Policy without Paternalism: A Capability Approach to Legitimate State Action

There has long been a conflict at the heart of theories of distributive justice between a concern to allow individuals autonomy and avoid paternalism, on the one hand, and a concern to promote individual well-being, on the other. The capability approach attempts to tread this line, by providing individuals with certain central capabilities or opportunities: these preserve a space for individual freedom and choice, yet ensure that all individuals have access to those things that are considered central for a flourishing life. Further, ‘all individuals’ is meant expansively, aiming to accommodate the experiences and needs of many groups that are often ignored. However, the perfectionist roots of the capability approach have led to concerns being raised that it cannot successfully protect autonomy and promote inclusivity, and that it will, instead, justify paternalism. I contend that, in particular, Martha Nussbaum's influential account of capabilities falls prey to just this objection. In my thesis I defend a version of the capability approach that is strictly anti-paternalist, and accommodates a variety of non-standard human experiences. I argue that this focus on autonomy need not be bought at the expense of individual well-being, and that encompassing atypical experiences need not be bought at the expense of accommodating more standard conceptions of the good. I advocate an understanding of capabilities as opportunities to exercise control in certain domains of our life, in contrast to Nussbaum’s construal of capabilities as opportunities to perform (or not) particular valuable functionings. I test my theory against a number of cases that have traditionally provide challenging for anti-paternalists, and theorists of justice more generally – including physical disability, conditions such as asexuality and Asperger’s Syndrome, and voluntary slavery and amputation – to demonstrate that my theory is better able to accommodate such unusual preferences and needs, without paternalism.