ABSTRACT
There is a great deal to admire in Professor Nussbaum's Capabilities Approach (CA). In footnote 15 of the Foreword, Professor Nussbaum sets out the specific capabilities that she has identified as "necessary conditions of a life worthy of human dignity". In parts of her Foreword, however, Professor Nussbaum points the way to an intriguing possibility: that is, using the CA as a canon of constitutional and statutory interpretation. The ICESCR, in contrast, picks up the theme of affirmative rights—areas in which governments must act. Many of its provisions look as if they came straight out of Professor Nussbaum's CA. One technique that has worked elsewhere has been to understand CA-based constitutional provisions as setting goals that must be realized progressively by legislatures. The most difficult application of the CA for courts in the United States— or, more starkly put, the least likely application—is as a source of individual rights that can be directly enforced in a court.
