Crocker, David (2009). "Philosophy, Constitutions, and Democracy: Who Should Decide on Capabilities and Rights?" Paper presented at the 6th annual conference of the HDCA, 10-12 September 2009, Lima, Peru.

Who should select which capabilities, functionings, and rights are most valuable, and how should they do so? Nussbaum emphasizes the role of philosophers but leaves some room for the methods of global dialogue and Rawlsian reflective equilibrium. Sen, who employs reflective equilibrium to argue philosophically for the evaluative space of freedom and achievement (both agency and well-being varieties), argues at least since the mid-1990s that groups as well as individuals themselves should select and weigh various freedoms and rights and that groups should do so by expressing their agency through rational scrutiny, public deliberation, and democratic deliberation. The “evaluative exercises” and moral authority that, with some qualifications, Nussbaum gives to philosophers and, -- derivatively -- to constitutionally-enshrined rights, Sen gives to democratic publics. In this paper I examine both Nussbaum’s and Sen’s evaluations of the roles of philosophers, constitutions and judges, democratic bodies, and individuals in evaluating capabilities and functionings and the rights that protect those deemed most urgent. Often in response to the charge of paternalism—Nussbaum does assign a role, albeit limited, to philosophical dialogue, public discussion, democratic decision-making, and individual freedom or autonomy. However, these concessions to democratic processes, while important, are insufficient; she and we should, like Sen, give a much more robust role to democracy conceived as an inclusive and deliberative process. In a concluding section, I will illustrate my theoretical argument by drawing on civil society efforts in Morocco and Latin America to defend and protect rights to active citizenship and democratic decision making.