Academic Publications

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2016

‘An Agency-based Capability Theory of Justice’, in: European Journal of Philosophy (forthcoming 2016).

Abstract: The capability approach is one of the main contenders in the field of theorizing social justice. Each citizen is entitled to a set of basic capabilities. But which are these? Martha Nussbaum formulated a set of ten central capabilities. Amartya Sen argued they should be selected in a process of public reasoning. Critics object that the Nussbaum-approach is too perfectionist and the Sen-approach is too proceduralist. This paper presents a third alternative: a substantive but non-perfectionist capability theory of justice. It presents a two-level concept of individual agency as connected to social practices. It then argues basic capabilities are those necessary to for the agency necessary to navigate freely and autonomously between different social practices. 

‘Externalities as a Basis for Regulation: A Philosophical View’, in: Journal of Institutional Economics (forthcoming 2016).

Abstract: Externalities are an important concept in economic theories of market failure, aiming to justify state regulation of the economy. This article explores the concept of externalities from a philosophical perspective. It criticizes the utilitarian nature of economic analyses of externalities, showing how they cannot take into account values like freedom and justice. It then develops the analogy between the concept of externalities and the ‘harm principle’ in political philosophy. It argues that the harm principle points to the need for a theory of basic interests to judge when a harm is imposed. Similarly, externality analyses should use such a theory of basic interests as the basis for judgments about legitimate state intervention. This proposal is defended against objections, and illustrated with a case study of the US Supreme Court’s ruling on the Affordable Care Act, which shows how the judicial reasoning implicitly interprets externalities in terms of basic interests. 

‘Markets as Mere Means’, in: British Journal of Political Science (forthcoming 2016).

Abstract: there has been a remarkable shift in the relation between market and state responsibilities for public services like health care and education. While these services continue to be financed publicly, they are now often provided through the market. The main argument for this new institutional division of labor is economic: while (public) ends stay the same, (private) means are more efficient. Markets function as ‘mere means’ under the continued responsibility of the state. This paper investigates and rejects currently existing egalitarian liberal theories about this division of labor and it presents and defends a new theory of marketization, in which social rights and democratic decision-making occupy center-stage. 

‘Rethinking European Competition Law: From a Consumer Welfare to a Capability Approach’, co-authored with Anna Gerbrandy, in: Utrecht Law Review 12(1)(2016): 1-15.

Abstract: European competition law is predominantly focused on maximizing consumer welfare. This overarching purpose (which is supported by economic theory) leaves little place for safeguarding non-economic values, such as sustainability. This makes it difficult to allow cooperation between companies to contribute to such non-economic goals. In this article we explore whether it is possible to establish a different normative framework, in which such goals can be taken into account and can be balanced against the economic goal of consumer welfare. To answer this question, we take four steps. First, we discuss current EU competition law and the difficulty of fitting non-economic goals into the dominant interpretation of that law. Second, we propose a different normative framework, based on the capability approach advanced by philosopher Martha Nussbaum and economist Amartya Sen. Third, we argue that there are good principled reasons to incorporate non-economic goals into competition law. Fourth, we apply both the capability approach and the consumer welfare approach to three (illustrative) cases in which non-economic goals are at stake. Overall, we argue that the capability framework, although not without difficulties of its own, may provide a more legitimate theory for the interpretation of European competition law.

2015

The Capability to Hold Property‘, in: Journal of Human Development and Capabilities 16(2)(2015): 220-236.

This paper discusses the question whether a capability theory of justice (such as Martha Nussbaum’s) should accept a basic ‘capability to hold property’. Answering this question is vital for bridging the gap between abstract capability theories of justice and their institutional implications in real economies. Moreover, it is vital for understanding the difference between egalitarian and libertarian versions of the capability approach. In the paper, three main arguments about private property are discussed: those relating property to a private sphere of control, to the market system of allocating goods, and to the ability to keep the fruits of one’s labor. On the basis of this discussion it is argued that the capability theory of justice should accept a basic capability to hold private property, albeit one which is restricted in scope and has an egalitarian character. Special attention is paid to libertarian arguments about property acquisition, and it is argued that capability theories of justice must reject them because they presuppose a method of justifying capabilities that the capability approach cannot accept. 

Financial Crisis and the Ethics of Moral Hazard‘, in: Social Theory and Practice  41 (3)(2015): 527-551.

The global financial crisis raises ethical as much as financial questions. During the crisis, much public anger was centered on the imbalance between those profiting from excessive risk-taking in good times (banks) and those suffering the costs of that behavior in bad times (taxpayers). This phenomenon will be analyzes in terms of ethical theory in this paper. The focus is on both sides of the state–bank relationship and contains two central questions. First, do states have a moral obligation to bail out banks? Second, do banks have a moral obligation to prevent states from having to bail them out? The paper develops a rights-based framework to answer these questions. The first question is answered affirmatively. The second question is more difficult. A ‘standard argument’ about insurance holds that moral hazard is not a moral, but a purely economic problem, which can be solved through economic means. This would lead to the conclusion that banks do not have a moral obligation to prevent bailouts. I will criticize this standard argument and show that we have to think differently about moral hazard. The crux is that moral hazard arises between states and banks in the context not dictated by normal economic contracting, but best characterized as a social contract. As a consequence banks do have obligations to honor the terms of that social contract. The final part discusses how we can think about the justification of the implicit terms of the social contract in the run up to the financial crisis. 

2014

Capability Paternalism’, in: Economics and Philosophy 30 (1)(2014): 57-73.

Abstract: A capability approach prescribes paternalist government actions to the extent that it requires the promotion of specific functionings, instead of the corresponding capabilities. Capability theorists have argued that their theories do not have much of these paternalist implications, since promoting capabilities will be the rule, promoting functionings the exception. This paper critically surveys that claim. From a close investigation of Nussbaum’s statements about these exceptions, it derives a framework of five categories of functionings promotion that are more or less unavoidable in a capability theory. It argues that some of these categories may have an expansionary dynamic; they may give rise to widespread functionings promotion, which would defeat the capabilitarian promise that paternalist interventions will be exceptions to the rule of a focus on capabilities. Finally, the paper discusses three further theoretical issues that will be decisive in holding this paternalist tendency in check: how high one sets threshold levels of capability protection, how lenghty one’s list of basic capabilities is, and how one deals with individual responsibility for choices resulting in a loss of one’s capabilities. 

Social freedom and Demands of Justice. A Study of Axel Honneth’s Recht der Freiheit’, in: Constellations. 21 (1)(2014): 67-81.

In his most recent voluminous work Das Recht der Freiheit(2011) Axel Honneth brings his version of the recognition paradigm to full fruition. Criticizing Kantian theories of justice, he develops a Hegelian alternative which has at its core a different conception of freedom. In this paper, I will scrutinize Honneths latest work to see whether he offers a promising alternative to mainstream liberal theories of justice. I will focus on two key differences with Kantian theories of justice. Substantively, Honneth criticizes the Kantian concept of ‘reflexive freedom’ and proposes instead as the core of his own theory the concept of ‘social freedom’. Methodologically, he proposes a method of ‘normative reconstruction’, and explicitly develops this in contrast to Kantian constructivism. I investigate the robustness of these shifts by seeing how they are actually used in Honneth’s reconstruction of the market sphere. I conclude that his method of normative reconstruction does not provide the kind of guidance Honneth thinks it does. His conception of social freedom fares slightly better but can either be reduced to the mainstream’s idea of reflexive freedom, or else faces some serious challenges.

Human Dignity in the Capability Approach‘, in: Marcus Düwell, Jens Braarvig, Roger Brownsword, Dietmar Mieth (eds.), The Cambridge Handbook of Human Dignity(Cambridge: Cambridge University Press, 2014), 240-249.

2013

Public Goods, Mutual Benefits and Majority Rule‘, in: Journal of Social Philosophy 44 (3)(2013): 270-290

Abstract: Which public goods should the state provide? Political philosophers have often distinguished between necessary and discretionary public goods. Once we have argued for the necessity – as a matter of justice – of a bundle of certain goods (say, security services, basic health care and education), the residual question is whether the state should provide anydiscretionarypublic goods. This question is relatively ignored, even though many things the state does are not necessary, on any reasonable theory of justice. The dominant answer is the ‘mutual benefit approach’, which argues that every individual should benefit more or less equally from such public goods – worked out either in a unanimity requirement or a majority rule constrained by a substantive norm that everyone benefits from a package of public goods. My main aim is to challenge this approach and show that discretionary public goods provision can be legitimate in the absence of mutual benefits. I argue that we should accept majority rule to decide which discretionary goods a community should provide. The mutual benefit constraint is only legitimate if one sees preferences for discretionary public goods as the exclusive responsibility of each individual. However, one could equally well see them as parts of reasonable conceptions of the good life that should be respected, as an ‘equality of welfare’ approach would do. These competing views of the legitimacy of preferences for public goods need to be balanced, and the majority rule is needed to identify a fair way of doing so. Such a majority rule still needs to be constrained, but in a quite different way than the mutual benefit approach envisages: to provide a fair compromise between the mutual benefit approach and the rival equality of welfare approach. 

The Foundations of Capability Theory: Comparing Nussbaum and Gewirth, co-authored with Marcus Düwell, in: Ethical Theory and Moral Practice 16(3)(2013): 493-510.

This paper discusses the justificatory basis of the capability theory as a theory of justice. We focus on Martha Nussbaum, since she has been most explicit about this question of justification in her version of the capability theory. In this paper we argue that her theory contains several flaws. First, we will question the content of her capability list, asking whether the selection of capabilities for the list has proceeded in an adequate way. Here our criticism will be that the notion of a (dignified) human life cannot fulfill the role of normative criterion that Nussbaum wants it to play. It merely generates anthropological observations, not the moral or political entitlements and obligations that Nussbaum’s theory needs to establish. Second, we discuss whether Nussbaum’s method of justification. Here we both discuss her earlier self-validating argumentative strategy and her more recent adherence to the device of an overlapping consensus. We will conclude that both methods fail to provide the capabilities theory with the firm foundation that it needs. At that point we turn to Alan Gewirth. His normative theory is based on a fundamental moral principle according to which all agents are obliged to protect the necessary preconditions of agency for all other agents. This principle allows him to justify the selection and the hierarchy of capabilities and by doing so to solve the problems we identified in Nussbaum’s theory. Finally, Gewirth’s justifies his principle by using a version of a transcendental argument. We show that this strategy is promising to overcome the problems of Nussbaum’s method of justification.

Justice: Constructive or Reconstructive?’, in: Krisis (1)(2013): 28-31.

2012

Sailing Alone: Teenage Autonomy and regimes of Childhood’, co-authored with Joel Anderson, in: Law & Philosophy 31(5)(2012): 495-522.

Should society intervene to prevent the risky behavior of skilled and experienced teenagers even if interventions with the same behavior  would be impermissible if undertaken by adults? The problem is well illustrated by the legal case of the 13-year-old Dutch girl Laura Dekker, who set out in 2009 to become the youngest person ever to sail around the world alone, succeeding in January 2012. In this paper we use her case as a point of entry for discussing the fundamental question of how to demarcate childhood from adulthood.  After summarizing the case, we identify a ‘demarcation dilemma’ that frames much of the public and expert debate.  On the one hand, it seems to be morally imperative ‘to treat like alike,’ which means that both children and adults should be allowed to undertake all actions for which they have the relevant competences.  On the other hand, requiring proportional treatment of children and adults seems to neglect the special nature of childhood as a distinct stage in life, which is separated by an age of majority. We introduce the notion of a ‘regime of childhood’ to deal with this problem. This regime includes several dimensions, including the limited liability for children, the supervisory responsibilities of parents, the role of age-based thresholds, and the overarching purpose of childhood as a context for developing autonomy. We argue that, all things considered, there are good reasons not to shift to a regime that offers the option of leaving childhood tutelage on the basis of age-neutral criteria.

Temporal Autonomy in a Laboring Society’, in: Inquiry. An Interdisciplinary Journal of Philosophy 55(5)(2012): 543-562

The aim of this paper is to discuss which stance towards the allocation of labor and leisure would be defensible from the perspective of modern liberal political theory. There is a long tradition in philosophy defending an ideal of leisure, but this tradition has been rightly criticized for being too perfectionist. A liberal perspective seems more attractive in not dictating how much time people spend in labor or leisure, but to leave this choice to individuals. The question is whether this is possible. After scrutinizing the traditional philosophical defense of leisure I focus on Robert Goodin and his collaborators’ recent proposal to think about labor and leisure in terms of ‘temporal autonomy’. I show that their concept is a great improvement over the older philosophical theories, both in its conceptualization of labor and leisure and in its ambition to leave labor/leisure choices to individuals. Nonetheless, it contains an important unresolved ambiguity about whether discretionary time maximization is a desirable end. Since the exercise of one’s temporal autonomy can undercut the temporal autonomy of others in society this leads to a dilemma. This dilemma can be resolved either in a libertarian or in a sufficientarian direction. I provide a cautious defense of the sufficientarian conception of temporal autonomy, because it accounts for the intuition in the older tradition of leisure that it is important not to be overwhelmed by the demands of labor, while also retaining the liberal emphasis on individual choice.

Book review essay of Debra SatzWhy Some Things Should Not Be for Sale. The Moral Limits of Markets (Oxford University Press, 2010), in: Business Ethics Quarterly 22 (3)(2012): 589-601.

2011

‘Public Services on the Market: Issues and Arguments’ in: Public Reason 3(2)(2011): 3-12.Full text

‘The Marketization of Security Services’ in: Public Reason 3(2)(2011): 124-145. Full text.

Making Capability Lists: Philosophy versus Democracy, in: Political Studies 59 (3)(2011): 491-508. 

The article discusses a fundamental problem that has to be faced if the general capability approach is to be developed in the direction of a theory of justice: the selection and justification of a list of capabilities. The democratic solution to this problem (defended by Amartya Sen) is to leave the selection of capabilities to a process of democratic deliberation, while the philosophical solution (defended by Martha Nussbaum) is to establish this list of capabilities as a matter of philosophical theory. The article investigates the debate between these two different positions and argues in favour of the philosophical solution. First, it distinguishes political from epistemological reasons for (not) making capability lists. Second, it shows that the democratic position must incorporate at least some philosophical theorizing in general and a theory of democracy in particular. Third, the article argues that the democratic position presupposes that the philosophical position will bypass the democratic process while actually it does not. The philosophical position is actually more respectful of democracy than the democratic position. Fourth, while philosophers may exercise caution and connect their capability lists to actual democratic debates and other empirical sources, this kind of epistemological virtue ironically may heighten the chance of receiving reproaches on the political level

The Conservative Challenge to Liberalism’, in: Critical Review of International Social and Political Philosophy 14(4)(2011): 465-485. Abstract:

This paper reconstructs the political-theoretical triangle between liberalism, communitarianism and conservatism. It shows how these three positions are related to each other and to what extent they are actually incompatible. The substantive outcome is the following thesis: the conservative position poses a challenge to liberalism that communitarianism is unable to offer and that liberalism cannot incorporate as it could with communitarianism. This challenge lies in the conservative’s ideal of a traditionally evolved, purposeless form of civil association, and its associated view on the justification of authority within such forms of association. This ideal cannot be incorporated into liberalism’s overall concern with individual autonomy, in contrast to the communitarian’s ideal of community. This will be shown through an investigation of two key elements of the conservative ideal of civil association: its ‘purposelessness’ and its justification of authority.

Communication as Commodity: Should the Media be on the Market?’, in: Journal of Applied Philosophy 28 (1)(2011): 65-79.

Should media communication be left to the market, or rather (partly) removed from the market? This question is discussed by reconstructing an often-found ‘standard argument’ in the literature on the subject. This standard argument states that some form of marketindependent media provision is required since markets will fail to deliver a specific kind of high-quality content conducive to the democratic process. This paper argues that the standard argument is defective in several respects. By doing so, it reevaluates the way we think about the contribution of the media towards democracy and the role that the market is to play in this respect. First, the paper argues that the standard argument’s normative premise should not be couched in a welfarist theory but in terms of the capabilities that the media should strive to realise. Second, it sets the normative expectations of the media’s contribution towards the public sphere and democracy at too high a level. Third, the standard argument’s diagnosis of the market’s failure incorrectly assumes that the market can never generate the demand for highquality content. An alternative, more circumscribed claim about the market’s failure is presented, resting on two more contingent types of demand failure. 

The Commodification of Care’, in: Hypatia 26 (1)(2011): 43-64.

This paper discusses the question whether care work for dependent persons (children, the elderly, and disabled persons) may be entrusted to the market; that is, whether and to what extent there is a normative justification for the ‘‘commodification of care.’’ It first proposes a capability theory for care that raises two relevant demands: a basic capability for receiving care and a capability for giving care. Next it discusses and rejects two objections that aim to show that market-based care undermines the caring motives essential to care, one of them because of its reliance on contracts and the other because of the corrupting influence of payment on motivation. If market care is in principle legitimate, the commodification question transforms into one about the appropriate combinations of market and non-market care. This question can be answered only by adding an additional complication: care is to be balanced against other activities, most notably work for the labor market. This brings in the problem of gender inequality, since paid work has been traditionally distributed to men and caring activities to women. I show how the capability theory of caring presented in this paper can help resolve the dispute between competing models for balancing work and caring.

2009

Institutional Pluralism and the Limits of the Market’, in: Politics, Philosophy & Economics8 (4) (2009): 420-447. 

This paper proposes a theory of institutional pluralism to deal with the question whether and to what extent limits should be placed on the market. It reconceives the pluralist position as it was presented by Michael Walzer and others in several respects. First, it argues that the options on the institutional menu should not be principles of distribution but rather economic mechanisms or ‘modes of provision’. This marks a shift from a distributive to a provisional logic. Second, it argues that we should drop the assumption that any good should only be placed in one sphere, i.e. distributed according to one distributive principle. This marks a shift to ‘complex pluralism’: for at least some goods it is appropriate that they are provided through the market and through one or more non-market alternatives simultaneously. Finally, it argues that the often used conventionalist justification should be traded for a capability approach to the moral evaluation of markets and non-market alternatives. Any institutional option on our menu has value to the extent that it enhances the morally relevant capabilities of the producers and/or consumers of the good that is to be provided. This approach will be illustrated with two examples of goods for which it yields complex pluralist conclusions: the provision of care and the provision of media content. These illustrations also show the emergence of two complications that need to be dealt with when complex pluralism is acknowledged: the interaction effects between different modes of provision and the stability of complex pluralist schemes.

Scarcity’, in: Jan Peil & Irene van Staveren (eds.), Handbook of Ethics and Economics(London: Edward Elgar, 2009), 470-476.

New Directions for the Capability Approach: Deliberative Democracy and Republicanism’, in: Res Publica 15 (4)(2009): 421-428. Book review essay of John. M. Alexander, Capabilities and Social Justice. The Political Philosophy of Amartya Sen and Martha Nussbaum (Ashgate, 2008); David A. Crocker, Ethics of Global Development. Agency, Capability, and Deliberative Democracy(Cambridge University Press, 2008).

2008

The Status Struggle: A Recognition-based Interpretation of the Positional Economy’, in:Philosophy and Social Criticism 34 (9)(2008): 1021-1049.

Competition for positional goods is an important feature of contemporary consumer societies. This paper discusses three strategies for a normative evaluation of positional competition. First it criticizes an evaluation in terms of people’s motives to engage in such competition. A reconstruction of an American debate over the status-motivation of consumer behavior shows how such an analysis founders on the difficulties of distinguishing between status and non-status motives for consumption. Second the paper criticizes an approach based on assessing the (positive and negative) externalities of positional competition. This approach is plagued by the methodological difficulty of determining the relevant externalities and their weight. The paper then puts forward a third kind of evaluation, in terms of recognition relations. Starting from Axel Honneth’s theory of recognition I will propose to think of positional competition as a struggle for one kind of recognition that is necessary to personal autonomy, i.e. recognition according to the principle of achievement. Finally, the paper discusses the question how we can assess the legitimacy of interferences with positional competition. I argue that the recognition-based approach has a better response to this question than the externalities-based approach, especially with regard to the liberal objection that such interference is a violation of personal freedom. 

Veiligheidszorg tussen markt en staat‘, in: Tijdschrift voor Veiligheid 7(4)(2008): 50-58.

Dit artikel bespreekt de grondslagen van de organisatie van veiligheidszorg tussen markt en staat: wat is hun rol en onderlinge verhouding? Het antwoord op die vragen hangt mede af van de normatieve benadering die we kiezen. Dit laat het artikel zien aan de hand van twee concurrerende normatieve benaderingen met betrekking tot veiligheid: een individualistische benadering en een gemeenschapsgerichte benadering. Beide benaderingen blijken verschillende visies te genereren op twee belangrijke kwesties in de veiligheidszorg: de ongelijkheden in veiligheidsvoorziening en het belang dat wordt toegekend aan onveiligheidsgevoelens.

‘Review of Adrian Walsh and Richard Giulianotti. Ethics, Money and Sport. This Sporting Mammon’, in: Journal of Applied Philosophy, 25(1)(2008): 75-77.

2007

‘Schaarste en overvloed. Een strijd tussen twee interpretaties van de menselijke conditie’, in: Tijdschrift voor Filosofie 69 (1)(2007): 3-34.

This paper discusses philosophical arguments for presenting scarcity and/or abundance as characteristic of the human condition. It criticizes those positions which present human action as characterized by either ‘universal scarcity’ of ‘universal abundance’. Universal scarcity is associated with standard economic theory. It is philosophically defended by David Gauthier, who equates scarcity with instrumental activity and argues that the possibility of abundance supposes a Utopia of intrinsic activity which is inconceivable. Universal abundance is defended by Georges Bataille, who conceives of human life as the necessary expenditure of an original abundance. Both positions are criticized: even on their own terms, abundance reappears in the worldview of universal scarcity and vice versa. Finally, a perspective is presented where scarcity and abundance are complementary, on three different levels. On the level of the general structure of action, scarcity is implied by the fundamental teleological structure of action while abundance is implied by the fact that our actions are not dictated by (strict) necessity. At the level of social practices in general and the more specific level of the modern economic practices of work and consumption, scarcity arises wherever action is best interpreted as the satisfaction of socially formulated needs. Abundance here arises in so far as we can free ourselves of these social needs; either by subjecting them to criticism and reformulation, or by revising our membership of social practices. 

The Useful Myth of State Security. Reflections on the State’s Special Role in Security Provision’, in: Stephanie Roels en Madelon de Keizer (eds.). Staat van veiligheid. De Nederlandse samenleving sinds 1900 (Zutphen: Walburg Pers & Nederlands Instituut voor Oorlogsdocumentatie, 2007), 169-183. Reprinted in: Res Publica 18 (1)(2009): 1-7 (journal published by the Centre for Applied Philosophy and Public Ethics of The University of Melbourne).

2006

Die Ethik der Verschwendung. Veblens Moraltheorie des Konsums’, in: Peter Koslowski & Birger P. Priddat (eds.). Ethik des Konsums (München: Wilhelm Fink Verlag, 2006), 161-168.