Legal capability is a term that has recently been added to the PLE vocabulary. It derives from the work of economist, Amartya Sen where it is used to refer to the extent of a country’s infrastructure. In PLE it has been adopted to refer to the competencies of individuals and is often referenced in discussing the basic legal competencies that everyone should have.
Sen and capability
Amartya Sen was of the view that it is not enough to measure the increase in a country’s GDP to measure its progress. He wanted to capture how emerging economies were dealing with their increasing wealth. Was it concentrated in the hands of a few or being used to improve the opportunities for all citizens. What were citizens of a country able to do? His own work focused on developing a theoretical framework that assessed people’s real opportunities to do the things they valued. Sen, himself, did not develop a list of what basic capabilities would include. Others, though, have both expanded on his work and attempted to operationalize his framework. In 1997 Martha Nussbaum Nussbaum Capabilities and Human Rights Fordham Law Review vol 66 created a ‘working’ list of 10 basic capabilities. She included being able to live a life of normal length, being able to have good health, being able to make political choices, being able to hold property, and the like. Her lists looks a lot like basic moral or human rights. Sen has been described as promoting positive freedoms.
Sen’s work launched a fruitful area of philosophical exploration and has been of particular interest to those involved in international development and in social justice. Human Development and Capability Association continues to promote multi-disciplinary research on people-centred development.
The UN has tried to implement these ideas about capabilities by creating the Human Development Index. It currently contains metrix for life expectancy, years of schooling, and gross national income per capita.
PLE and capabilities
In adopting capability language, the PLE community has made a leap from looking at the population-level capabilities to those of individuals. In doing so, we have conflated legal capabilities with legal competencies: the knowledge, skills, and attitudes needed to perform specific legal tasks. This trend was initiated in the UK with work done by Law for Life (formerly PLENet), and picked up in Canada, particularly by Community Legal Education Ontario and in Australia by the Law Foundation of New South Wales.
The concept of legal capability was drawn on by the Prevention, Triage and Referral Working Group of the National Action Committee on Access to Justice in Civil and Family Matters. In that document, the Working Group lays out what it takes to be the basic level of legal capability that everyone should have.
Capabilities vs competencies
The use of the term capabilities in PLE has had the effect of conflating the concept of capabilities and competencies.There are two main reasons why this is a problem.
- The capabilities approach is meant to draw attention to the social infrastructure necessary for individuals to achieve their goals. When the term is used to refer to the particular competencies of individuals to take advantage of that infrastructure we lose the terminology to discuss the adequacy of that infrastructure. An individual may be capable of undertaking- that is competent to undertake – a particular legal task but unable to do so because she is isolated, can’t access the particular resources she needs, or in some other way is impeded in doing what she otherwise is competent to do. More PLE will not help her if she needs transportation, child care, funds, or other assistance to proceed with her task.
- There is a vast literature on competency-based education that can assist PLE providers in designing, developing, and delivering needed resources and services. However, one is not likely to find that literature without using the term. Nor will she find much assistance on how to develop the capabilities of individuals in the capabilities literature. Without access to the relevant literature and other expertise, PLE providers are at risk of reinventing many wheels and are likely to do even that very slowly.
Resources of interest: Capabilities
Academic Journals: Capabilities
Documents of interest: Capabilities
Nussbaum, Martha (2000). Women and human development: the capabilities approach. Cambridge New York: Cambridge University Press
Nussbaum, Martha (2011). Creating capabilities: the human development approach. Cambridge, Massachusetts: The Belknap Press of Harvard University Press.
Sen, Amartya (1985). Commodities and Capabilities (1st ed.). New York, NY: North-Holland Sole distributors for the U.S.A. and Canada, Elsevier Science Publishing Co.
- Reprinted as: Sen, Amartya (1999). Commodities and Capabilities (2nd ed.). Delhi New York: Oxford University Press.
Sen, Amartya (2010). The Idea of Justice. London: Penguin
Sen, Amartya (2004), “Capability and well-being”, in Nussbaum, Martha; Sen, Amartya, The quality of life, New York: Routledge, pp. 30–53.
Sen, Amartya (2004), “Development as capability expansion”, in Kumar, A. K. Shiva; Fukuda-Parr, Sakiko, Readings in human development: concepts, measures and policies for a development paradigm, New Delhi New York: Oxford University Press.
Documents of interest: PLE and legal capabilities
- Report of the Prevention, Triage and Referral WG
- A Framework for Ontario: Introducing a working-legal-capability-matrix.September-2016.final_
- Community Legal Education Ontario. Building an understanding of legal capability. online-scan-legal-capability.September-2016.final_
- Updating Justice UJ_41_Legal_capability_and_inaction_for_legal_problems_FINAL