the “starting gate”. Equality of fortune lacks appropriate concern for the needy who don’t receive aid and lacks appropriate respect for those who do. The implications of luck egalitarian policies often undermine the public perception of more reasonable egalitarian aims such as democratic equality. Anderson argues that egalitarian writers are flawed in their pursuit of the point of equality; that they aim to correct “a supposed cosmic injustice”. Anderson makes the point that luck egalitarianism rewards individuals by condescending to express pity, rather than from simple humanitarian compassion. Instead of making the assertion, “she is badly off,” it makes the assertion, “she is worse off than me” (Anderson, 1999, p. 307). The proper aim of egalitarian theory, argues Anderson, is not to equalize the luck of all on account of some injustice imposed by nature but “to end oppression, which by definition is socially imposed” (Anderson, 1999, pp. 288-9). The function of capabilities as descriptors of quality of life must be supplemented by a normative theory of justice when it comes time to use capabilities in policy development. This is because the Achillies heel of the capabilities approach lies in its reliance on a list of capabilities which the democratic state (i.e., citizens acting collectively) is obligated to provide to its citizens. Anderson asserts that capabilities scholars must be prudent to not simply hyperfocus the resource gap between the least and most fortunate, but to consider the 60 concrete understanding of the unfreedoms due to being deprived of the doing or being of something. While considering what capabilities are relevant, she focuses on both positive and negative goals for democratic equality. Positively, democratic equality postulates that citizens have a reasonable obligation to provide (for all other citizens) capabilities which put them on equal footing as a participant in civil society. In other words, citizens must ensure that all individuals, for the entirety of their lives, are guaranteed “the capabilities necessary for functioning as an equal citizen in a democratic state.” Negatively, democratic equality values the capabilities necessary for individuals to “avoid or escape entanglement in oppressive social relationships,” even private instances of domination within a family unit (Anderson, 1999, p. 316). This applies especially to dependent caretakers who rely on another wage earner and find themselves subjugated to their partner due to their economic reliance. In specifying a normative theory of justice, the egalitarian must construct a framework to avoid the same pitfalls of luck egalitarianism. Anderson lists five objectives which the ideal system must achieve to avoid those pitfalls. First, it must list specific goods which citizens must be guaranteed access to for the entirety of their lives (avoiding the starting-gate pitfall). In the space of capabilities, those goods take the form of capabilities and functionings, not necessarily commodities. Second, access to those goods must be ensured for an entire lifetime without resorting to paternalism. Third, egalitarian principles must offset the deprivations caused by injustice with remedies that match the type of deprivation endured—a financial subsidy is not valid in exchange for a nonfinancial deprivation (e.g., no matter the amount, the state cannot cut a check to exchange for the injustice of denying a wheelchair-using citizen access to public education). 61 Fourth, individuals must retain the responsibility to achieve their functionings without intrusively judging the prudence of the decisions they made with the freedoms available to them. Fifth, the system must be “possible objects of collective willing” with valid reasons for why the relevant capabilities are guaranteed, while others are not (Anderson, 1999, p. 314, my emphases). The first objective is to address the “starting gate” problem where equality is guaranteed for everyone starting off and is apathetic to the multitude of misfortunes bound to occur over the course of anyone’s life. Thus, a sort of safety net must be in place. Without such a protection, “people could lose their access to equal standing through bad option luck” (Anderson, 1999, p. 319). A working theory of justice must guarantee “effective access to the social conditions of freedom to all citizens, regardless of how imprudently they conduct their lives” (Anderson, 1999, p. 326). Negligent or selfdestructive citizens are not denied necessary medical care, and citizens with mobility restrictions are ensured accessibility accommodations regardless of the degree to which they were responsible for developing the restriction. Second, those freedoms must be ensured without becoming paternalistic. To ensure the protection of those freedoms for the entirety of citizens’ lives, democratic equality does not allow any individual to trade their freedoms for other goods which they prefer. For example, though an individual who is eligible to have healthcare subsidies might not personally value their health over their religious practice, they cannot require that the subsidies transfer to support the costs of their religious practice. How does it avoid paternalism if it says that access to egalitarian capabilities is inalienable? As 62 Anderson says, “Why shouldn’t she be free to trade some of her egalitarian-guaranteed freedoms for other goods that she prefers?” (Anderson, 1999, p. 319) The answer is that, in democratic equality, the unconditional obligation of others to provide that individual with inalienable capabilities finds provenance in securing their ability to participate on equal footing and in respecting that individuals dignity—the obligation does not stem from personal preferences of the obligation holder. The decision over which specific capabilities are prioritized is left up to the collective will and not market or agent preferences. The structure remains liberal by “securing for citizens only the capabilities they need to function as equal citizens, the state is not declaring that these capabilities are more important for individual happiness than some others that they might prefer” (Anderson, 1999, p. 329). Preferences do not change the obligation which other citizens have to ensure capabilities, including in the event that capabilities must be ranked. Anderson explains that “Some deprivations of capabilities express greater disrespect than others, in ways any reasonable person can recognize” (Anderson, 1999, p. 332). For example, consider the unfreedom confining a wheelchair-user when accommodation is not provided to go on an amusement park ride versus when accommodation is not provided to access a public-school building. This is true regardless of the wheelchair-user’s preference, which may be that they actually prefer access to the ride than access to the school. Third, the remedy offered to address the deprivation must match the actual loss incurred by the deprived citizen. Marginalized groups seeking social justice do not seek simple redistribution of resources. They are not looking to be given more material wealth, as luck egalitarianism would do, to account for the states recognition of what a 63 disadvantage it is to be who they are. To do so would be incredibly disrespectful and tone-deaf. For example, the LGBTQ+ community does not fight for their social equality by pitifully groveling for handouts from the democratic state which is sorry for how sad and difficult it must be to be gay. For a particularly illuminating example of what this sort of handout might look like, see (Anderson, 1999, p. 305). The work of the LGBTQ+ community could not represent anything further from groveling. Hell, it is called a pride march and not a shame march. There is, as they argue, nothing to be ashamed of for being queer. The capability deprivations are not the result of some natural order which makes them worse off; the deprivations are caused by socially imposed order which works through oppressive social relationships. Homophobic and transphobic phenomena try to rob queer people of “the ability to publicly reveal their identities without shame or fear” which is a prerequisite to the capability to participate on equal footing in civil society (Anderson, 1999, p. 320). The state, under democratic equality, is obliged to dismantle such oppression. Rather than redistributing resources, however, it must affect change visà-vis significant shifts “in social relations of contempt and hostility, and changes in norms of gender and sexuality” which would meet the requirement of justice by matching the remedy with the deprivation (Anderson, 1999, p. 320). In the case of the unemployed, as Sen has mentioned, simple wage replacement policies do not fulfill a requirement for justice. Anderson emphasizes that unemployment cannot be remedied by mere income substitution because participation in the production of one’s society is central to “living life as an equal in civil society,” nor can it be remedied by “forcing people to engage in make-work for aid while depriving them of the dignity of a real job with a real wage” (Anderson, 1999, p. 41). And, for those with lack of natural endowment of talent, equality 64 of fortune would compensate the untalented because the market judges the labor of the innately inferior relatively worthless. Democratic equality finds the idea that there could be such a thing as “inferior native endowments” to be objectionable (Anderson, 1999, p. 41). Fourth, a working theory of justice must not interfere with citizens’ privacy and liberty by passing moral judgements on the private decisions of its individuals (i.e., support given or rescinded after assessing if they did what they “should have” done in a given situation). The required judgements of luck egalitarianism become especially objectionable when it intrudes on private actions (such as those related to medical care or judgements which are highly complex and require professional knowledge to make a distinction) or when it condescends to legitimize private disdain (Anderson, 1999, pp. 305-6, 327). Consider the hypothetical case of a patient who has HIV, an uncurable STD which, left untreated, can be fatal. Is it just to determine that individual’s entitlement to medical care based on their responsibility for contracting the disease? It would be both impractical, as well as a severe violation of privacy, for the state to review and verify every potentially relevant factor in that person’s life (e.g., all sexual partners, condom use, mother’s health status, etc.). Say the person is a phlebotomist and was found to have contracted the disease on account of an accidental needle stick while working with a patient with HIV. Equality of fortune would hold them accountable due to their choice to work in a risky line of work with high-risk patients. Luck egalitarianism, in determining responsibility as the necessary criteria to entitle the unlucky to support, fails to distinguish between an action which is merely attributable to them and an action which an agent is substantively responsible for (subjecting them to moral criticism). Support in 65 equality of fortune is determined by a state judgement of responsibility, the outcome of which may entitle them to a diverse range of goods (including welfare). The unfortunate agent must deny responsibility and convince the state that they are a victim of brute misfortune, who must grovel for pity from the more fortunate. Rather than try to judge the prudence of an individual’s actions and compensate them for any cost of their involuntary unluckiness (including market-determined costs to an individual for their ugliness or stupidity), another strategy must be adopted. One which insures, “only against the losses of certain types of goods” (Anderson, 1999, p. 327). Those types of goods are determined by an assessment of what is collectively willed. This is neither a system of coddling individuals by merely satisfying their desires, nor is it one which babysits citizens to ensure that they make prudent decisions. “Individuals still have to exercise responsible agency to achieve most of the functionings” (Anderson, 1999, p. 328), and much of the cost of imprudent decisions will still be borne by the agent. Anderson’s example of the smoker does a good job explaining this. While a lifelong smoker is entitled to the medically necessary treatment for their lung cancer, but they would not be entitled to any remedy for “the loss of enjoyment of life brought about by her confinement in the hospital … the dread she feels upon contemplating her mortality, or for the reproach of her relative who disapprove of her lifestyle” (Anderson, 1999, p. 327). Under democratic equality, individuals are still incentivized to act responsibly. A citizen’s ability to exercise responsible agency is not only incentivized, but also strengthened. A society which permits individuals to fall below subsistence levels of capability or survival risks the associated criminal behavior which people will resort to 66 for survival or to escape oppression. When someone is in a position of poverty (in the capability space), they cannot exercise responsible agency because their “real options, awareness of those options, deliberative skills, and self-respect” are inhibited or wholly absent (Anderson, 1999, p. 328). One aim of democratic equality is to alleviate oppressive relationships and capability deprivations; in doing so, criminal activity which occurs out of desperation will also decline. This is not achieved by simply providing people with the resources they need to get them above the functioning threshold, but by securing the freedoms for that person to individually achieve those functionings. For example, ensuring legal and gainful employment opportunities is an obligation of the democratic state, while “professional careers would be an exercise of individual choice and actions” (Alexander, 2016, p. 107). Fifth, Anderson borrows from the work of scholars of the liberal democratic versions of social contract theory which seeks to define “what can or must be collectively willed” (Anderson, 1999, p. 314). It asserts that, “the fundamental aim of the state is to secure the liberty of its members. Since the democratic state is nothing more than citizens acting collectively, it follows that the fundamental obligation of citizens to one another is to secure the social conditions of everyone’s freedom” (Anderson, 1999, p. 314). This fifth desideratum is perhaps the foundation of all the others, for it clarifies where the threshold of capabilities would be drawn and explains why the democratic state has an interest in securing those freedoms ubiquitously. By achieving these five criteria, Anderson’s democratic equality represents, in my eyes, the most presently applicable form of a working theory of distributive justice. It does this both by measuring the degree to which justice is present in a society with the metric of 67 capabilities and by clearly pointing to ways in which the state must intervene to provide its citizens with the resources necessary to escape oppression. SECTION TWO: LABOR MARKET BARRIERS, CONVICTION, AND THE GUARANTEED CAPABILITIES OF DEMOCRATIC EQUALITY How does democratic equality assert the importance of employment? Let’s consider this quote from Anderson’s, “What’s the Point of Equality?” Anderson writes, “to be capable of functioning as an equal citizen involves … participation in the economy” (Anderson, 1999, p. 317). This comes due to the fact that employment, when understood in terms of capabilities, is more than just a source of income. Employment is important for capabilities scholars because it represents the productive expression of human labor power. Within democratic equality, it is this participation in the economic sphere (again, not necessarily just the market) which entitles the fit and capable worker, “access to the resources they require … on the basis of their role in the division of labor,” furthermore, that, “people’s access to jobs, resources and social positions are … like the gifts one receives in a network of relationships with varying degrees of reciprocity” (Alexander, 2016, p. 71). As both Alexander and Anderson emphasize, in order to receive those gifts, one must participate in the productive sphere, provided that they have “effective access to those conditions” (Anderson, 1999, p. 318). This means that they must be physically able to perform the work, that it must be consistent with other duties and obligations, they can find a job, etc. The democratic state must satisfy this “employment condition” which permits citizens to be entitled to access the other functionings on the list. If the individual does not have effective access to steady and fair employment, the obligation falls upon the democratic state to provide access to those 68 functionings which would otherwise be conditional on employment. Further, “For those capable of working and with access to jobs, the actual achievement of these functionings is, in the normal case, conditional on participating in the productive system” (Anderson, 1999, p. 321). This quote exemplifies the central role of personal responsibility in the system of democratic equality, which neither forces nor spoon-feeds individuals just for the sake of getting them to a certain “mandatory” level. Democratic equality does not consider the state’s wage-replacement or income supplementation as a valid remedy for the condition of unemployment or underemployment, because employment can bring many other capabilities with it that are not captured in the aggregate income. Anderson writes, “Democratic equality also favors a qualified entitlement to work on the part of willing, able-bodied adults. Unemployment insurance is a poor substitute for work, given the central importance of participation in productive activity to living life as an equal in civil society” (Anderson, 1999, p. 41). 69 Table 1:“Relevant Capabilities to Function in Democratic Equality” Created with information from (Alexander, 2016, pp. 69-70) and (Anderson, 1999, pp. 317-319) 70 WHY IS EMPLOYMENT CRUCIAL FOR PEOPLE WITH A CRIMINAL RECORD? Starting with a more standard understanding of economics, aggregate earnings projections indicate that disruptions in career and educational advancement in the pivotal decade of an individual’s 20s can wholly or partially derail employment opportunities for those impacted by spells of incarceration (Weiman, 2007, p. 590). Unemployment rates in the particular area into which a first-time prisoner is reentering play a very significant role in determining recidivism risk. For example, in California, Raphael and Weiman (2007) find that the 12-month recidivism risk of first-time prisoners was reduced by 16 percent when the unemployment rate fell by just 1 percent. This drop could be a result of a link to capabilities which are ensured by the procurement of stable and fair work. With a lesser degree of capability deprivation, individuals are less likely to feel the pressure to meet their needs by supplementing poor quality employment with illicit opportunities, or to cope with the stress of poor employment by self-medicating with illicit substances. This population of criminals would be considered “on the margin” because their criminal behavior responds to shifts in labor-market conditions. THE LABOR MARKET AS A SOCIAL INSTITUTION From the point of view of the capabilities space in general, social institutions are crucial to providing people with the capability to achieve most, if not all, functionings. Some examples of social institutions are marriage, the labor market, public schools, politics & government, and social support networks (e.g., familial, religious, neighborhood). Lindsay (2022) writes, “Hiring is inherently interactional and relational” (p.460), which builds upon Andersons idea that patterns of oppression and domination occur in social relations and not as inherent facts of nature writing, “Negatively, 71 egalitarians seek to abolish oppression—that is, forms of social relationship by which some people dominate, exploit, marginalize, demean, and inflict violence upon others” (Anderson, 1999, p. 313). And while Anderson does specify that just punishment for crimes is permitted as an exception to this, the determination of the just punishment should be left to the judge and should never be the responsibility a citizen to determine or carry out. Concerning the relevant capabilities of democratic equality, barriers to participation in social institutions are inherently oppressive, because they relegate that person or group to a lower level where they can no longer participate as an equal in our civil society nor do they have effective access to defense against oppression, domination and/or exploitation. Anderson writes, “A group that is excluded from or segregated within the institutions of civil society, or subject to discrimination on the basis of ascribed social identities by institutions in civil society, has been relegated to second-class citizenship” (Anderson, 1999, p. 317). Because the labor market is one such institution of civil society, and individuals impacted by the criminal legal system often obtain state recognized labels of criminality, this population can be considered to fall under these criteria. As a result, they are entitled to the focus and support of the democratic state. Though a greater focus on the actual interventions which the state has at its disposal will be discussed at the end of this analysis section, it is worth mentioning now that democratic equality stipulates the “effective access to the means of production, access to the education needed to develop one’s talents, freedom of occupational choice, the right to make contracts and enter into cooperative agreements with others, the right to receive fair value for one’s labor, and recognition by others of one’s productive 72 contributions” (Anderson, 1999, p. 318). All of these relevant capabilities can be found in table 1. “This also entails the social conditions of being accepted by others, such as the ability to appear in public without shame, and not being ascribed outcast status.” A common critique in response to these relevant capabilities could sound something like this: “But they made the choice to commit the crime, they should have to live with the consequences.” To this, Anderson (1999) responds that democratic equality, “is not a starting-gate theory, in which people could lose their access to equal standing through bad option luck” (p. 35). Bad option luck also includes having made criminal choices in the past, which should not preclude them from access to equal standing and capabilities to avoid oppression and exploitation. The sentencing after a criminal conviction can deny someone some of the capabilities to participate in civil society in many ways (the most obvious being incarceration), but I argue that after the sentence has been served, the capabilities of participating on equal footing in civil society should be restored out of (1) respect for the individual who committed the crime and (2) considerations for the strain applied to communities and social support networks on account of supporting a person who is denied agency (Raphael, 2014, p. 59). Anderson also comments on this, stating, “The sole exception to this principle concerns criminal conduct. Only the commission of a crime can justify taking away a person’s basic liberties and status as an equal in civil society. Even convicted criminals, however, retain their status as equal human beings, and so are still entitled to basic human functionings such as adequate nutrition, shelter, and medical care” (Anderson, 1999, p. 327). 73 This does not necessitate that the support be unrealistic or luxurious. “The capabilities relevant to functioning as a human being, as a participant in the system of social cooperation, and as an equal citizen do not include all functionings or all levels of functioning. According to Anderson (1999), “Some deprivations of capabilities express greater disrespect than others, in ways any reasonable person can recognize” (Anderson, 1999, p. 332). This lexical prioritization of certain capabilities over others is important for the application of labor barriers because the deprivation or denial of employment is particularly harsh and disrespectful, because the suffering as a result of that can reach beyond that individual and beyond the moment of deprivation—i.e., to deny a person employment could also deprive their family or social support networks of capabilities relevant to avoiding or escaping oppression. If they are responsible for providing for others (as is the case for parents with histories of conviction). Weiman (2007) supports this point noting that, “to many former offenders a job would help to repair their frayed familial relations, friendships, and finances, and so would minimize their opportunities and inducements to engage in criminal behavior” (p. 580). This social support network is quite important, and scholars of labor barriers have pointed to the crucial role which social support plays in the entire reentry process, let alone in navigating the labor market with a criminal record. Social support also helps those with convictions to overcome criminogenic barriers related to their geographic locations. If they come from communities which are alienated from the broader labor market (indicating rural/urban distinctions), or which face high rates of unemployment and poverty, work is more difficult to find. In cases of geographic isolation, individuals 74 often must take “indirect or unreliable public transportation, to their places of employment” (Weiman, 2007, p. 582). LABOR MARKET BARRIERS – PART I (SUPPLY SIDE CAPABILITY DEPRIVATIONS) Supply side capability deprivations can be understood to be related to the unemployed individual and include aspects such as lack of consistent work history or education, as well as self-confidence. While the unemployed with convictions valued a job highly, they also “expressed considerable uncertainty about their employability. When asked about it directly, a significant fraction—from 30 to 60 percent—expected difficulties along the way” (Weiman, 2007, p.580). This could be a result of a lack in “educational background, work experience, and hence skills to land a good job”. Also, there is evidence of low participation “in work release programs, which are strongly correlated with post release employment rates”. Support for work release as an option is also supported by Baz Dreisinger (2017, pp. 46-47) in her research on Singaporean recidivism. LABOR MARKET BARRIERS – PART II (DEMAND SIDE CAPABILITY DEPRIVATIONS) As part of the information asymmetry and the prison credential dilemma noted by Lindsay (2022), “prisoners worried about employers’ negative reactions to their prison record or its telltale signs like a spotty work history” (Weiman, 2007, p. 582). Also, over 60 percent of managers in surveys conducted by Holzer, Raphael, & Stoll (2004, 2006, 2007), were reluctant to hire someone with a history of conviction, with only 12.5 percent indicating that they “definitely will.” Though this is not necessarily out of direct personal 75 judgement on the part of hiring personnel, because greater restrictions are being introduced into what kinds of jobs former-offenders are not allowed to work in, as well as increased civil liability by “failing to check criminal backgrounds of employees and so exposing their workplace or customers to harm” (Weiman, 2007, p. 584). There are legitimate reasons to be cautious as an employer of workers with criminal convictions, and while they may be valid or they may not, the issue of greater importance is that in both cases, the predisposition against hiring individuals with histories of conviction negatively impacts their employment opportunities and increases their likelihood of reoffending (Raphael, 2014, p. 43). As discussed in Lindsay (2022) and Weiman (2007), the advent and rise of online application processes has occurred alongside a boom in the market for cheap, quickly attainable criminal background information; unfortunately, this method of obtaining criminal background checks through unregulated private firms is highly prone to errors and inaccuracies which the slower but more comprehensive public method avoids. Because of legal requirements and social pressure for employers to screen applicants, they are more likely to throw out an application for a criminal offense imprudently, particularly if the background check is faulty. This leaves applicants with conviction histories at a significant disadvantage in the competitive market for well-paying, stable employment. Studies by Devah Pager which find that callback likelihood for Black applicants with a clean record is the same as White applicants with a prison record while the impact of a criminal record for Black job-seekers dropped their callback likelihood more than two-thirds (Pager, 2003). 76 MANAGEMENT OF BARRIERS – PART I (THE JOB SEEKER WITH A RECORD OF CONVICTION OR INCARCERATION) In Lindsay’s (2022) research, she interviewed 50 formerly incarcerated men and asked them many questions about their insights and challenges in the job search. The men noted both supply side and demand side considerations which they must make while navigating the labor market. With that, Lindsay isolated three approaches which those men chose; they are proactive, intermediate, reactive. Proactive approaches were adopted by men who wished to get their conviction and prison time out on the table ahead of the time, to establish trust with the potential employer and to demonstrate their desistence of criminal activity—often, men who choose this approach will accept lower than fair wages and work their way up to higher levels of pay as their experience and demonstrated trust grows. Intermediate strategists will wait to disclose their circumstances until an opportune moment arises, such as during a phone screening, interview, or job offer. There is an inherent risk, notes Lindsay, but it can pay off provided that the applicant is confident, remorseful, competent, and has the “soft skills” to “control narratives surrounding their criminal records. In this way, their conversion factors are higher than the third type of strategists, the reactive strategists. Reactive strategists try to navigate the job market and “pass” as applicants who don’t have a criminal record or time spent incarcerated. This might be faster for reactive strategists, but they also must deal with the consequences if their employer were to find out. Even so, they are paid quite poorly for the jobs they do get. Across the work of Lindsay (2022), Raphael (2014), and others, there is consistent and clear demonstration of desire & effort to obtain credentials and further 77 education. Individuals often want to take responsibility to provide for themselves and their social support networks in a steady way. As noted by Weiman (2007), “these inmates on the verge of release were certainly eager to find a job but also anxious about their prospects. The vast majority regarded employment as “important,” especially if they wanted to "go straight" and to avoid a return trip to prison” (p. 579). Once one of these individuals started the application process with prison credentials, they employed a couple of tactics to address the prison credential dilemma: dissemblance strategies, redemptive narratives, and doubling down on credentials. First, though, what is the prison credential dilemma? The prison credential dilemma has to do with an applicant’s likelihood of getting hired when they put down a professional credential which they earned while in the criminal legal system. On one hand, the credential demonstrates both desistance as well as a qualification for the job. On the other, due to institutional affiliations giving away the name of the correctional facility, employers can be tipped off regarding an applicant’s time in the criminal legal system. To get around this dilemma, applicants often start with the dissemblance strategy on the resume, by obscuring the provenance of their certificate or qualification, but still showing it. Some individuals cannot omit their credentials because they have little or no work experience behind them. The dissemblance strategy also comes with a risk of being seen as deceptive by employers, despite one’s reasonable intention to have a fair shot at obtaining a job. Once an interview is obtained, the strategy of the redemptive narrative comes into play. Often, individuals will be asked in one way or another about their criminal history, and the redemptive narrative is a form of framing of one’s older criminal past in order to 78 contextualize it with their more recent criminal desistence and development of credentials, knowledge and skills which could apply to the position. They use the prison credential as evidence of criminal desistance & employability. Linsay (2022) writes that this is a particularly important skill for men of color who are less likely to be given the benefit of the doubt during the process. Many of the men acknowledge their past in the interview but steer it away from discussion of their past to what they are doing now and how they’ve taken chances to better themselves. This phenomenon of taking responsibility and demonstrating change is all behavior which is amplified under democratic equality, which aims to empower individuals with agency. The third method for dealing with labor market barriers is to double down on credentials. In other words, pursue additional education or other certifications after their release. This has the potential to work but is also quite risky due to the potential financial burdens of higher education or childcare responsibilities. Also, stigma and bureaucratic barriers can represent barriers which deprive the applicant of one or more of their relevant capabilities. The stress of this method can lead to recidivism out of financial desperation or stress coping (e.g., student loans, childcare responsibilities). The last option could be considered the option with the lowest ceiling of success. This is advancing & surviving via temporary precarious work. In this case, applicants take very, very low paying jobs either to survive or to hope for full-time promotion— despite any evidence that this pathway has worked for their peers. 79 MANAGEMENT OF BARRIERS – PART II (OBLIGATION OF THE DEMOCRATIC STATE) Once again, the democratic state, which is the citizens acting together in democracy, is obligated to provide its citizens with the relevant capabilities (table 1) which allow for functioning on equal footing in society. This section will describe some of the ways in which the democratic state might intervene or attempt to influence, with short descriptions, when available, of the efficacy of each policy. Anderson’s example of the democratic state’s obligation to a cosmetic birth defect which results in one’s ostracization has three lessons which can be applied to the condition of conviction. First, the injustice lies “in the social fact that people shun others on account of their” condition. Next, democratic equality prefers altering social norms to redistributing resources. Finally, the costs of remedying an injustice could prove to be quite high. As far as labor market barriers related to conviction, the social costs would likely be lessened if the imprisonment never happened in the first place (Anderson, 1999, p. 336). The state should keep investing in prison employment and educational opportunities (prison credentials, work-release). They do help, even with Lindsay’s (2022) prison credential dilemma which describes the informational asymmetry between applicant and employer. The asymmetry is present because the employer doesn’t know full details of criminal conviction (unless they ran a background check) and the person with the history of conviction doesn’t know the employers stance on hiring employees with a criminal record. 80 Dreisinger’s (2017) research on US and Singaporean recidivism rates supports work release as an option, “Work release is something of a no-brainer. A study conducted in Minnesota, for instance, found that work release reduced the likelihood of a prisoner returning for a new crime, significantly increased the odds that he or she found a job, and upped hours worked and wages earned. It saved the state government some $1.25 million, too.” Dreisinger’s research gives evidence of the monetary and market benefits of workrelease, while the assistance of work release in terms of capabilities requires further examination. Work release could help to avoid both reduction of the social cost of recidivism as well as the capabilities injustices related to labor market barriers. Lindsay’s (2022) research is a good start for understanding how work release might affect capabilities. As credentials and experience are gained separately from the carceral institution, work release addresses the prison credential dilemma by removing the risk of signaling a criminal past to an employer while attempting to indicate experience or education. The effective access to the conditions of employment are amplified with work release. Perhaps the most important intervention to avoid future costs to both the society in terms of economic costs, as well as the individual in terms of capabilities—is to avoid imprisonment altogether. Obviously, this would be for cases where it is not extremely necessary due to issues of public safety. Drug related charges and marginal drug offenses (see Weiman, 2007, p. 578) are particularly suited for addressing in the diversion drug courts. This is because War on Drugs policies fueled the mass incarceration of marginalized men and “indiscriminately incarcerated marginal, not just more serious, offenders” The most ideal scenario would be to decriminalize drugs, as some other 81 countries have done (e.g., Portugal), which would shift resources away from policing, litigating, and incarcerating marginal criminals. Those saved resources could be put towards more research into labor market barriers and general reentry challenges faced by formerly incarcerated applicants. If criminals are able to be diverted away from incarceration, their life plan permits consistent enough employment and education which will greatly assist them in the long run. Weiman describes this as a relegation to the “low-skilled secondary labor market” which Lindsay (2022) might describe as temporary and precarious work. If one can avoid this labor relegation the risk of a substantial deprivation of future earnings may be averted (see figure 1). Figure 1: Hypothetical Employment Earnings Profiles of "At Risk" Young Men with and without a Prison Record (Weiman, 2017, p. 589). 82 Weiman (2007) follows up this visualization with evidence that a prison record reduced annual income at age 30 by about 37 percent compared with their peers who had not gone to prison but were still considered “at risk” (p. 590). Importantly, instability of employment, under- and unemployment were at play, as evidenced by the decreased number of weeks worked and wage level. By considering the aggregate earnings delta at age 30, the difference can best be understood in the context of figure 1, which illustrates the crucial period during an individual’s 20s where one can settle into jobs with “improved long-term prospects and so realize steadier employment”. Interestingly, this income projection method has also been used to assess the projected earnings differentials between women who do not have kids early in their professional careers and their female peers who did (and were required to interrupt their career advancement). Democratic equality allows us to supplement Weiman’s picture with greater understanding of the ways in which lower income and poorer employment quality will result in capability deprivations and leave these individuals prone to oppression and exploitation. In these situations, individuals are impacted in all three relevant spheres of capabilities. Of particular risk of being deprived are means to sustain one’s biological existence, the right to receive fair value for one’s labor, and not being ascribed outcast status. Of course, the capabilities sphere, when considered outside of the context of Democratic equality, permits the consideration of a multitude of other capabilities which these individuals are likely to be deprived of, such as Nussbaum’s 9th capability (capability to play, laugh, and enjoy recreational activities). The financial and social stress of under- and unemployment, particularly in cases where an individual is making attempts to earn an education or support others is likely to preclude them from the ability 83 to anticipate or make time for recreational activities, if they are concerned with a job search or making ends meet. However, even absent of additional costs of stigma against those with a conviction history, these individuals would face considerable challenges in the labor market on account of their low levels of education and work experience, indicating a broader need to address these capability deprivations before individuals are desperate or limited enough that they will participate in criminal conduct to meet their capability deprivations (Raphael, 2014, p. 41). The democratic state must consider the online job market barriers as potentially different from in person ones, because online background checks can potentially screen an applicant out even if they have the necessary qualifications for a position; private, cheap and fast background checks are also inaccurate which can, during the screening process, wrongly throw out the application of a person with no record, giving the individual no chance to contextualize their conviction during an interview. Ban the box policies (prohibiting employers from asking about an applicant’s criminal history) are an option, but they should be done with more research, as previous forms of ban the box have exemplified the stigma and racial stereotyping inherent in the system on the demand side of the job market. For example, Weiman (2007) expresses an apparent paradox noted by Holzer, Raphael, & Stoll (2006), that firms which routinely checked applicants’ criminal backgrounds and were more averse to hiring former offenders were more likely to hire Black men. The paradox loses some of its mysticism when this is supplemented with Lindsay’s (2022) findings that ban the box policies actually led to a 43 percent greater disparity between callbacks for Black and White 84 applicants, because employers overestimated the likelihood that Black applicants had criminal convictions as a result of their oppressive association of Black men with criminality. Also, Raphael (2014), noted that employers who expressed high levels of reluctance to hiring applicants with conviction history but did not screen for background checks were the least likely to hire Black men. These racial disparities in the implementation of even just one type of policy should serve as a prudent reminder that policies implemented with the best of intentions can result in negative consequences; as a result, policy implementation must be cognizant of these potential side-effects. The democratic state can establish and incentivize community partnerships, particularly ones which educate and assist those with conviction histories to navigate the labor market, as is done in Norway and noted by Bhuller et al. (2016). Community partnerships and non-profit work can provide this population with opportunities to start building a social support system as well as the soft skills one might learn during participation in that sort of system. Raphael (2014) conducted a review of a handful of both experimental and nonexperimental studies on the effectiveness of various reentry programs and policies in the three decades before his piece. These policies included income support, transitional employment, and human capital investments, though the weakest evidence was observed for income support (p. 75). This is in line with the views of capabilities scholars who assert that income replacement alone is a poor remedy for unemployment, and further implies the importance of capabilities themselves as indicators of recidivism risk or as a measure of poverty. In other words, a certain level of income supplementation in the hands of one individual might not give them the same effective access to the relevant 85 capabilities (table 1) as compared to another individual who has conversion factors which allow that second person to translate that income more effectively into relevant capabilities. A POTENTIAL OPTION FROM ITALY A somewhat less mainstream approach might be found in the prison communities of Italian prisons. Co-creation of value is studied by Cosimato et al. (2021, p. 8) in the context of an Italian prison community. Cosimato et al. sought to better understand the willingness of various members of the Italian prison community to hope for a better community within the prison. The community members they interviewed included inmates, corrections staff, counselors, and prison directors. After asking participants about their experience living in the prison community and enhancing projects within the prison, researchers compiled and analyzed their word content to find associations which indicated willingness to commit to a communal desire to improve. Co-creation of value, as described by Cosimato et al. is a model which asserts that value is created through both the public service offering as well as the citizen who uses that offering. The value which it seeks to develop is “sustainable happiness” which deals less with hedonism (the pursuit of pleasure which Amartya Sen has critiqued, as well as Aristotle) and more with eudemonia which is “the happiness arising from good works” (2021). This sustainable happiness is in line with the space of capabilities, and when applied to the context of criminals, might help capabilities scholars visualize how the space of capabilities itself might be used for empirical research. In addition, the idea of co-creation could be useful for the democratic state which hopes to establish services that secure the freedom to achieve the relevant doings or 86 beings for its citizens. Co-creation, as seen in this study, can work better to achieve positive outcomes at the collective and individual level. One potential limitation of this study is that it may be difficult to generalize the results due to their origination in an Italian prison community, which could vary in a multitude of ways from the U.S. context. Despite this, the research indicates that actor engagement (a non-material element) and resource sharing (a material element) both play key roles in the co-creation of sustainable happiness. In addition to further research on this concept, the U.S. should consider how to implement these two factors into its policies which address labor market barriers for individuals with criminal records. In addition, the state can fund further capabilities research on intersectional bias (including discrimination on account of race, sex, gender, class) which investigates how capabilities deprivations manifest differently for unique individuals, leading to results which could be extrapolated to amplify the implications of the important statistical contributions of research on issues of social justice. 87 DISCUSSION Barriers faced by job seekers who have a criminal record are present in many aspects of the application and hiring process. These barriers are better understood using capabilities as the value metric, because deprivations can be seen as they manifest in unique ways for each individual. The level of specificity provided by using the capabilities metric is useful for developing a more profound understanding of how labor market barriers harm people with records of conviction. Barriers are important to focus on as their presence can both drive further recidivism and may signify instances of oppression that exacerbate racial disparities related to the criminal legal system. When supporting individuals with conviction histories, the state should aim to do three things: first, decrease recidivism; second, minimize the degree of poverty experienced by this population (measured in capabilities); and third, assist individuals to assume beneficial and responsible roles in their social support networks, as well as to avoid substance dependency. The obtainment of stable employment in the labor market is crucial to all three of these goals. This means that resources and policies which target employment capabilities will decrease the social costs of recidivism, alleviate the strain of poverty for individuals and their social group, and assist them to develop healthy positions of support in their communities. This research fills a gap in the existing scholarship both in the field of capabilities theories of justice as well as the field of social justice. This combination of the democratic equality approach—which brings its relevant capabilities to avoiding and escaping oppression—with the empirical work of other social scientists on labor market barriers (to my knowledge) has not been done before. This thesis also discovers other 88 gaps in the existing research, such as lack of investigation into Italian prisoner reentry and labor market barriers. By establishing the efficacy of the capabilities space as a tool for evaluation, I aim to broaden its adoption. Capabilities research into aspects of social justice in general can complement existing econometric and statistical analysis which investigates the social costs of recidivism or the expected income trajectories for these individuals. Use of the capabilities space is especially important for issues of social justice which must keep the human in mind. The value of continued econometric analysis is not lessened, though it stands to benefit from the supplementary understanding of specific human experiences that the capabilities space can provide before final policy decisions are made (Drago et al., 2011). In particular, democratic equality is promising for application to issues of social justice because, as an egalitarian theory, it finds relevant capabilities to be ones which are necessary for individuals to avoid and escape relationships of oppression and marginalization. Theories of distributive justice which determine their relevant capabilities from other origins—such as Nussbaum’s list of capabilities relevant to human flourishing which originate in Aristotelian essentialism and ideas of a universal human good—are still valuable and necessitate further investigation to determine their efficacy for application to issues of social justice. Limitations of this review include: the constraint of existing literature, the focus on males with conviction history, and the constraints of budget and time. Existing literature proved very fruitful for this exercise of the capabilities approach. It was incredibly difficult to find international sources of scholarship which discussed the 89 barriers of the formerly incarcerated in foreign labor markets, which constrained the ability of this thesis to exhibit the comparative power of the capabilities approach. This may point to an area for future research, but for the purposes of this thesis, indicates that the comparative aspect of the capabilities approach in applications of social justice remains unexplored. It also calls for the acknowledgement that these findings depict— almost exclusively—the experiences of those who navigate the U.S. labor market, making findings difficult to generalize. However, this does not apply to the argument of the capabilities approach functioning as a tool for evaluation which could certainly be applied in foreign contexts. Also, sources such as Lindsay (2022, p. 474) highlight the fact that assessment was carried out excluding women due to significant gendered differences in prison programming, reentry, and work, though women represent the fastest-growing segment in U.S. prisons, and thus warrant their own review. As I was not able to conduct any real world, observational research of my own using the lens of capabilities, my exploration and analysis is subject to potential misinterpretations of the existing research. Again, due to lack of primary scholarship regarding international labor markets and barriers, I was unable to make the same degree of international comparisons which I had originally hoped to do, though this limitation indicates a need for focus on qualitative, individual-level research on labor market barriers in other countries. Finally, gaps in the scholarship pertaining to the labor market barriers to those on parole and probation limit this evaluation’s ability to compare or generalize findings to populations other than formerly incarcerated job-seekers. 90 CONCLUSION Further use of the capabilities space could be adopted in a plethora of ways, especially in the social sciences. For example, potential studies which employ similar methodology to Lindsay (2022) while using capabilities language and consider specific voices of ex-offenders as noted by Shivy et al. (2007). Also, capabilities could be employed to evaluate deprivations within prison conditions, to understand the importance of social support networks more accurately and completely, to find out why and how these support networks help unemployed and underemployed individuals with conviction history. By extension, how can the democratic state foster the development of healthy and functional social support networks? Criminologists might use capabilities to consider other aspects of criminogenic factors, or potentially discover new ones. Economists can use the capabilities space to engage in statistical, behavioral, or econometric analysis about how individuals distribute their resources to achieve relevant functionings. And political scientists and legal professionals might use capabilities and democratic equality to consider a normative theory of distributive justice which might be implemented into government and the justice system. In general, intersectionality is a very important consideration to make. Due to the time and budget restraints of this review, detailed discussion of intersectionality as it pertains to a theory of distributive justice in the capabilities space was not fully developed. This is a realm of necessary future research. The capabilities approach has the potential to be groundbreaking when applied in this way. The fact stands that a multitude of identities lead to impact which intersect. A plurality of identities applies to each and every individual jobseeker, possibly easing or inhibiting them in unique ways. The complexity of each individual must be considered 91 when application of any approach (capabilities or otherwise) departs from the realm of abstraction and enters the concrete realm of “real-life”. In this critique, I emphasized barriers faced by these individuals; not to make a condescending and demeaning assertion of “how pitiful and in need of help they must be,” but to scrutinize the social, political, and economic institutions which allow for the general ostracization and marginalization of fellow citizens. We can do better than that. We are better than that. 92 REFERENCES Alexander, J. M. (2016). Capabilities and social justice: The political philosophy of Amartya Sen and Martha Nussbaum. Routledge Taylor & Francis Group. Anderson, E. S. (1999). What Is the Point of Equality? Ethics, 109(2), 287–337. https://doi.org/10.1086/233897 Beasley, C. R., & Xiao, Y. J. (2023). 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Barriers to Prisoners’ Reentry into the Labor Market and the Social Costs of Recidivism. Social Research, 74(2), 575–611. Widra, E., & Herring, T. (2021). States of Incarceration: The Global Context 2021. Prison Policy Initiative. https://www.prisonpolicy.org/global/2021.html Name of Candidate: Jack Leonard Gambassi Date of Submission: August 7, 2023