Human Rights and Capabilities: A Program for a Critical Sociology of Law

Abstract

This article sets out the fecundity of the Capability Approach for a sociology of human rights. The author endeavors to show that four difficulties can be successfully overcome. (1) The first is epistemological in nature. Human rights are often presented as legal norms. By relying on the Putman/Habermas debate, the author maintains that Sen’s epistemology is Putnamian, allowing us to treat human rights a system of values (rather than as a system of norms), thereby enabling the construction of a system of evaluation (the “goal rights system”) that is neither consequentialist nor deontological. This system is open to public deliberation and can thus take into account the systems of evaluation of participants (in addition to that of the observer). This epistemological basis serves to remove the other obstacles. (2) By defining the individual in terms of “capabilities”, Sen avoids a methodological individualism that would produce an under-socialized version of the individual. (3) He includes social, economic, and cultural rights in the list of human rights, whereas liberal philosophies tend to exclude these. (4) He allows for the thematization of the specific conversion factors that condition the transformation of formal rights into real freedoms (internormative culture, civilian legal intermediaries, access to resources and the capabilities to use them). Avoiding formalism, the capability approach is a valuable instrument for a critical sociology of human rights.