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69 Fordham L. Rev. 1901 (2000-2001)
Rights, Capabilities, and the Good Society

handle is hein.journals/flr69 and id is 1921 raw text is: RIGHTS, CAPABILITIES, AND THE GOOD SOCIETY Robin West* INTRODUCTION What is a good society, as opposed to a just one, and what is demanded of the state by the demand of goodness in a good society? Must a state in a good society ensure for its citizens the minimal material preconditions of a decent life? Is it obligated to do so? Many of course, think not, but of those who think there is such an obligation, there are a variety of reasons, or arguments proffered, as to why. One civic republican argument, revitalized over the last fifteen years by Michael Sandel,' is basically instrumental. A state, in a good society, might be obligated to ensure for its citizens some minimal level of material goods, but if so, it is required to do so in order to instill some threshold level of civic virtue: in a good society, citizens must be able to be free and equal participants in the collective project of self rule, and if some threshold level of material well-being is necessary for that participation, then the state is obligated to provide it.2 A quite different and perhaps more basic sort of response, held by scores of liberal, progressive, and radical legal theorists over the last century, as well as innumerable political activists and state actors, might be called a welfarist conception-the state, in a good society, is directly, not just instrumentally, obligated to ensure that all citizens enjoy some minimal threshold level of material well-being, or welfare, or met needs, or access to primary goods.' They must enjoy this minimal threshold, furthermore, not because such a threshold is necessary to the exercise of the various civic virtues required of them * Professor of Law, Georgetown University Law Center. 1. See Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996) [hereinafter Sandel, Democracy's Discontent]. 2. Id. at 124-28, 329-38. 3. See, e.g., Frank I. Michelman, Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter, Michelman, Constitutional Welfare Rights]; Frank I. MiEchelman, The Supreme Court 1968 Term- Forward- On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L Rev. 7 (1969) [hereinafter Michelman, On Protecting the Poor]. The welfarist conception is heavily indebted to John Rawls' early work, particularly A Theory of Justice (1971). 1901