Feminist reformulations of human rights

Introduction

December 2018 was the 70th anniversary of the United Nations’ Universal Declaration of Human Rights (UDHR). The UDHR emphasizes that all persons have equal rights and should be able to enjoy them without gender discrimination. Over the years, feminist philosophers have put forward criticisms of the language of human rights, principally relating to women’s inequality in economic and social life. The United Nations has dealt with the rights of women through special treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (1979). Yet, almost everywhere around the world, women are still denied human rights, often simply because of their sex. For instance, although the number of women in national governments has increased, they still make up only 24% of parliamentarians. Globally, more women are now in school and work, but despite women’s gains in education, gender pay gaps persist worldwide. Additionally, women’s rights remain at risk through the many issues not addressed, such as sexual assault, rape, exploitation, forced marriage, female genital mutilation, violence against women and so on. These issues are ongoing challenges to universal human rights.

For many feminist theorists it is important to consider how the language of human rights can be used to promote women’s issues and how it is established in political institutions. However, they suggest that human rights should be reformulated and supplemented with other ethical frameworks to ensure that injustices against women are not neglected. In this paper, I will argue that it is possible to take into account feminists’ insights into rationality, care and context to reform the universal framework of rights. In the first part of the paper, I briefly present the main feminist criticisms of human rights. In the second part, I will present proposals for the reformulation of human rights. In the third part, I critically assess whether Martha Nussbaum’s capabilities approach can provide some answers to the feminist critiques so that women’s human rights and gender justice can be addressed globally. In the last part, I will test Nussbaum’s claim that human rights and capabilities complement each other through a discussion of the Brazilian case.

Feminist criticisms of human rights

Ethical and political theories based on human rights are strongly criticized in two main feminist positions: (1) ethics of care, the model of ethical theory that values the character of the person and relationships based on care, and (2) feminists who denounce legal systems and the scope of human rights because they incorporate patriarchal attitudes and defend oppressive social structures (Held, 1999). The main concern in care ethics is the model of the human being adopted in theories that consider moral problems in terms of rights and justice (Held, 2006). This model presents human beings as isolated agents who usually makes self-interested, rational ethical judgments. Conversely, a “feminine” model of morality recognizes aspects such as relationships, the context in which individuals meet, and the differences that can be drawn between them, and considers these important elements in influencing the kinds of ethical and political decisions that can be taken (Young, 1990, p. 55). ^[1]

Eva F. Kittay examines the presuppositions of liberal conceptions of justice and rights saying that “[l]iberalism constructed an equality for heads of households..., and then counted the head of household as an individual who is independent and who can act on his own behalf” (Kittay, 1995, p. 11). She argues that this creates the illusion that dependencies do not exist, that society is made up of free and equal individuals who come together to form associations, whereas, in fact, social cooperation is required as a precondition for those who are not independent. We have all been or will be dependent on others for some period of our lives. Such dependencies are part of the vast network of relationships that constitute the central and essential links of human social life.

The emphasis on care relationships between persons seems to go against the morals of justice and rights, in which individuals are considered on their own and their rights and possessions prioritized. Thus, feminists argue that, depending on how rights are understood in terms of priority, they can sustain situations of confrontation rather than construction (Widdows, 2011, p. 257). Consider, for example, Ronald Dworkin’s conception of rights as trumps: “rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole” (Dworkin, 1984, p. 153). For him, rights have a kind of priority, the characteristic of taking precedence over other moral considerations, such as the broader social and economic benefits that a society may have. Human rights have this characteristic of being inalienable: the idea that individual rights cannot be ignored in the face of other concerns or sacrificed to achieve other ends or purposes, whatever the consequences and benefits that might come from doing so. An individual’s right, then, in Dworkin’s terms, can “trump” reasons that justify other courses of action to secure public interests.

It is important to recognize that socialist feminists also understand human beings as social beings rather than isolated individuals, and reject rights to promote a certain kind of selfishness. Based on Karl Marx’s work, they emphasize that rights have developed historically to meet the bourgeois demands for property protection to the detriment of the community. Marx did not reject outright the idea that persons can have rights. He argued that people should be free from certain restrictions so they can achieve human flourishing. Thus, in On the Jewish Question, he criticizes the concept of rights that arose out of the conditions of liberal bourgeois society since they promoted selfishness and competition rather than cooperation. Natural rights that focus primarily on negative liberties (freedom from non-interference) are an insufficient means of achieving human emancipation. Marx was concerned with the way in which workers in capitalism are oppressed, alienated and prevented from realizing their own interests and desires. Feminist socialists share these criticisms, but go further by showing how women are oppressed because they are women, not just because they form part of the working class (Ferguson, 1999).

Some feminists have criticized a purely feminine approach to care on the basis that it may reinforce a womanly stereotype, compromise the caregiver’s integrity and so on (Lindemann, 2006, pp. 94-98). A feminist ethics of care takes the problem of exploitation seriously since most underpaid jobs are still performed by women. There are other problems concerning justice that cannot be dealt with using too narrow an approach to care. Joan Tronto applies the perspective of care in a different way. She argues that as care is a practice performed in social life, it has to be understood in a political context as well as in a moral one. She defines care as “a species activity that includes everything that we do to maintain, continue, and repair our ‘world’ so that we can live in it as well as possible” (Tronto, 1993, p. 103). Therefore, Tronto sees care as being social and political, and not just limited to personal relationships. However, she says that care is not a moral concept for solving problems concerning our responsibilities towards distant strangers and addressing social inequalities. For this reason, she thinks that the ethics of care is incomplete without a politics of care which recognizes and supports the caring labor that is crucial to the existence of society. In Caring Democracies (2013), Tronto argues that in the past the assignment of caring responsibilities may have seemed to be beyond the scope of politics. However, care has become more professionalized and has led to the creation of many institutions outside the home for performing caring duties such as schools, hospitals, hospices, nursing homes, care facilities for disabled people and so on. Given the changing nature of caring, she calls for a rethink of the meaning of democratic politics: “Democratic politics should center upon assigning responsibilities for care, and for ensuring that democratic citizens are as capable as possible of participating in this assignment of responsibilities” (2013, p. 07). From this point of view, the main problems inherent in care, paternalism and parochialism, can be seen in a new light. Both can be understood as distortions of the kinds of responsibilities that people should appropriately assume: “For paternalists, the problem is that they claim too much authority in the allocation of responsibility to themselves. Parochialism is a problem in which we set the boundaries of our responsibility too narrowly” (2013, p. 63). We can better understand the moral problems if we think in concrete terms about who is involved in making decisions, how they are involved, who they have excluded, and who is exercising the various forms of privileged irresponsibility. ^[2]

The second source of criticism of human rights theories comes from feminist legal scholars. Feminist legal scholars have recognized that female voices are excluded from the legal system, and their analyses have shown how the law and its system of rights support patriarchy. Patricia Smith defines feminist jurisprudence as the “analysis and critique of law as a patriarchal institution” (Smith, 1993, p. 3). In particular, feminist scholars have challenged the assumptions of objectivity and neutrality in universal jurisprudence. According to Smith, “much feminist jurisprudence is dedicated to proving that traditional jurisprudence and law are not neutral or universal, but biased in favor of the dominant culture, at the expense of all others” (Smith, 2010, p. 290). Feminist legal scholars also argue that human rights do not take into account the specific risks faced by women. For instance, issues such as reproductive choices, domestic violence and the trafficking of women and girls for sex work were not prominent in the earliest human rights documents and treaties. In her work Are Women Human?, Catharine MacKinnon (2006) presents some reflections on the 50 years following the publication of the Universal Declaration of Human Rights (UN, 1948) and concludes that women are still treated as “things” and not as human beings:

If women were human, would we be a cash crop shipped from Thailand in containers into New York’s brothels? Would we be sexual and reproductive slaves? ... Would our genitals be sliced out to “cleanse” us (our body parts are dirt?), to control us, to mark us and define our cultures? … Would we be kept from learning to read and write? If women were human, would we have so little voice in public deliberations and in government in the countries where we live? Would we be hidden behind veils and imprisoned in houses and stoned and shot for refusing? Would we be beaten nearly to death, and to death, by men with whom we are close? Would we be sexually molested in our families? Would we be raped in genocide to terrorize and eject and destroy our ethnic communities, and raped again in that undeclared war that goes on every day in every country in the world in what is called peacetime? If women were human, would our violation be enjoyed by our violators? And, if we were human, when these things happened, would virtually nothing be done about it? (MacKinnon, 2006, p. 41) ^[3]

Unfortunately, these questions illustrate the specific injustices that women still face beyond those they share with men. Some women are affected by a “double jeopardy”: they suffer the same injustices that afflict their community, namely poverty, ill health or conflict, but they may also suffer further exploitation and oppression because they are women.

MacKinnon also argues that the theory and application of human rights excludes women in that it does not recognize that sexual violence and disrespect for reproductive rights are human rights violations. Based on reports of atrocities committed against Muslims and Croats during Serbian ethnic cleansing campaigns in the former Yugoslavia, MacKinnon shows how gendered aggression against women has become an instrument of war and genocide (2001, p. 531). Women all over the world are raped because of their gender or ethnic or religious identity. According to UNIFEM, “conservative estimates suggest that 20,000 to 50,000 women were raped during the 1992-1995 war in Bosnia and Herzegovina, while approximately 250,000 to 500,000 women and girls were targeted for rape in the 1994 Rwandan genocide (Unifem 2010). Rape came to be recognized in international law as a crime of genocide and a crime against humanity at the UN International Criminal Tribunals for Rwanda (1999) and former Yugoslavia (1993). Rape was not one of the charges at the Nuremberg trials.

Consider now some data on rape in Brazil: in 2016, according to the 11º Anuário Brasileiro de Segurança Pública (as stated by the Brazilian Forum of Public Security [FBSP, 2017]), 49,497 cases of rape (89% of the victims were women) were reported to Brazilian police stations. Only 1% of these resulted in a conviction. Global organizations have condemned the situation in Brazil; for instance Amnesty International stated in their report The State of the World’s Human Rights in 2016-2017 that the Brazilian government does not have the capability to “respect, protect and fulfil women’s and girls’ human rights” (2017, p. 95). In May 2016, the interim federal government (under Michel Temer) abolished the Ministry of Women’s Affairs, Racial Equality and Human Rights and reduced it to a department within the Ministry of Justice, which led to a significant cut in resources and dedicated programs for safeguarding the rights of women and girls. By 2016, the Maria da Penha Law (against domestic violence) had already existed for a decade, but a series of studies in 2016/2017 showed that lethal violence against women had increased by 24% in that decade. According to Amnesty International, the Brazilian government “failed to rigorously implement the law, however, with domestic violence and impunity for it remaining widespread” (2017, p. 95). Finally, the document states that the combination of these factors confirms that “Brazil was one of the worst Latin American countries in which to be a girl— especially due to extremely high levels of gender-based violence and teenage pregnancy, and low completion rates of secondary education” (2017, p. 95).

Another feminist critique points out that one way to dominate women’s bodies is through controlling sexual relations and reproduction. According to Widdows, “this is done at micro and macro levels” (2011, p. 254). At the micro level, this control happens within the family. For example, female genital mutilation is practiced in several countries as a method of controlling sexuality and in many cultures women are still prohibited from leaving their homes unaccompanied. Plus it is still common for responsibility for an unwanted pregnancy to lie with the woman. At the macro level, women’s reproductive and sexual freedom is controlled through laws prohibiting contraception and abortion. Some population control policies may also be examples of this type of domination ^[4].

In the debate on abortion, pro-choice feminist activists claim reproductive rights as human rights. Reproductive rights are rights relating to the control of the female body, namely the right to contraception, the right to choose if and when to reproduce, the right to health services and family planning and the right to protection of bodily integrity. According to the WHO,“[i]nternational, regional and national human rights bodies and courts increasingly recommend decriminalization of abortion, and provision of abortion care, to protect a woman’s life and health, and in cases of rape, based on a woman’s complaint” (WHO, 2012, p. 87). In Brazil, some studies have shown that the legislation to prohibit abortions has not eliminated the practice (Diniz; Medeiros 2010) ^[5] and forces poor women to undergo unsafe procedures in clandestine clinics run by unqualified providers. Consequently, laws criminalizing abortion do not protect women but end up interfering with their rights to liberty, life and personal security.

Another criticism is that human rights violations often occur in the home, at the hands of family members, hence in the “private” sphere of family life. Susan M. Okin claims that such violations are justified by appeals to cultural or religious norms. Abuses committed against women within families may not be recognized as human rights violations. Slavery is recognized as such, but in some parts of the world, many of its manifestations would be considered normal and culturally appropriate behavior (Okin, 1998, p. 35). For example, parents who agree to their daughter’s marriage in exchange for money, or the husband who pays a dowry to marry his wife or marries a woman who is not yet an adult and is thus unable to give consent or a husband who forbids his wife from working outside the home, appropriates her salary or beats her for disobedience. Okin argues that many political theories fail to take into account the structural injustices that occur in certain institutions of society, for example in the family, which fosters differences of power within particular groups and gender injustices. In Justice, Gender, and the Family (1989), Okin maintains that the basic structure of society means that benefits and burdens are distributed unfairly due to the gender system or the patriarchal nature of inherited traditions and institutions. She argues that the gender system violates John Rawls’s two principles of justice, namely, the principle of equal liberty and the difference principle ^[6]. It effectively ascribes roles to citizens according to sex and disregards the free choice of occupation. None of the institutions of the basic structure, including the family, should assign roles according to sex. According to Okin, Rawls does not consider the possible injustices suffered by women within the family, or the power structures of that context (Okin, 1989, p. 103). This has led many feminists to argue that the right to privacy in the home and family must involve protection of women in the home. In the next section, I will present some feminist proposals for reforming and supplementing human rights.

Feminist reformulations of human rights

The criticisms presented in the previous section should not lead one to conclude that feminists totally reject human rights. Virginia Held suggests that human rights must be reformulated within another framework to ensure that certain injustices are not neglected. According to her, feminist critiques can be interpreted in three ways: “(1) demands for reformulations of existing schemes of rights, (2) calls to reconstruct the concept of rights, and (3) moral recommendations for limiting the reach of law to its appropriate domain and placing that domain in its appropriate context” (2006, p. 142). Held argues that feminist jurisprudence has contributed to detailed analyses and reformulations of what is required for equal rights. They examine when differences between men and women as well as differences among women should be taken into account. Reformulations are intended to show what equal treatment may require of different persons in important respects. The scope of equality may require positive action including governmental action, rather than allowing the differences to be ignored. For example, support for maternity/paternity leave, childcare assistance and affirmative action programs combine recognition of equality and differences.

According to Held (2006, p. 145), in addition to being reformulated, rights must be reconceptualized as non-ideal. Rather than conceiving rights as belonging to a system of rights and freedoms developed for an ideal world of perfect justice, we must demand that they reflect social reality and are capable of diminishing real oppression and injustice. This implies re-examining and rethinking the public/private distinction that has historically reserved the private space concerned with the domestic organization and economy for women, excluding them from the decisions of the public sphere or subordinating them in that space. There is a broad agreement that this traditional view is unsatisfactory. In many places, women are forced to restrict their activities because they are subject to violence and because the public sphere of law fails to protect them. The positions which hold that “the home is a man’s castle into which the law should not intrude, and that a man will be the protector of ‘his’ family, have left women and children vulnerable in the home and outside it” (Held, 2006, p. 148). Abusive relationships can occur within the family, for example when a child is being sexually exploited, an elderly parent is being neglected or one of the partners in the marriage is being beaten or raped. Governments cannot protect citizens vulnerable to domestic violence if there are privacy limits, legally sanctioned to surround the family, which are set too high (Allen, 1999). In many jurisdictions, the separation of public and private has already been reconsidered in relation to rape, marital rape and domestic violence.

Held emphasizes that care ethics make clear what activities should be taken into account when thinking about the relationship between rights and equality. According to her, ethics of care is an improved model for both women and men and can be incorporated along with an ethic of justice into any moral system. Therefore, we should not present rights as elements that defend only individuality. Rights can be revised and reconstructed to include concerns about relationships and the care of others. In Globalizing Democracy and Human Rights (2004), Carol Gould argues for the need to revise human rights using ideas from feminist thinking and care ethics. Gould rejects the individualism that characterizes liberal rights theory and describes human beings as relational and connected individuals or “individuals in relationships”. Considering this, Gould claims that “[h]uman rights are always rights of individuals, based on their valid claims to conditions for their activity, but individuals bear these rights only in relation to other individuals and to social institutions. Right is in this sense an intrinsically relational concept” (Gould, 2004, p. 37). Thus, rights cannot be established without recognizing that human beings are relational beings. In a world made up of isolated and egocentric individuals rights would not be respected and recognized. A relational understanding of human beings is necessary to theories of rights because if people do not care for each other and consider one another’s needs the rights requirement will be empty of meaning. Otherwise, human rights could be declared, but there would be no basis on which to take them seriously and to fulfill them.

Feminist liberal philosophers also consider ideas about rationality, context, closeness and relationships, and seek to reform and supplement the structure of rights. Martha Nussbaum is a liberal feminist and believes that women can be protected through universal values. She rejects the objections of cultural relativism and admits that many of the injustices against women are structural and institutionalized in particular societies. In Women and Human Development (2000), she argues that women lack the support to lead lives that are totally human. This lack of support is often the result of women being women. Thus, “even when they live in a constitutional democracy such as India, where they are equals in theory, they are second-class citizens in reality” (Nussbaum, 2000, p. 04). Women who live in patriarchal cultures may have adaptive preferences, that is, their desires and preferences fit with what is available in that society. They will internalize the role of being “second class” and say that this position of injustice is correct, that it is natural in their culture and is in accordance with their expectations and desires. Thus, Nussbaum suggests applying universal categories, such as her theory of capabilities, to different contexts, and emphasizes that oppression must be limited through human rights.

Alison Jaggar (2005, p. 44) criticizes Nussbaum’s focus on injustice in non-Western cultural traditions because it may reinforce several assumptions commonly made in Western discussions of poor women in poor countries:

1) A major, perhaps the major, cause of suffering among women in poor countries is unjust treatment in accordance with local cultural traditions — traditions whose injustice is not necessarily recognized by the women involved. Call this the “injustice by culture” thesis.

2) The unjust local traditions in question may resemble some Western practices but they are causally independent of them. Call this the “autonomy of culture” thesis.

3) Non-Western cultures are typically more unjust to women than is Western culture. Call this the “West is best for women” thesis.

Jaggar doubts that Nussbaum would agree with these theses; however, she does worry that their concern with opposing injustice in non-Western cultures encourages many Western readers to derive such non-logical inferences from their work. In addition, she is concerned that Nussbaum’s work could promote the view that: “4) Western philosophy’s task is to expose the injustices imposed on women by their local cultures and to challenge philosophical rationalizations of those injustices, many of which rest on mistaken views about essentialism and relativism” (2005, p. 45). The poverty and abuses suffered by poor women in poor countries cannot be understood exclusively in terms of unjust local tradition or in terms of their oppression by ‘illiberal’ cultures. This provides “an understanding of the women’s situations that is crucially incomplete” (Jaggar, 2005, p. 38). It distorts Western philosophers’ comprehension of our moral relationship with women in the world and thus of our philosophical task. It also impoverishes our assumptions about the intercultural dialogue necessary to promote global justice for women. Jaggar thinks Western philosophers concerned about poor women in poor countries should not focus exclusively on the cultural traditions of those countries: “Since gender inequality is correlated so strongly with poverty, perhaps we should begin by asking why so many countries are so poor” (2005, p. 63). She does not dispute that non-Western cultures often treat women unjustly. However, she argues that global forces help to shape those cultures and create the political and economic contexts in which poor women find themselves: “Western powers play a disproportionate role in enforcing an unjust global order, so bringing into question the assumption that, overall, the West is best for poor women in poor countries” (2005, p. 56). It is, however, worth noting that these criticisms do not undermine Nussbaum’s capabilities approach.

Nussbaum’s capabilities approach and human rights

Nussbaum (1997; 2011a) has presented her perspective on capabilities applied to human rights and related to her theory “as a kind of human rights approach” (Nussbaum, 2011a, p. 62). She claims that the common ground between the capabilities approach and human rights approaches lies in the idea “that all people have some core entitlements just by virtue of their humanity, and that it is a basic duty of society to respect and support these entitlements” (2011a, p. 62). However, the capabilities approach still differs in many aspects from most human rights theories. As we will see, her approach relates inclusion, supplementation and critique to human rights (Nussbaum, 2011b, p. 24). In this section, I will clarify this relation to human rights.

The list of capabilities concerns what is necessary for human flourishing. Capabilities are not only instruments for other activities, but have value in themselves, making life fully human. They foster practical reason and choice, and are of particular importance in making any choice concerning a way of life possible. The list of capabilities includes: 1) Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living; 2) Bodily health. Being able to have good health, including reproductive health; being adequately nourished; having adequate shelter; 3) Bodily integrity. Being able to move freely from place to place; being secure from violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction; 4) Senses, imagination, thought. Being able to use the senses, to imagine, think, and reason (…) in a “truly human” way, a way informed and cultivated by an adequate education (…). Being able to use one’s mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise; 5) Emotions. Freedom to love and form relationships; 6) Practical reason. Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life; 7) Affiliation. (A) Being able to live with and toward others, recognizing and showing concern for other human beings, dealing with various forms of social interaction; being able to imagine the situation of the other. (B) Having the social bases of self-respect and non-humiliation; being treated as a worthy being whose value is equal to that of others. This includes provisions of nondiscrimination based on race, sex, sexual orientation, ethnicity, caste, religion, national origin; 8) Other species. Being able to live with concern for and in relation to animals, plants and the world of nature; 9) Play. Being able to laugh, to play, to enjoy recreational activities; 10) Control over one’s environment. (A) Political. Being able to participate effectively in the political choices that govern one’s life; having the right of political participation, protections of free speech and association. (B) Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on equal basis with others. (see Nussbaum 2001, pp. 224-5; 2011a, pp. 33-34).

There are two quite different relationships that the capabilities have with traditionally recognized human rights. According to her, “[f]irst, there are some areas in which the best way of thinking about rights is to see them as, what I have called, combined capabilities to function in various ways” (Nussbaum, 1997, p. 292). Combined capabilities are defined as internal capabilities in conjunction with external conditions suitable for the exercise of a function ^[7]. The rights to political participation, religious freedom, freedom of expression and work and so forth are all better understood as combined capabilities. “In short, to secure a right to a citizen in these areas is to put them in a position of capability to go ahead with choosing that function if they should so desire” (Nussbaum, 1997, p. 293). Capability, not functioning, is the political goal. It should be the goal because of the great importance that the approach attaches to practical reason as a good that encompasses all other functions. If the functioning itself were the goal of public policy, the liberal position could correctly judge that we are preventing citizens from making many choices in accordance with their own conceptions of good, and perhaps violating their rights.

There is a second way of relating human rights to capabilities. We say that a human being has the right to something, even when her circumstances obviously do not guarantee that right. The use of “human right” in this way means that just by virtue of being human, a person has a justified requirement to have a capability ensured. A right in this sense would be prior to the capability and a basis for the guarantee of a capability. As Nussbaum says: “‘Human rights’ used in this sense lie very close to what I have called ‘basic capabilities’” (1997, p. 293). On the other hand, when we say that citizens of a given country have the right to exercise religious freedom, what we normally mean is that this urgent and justified demand is being met, that the state answers the demand that they have by virtue of their being human. According to Nussbaum: “It is in this sense that capabilities and rights should be seen to be equivalent (…) combined capabilities are the goals of public planning” (1997, p. 293). As we can see, understanding human rights in terms of capabilities is a useful approach to help grasp that what is included in the guarantee of rights involves much more than simply putting them on paper.

As we can see, capability theory and human rights have a very close relationship in terms of content. The list of capabilities includes civil, political, social and economic rights. Besides this correspondence, the list of capabilities answers criticisms that human rights are not sufficiently concerned with issues such as gender or discrimination.

The list of capabilities supplements the traditional human rights approaches: “the approach grounds rights claims in bare human birth and minimal agency, not in rationality or any other specific property, something that permits it to recognize the equal human rights of people with cognitive disabilities” (Nussbaum, 2011a, p. 63). Nussbaum argues that promoting the capabilities of people with physical and mental disabilities

requires a huge human investment in care. Currently, a good deal of this work is being done by women, and much of it without pay, as if it were the natural result of love. Care labor is therefore a large source of gender-based inequality, as women are handicapped in other areas of life by the work they are doing in the home (Nussbaum, 2011a, p. 152).

To solve this problem, different aspects must be faced: the public sphere needs to support family medical leave and nursing care at home; health plans (public and private) must address the issue of care at the end of life. Workplaces need to become more flexible, recognizing the demands that men and women face at home.

The capability approach clarifies the relationship between the idea of central capabilities understood as fundamental human entitlements and duties. In the domestic sphere, “those duties belong in the first instance to the nation’s basic political structure, which is responsible for distributing to all citizens an adequate threshold amount of all entitlements” (Nussbaum, 2011a, p. 64). Poor nations cannot meet all their capability duties without help from richer ones. “Richer nations consequently have such duties of aid. Other duties to promote human capabilities are assigned to corporations, international agencies and agreements, and, finally, to the individual (…)” (Nussbaum, 2011a, p. 64). There is, also, a conceptual connection between basic capabilities and government, understood as the society’s basic political structure. Government is accountable for the presence of the ten capabilities if a country is minimally just. In these ways, the capability approach supplements the standard human rights model. However, it also contains some criticisms. For example, one common idea in some political and legal theories is to understand rights as barriers against interfering state action. Conversely, the capabilities approach “insist[s] that all entitlements involve an affirmative task for government: it must actively support people’s capabilities, not just fail to set up obstacles. In the absence of action, rights are mere words on paper” (Nussbaum, 2011a, p. 65). Nussbaum points out in her examples that women are not beaten and raped by the government of their state, but by people close to them or their husbands. So if a government does not take positive action, (for example, it does not allow women access to education to develop the necessary skills and thus earn a living wage if they leave an abusive marriage) and then actively enforce domestic violence laws, it is responsible for the suffering of these women. “Fundamental rights are only words unless and until they are made real by government action. The very idea of “negative liberty” (…) is an incoherent idea: all liberties are positive, meaning liberties to do or to be something; and all require the inhibition of interference by others” (Nussbaum, 2011a, p. 65).

According to Nussbaum, one place where ideas of state inaction and negative liberty have been pernicious is in the state’s relationship with the household and family. The classic liberal distinction between the public and the private spheres led liberals to think that the state should not interfere with the home.

Women have rightly complained that some traditional human rights models have wrongly neglected abuses that women suffer in the home. The capabilities approach corrects this error, insisting that intervention in the home is justified whenever the rights of its members are violated (Nussbaum, 2011a, 66-7).

However, one must also ensure that free human lives have the space people need to protect their intimate associations and for parents to make decisions about their children. But some issues are (or should be) consensual: “we should all agree that domestic violence and child sexual abuse should be aggressively policed by the state. We can grant that child marriage should be illegal and that marital consent should be carefully protected” (Nussbaum, 2011a, p. 148). We could also agree that compulsory primary and secondary education are important ways for the state to limit parents’ autonomy and to prevent, for example, children being used in child labor. Education can also provide girls with a wide range of skills that allow them the right to reject traditional roles. This would be justified by the capabilities of practical reason and affiliation (friendship and political participation). Thus full equality as citizens would be firmly conveyed along with the skills necessary for effective political activity. With these reformulations and supplementations, the capabilities approach seems to embrace the language of rights and to address the main feminist criticisms at the same time.

Exemplifying the complementarity between rights and capabilities

In this final section, I would like to apply Nussbaum’s capabilities approach to test whether it is really supplements the traditional account of human rights. In order to achieve this aim I will briefly discuss some Brazilian laws in relation to what happens in reality.

Before analyzing the Brazilian case, I would like to make one more point on the capabilities approach and its relation to human rights. Nussbaum recognizes that we need the language of human rights even if we adopt the theory of capabilities because it plays four important roles in public discourse, despite its unsatisfactory characteristics (1997, p. 295). First, the language of rights reminds us that people have justified and urgent demands for certain types of treatment, no matter what the world does about it. This role is similar to the role of “basic capabilities”. But there is no doubt that one can recognize people’s basic capabilities and yet deny that this implies the defense of rights in the sense of justified claims. “So, appealing to rights communicates more than appealing to basic capabilities: it says what normative conclusions we draw from the fact of the basic capabilities” (Nussbaum, 1997, p. 296). Second, when we speak of the fundamental rights enforced by the state, the language of rights puts great emphasis on the state’s importance and its basic role. “It tells people right away that we are dealing with an especially urgent set of functions, backed up by a sense of the justified claim that all humans have to such things, by virtue of being human” (Nussbaum, 1997, p. 296). Third, the language of rights is valuable because of the emphasis it places on people’s autonomous choices to take advantage of certain opportunities. The language of capabilities “was designed to leave room for choice, and to communicate the idea that there is a big difference between pushing people into functioning in ways you consider valuable and leaving the choice up to them” (1997, p. 296). The language of rights emphasizes that the important fact is people’s autonomous choice to take advantage of certain opportunities. Fourth, in areas where there is disagreement about claims, “the language of rights preserves a sense of the terrain of agreement, while we continue to deliberate about the proper type of analysis at the more specific level” (Nussbaum, 1997, p. 296).

I would like now to describe how two specific rights (the right to vote and the right to work) can be understood in terms of capabilities. In many countries, women have the right to political participation (UN 1948, Art. 21) without actually having that right in the sense of “capability”. In Brazil, women have had the right to vote since 1932. But this does not mean that they enjoy equal participation and representation. What we find is a resistance to the presence of women in politics due to the obstacles within the parties and in society at large. Despite Brazilian Law 12.034 stipulating that at least 30% of candidates must be female, and the fact that women constitute more than half of the Brazilian electorate, we still do not have proportional representation of women. In the Women in Politics 2017 Map^[8], Brazil ranked low in the representation of women in parliament, in 154^th position, and in last place in Latin America. In Brazil, in 2017, only 10.5% of federal deputies were women. Only one woman ever has been elected president. And in the 2018 general elections only one female governor was elected: Fatima Berreza, in the state of Rio Grande do Norte. Equal representation for women in positions of power is a fundamental condition for democracy and women’s equality.

I would like now to consider the human right to work as established in the UDHR: “1. Everyone has the right to work(…) Everyone, without any discrimination, has the right to equal pay for equal work” (UN 1948, Art. 23). The recently elected Brazilian president once said that women deserve less pay than men because they get pregnant ^[9]. This statement contradicts what is established in the UDHR and in the CLT ^[10], which guarantees wage parity. What is more frightening is that data presented by the IBGE’s “Gender Statistics” study (published in March 2018) shows that women in Brazil work an average of three hours a week more than men, combining paid work, domestic responsibilities and caring for people. And even when they have a higher education level, they earn less than men. According to the IBGE’s study “the difference in income is bigger in higher education, where women received 63.4% of men ’s earnings in 2016” (2018, p. 05). This does not meet the right to work in terms of capability. Women who may think about working outside the home but who are systematically prevented from entering the labor market (because they need to take care of people or the housework, or because they will not receive equal pay) do not really enjoy the right to work. Therefore, we cannot say that women have equal rights when in fact they do not have the capacity to function as equals. This is the main conclusion of this paper.

Finally, I would like to mention the Brazilian Bolsa Familia Program, which is considered to be one of the largest anti-poverty social programs in the world. According to Pinzani & Leão Rego (2019, x), the program is regarded as one of the key factors behind the significant poverty reduction Brazil experienced during the first decade of the 21st century. For some time, it has been the largest conditional cash transfer program in the world, serving more than 50 million Brazilians who had a monthly per capita income of less than R$70 (US$35 in 2011, or US$21 in December 2017). Bolsa Familia is not a credit scheme or a loan; it is a conditional cash transfer which is designed to promote civic inclusion. Its goals are not only to help citizens fulfil their most basic needs or merely to survive, but, more importantly, to create a certain type of citizenship. The grant payments are conditional on school attendance and participation in health care: to receive the grant, women must keep their children enrolled in school and ensure they are fully vaccinated. After interviewing more than 150 women registered in the program to examine how the cash transfers affected their everyday lives, Pinzani & Leão Rego concluded that the program has a significant social impact on beneficiaries as it increases their levels of moral, economic and political autonomy, thus promoting citizenship. The intention of their research was to investigate the political and moral effects of the Bolsa Família in light of the concept of individual autonomy, based on Sen and Nussbaum’s capabilities approach. Pinzani & Leão Rego (2019, p. 127) drew attention to the relationship between the subjects’ economic and moral autonomies. They agree with Nussbaum that public institutions have an unconditional duty to guarantee the capabilities needed to achieve the minimum level for a dignified life. Nussbaum emphasizes that the failure of some people to achieve this level results not only in the loss of their autonomy and freedom but also in a lack of dignity and even humanity. In fact, Nussbaum argues that “a person who is in a bad way through lack of nutrition or health care cannot participate as an equal in politics. An illiterate person is unlikely to be able to go to the police or to the courts for enforcement of other political and civil rights” (2004, p. 285). According to Pinzani & Leão Rego, “it is only by achieving some degree of economic independence that people become dignified human beings rather than simply a member of the species Homo sapiens engaged in a ceaseless search for nutrition and shelter” (2019, p. 128). As we can see, the Brazilian Bolsa Familia Program illustrates the complementarity between social and political rights on the one hand and capabilities on the other.

Final remarks

Nussbaum’s capabilities approach works as a critique and, at the same time, as a supplementation to human rights. Feminist philosophy has frequently been skeptical of the individualistic conception of rights. As we saw, Nussbaum’s capability approach recognizes the problems of the liberal model of rights as well as the importance and usefulness of it. Nussbaum’s list of central human capabilities and human rights have a very close relationship in terms of content, and that includes civil, political, social and economic rights. In addition, the list of capabilities provides answers to criticisms that human rights are not sufficiently concerned with issues such as gender discrimination and care. As we can see, understanding human rights in terms of capabilities is a useful approach for helping the feminist practice of a philosophy that is universalist, committed to equality, autonomy and rights, whilst being sensitive to local particularities, options, beliefs and preferences.