Reimagining the relationship between Legal Capability and the Capabilities Approach

Within the literature on public legal education and legal capability, it is commonly stated that the concept of legal capability is closely related to the capabilities approach pioneered by economist and political philosopher Amartya Sen. This paper critically examines this assertion. Part I seeks to demonstrate that whilst they share some broad affinity, the relationship between legal capability and the capabilities approach is currently disparate in both conceptual and practical terms. In Part II, the paper goes on to consider what might happen if this relationship is reimagined and the two fields brought closer together. Aspects of this reimagining are then considered in turn. The paper concludes by summarising the potential advantages and disadvantages of this proposed reimagining, and by raising questions as to whether the implications of establishing a closer relationship between legal capability and the capabilities 1 Professor of Law, University of Leicester. This work has been carried out at the foundational stages of a research project (FORTITUDE) which has received funding from the European Research Council under the European Union’s Horizon 2020 research and innovation programme (Grant agreement No. 818457). The author acknowledges the contributions of Dr Sophia Gowers and Dr Naomi Lott to recategorising the dimensions of legal capability in line with the capabilities approach in the early stages of the project. The author also thanks Ann-Katrin Habbig, Professor Ingrid Robeyns, Professor Pascoe Pleasence and Professor Nigel Balmer for their comments on earlier drafts of this article; whilst acknowledging it has not been possible to address them all, nor to reconcile them entirely in this final version.

Within the literature on PLE and legal capability, it is commonly stated that the concept of legal capability is closely related to the capabilities approach. This paper critically examines the nature of this relationship. Part I seeks to demonstrate that whilst they share some broad affinity, the relationship between legal capability and the capabilities approach is currently disparate in both conceptual and practical terms.
In Part II, the paper goes on to consider what might happen if this relationship is reimagined and the two fields brought closer together. Aspects of this reimagining are considered in turn under three headings: emphasising choice and opportunity, broadening perspective, and promoting participatory approaches.
The paper concludes by summarising the potential advantages and disadvantages of this proposed reimagining, and by raising questions as to whether the implications of establishing a closer relationship between legal capability and the capabilities approach warrant further exploration, or whether it is preferable for the distance to be maintained.
to the capabilities approach family; and that they share a common ancestor in Amartya Sen. However, as will be discussed further below, members of the (relatively small) legal capability family have not developed relationships with members of Sen's larger and ever-increasing extended family. Conversely, and perhaps more controversially, Sen's extended family members have never made contact with any of their legal capability relatives and -if asked -may question that any relationship exists between them.
The lack of relationship is evidenced by its absence in the capabilities approach literature. In her 2017 review and consolidation of the capabilities approach, Ingrid Robeyns provides an overview of the diverse range of fields in which the capabilities approach has been applied. 16 Whereas Robeyns recognises that the extent to which the approach has been applied and/or developed in different fields varies widely, she makes no reference to work on legal capability in this influential text. To cite a more specific example, apart from the author, the only participant presenting on the subject of legal capability at the Human Development and Capability Association Conference in 2019 argued: 'The current attempts at defining legal capabilities… have one major disadvantage. Even though they refer to the capability approach of Sen, none of them offers a strong theoretical reference to it… The idea of capabilities is taken 16

Tracing the disparity in relationship
The disparity in the relationship between legal capability and the capabilities approach can be attributed to the fact that the development of the concept of legal capability has been influenced by two major factors outside of the capabilities approach. To revert to the earlier analogy; the legal capability family considers itself related to Sen, but it has other significant relationships. It has strong connections with the access to justice agenda and associated legal needs-based research. In terms of its conceptual development, it also has a less obvious but important association with work in the field of financial capability.
Dealing first with financial capability. legal capability as 'the personal characteristics or competencies necessary for an individual to resolve legal problems effectively;' 50 'the ability of individuals to recognise and deal with law-related issues that they might face' 51 and 'the abilities that a person needs to deal effectively with law-related issues' 52 implicitly place value on specific abilities, rather than valuing a person's freedom to choose whether or not to exercise them.
Related to this, a closer engagement with the capabilities approach reminds us that persons and the real opportunities each person has to live a life that she or he values are the central concern. As Robeyns summarises; 'we should always be clear, when valuing something, whether we value it as an end in itself or as a means to a valuable end. For the capability approach…the ultimate ends are people's valuable capabilities.' 53 So to articulate legal capability in capabilities terms, these are the 'beings and doings' that contribute to a person's well-being when they encounter lawrelated problems. These should not be considered as any kind of benchmark qualification for all people to achieve. 54 Rather, they represent a sort of baseline of opportunity, or a means to the end of facilitating a person's freedom to choose.
As stated earlier, Sen has never formulated any specific list of capabilities. However, Nussbaum has published a list of capabilities, referred to extensively in the wider literature, which she argues are the capabilities 'that can be convincingly argued to be of central importance in any life.' 55 For the sake of space, a shortened, paraphrased version of the list is presented below: • Life: being able to live a life of normal length, and a life worth living.
• Bodily health: being able to enjoy good health, and have adequate food and shelter.
• Bodily integrity: being free to move freely, and being free from assault and violence.
• Senses, imagination and thought: being able to imagine, think and reason.
• Emotions: being able to have attachments to people and things outside ourselves.
• Practical reason: being able to form a conception of the good and engage in critical reflection about the planning of one's life.
• Affiliation: being able to live with others and engage in social interaction; being able to be treated as a dignified being with equal worth to others.
• Other species: being able to live with concern for and in relation to animals, plants and nature. • Knowledge/Education: be able to acquire knowledge about the nature and existence of law and rights (both general and specific to a situation).
• Recognition: be able to recognise the relevance of law to an issue or situation, and frame in legal terms.
• Research: be able to find out more about the relevance of law to a situation; able to understand what information is required and locate it; able to assess reliability/credibility.
• Assistance: be able to seek and secure assistance from others.
• Reasoning: be able to think and imagine how law might apply to a situation and recognising the importance of the whole story.
• Assessing: be able to imagine and weigh up possible courses of action and possible outcomes; aware of own limitations and able to assess sources of help.
• Planning: be able to plan a course of action and anticipate potential barriers.
• Fortitude: be able to push for a desired outcome with firmness of purpose; legal confidence.
• Influence/communication: be able to engage and influence others.
This list represents a dramatic simplification of the Balmer et al.'s comprehensive framework and scholars working in the field of practical empirical measurement will justifiably call for the identification of more specific, discrete elements. Nevertheless, it is possible to argue that in this simplified form, the list represents a workable model for communicating the concept of legal capability to a wide variety of stakeholders; and particularly those people whose legal capability we are seeking to either measure or improve. As will be discussed further below, this increased accessibility is of importance if or when we seek to promote participatory approaches.

Broadening Perspective
In this section it is proposed that a reimagining of the relationship between legal capability and the capabilities approach leads to a broadening of perspective and a separating out of factors. In particular, this shift in perspective causes factors currently included as elements or aspects of a person's legal capability to be reimagined as factors highly relevant to but separate from them. Again, this is a subtle availability of services and availability of processes. As aspects of legal capability, the extent to which these resources are available to a person in any given situationtogether with a range of other factors included in the framework -will determine the extent to which a person is or is not able to deal with a law-related problem they encounter.
If we refer back to the origins of the capabilities approach, then we recall that Sen's ideas were presented in opposition to the traditional methods of evaluating human wellbeing by reference to purchasing power or the material standard of living. Hence Robeyns describes capabilities as 'real freedoms or real opportunities, which do not refer to access to resources or opportunities for certain levels of satisfaction.' 62 At first sight, this may indicate that resources are not relevant to the capabilities approach.
However, as Robeyns later makes clear, it is in the framing and conceptualising of capabilities that this separation from resources must take place. The importance of resources is recognised but they are situated 'behind' a person's capability set; in recognition that a person's capabilities are often determined by the resources available to them, combined with their ability to convert these resources into functionings (so-  viewed as a conversion factor, rather than as an aspect of legal capability. 69 This would then require legal services and processes to be designed in ways accessible to people with varying degrees of literacy, as seen in the emerging field of legal design; 70 so increasing the opportunities for people with limited literacy to convert these resources into functionings if they choose to do so. More generally, as Robeyns states, an advantage of clarifying resources and conversion factors (and in the case of legal capability, separating these out from capabilities) is that this provides valuable information as to where interventions can be made or targeted, to increase or expand capabilities. 71 Adding a further and final dimension to this reimagining of the relationship between legal capability and the capabilities approach, the modelling of core concepts set out in Figure 1 requires us also to recognise that 'the structural constraints that people face can have a great influence on their conversion factors, and hence on their capability sets'. 72 As stated earlier, much of this information is already known via the results of legal needs surveys, and their findings can and do prompt governments or organisations to adapt or implement policies and improve services. 73 This raises the question of whether this 69 Although the dichotomy between a conversion factor and a capability is emphasised here, it is important to note that because of the flexibility and open nature of the capabilities approach, it is possible for something to be categorised as both a personal conversion factor, as well as a very narrow and specific capability. Robeyns explains that 'while reading skills can be modelled as a conversion factor (and for some contexts this is the most fruitful way), one can conceptualise the very same situation as 'people being able to read' and then it becomes a (very specific) capability.' I. Robeyns broadening of perspective, proposed here as one result of strengthening the relationship between legal capability and the capabilities approach, is worthwhile.
And this paper does not claim to have the answer. But certainly there seems to be something more hopeful in taking personal factors such as literacy out of the realm of legal capability, where lack of literacy has an inevitable limiting effect, and seeing the legal capability of any person as capable of improvement via the provision of accessible resources and by the adaption of external constraints.

Promoting Participatory Approaches
As Robeyns observes, a wide range of approaches have been adopted to selecting capabilities. Nussbaum's list of central capabilities can be considered to be at one end of the spectrum of possible approaches because it was determined at an entirely abstract level. 74 But for many other scholars in the field, participation is a central concern and the capabilities approach 'relies on the agency and involvement of people…to specify which capabilities to focus on.' 75 Indeed, Nussbaum's list has been criticised for its failure to do this. 76 However, the capabilities approach literature also recognises that people's own views as to opportunities they value cannot be relied upon as the only evidence for formulating a list of capabilities. Indeed, within the capabilities approach, any theory which relies solely on people's subjective views of what contributes to their well-being is problematic. This is partly because it is recognised that all people's views are inevitably shaped by societal constructs and norms, so cannot be relied on strictly as their own views. 77 More particularly, it is due to concerns about adaptive preference.
As Robeyns points out, a large body of literature exists in relation to adaptive preference, but within the context of the capabilities approach, the concern is that people whose freedoms and opportunities are limited can (and do) adapt to their circumstances over time, and so when asked to comment on their own well-being, their report 'is out of line with the objective situation.' 78 To put this another way, Walker and Unterhalter explain 'our choices are deeply shaped by the structure of opportunities available to us so that a disadvantaged group comes to accept its status within the hierarchy as correct even when it involves a denial of opportunities.' 79 The resulting 'middle ground' is that so long as the method by which a list of capabilities has been generated can be explained and justified as appropriate; then once an explicit list is created -and the dimensions to be measured identified -then this should be openly discussed and defended, and adapted in light of new

Conclusion
In the summary to Part I of this paper, the following rhetorical questions were posed: What might be the implications of establishing a closer relationship between legal capability and the capabilities approach? Might they warrant further exploration? Or is it preferable for the two families to maintain a distant relationship? Taking the first question first, some of the possible implications have been considered in Part II, and some possible advantages and disadvantages of these implications are considered below. This leaves the latter two questions, on which the paper concludes.
Taken together the most apparent advantages arising from a closer relationship between legal capability and the capabilities approach relate to the person or persons whose legal capability we are seeking to measure and/or improve. the position of the person whose legal capability we are seeking to measure and/or improve; either generally or in discrete contexts. More generally, it was argued in Part II that one consequence of taking a broader perspective and separating out resources and conversion factors from capabilities, was to reimagine the idea that a person's characteristics (e.g. literacy) will inevitably influence their legal capability. In the proposed remodelled approach, the legal capability of a person with limited literacy can be improved by the provision of accessible resources.
The disadvantages relate firstly to those working in the field of practical empirical measurement of legal capability, for whom this suggested approach will be overly vague, idealistic and impractical. The second disadvantage relates to scholars working in the fields of PLE and legal capability more generally. This paper has relied heavily on Robeyns' 2017 text as providing a respected and convenient summary of the capabilities approach. This has been sufficient for and appropriate to its purpose.
But a deeper exploration of the capabilities approach, and any further steps taken towards strengthening the relationship between the approach and legal capability, will require engagement with unfamiliar literature, spanning multiple disciplines.
And so this takes us to the final two questions: Might the implications of establishing a closer relationship between legal capability and the capabilities approach warrant further exploration? Or is it preferable for the distance between the two families to be maintained? Given the tentative tone of this paper, readers will not be surprised to find no definitive answers here. The potential for renewed emphases on choice and participation certainly seem attractive in principle and worthy of further attention; but the practical implications seem over-whelming. Perhaps it is possible for the capabilities approach to be allowed some greater influence on aspects of work and research in the fields of PLE and legal capability in the future, but the extent of this influence will depend on the willingness of scholars and practitioners to accommodate this.

Author Postscript
During the time when this paper was undergoing peer review, Ann-Katrin Habbig and Ingrid Robeyns sent me their draft paper entitled 'Legal Capabilities', which is currently under peer review. It is notable that writing independently from me, and from a different perspective, Habbig and Robeyns draw very similar conclusions to those presented in Part I of this paper. They then go on to offer their own proposals for a new underlying theory of legal capability. These proposals affirm some of my thinking set out in Part II -particularly with regard to broadening perspectives -but do so in a way that is further rooted in the capabilities approach; drawing especially on the work of Martha Nussbaum.
In light of the fact that there is a forthcoming publication on the subject of legal capability in the capabilities field, the practical implications of advancing discussions concerning the relationship between legal capability and the capabilities approach now seem less over-whelming. Habbig and Robeyns' expertise in the capabilities approach 85 is accompanied by a concern to engage with PLE scholarship. Returning 85 Robeyns is recognised as a leading scholar in the field. Robeyns' PhD was supervised by Amartya Sen, and she is supervising Ann-Katrin Habbig's PhD studies.