Chicago Journal of International Law


Professor Nussbaum has thrown down the gauntlet in her Foreword: do countries have a moral obligation to develop and abide by constitutional principles that will lead to the full development of all human beings? Or is it either necessary or appropriate to take a more laissez-faire approach to the nurturing of human potential, perhaps because of the risk that governments might be too intrusive, or because of a concern about diverting enough resources from private control to governmental control to get the job done? There is a great deal to admire in Professor Nussbaum's Capabilities Approach (CA). Human beings are fundamentally social creatures. Before it is anything else, human history is the tale of groups of people and how they have chosen to live together and to interact with other groups. As the Foreword notes, the Founders of the United States drew on a rich intellectual history when they wrote the federal Constitution. Someone reading the Constitution for the first time, however, is not likely to think immediately of the CA. That suggests two questions: First, is Professor Nussbaum right when she argues that a society's constitution ought to include provisions designed to develop human capabilities? And second, even if this is a worthy goal, is there anything useful that judges can or should do to further that goal?