Public Reason and the Central Human Capabilities

Abstract

A core component of Martha Nussbaum’s capabilities approach is a list of ten central human capabilities that should provide a basis for an overlapping consensus regarding what a constitutional democratic state owes its citizens as a matter of justice. There is an ambiguity in Nussbaum’s justification of the central human capabilities understood as substantive moral principles, and Nussbaum’s method of justification of public reason: an overlapping consensus between the views that “reasonable” people are likely to accept, and which may not be based on any specific comprehensive doctrine. I begin by explaining the need to enhance Nussbaum’s capabilities approach to eliminate the ambiguity. I then formulate and defend the enhanced version of the capabilities approach. Finally, I formulate and respond to possible objections to the proposed account. Shifting the focus from the contents of conflicting normative accounts to their theoretical architecture can help advocates of these accounts find common ground from which to pursue an overlapping consensus.

1. Introduction

The capability approach, pioneered by Amartya Sen and significantly developed by Martha Nussbaum, interprets well-being as real opportunity to exercise functionings. Functionings are all of the things that a person may do or be. Examples of «doings» include interacting socially, earning one’s living, voting and participating in a public debate. Examples of «beings» include being healthy, physically mobile, and well educated. Capabilities are the combinations of functionings that a person is able to achieve [1,2,3,4,5,6].

While developing her version of the capabilities approach, Nussbaum formulates a list of “central human capabilities.” The list comprises general moral principles that should be specified by means of public reason to articulate citizens’ minimum entitlements in constitutional democracies. Nussbaum argues that public reason should pursue an overlapping consensus between the views that “reasonable” citizens are likely to accept. However, Iris van Domselaar has argued that there is an ambiguity in the justification of the central human capabilities and the justification of public reason. Nussbaum holds that public reason pursuing the overlapping consensus should be “neutral” regarding the merit of comprehensive doctrines that “reasonable” people are likely to accept. This requirement of neutrality might be challenging to satisfy, considering that the central human capabilities express substantive moral values.

The objective of this article is to introduce and defend a novel enhancement of Nussbaum’s capabilities approach that removes this ambiguity. The article is structured as follows. I begin by explaining the need to enhance Nussbaum’s capabilities approach. I then formulate and defend the enhanced version of the capabilities approach. Finally, I formulate and respond to possible objections to the proposed account. In brief, I defend the following claims: disagreement regarding interpretation of the central human capabilities is a substantial moral disagreement. However, even if this disagreement should prove to be unsolvable, proponents of conflicting doctrines can agree regarding certain common features of the conflicting doctrines. In cases of moral disagreements, some experiences that ground the beliefs that are subject of disagreement are unavailable for public scrutiny, “opaque.” [7]. Other experiences that ground beliefs that are subject of disagreement are available for public scrutiny, “transparent.” [7]. Relying on this distinction, I argue that: 1. Anyone who understands the contents of a normative account of morality can agree regarding what components of the normative account are “fundamental” principles of that account. 2. The fundamental principles of a normative account are normatively “weightier” than other principles that comprise a normative account. Many, though not all normative accounts are structured in this way. But those accounts that have this structure can be described as having “core” principles as well as principles that are derived from the core principles. Claims 1 and 2 are claims that rely on beliefs whose grounds are transparent: anyone who understands the contents of a normative account can agree regarding what principles are “fundamental” principles within a normative account, and whether a principle within a normative account carries more weight than other principles within that account, without accepting the account as such. These claims are key components of an enhanced version of Nussbaum’s capabilities approach. In short, participants in the pursuit of reaching an overlapping consensus between the views that “reasonable” people are likely to accept should be allowed to introduce any moral principles, including very substantive moral principles, into the set of principles which are the subject of an overlapping consensus. The only restrictions are that (I) no participant may include moral principles of greater “weight” than any other participant, and (II) any principle that causes contradictions within the sets of principles must be revised or removed to avoid contradiction. By “contradiction,” I mean that the set includes at least one claim that is a negation of another claim of the set. “Contradiction” here refers to “logical contradiction.” The presence of logical contradiction in a set of claims is arguably detectable by anyone who possesses sufficient cognitive and linguistic ability to understand the claims. The participants themselves are the judges of what claims are contradictory. In multiple respects, the principle of non-contradiction serves as a foundational element across normative ethical theories. Consider, for instance, a moral directive within such a framework: “One must not kill an innocent person.” Now imagine a scenario in which one is compelled to choose between violating this principle and engaging in a self-contradiction. In such a case, the imperative to refrain from killing the innocent clearly takes precedence. This raises a critical question: to what extent does the normative significance of a moral principle correspond to its foundational status within a given ethical system, even when that foundational status is readily identifiable?

My point is that any plausible normative account must not include any statements that logically contradict each other. In that sense, any plausible normative account includes “the principle of non-contradiction.” The principle “do not kill the innocent” is arguably a fundamental principle in some normative accounts, such as some deontological normative accounts. In order to be logically consistent, such an account should not also include a statement that it is permissible to kill the innocent (unless the normative account also includes a clause that exceptions are permitted in certain circumstances. If such a clause is included, the normative system remains free of logically contradictory statements.).

I argue that the proposed method for achieving an overlapping consensus makes the set of principles substantially action guiding, without being biased in favour of any normative account. Advocates who accept these conditions are reasonable. They are reasonable in the sense that they treat advocates of opposing normative accounts as epistemic peers and as potential epistemic authorities. By allowing advocates of opposing normative accounts to include ethical claims of equal weight without passing judgment regarding the contents of these ethical claims, no advocate is treated as a subordinate. All advocates are treated with respect. The ethical claims added to the set may be very substantive. Hence, this method results in an overlapping consensus regarding specification of the central human capabilities that is neutral between the competing doctrines and that is sufficiently substantive to be action guiding.

2. The Problem

Martha Nussbaum presents a list of ten central human capabilities that, once specified through public deliberation, provide the philosophical underpinning of those of citizens’ entitlements that states must protect in order to satisfy minimal requirements of justice. The central human capabilities are capabilities for: Life; Bodily Health; Bodily Integrity; Senses, Imagination, and Thought; Emotions; Practical Reason; Affiliation; Concern for Other Species; Play; and, Control over One’s Environment [1].

Iris van Domselaar identifies an ambiguity in the justification of the list of central human capabilities and the justification of public reason whose goal is to reach an overlapping consensus [8]. An overlapping consensus is realized “when individuals who adhere to different comprehensive doctrines can nonetheless agree on a political conception of justice for evaluating the shared basic institutional structure of their society.” Ref. [9]: 588 Van Domselaar holds that the list of central human capabilities comprises moral principles that express a commitment to objectivity. She notes that “objectivity” in this sense does not refer to a mere reflection of people’s actual opinions or preferences. Ref. [8]: 187 She suggests that the principles express a commitment to objectivity in the sense that they are the “outcome of philosophical reflection that is considered appropriate to identify correct principles of justice.” Ref. [8]: 187 Van Domselaar notes that Nussbaum advocates “an Aristotelian dialectic” where “the shared self-understanding of human beings functions as a starting point.” [8] 188.

While this understanding of Nussbaum’s method of philosophical reflection for identification of “correct” principles of justice is accurate, van Domselaar’s description of Nussbaum’s method needs some elaboration. Nussbaum wants to “appeal to the interlocutor to ponder what is implicit in the notion of human dignity and a life in accordance with it.” Ref. [3]: 78 Nussbaum argues that the views expressed in the list of central human capabilities regarding what is required in order for a human life to be “dignified” and “fully human” are supported by intuitions that “resonate the world over.” Ref. [3]: 78 The views capture our “most secure ethical judgments about justice” and are “very powerful ethical intuitions and judgments.” Ref. [3]: 78 She suggests that “this intuitive starting point offers definitive, although highly general, guidance.” Ref. [3]: 78 She then argues that we can achieve “a stable fit” between these judgments and “theoretical principles.” Ref. [3]: 78 These include principles that form parts of the major normative ethical theories. Van Domselaar points out that these “foundational moral principles (…) are to be specified by means of public reason, such that the substantive moral values that these principles endorse can be really realized.” Ref. [8]: 189 Specifically, Nussbaum recommends that citizens use the foundational moral principles as a “basis” to achieve an overlapping consensus “among holders of the main religious and secular views.” Ref. [3]: 79 Van Domselaar points out that, according to Nussbaum, the overlapping consensus “justifies public reason for all levels of specification.” Ref. [8]: 189 Nussbaum emphasizes that the overlapping consensus may not be based on any specific doctrine. We ought to respect citizens “by not asking them to endorse a political doctrine built on any particular religious or metaphysical view.” Ref. [3]: 79 Nussbaum emphasizes that her concept of an overlapping consensus does not point to a consensus between all citizens’ actual points of view. It is a consensus between the points of view that “reasonable” citizens are likely to accept.

However, van Domselaar points out that unless the concept “reasonable” is explicated in a sufficiently substantive way, “the concept of an overlapping consensus implies a commitment to objectivity in the empirical sense: that of the objectively identifiable state of affairs, rather than a commitment to objectivity in the sense of ‘being right’.” Ref. [8]: 189 Therefore, unless the concept “reasonable” is explicated in a sufficiently substantive way, the concept does not help us determine whether actual public choices are reconcilable with the list of human capabilities. A substantive explication of the concept “reasonable” is necessary “not in the least because the [Capabilities approach] explicitly excludes the input from epistemological doctrines from the notion of ‘reasonableness.’” Ref. [8]: 189 Van Domselaar notes that Nussbaum holds that “contested” views should be excluded from public reasoning. There is a potential for conflict between foundational moral principles that are regarded as “objectively right” in the sense of being the result of substantive philosophical reflection and specification of these moral principles by means of an overlapping consensus that shall not prioritize any doctrine over others. The core of the problem is that “a commitment to objectivity seems difficult to reconcile with the way the [capabilities approach] legitimates public reason, i.e., without criteria to ascertain whether public reason is correct.” The problem is that there is a potential inconsistency between the epistemological commitments to objectivity in the list of central human capabilities and the method of overlapping consensus. As van Domselaar explains, “within the framework of political moralism a commitment to objectivity seems difficult to reconcile with the way the CA legitimates public reason, i.e., without criteria to ascertain whether public reason is correct.” Ref. [8]: 190 If there is disagreement regarding whether an act of public reasoning actually is compatible with the dignity of all persons, this difficulty of reconciliation might occur. If we rely on majority opinion to decide whether the act is compatible with human dignity, the claim that the act is compatible with human dignity might merely be “objective” in the sense that it reflects the majority opinion. However, this is not the sense of “objectivity” that Nussbaum utilizes in her list of the central human capabilities. On the other hand, if the sense of “objectivity” utilized in her list is utilized at the level of overlapping consensus, that sense of objectivity is utilized at the level of overlapping consensus, that use is incompatible with the requirement that the overlapping consensus may not prioritize any comprehensive doctrine. Ref. [8]: 190 Domselaar concludes that Nussbaum’s account requires a moral epistemology, but does not indicate what type of moral epistemology would eliminate the aforementioned ambiguity.

A second challenge is the indeterminacy of public reasoning. Nussbaum’s capabilities approach holds that public reason should determine the “adequate threshold level” of capabilities. Van Domselaar points out that Nussbaum’s capabilities approach holds that the interpretation of “adequate threshold level” is to be determined by “wise” public reasoning. She also recommends that inevitable practical conflicts between the capabilities should be adjudicated by means of such reasoning. The interpretation of “adequate threshold level” is, however, indeterminate in the sense that the interpretation might differ considerably between societies. Although Nussbaum states that “The only way in which the approach cuts off deliberation is that it urges that fundamental entitlements be secured beyond the whim of temporary majority preferences,” Ref. [3]: 75 she also acknowledges that “it is evident that the approach will leave many matters as optional, to be settled by the political process.” Ref. [3]: 32 And: “There is room for nations to elaborate capabilities differently to some extent, given their different traditions and histories.” Ref. [3]: 40 “Setting the threshold precisely is a matter for each nation, and, within certain limits, it is reasonable for nations to do this differently, in keeping with their history and traditions.” [3]: 41.

This article takes on the following challenges: (I) to produce an account that avoids the ambiguity between the central human capabilities understood as “objectively right” moral principles that are the result of a sound method of substantive philosophical reflection and the specification of these principles reached through an overlapping consensus that is “neutral” regarding the merits of comprehensive ethical and religious views. (II) To produce an account that explains how the central human capabilities can be specified in a way that makes them both sufficiently substantive to be action guiding and neutral with regard to conceptions of the good and the conflicting comprehensive moral, philosophical, and other doctrines that “reasonable” people are likely to accept. I will not attempt to compare the merits of my proposed solution with the merits of attempts to remove the conflict that simply drop either the assumption that the overlapping consensus should be based on foundational moral principles that are the result of substantial moral reflection [10,11,12,13,14]) or the assumption that the overlapping consensus should be neutral in the aforementioned sense [15].

3. A Proposed Solution

I will develop the argument along the following lines: Anyone who understands the contents of a normative account can agree regarding what components of the normative account are “fundamental” principles of that account. The fundamental principles of a normative account are normatively “weightier” than other principles that comprise a normative account. Claims 1 “Anyone who understands the contents of a normative account can agree regarding what components of the normative account are “fundamental” principles of that account” and 2 “The fundamental principles of a normative account are normatively “weightier” than other principles that comprise a normative account” are beliefs whose grounds are “transparent:“ anyone who understands the contents of a normative account can agree regarding what principles are “fundamental” principles within a normative account, and whether a principle within a normative account carries more weight than other principles within that account, without accepting the account as such. Claims 1, and 2 are key components of a response to van Domselaar’s challenge. In short, participants in the pursuit of reaching an overlapping consensus between the views that “reasonable” people are likely to accept should be allowed to introduce any moral principles, including very substantive moral principles, into the set of principles which are the subject of an overlapping consensus. The only restrictions are that (i) no participant may include moral principles of greater “weight” than any other participant, and (ii) any principle that causes contradictions within the sets of principles must be revised or removed to avoid contradiction. I argue that this makes the set of principles substantially action guiding, without being biased in favour of any normative account.

The first step of this argument is to explain what I will take “the core” of a normative account to mean. The “core” comprises the fundamental principles of the account. Principles are “fundamental” in the sense that “their justification does not presuppose any other principles.” Ref. [15]: 194 Many, though not all normative accounts are structured in this way. But those accounts that have this structure can be described as having “core” principles as well as principles that are derived from the core principles. This brief explication suffices at this stage of the argument. Having explicated the concept of a “core” of a normative account, we are now equipped to proceed to the second step of the argument.

The core principles of a normative account are normatively “weightier” than other principles that comprise the normative account. We stated that core principles are fundamental principles in the sense that they do not rely on other principles for their justification. The fundamental principles are “weightiest” in the sense that their justification do not rely on any other principles. The principles that are justified by the fundamental principles are not as weighty as the fundamental principles but weightier than principles that are not justified by the fundamental principles. This leads us to the third step of the argument.

The claim that some principles are “core” principles of a normative account, and the claim that the core of a normative account is weightier than other principles that comprise the normative account, rests on beliefs whose grounds are “transparent.” Colin Bird, while addressing the extensively debated challenge of reconciling requirements to respect people’s ethical views with requirements of liberal neutrality regarding political decisions, proposes a distinction between what he calls “transparent” and “opaque” grounds for holding beliefs [7]. Fabienne Peter has subsequently defended a similar idea [16]. She states that her account builds on Alvin Goldman’s and Ernest Sosa’s work [17,18]. Surprisingly, Bird’s original formulation of this view is not mentioned by any of its recent defenders. As Bird’s original formulation and defense of this view remains the most elaborate, I will focus on Bird’s work.

First, we shall explicate Bird’s account. Claims express various types of beliefs. Bird reasonably assumes that we ground our beliefs on experiences we have been exposed to. We justify beliefs by appealing to experiences that support our beliefs. When disputing a belief, we scrutinize the experiences that support the belief to show that conclusions drawn from the experiences are inaccurate. He holds that we need to distinguish between beliefs whose grounds of dispute are transparent and beliefs whose grounds of dispute are opaque. A belief of the former kind is one based on the interpretation of experiences available to everyone for critical scrutiny. As examples, Bird mentions mathematical claims and beliefs, claims and beliefs within natural sciences, and claims and beliefs that some event, such as a crime, has occurred. Bird elaborates: “Following [a mathematical proof] puts the reader through a certain experience which (if the proof works) will lead him to conclude that the proof is valid. Because the experience which lends support to the conclusion is interpersonally accessible in this way, anyone can identify gaps in the proof and show us that we are wrong to think that the experience of following the proof supports the belief that the theorem is valid.” Ref. [7]: 72 And: when a witness of a crime testifies, “we understand what his experience means for the purposes of drawing conclusions about [the defendant’s] guilt … while there is room for uncertainty about whether [the defendant] did it might be valid, this is not because the experience being reported is unavailable for public evaluation, but because we are unsure about whether the witness is lying.” Ref. [7]: 72 A belief of the second kind depends upon the interpretation of experiences that are not available for public critical scrutiny. As examples, Bird mentions ethical and religious beliefs. He elaborates: “A person’s ethical beliefs about what constitutes a meaningful and fulfilling life likely results from a prolonged and intensively internal deliberation about the events of their lives, and these are likely too detailed and comprehensive to be fully communicated to outsiders.” Ref. [7]: 73 Regarding beliefs that are supported by experiences that are not available to all for scrutiny, Bird suggests that had others had the same experience, they would have had the same reaction. But he notes that we have no decisive information regarding whether others would have the same reactions if they would have had the same experience. Speakers and outsiders are equally uncertain about each other’s reasonable reactions to an identical experience. Bird assumes that the criteria according to which we distinguish true from false beliefs apply to everyone. Where the grounds of dispute are opaque, there is no way for all of us to check whether the appropriate standards of rational acceptability have been applied in the formation of a particular individual’s beliefs. Where the grounds of dispute are opaque, we reasonably grant each other the authority to apply standards of rational acceptability of opaque experiences on our own. It implies that individuals ought to acknowledge and respect each other’s authority to interpret their opaque experiences. Bird calls this the principle of mutual respect. The justification for this principle proceeds in two stages: First, he argues that everyone is capable of determining whether a belief is based on an experience that is opaque or transparent.

Second, he argues for what he takes to be an appropriate response to disagreement between beliefs whose ground are opaque. Bird holds that when reasonable people cannot persuade each other to accept claims which they remain convinced are true it is reasonable for all to conclude that the grounds for drawing this conclusion are themselves opaque. The proper response is to respect beliefs that are grounded in experiences that are opaque. This implies the principle of mutual respect. Peter reaches a similar conclusion, urging advocates of incompatible views that are grounded in experiences that are opaque to be “tolerant.” Public policy may not give priority to any comprehensive doctrine over others. Bird finally asks: “does the principle of mutual respect give us enough to adjudicate divisive political issues authoritatively? Can the state make determinate political decisions solely by appealing to the transparent principle of mutual respect?” Ref. [7]: 88 Bird suggests, using disputes regarding how to determine at what stage of pregnancy abortion should be illegal, that “it does seem possible to discriminate between reasonable and unreasonable interpretations of the principle of mutual respect, and the discrimination need not be so arbitrary as to preclude determinate decision making.” Ref. [7]: 94 Anyone who fully understands the contents of the normative account, and who fully understands the definition of “core component of a normative account,” understands what principles are “core” principles of that account. In principle, anyone with the required cognitive ability and knowledge is able to understand what principles are core principles of that account. Participants of a dispute can agree regarding what principles within their opponents’ normative approaches are “core” and hence weightier than other claims within that account without accepting the opponent’s account per se. Beliefs regarding how much weight a principle within an opponent’s theory carries relies on grounds that are transparent.

We are now ready to develop the final step of the argument: Claims 1 “Anyone who understands the contents of a normative account can agree regarding what components of the normative account are “fundamental” principles of that account” and 2 “The fundamental principles of a normative account are normatively “weightier” than other principles that comprise a normative account” are key components of a response to van Domselaar’s challenge. In short, I suggest that advocates of comprehensive normative accounts, who pursue an overlapping consensus regarding the specification of the central human capabilities, should be allowed to add any ethical claims to the set of ethical claims included in the overlapping consensus. However, two conditions apply: (I) if an advocate of a normative account wishes to add an ethical claim of a certain weight, she must allow each advocate of other normative accounts to add an ethical claim of equal weight. (II) If the process of adding ethical claims according to condition (III) causes contradictions between the ethical claims of the set, advocates must either convince their opponent to revise some of the opponents’ ethical claims, or advocates of contradictory claims must remove the contradicting claims from the set. Participants may not coerce or deceive others while attempting to convince others to revise their claims. I do not suggest that any other restrictions should be imposed on the participants’ attempts to convince each other to revise their claims. Advocates who accept these conditions are reasonable. They are reasonable in the sense that they treat advocates of opposing normative accounts as epistemic peers and as potential epistemic authorities. By allowing advocates of opposing normative accounts to include ethical claims of equal weight without passing judgment regarding the contents of these ethical claims, no advocate is treated as a subordinate. All advocates are treated with respect. The ethical claims added to the set may be very substantive. Hence, this method results in an overlapping consensus regarding specification of the central human capabilities that is neutral between the competing doctrines and that is sufficiently substantive to be action guiding. Participants of the pursuit of reaching an overlapping consensus may introduce very substantive normative principles, provided that they do not introduce principles of greater “weight” than other participants. Therefore, there is no ambiguity between the justification of the substantive normative principles and the requirement of neutrality between competing comprehensive views. If so, this method provides an effective response to van Domselaar’s challenge. Bird’s and Peter’s interpretation of “reasonableness” as willingness to regard other citizens as epistemic peers and as potential epistemic authorities is plausible. It goes significant distance towards responding to van Domselaar’s request for a substantive interpretation of the concept “reasonable.” Bird is, however, rather unspecific regarding the indeterminacy of the principle of mutual respect.

I will now describe in greater detail how the proposed method helps us meet the two challenges of this article: to relieve the ambiguity between Nussbaum’s justification of the list of central human capabilities and the justification of public reason, and to produce an overlapping consensus between conflicting comprehensive doctrines held by reasonable people that is sufficiently substantial to be action guiding, yet neutral with regards to the merit of the conflicting comprehensive doctrines.

How does the proposed method respond to the challenge of relieving the ambiguity between the justification of the central human capabilities and the justification of public reason? We saw that Nussbaum’s starting point is our “most secure” moral judgments regarding what capabilities humans must have access to in order to live a dignified human life. It is defensible, but not entirely uncontroversial, to interpret her metaethical approach as a version of rational intuitionism as characterized by [14]. Rational intuitionism is a kind of moral realism. Moral realism comprises a family of views that, while differing in important aspects, all accept that moral claims can be true. Moral realists advance different interpretations of what the claim that moral claims can be “true” could mean. According to Rawls’ interpretation of rational intuitionism, “moral first principles are known by theoretical reason.” Ref. [14]: 91 By this claim he means that “moral knowledge is gained in part by a kind of perception and intuition, as well as organized by first principles found acceptable on due reflection.” Ref. [14]: 92 According to Rawls, rational intuitionism is compatible with the method of reflective equilibrium as a method to justify moral principles. “Otherwise intuitionism could not bring its perceptions and intuitions to bear on each other and check its account of the order of moral values against our considered judgments on due reflection.” Ref. [14]: 95–96 It is defensible to interpret Nussbaum’s justification of the central human capabilities as compatible with rational intuitionism in this sense since she endorses a similar approach to moral knowledge. I do not claim that she would identify herself as a rational intuitionist, however. We saw that she utilizes intuitions about what characterizes a dignified human life that “resonate the world over” as a “definitive” starting point, and then utilizes the method of reflective equilibrium to achieve a “stable fit” between these intuitions and theoretical principles. Ref. [3]: 78 However, she emphasizes that neither the intuitions nor the theoretical principles are “held fixed” in the pursuit of reflective equilibrium: both are subject to revision. The central human capabilities can be considered “objectively correct” in virtue of being the outcome of this process of philosophical reflection, I do not suggest that Nussbaum defends ethical naturalism. Ethical naturalism holds that “moral facts” are a kind of natural properties. My proposed method is a version of political constructivism. I will now explicate the political constructivist features of my method, and argue that this version of political constructivism is compatible with the specification of the central human capabilities.

Political constructivism “is a view about the structure and content of a political conception. It says that once, if ever, reflective equilibrium is attained, the principles of political justice (content) may be represented as the outcome of a certain procedure of construction (structure.)” Ref. [14]: 89–90 I will argue that the method makes the “objectively correct” moral principles expressed in the list of the central human capabilities compatible with the specification of these principles through an “objectively correct” overlapping consensus, that is “neutral” regarding the merits of comprehensive ethical and religious views, and shaped in line with political constructivism. Therefore, the method relieves the tension between the justification of the moral principles expressed in the list of central human capabilities and the justification of a “neutral” overlapping consensus.

According to [14], “Political constructivism specifies an idea of the reasonable.” He specifies this claim: “The idea of the reasonable itself is given in part … by the two aspects of persons’ being reasonable: their willingness to propose and abide by fair terms of social cooperation among equals and their recognition of and willingness to accept the consequences of the burden of judgment.” Ref. [14]: 94, emphasis added) My proposed understanding of “reasonable” aligns with Rawls’: by accepting that parties may introduce moral principles of equal “weight” into the set of principles that are the subject of an overlapping consensus, all parties act in accordance with “fair terms of social cooperation.” Reasonableness is Rawls’ proposed “standard of correctness.” Ref. [14]:127 Since reasonableness provides a standard of correctness, Rawls’ conception of reasonableness provides “an appropriate conception of objectivity.” Ref. [14]:127 Rawls defends several “essential elements of a conception of objectivity.” I will now outline four of these and argue that my proposed method satisfies each of them.

First, “a conception of objectivity must establish a public framework of thought … for conclusions to be reached on the basis of reasons and evidence after discussion and due reflection.” “We must be able to make judgments and draw inferences on the basis of mutually recognized criteria and evidence, and in this way … reach agreement by the free exercise of our powers of judgment.” Ref. [14]: 110–111 The proposed method provides such a public framework of thought. The “mutually recognized criteria” of an acceptable agreement regarding the interpretation of the central human capabilities is that no party may introduce moral principles of greater “weight” than others into the set of principles.

The second essential is a “corollary” of the first. Ref. [14]: 111 “A conception of objectivity must specify a concept of correct judgment … it may conceive of correct judgments in the familiar way as true of an independent order of values, as in rational intuitionism; or, as in political constructivism, it may see correct judgment as reasonable …” Ref. [14]: 111 Hence, my proposed method aligns with this criterion of objectivity since it is “reasonable” in the sense of establishing a public framework of thought.

The third essential states that agents must give due priority to the order of reasons established through the public framework of thought and distinguish these reasons from their personal point of view. Accepting the restriction that each agent may introduce only moral principle of equal weight into the set of principles that are the subject of an overlapping consensus is accepting that this restriction has priority over any agent’s personal point of view. The fourth essential “reinforces the third by stressing the distinction between the objective point of view and that of any particular person.” [14]: 115.

Since Nussbaum’s justification of the central human capabilities could be regarded as compatible with a version of rational intuitionism, we need to explain how rational intuitionism is compatible with the version of political constructivism advanced by my proposed method. These views are compatible because the proposed method allows agents to introduce any moral principles, including those that are regarded as correct according to the standards of intuitive rationalism, into the set of principles that are subject of an overlapping consensus, provided these principles are equally “weighty.”

Let us now consider how the method handles the second challenge: to produce an account that explains how the list of central human capabilities can be interpreted in a way that makes the central human capabilities sufficiently action guiding, without assuming the correctness of any comprehensive moral or religious doctrine. Since the method places no limits on the specificity of the moral principles comprising the set of moral principles that are subject of overlapping consensus, the principles can be sufficiently specific to be action-guiding. Since any moral principles of equal “weight” may be introduced into the set, the set can remain neutral regarding the merits of any comprehensive ethical and religious views.

The main aim of the method is to provide a tool to achieve an overlapping consensus that is both unbiased with regard to all comprehensive doctrines, yet containing principles that are sufficiently substantial to be action guiding. I do not claim that my proposed method necessarily is the only possible method that could achieve this aim. Any method that could achieve this aim would be equally plausible. However, I suggest that the existing methods to achieve an overlapping consensus achieve this aim to a lesser degree than my proposed method. This is of course compatible with suggesting that there might be possible to produce a method that is even more successful than my proposed method in this regard. Also, my aim is not to follow Rawls, but to address Domselaar’s challenge to Nussbaum’s use of Rawl’s idea of an overlapping consensus in her theory. What justifies the preference for this method over, for instance, selecting candidate specifications of human capabilities at random, such as through a lottery?

A lottery would not satisfy Nussbaum’s demand that the overlapping consensus should be founded on principles that result from philosophical reflection. Although it might be suggested that a lottery might achieve this because it is an unbiased method, it is objectionable due to its arbitrariness.

4. Applying the Account

However, although the method, in theory, is able to achieve this, achieving a sufficiently high level of specificity might prove challenging in practice, since inevitable disagreements amongst participants might prevent the actual agreement on sufficiently specific principles. To explore how specific the set of principles that are the subject of an overlapping consensus might be, we need to try out the method on one of the central human capabilities.

Consider the second central human capability on Nussbaum’s list: “2. Bodily health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter.” This capacity is complex. Let us focus on what a precise interpretation of “adequately nourished” could be in the light of some reasonable comprehensive doctrines. Examples of reasonable comprehensive doctrines include versions of deontological and consequentialist ethics [14]: 159 ff.

How would an advocate of Kantian deontological ethics interpret “adequately nourished”? According to this doctrine, agents are obliged to respect and protect the capacity for autonomous agency in themselves and other agents. Adequate nourishment is necessary in order to maintain a capacity for autonomous agency. Hence, an advocate of Kantian deontological ethics would arguably hold that agents are obliged to respect and protect others’ capacity to be adequately nourished. Arguably, an advocate of Kantian deontological ethics could hold that an agent would be “adequately” nourished if she is sufficiently nourished to function as an autonomous agent. The terms “function as an autonomous agent” require precise interpretations. In Rawls’ words, Kant’s doctrine is a “comprehensive moral view in which the ideal of autonomy has a regulative role for all of life.” Ref. [14]: 99 Autonomy is a fundamental value in Kant’s ethics. Autonomy, interpreted as a capacity to engage in theoretical and practical reason, at least involves a capacity to reflect over what alternative courses of actions are available and the reasons for choosing one course of action rather than another.

Consider now how an advocate of some version of consequentialism could interpret the terms “adequately nourished.” David Brink provides a concise and accurate description of the common feature of all versions of consequentialist theories. Consequentialist moral doctrines comprise a sub-category of teleological moral doctrines. Teleological moral doctrines hold that an action is morally right if and only if it contributes more to the realization of some morally relevant value compared to alternative actions. In Brink’s words, “Consequentialism is usually understood as the claim that actions … are right or justified just in case their causal consequences have more intrinsic value than alternative actions …” Ref. [19]: 420. Emphasis in original) According to consequentialism, actions have no intrinsic value. Actions only have value in virtue of realizing intrinsic value. Ref. [19]: 420 A consequentialist moral doctrine could hold that there is only one morally relevant value, or that there are several morally relevant values. Nussbaum acknowledges that some consequentialist moral doctrines could be compatible with the capabilities approach [9]. As pointed out by Brink, some doctrines could “define rightness in terms of goodness and goodness in terms of moral properties such as … respect for persons. The resulting theory need be neither circular nor deontological” Ref. [19]: 420 Such a theory “allows for a plurality of objects of moral assessment.” Ref. [19]: 421 A defender of such a theory could hold that “a valuable life” “consist in such things as … exercising certain capacities.” One such capacity could be the capacity to exercise practical reason. “What makes such things valuable is largely independent of what people happen to prefer.” Ref. [19]: 422 Hence, a moral doctrine that is “outcome oriented” Ref. [3]: 94–96 but includes amongst its values every human being’s equal opportunity to exercise capabilities could arguably hold that every human being should be provided the nourishment necessary to exercise practical reason at a certain threshold. Nussbaum writes: “Consequentialism by itself causes the fewest difficulties, since one may always adjust the account of well-being, or the good, in consequentialism so as to admit many important things that Utilitarians typically do not make salient: plural and heterogeneous goods, the protection of rights, even personal commitments and agent-centred goods. More or less any moral theory can be “consequentialized,” put in a form in which the matters valued by that theory appear in the account of consequences to be produced.” [3]: 340.

How could advocates of the Kantian and the consequentialist moral doctrines apply my proposed method to pursue an overlapping consensus regarding the interpretation of the terms “adequately nourished”?

We saw above that the fundamental moral principle of consequentialist doctrines is that certain values should be realized to the greatest possible extent, and that some consequentialist doctrines hold that those values are plural and could include well being understood as a capacity to exercise practical reason. These values also could include the value of respecting persons’ rights.

The fundamental value of Kantian ethics is to “respect autonomous agency,” which can be interpreted as “respect the capacity for practical reason.” These fundamental principles are equally weighty. Also, including both principles in the set of principles that are the subject of overlapping consensus does not seem to cause any conflict between these principles.

According to both comprehensive doctrines, providing every individual opportunities to acquire means of nourishment sufficient to exercise practical reason is morally obligatory. They only differ regarding the justification of this moral obligation. Hence, this at least tentatively seem to be an overlapping consensus regarding the obligation to provide every individual opportunity to access means of nourishment sufficient to exercise practical reason.

Someone might still question the practical value of the theory. Accordingly, it is necessary to provide an illustrative example that demonstrates the method’s capacity to address contentious issues within the domain of public reasoning. One example of a controversial topic within public reasoning might be abortion. Nussbaum holds that “contested” views should be excluded from the overlapping consensus. One might nevertheless reach an overlapping consensus on this issue using the proposed method. I will use consequentialism and deontological ethics as examples of comprehensive moral doctrines.

What principles within these doctrines are relevant for the issue of abortion? Candidates are the capabilities “life,” “physical integrity,” and “bodily health,” including “autonomy” and freedom of choice regarding “procreation.” What weight do these principles carry within consequentialism and deontological ethics? We should describe a specific case and then use the case to show the practical value of the proposed theory. Abortion of a pregnancy that is the result of failing contraceptives, and where the birth of the child is unwanted due to the impact the birth of the child would have on the mothers’ life-plan. The couple has taken reasonable precaution to prevent the pregnancy, and the pregnancy does not pose a threat to the mothers’ life or health. The birth of the child would be a mere inconvenience for them. It would not create a significant economic or other practical burden. This is arguably one of the most controversial cases of abortion. What capabilities are at stake in this case? Suppose we consider actual as well as potential capabilities. The capability of “life” is obviously at stake. Depending on the impact of the birth of the child on the mothers’ life-plan, “well-being,” including “autonomy,” might be adversely affected as well. “Life” and “autonomy” are fundamental in deontological ethics, while “wellbeing”, broadly construed, is fundamental in consequentialist ethics. Having identified capabilities and their weight, we can now apply the method. The obvious potential conflict is between the life of the foetus and the autonomy of the mother. Both of these fundamental values could potentially be preserved in case of adoption. Could this compromise be justified by applying the method? If the interrupted life-plan that motivated abortion are undisturbed in the case of adoption, the conflict seems resolved. Let us now explore how the proposed account could be applied to specify the capability “control over one’s environment,” particularly the aspect of this capability that involves “holding property.” Exercising the capability of holding property could be in practical conflict with another human being’s attempt to exercise the capability of bodily health. This is because some of one person’s property might be the only available means to secure another person’s access to the capability of bodily health. For example, public health services might rely on funding collected from citizens through income taxation. Again, how could advocates of deontological ethics and consequentialist ethics reach an overlapping consensus regarding how to specify the capability “control over one’s environment,” particularly “holding property”? A Kantian deontological ethicist insists that a person may not be used solely as a means. A consequentialist ethicist insists that the moral permissibility of an act depends on what consequences the act produces. The act of collecting some of a person’s property arguably could produce the consequence that another person’s bodily health above some baseline is secured. The impermissibility of using a person solely as a means and the moral requirement to perform those acts that produce the best consequences are arguably fundamental principles of equal “weight” in deontological ethics and consequentialist ethics, respectively. Can the Kantian deontological ethicist and the consequentialist ethicist reach an overlapping consensus that accommodates both the impermissibility of using a person solely as a means, and the requirement of performing acts that produces the best consequences, where “the best consequences” include securing a person’s bodily health above some baseline? The requirement of “securing a person’s bodily health above some baseline” could also be justified by referring to the Kantian deontological ethical principle that persons are required to respect and protect the autonomous agency of themselves and other persons. Hence, the Kantian deontological ethicist should realize that the fundamental principle that a person should never be used solely as a means is compatible with the principle that a person may be used partly as a means to secure the autonomous agency of another person. Hence, the Kantian deontological ethicist and the consequentialist ethicist could reach an overlapping consensus on this issue while avoiding that either of them must sacrifice principles of greater “weight” than the other.

5. Responding to Potential Objections

Several objections might be raised against my proposal.

First, the relative “weight” of a moral principle depends on the normative account of which the moral principle forms a part. Hence, if a participant in the collaborative pursuit of reaching an overlapping consensus wishes to introduce a certain moral principle into the set of principles, she is more likely to be able to introduce many moral principles of her choice if each of these principles are presented as being as “light” as possible: since each individual may introduce principles of equal “weight,” she does not want to “spend” too much “currency” on each single moral principle that she wishes to introduce. If she presents a moral principle as a component of one normative account, it might be “weighty” within that account. If she presents the same principle as a component of a different normative account, it might be relatively “light”: A moral principle might play different roles in different normative accounts. This provides individuals with a motivation to present themselves as advocates of normative accounts that they might in fact not genuinely endorse, in order to increase their success of introducing into the equilibrium principles that they actually do genuinely endorse. Someone might object that presenting oneself as an advocate of a certain normative account solely in order to increase one’s chances of introducing as many of one’s favoured moral principles as possible distracts individuals from sincere reflection regarding the soundness of competing normative accounts. My response to this objection is that individuals are actually engaging in sincere reflection over the soundness of individual moral principles. Individuals are invested in introducing individual moral principles into the set of principles because they consider these moral principles to be morally sound. However, they also realize that other individuals are invested in introducing other moral principles that these other individuals consider morally sound. Assuming that all of these individuals accept moral pluralism, they must find a way of equalizing all individuals’ opportunities to introduce the moral principles of their choice. Since all of them have the opportunity to “manipulate” the “weight” of the moral principles they wish to introduce into the equilibrium, and assuming that they are all aware that such “manipulation” is a sheer instrument to increase their chances of introducing the principles of their choice, I do not find such “manipulation” objectionable.

The following objection might be raised against my proposal: I said that if the process of adding ethical claims causes contradictions between the ethical claims of the set, advocates must either convince their opponent to revise some of their opponent’s ethical claims, or advocates of contradictory claims must remove the contradictory claims from the set. This seems to open up the possibility of all or some members blocking each other as they reject others’ claims in order to make their own. The problem seems to get bigger the more substantial or the weightier the claims are. My response is the following: Prudential and rational participants of the process of constructing a set of principles that are the subjects of overlapping consensus have reasons to avoid such a situation: if all members insist on introducing their weightiest claims, no one will succeed in their strive to introduce their preferred ethical principles into the set. The proposed method rewards collaboration amongst participants. Rational agents realize that each participant will be forced to accept the worst outcome (participants blocking each other at every attempt to introduce a principle) if they insist on introducing all of their weightiest claims. To avoid this situation, rational agents will agree to introduce principles of lesser weight, and/or let one participant introduce her weightiest claim in one part of the set of principles in exchange for letting another participant introduce her weightiest claim at another part of the set. Arguably, what matters most to the participants is that the set as a whole accommodates to the greatest possible extent their preferred ethical principles. The pursuit of an overlapping consensus is an ongoing process. The process requires repeated interactions between participants. Since the participants will interact repeatedly, all will benefit from earning a reputation of being reasonable rather than being uncooperative. This point has figured prominently within game theory. Will the participants’ motivation to avoid situations where they constantly “block” each other’s attempts to introduce their weightiest claims into the set of principles that are the subject of an overlapping consensus result in a set of principles that are so imprecise that the set principles become insufficiently action guiding? This is an empirical question that can only be answered by actually applying the proposed method. However, I suggest that participants can find ways of achieving a sufficiently precise set of principles while avoiding constant “blocking.” They can achieve this because each participant arguably is motivated to ensure that the set as a whole assimilates her own preferred comprehensive doctrine to the greatest extent. One way for participants to maintain the precision of the principles while avoiding constant “blocking” is to engage in strategic compromises where one participant lets another participant introduce one of her weightiest principles into the set at one occasion, provided that that the “yielding” participant may introduce one of her weightiest principles at a later occasion in the process.

Another objection might be that the process of determining the weight of a principle within a normative account, and assessing its weight compared to a principle within another normative account, is complicated and requires participants of the pursuit of reaching an overlapping consensus to be well versed in normative theory. Arguably, such knowledge cannot be required in order to be regarded as a “reasonable” and competent participant in the pursuit of reaching an overlapping consensus. My response is that, although my proposed method is demanding in this regard, the demandingness is defensible. I introduced the method as a solution to the problems raised by van Domselaar. The demandingness of my proposed method is arguably a less serious problem than the problems raised by van Domselaar. If these problems can be avoided by demanding literacy in normative theory, the demand seems defensible.

Another objection might be that the assignment of “weight” to principles within a normative account is subject to disagreement. This disagreement might be as serious as the disagreement regarding the merit of these normative accounts themselves. My response is to acknowledge that the assignment of weight to some principles within a normative account might be subject to disagreement. I insist, however, that the assignment of weight to principles that unquestionably form the core of, for instance, utilitarianism or duty ethics, is uncontroversial. Assigning weight to the principles that are derivatives from these core principles is also uncontroversial. The risk of disagreement regarding the assignment of “weight” to principles increases the further out in the “periphery” of the normative account the principles are. But this disagreement is far less extensive than the disagreement regarding the merit of the normative accounts themselves. The most transparent method available is a useful contribution, even if is not completely transparent. If the disagreement remains, it might be an indication that the theories’ principles have no clear assigned weight. If so, its structure is not transparent but opaque. The method arguably works equally well for all moral theories that have fundamental and derived principles.

Yet another objection might be that the proposed method relies on the use of systematically organized systems of moral values and acceptance of classification of these values as components of distinct normative accounts. Therefore, the method might be biased against some participants of the pursuit to reach an overlapping consensus. Some participants might resent such classification of values and endorse some particularistic morality. Such moralities would not allow for the classification of moral values as more or less weighty within a normative system, since such moralities do not engage in classification of moral values into comprehensive doctrines. Since particularism arguably could be accepted by reasonable people, the alleged bias against advocates of particularism seems to be a serious objection against the proposed method. My response is that the pursuit of reaching an overlapping consensus presumes acceptance of the claim that moral values can be systematically organized at least within the reflective equilibrium that allows us to reach an overlapping consensus. Individuals who reject the soundness of classifying moral values as components of distinct normative accounts hence must reject the project of pursuing an overlapping consensus. Defending the project of pursuing an overlapping consensus is important. But producing such a defense falls outside of the scope of this article, whose aim is to explain how certain ambiguities between the central human capabilities and the specification of the central human capabilities can be avoided. Hence, my method assumes that the central human capabilities and the idea of pursuing an overlapping consensus is sound. My method (controversially) assumes that systematic moral theory, and the project of seeking a reflective equilibrium between robust moral intuitions and systematic moral theories is valuable. A conceivable critique is that the article’s scope is unduly limited. I acknowledge this narrowness of scope and the need to justify it. A complete defence of this methodology falls outside of this article, however. The main focus is to address an internal ambiguity in an influential theory that utilizes the method of a reflective equilibrium.

6. Materials and Methods

The methodology of this article is review of relevant literature, and philosophical analysis and argumentation.