Why Capabilities? On the Duty to, at Times and Provisionally Pause, Cool Down, and Listen

This Chapter argues that Nussbaum’s proposal to introduce practical reason, together with sociability and bodily need, at the earliest stages of her reconstruction of the political conception of the person (as well as, crucially, her proposal to view practical reason, sociability and bodily need as intertwined, rather than severed, aspects of our shared human animality) has far reaching implications for the access to justice scholar. Nussbaum’s version of the Capabilities Approach (CA), this chapter argues, allows one to identify the specific human function which makes equal access to justice valuable for us, and thus it helps one to ground the demand for equal access to justice as an essential component of a life worthy of human dignity. In particular, the specific human function, which makes equal access to justice valuable, this chapter argues, is the ability to disagree with others, without disrupting social ties, but reaffirming the bonds that justify social cooperation. Finally, this chapter argues that the identification of such human function grounds the recognition of a duty, to all members of a cooperating community, which this paper calls the duty to, at times and provisionally, pause, cool down, and listen. Recognition of the latter as a pre-political obligation owed to everyone in virtue of being alive, triggers the specific political obligations which motivate the demand for equal access to justice for all.