2008]
The Minimum Core of Economic and Social Rights
137
Yet as Frank Michelman emphasizes, the redistributions (and lack of
redistributions) which impact dignity in post-apartheid South Africa, or even
in Canada, may be very diffe rent from what is consid ered “reasonable” in the
133
To the
more laissez-faire constitutiona l culture of the United States.
constitutionalist mindset, the ambiti ons for universality in setting an
objectively defined minimum core based on di gnity are, i n reality, very
difficult to satisfy. The “relative” scale of the dignitarian experience, matching
different levels of comm odities, is explained well by Amartya Sen’s overt
recognition of how the base line of goods required for “appearing in public
without shame” will be variable between different societies. 134 The content of
economic and social righ ts—and thus the minimu m core—will be similarly
inconsistent, not only because of varied resources, but als o because of the
different cultural expectations that may run parallel to this influence.
This “reasonable” (or “r elational”) assessment brings an important
subtlety to the process of articulating the content of economic and soci al
rights.135 Yet what it also does is challenge the idea of a fixed, predetermined,
and non-negotiable baseline. Other a ttempts at providing the contours and
boundaries of the norms of distributiv e justice similarly demur at deli vering
abstractions and reference-ready lists. If we consider the normative project of
articulating the necessary baselines of “human capa bility” across differently
situated societies and gr oups, we find a deliberate refusal to se ttle on a
awing up such a list, even
minimum. 136 Indeed, the question of dr
provisionally, divides the positions of Amartya Se n and Martha Nussbaum—
two central advocates of the capabilitie s approach—and maps well onto the
arguments against the minimum core. Martha Nussbaum’s universalist project
“isolates those human capab ilities that can be convin cingly argued to be of
central importance in any human life, whatever else the person pursues or
chooses,” 137 as the appropriate underpin ning of basic constitutional
principles. 138 Other feminists have criticized the attempt as insufficiently
(2003) (arguing for the f ormal criminalization—as crimes against humanity—of intentional or reckless
government policies which result in mass starvation).
133. Michelman, Reasonable Umbrage , supra note 128, at 1418; Robert C. Post, Foreword:
Fashioning the Legal Constitu tion: Culture, Courts, and Law , 117 H ARV. L. REV. 4, 76 (2003)
(examining how constitutional law “draws inspir ation, strength, and legitim acy from constitutional
culture, which endows constitutional law with orientation and purpose”).
134. AMARTYA SEN, INEQUALITY REEXAMINED 115 (1992) (“In a country that is generally rich,
more income may be needed to buy enough commodities to achieve the same social functioning.”). Sen
traces this conception to Adam Smith’s idea of “necessary goods.” Id. (citing ADAM SMITH, AN INQUIRY
INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 351-52 (Clarendon Press 1975) (1776)).
135. See Liebenberg, Interpreting Socio-Economic Rights, supra note 121, at 23.
136. SEN, INEQUALITY REEXAMINED, supra note 134, at 108-09 (pointing out the problem of
social variation in describing pov erty, but noting the potential for intercultural and inte rpersonal
agreement on capabilities).
137. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT 74 (2000). Nussbaum’s
current ten-point version se ts out the importance of life, bodily health, bodily integrity, the use of the
senses, imagination and thought, the developm ent of emotions, practical r eason, forms of social
affiliation, concern for other specie s, opportunity for play, and the political and material con trol over
one’s environment. Id. at 77-80. We can contrast this with the inventory of eight va lues devised by the
New Haven School: power, enlightenm ent, wealth, well-being, skill, affecti on, respect, and rectitude.
See Wiessner & Willard, supra note 115, at 318.
138. Wiessner & Willard, supra note 115, at 5 (drawing parallels with J OHN RAWLS, POLITICAL
LIBERALISM (1996)).
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