Working with and for Animals: Getting the Theoretical Framework Right

Abstract

Two common approaches to the ethics of animal welfare are profoundly defective. One, an anthropocentric approach that orders forms of life by their likeness to human life, fails to grasp the variety and complexity of animal lives. A second, the Utilitarian approach, does better by seeing that pain is ubiquitously bad, but it does not articulate the diverse ways in which animal lives can be thwarted. I argue that a version of the Capabilities approach does much better, directing law and policy well. I develop this approach and confront it with a number of difficult questions.

Keywords:

• Animals
• Anthropocentrism
• Utilitarianism
• Capabilities Approach

Acknowledgements

As always the author especially is grateful to Rachel Nussbaum Wichert for discussion. She also owes thanks to Breena Holland, whose provocative comments appear with this article. Most of the expansions and changes to the previous article were prompted by excellent and searching questions from the audience at the annual HDCA meeting in Cape Town, South Africa.

About the author

Martha C. Nussbaum teaches in the Law School and the Philosophy Department at the University of Chicago. Her most recent books are Aging Thoughtfully (with Saul Levmore, 2017) and The Monarchy of Fear (2018). She is currently working on a book about capabilities and animal rights.

Notes

1 See Goodall (2000), ix, x–xi.

2 Ibid. at xii.

3 Ibid.

4 Ibid.

5 Wild Life Law Program (summarizing remarks by the author at an event co-hosted by Friends of Animals, a non-profit, international animal advocacy organization, and the University of Denver).

6 See generally: Wise (2000) (using the “So Like Us” approach to argue for legal changes for animals).

7 See infra Section titled The Least Common Denominator Approach.

8 Wise (2000).

9 Ibid.

10 Unlocking the Cage (2016).

11 Wise (2000).

12 Unlocking the Cage (2016).

13 Ibid.

14 Ibid.

15 See generally Schneewind (1998) (providing the history of the idea of autonomy, Kant's view, and its influence on modern concepts); Dworkin (1988) (leading philosophical account in terms of higher-order desires).

16 Wise (2000), Unlocking the Cage (2016).

17 Unlocking the Cage (2016).

18 Ibid.

19 Ibid.

20 Ibid.

21 Ibid.

22 Ibid.

23 Ibid.; Wise (2000).

24 Unlocking the Cage (2016).

25 Pliny (n.d. [2015]) [hereinafter Pliny]; Dio (n.d. [1969]). I read these sources in the original languages, but cite the translation only for the reader's convenience.

26 See Dio (n.d. [1969]), 361, 363; Sorabji (1993) (quoting Pliny).

27 Sorabji (1993), 124 n.21 (quoting Pliny).

28 Ibid., 124–25.

29 Nussbaum (2006) [hereinafter Frontiers of Justice].

30 Ibid.,125.

31 Ibid.

32 There are dissident strands in both, and when Pope Francis told a little boy that his dead dog was in heaven, his remark, heretical and rapidly withdrawn, still picked up on something that many people like to believe. At the time of my adult bat mitzvah in 2008, I was told by our cantor that Israeli animal activists have rewritten the Kaddish, or prayer for the dead, in order to include prayer for dead animals. I considered using this version, although in the end I did not because it is one of the few prayers that Reform Jews learn by heart, and they would be very upset to encounter new Hebrew words.

33 Kraut (2010), 450, 456. For a discussion of a more promising approach to animal rights through anthropocentric ethical thought, see Nussbaum (2015).

34 See Nussbaum (2010a), 463, 467.

35 Unlocking the Cage (2016).

36 See Whitehead and Rendell (2016), 120–121.

37 Swift (6th ed. 2005), 135–84.

38 See generally Nussbaum (2004) (critiquing the role that shame and disgust play in human beings' individual and social lives and, in particular, the law).

39 See generally ibid.

40 Ibid.; see generally Nussbaum (2010b) (arguing that disgust has long been among the fundamental motivations of those who are fighting for legal discrimination against lesbian and gay citizens). On December 16–18, 2016, the University of Chicago Center in Delhi, India, held a large conference on Prejudice, Stigma, and Discrimination to investigate the relationships among these types of disgust-subordination and yet others. The papers will appear in Zoya Hasan, Aziz Huq, Martha C. Nussbaum, and Vidhu Verma (eds.). Of particular interest for readers of the present paper will be Dipesh Chakrabarty's paper on the caste hierarchy, in which he argues that we must totally reimagine our relationship to nature.

41 Unlocking the Cage (2016).

42 See Whitehead and Rendell (2016), 120–121 (describing the example of a dolphin standing vertically on its tail).

43 See generally de Waal (1996) (demonstrating all kinds of animals respond to social rules, help each other, share food, resolve conflict to mutual satisfactions, and even develop a crude sense of justice and fairness).

44 Unlocking the Cage (2016).

45 See de Waal (1996).

46 See generally Lee (2002).

47 See generally Nussbaum (2001), 1506 (critiquing Wise (2000)); and Frontiers of Justice, 325–407; Nussbaum (2011), 228 (rejecting the classical utilitarian approach to the ethics of animal treatment and proposes a theoretical approach); Nussbaum and Wichert (forthcoming); Nussbaum and Wichert (2017a); Nussbaum and Wichert (2017b), 356–369.

48 See generally Bentham (1996).

49 See generally ibid.

50 Bentham notoriously leaves the move from “is” to “ought” undefended.

51 Bentham (1996) (emphasis in original).

52 See generally Lee (June 2002). Much of Bentham's work remains unpublished in an archive at University College, London, and is gradually being published; Lee was able to study some of the unpublished and also all of the recently published material.

53 See generally Singer (1975) (arguing the interest of animals should be considered because of their ability to experience suffering).

54 Bentham (1823); see also Nussbaum and Wichert (2018). For a sympathetic consideration of Bentham's views of sexuality, see Nussbaum (forthcoming).

55 See Nussbaum (2000).

56 See generally Nussbaum (2000) (explaining the concept and applying it to the lives of women in developing countries).

57 Ibid.

58 Not all agree: the Western philosophical tradition includes thinkers who see pleasure as an activity (Epicurus, Aristotle), and others who think that pleasure is closely linked to activity, “supervening” on activity (Aristotle again, since Aristotle has two different views).

59 Nozick (1974), 42–45.

60 Ibid.

61 Of course one might invent a special pleasure and call it the pleasure of agency; Mill appears to do so. But unless this pleasure is understood to be qualitatively, not just quantitatively, different from other pleasures, it will be difficult to capture the intuition contained in the example. Mill understood this.

62 See Nussbaum (2011), 17–18 [hereinafter Creating Capabilities].

63 See Nussbaum (1978).

64 See Creating Capabilities, 18.

65 Ibid., 18–19.

66 Ibid., 18.

67 Ibid., 18, 20.

68 Ibid., 23.

69 Ibid., 21.

70 Ibid. (characterizing the combined capabilities approach briefly). The same list of Central Capabilities appears in all my publications dealing with the approach.

71 Ibid., 17.

72 Ibid., 19–20.

73 Ibid., 33–34.

74 Ibid., 36.

75 Ibid., 158, and Frontiers of Justice ch. 6.

76 Ibid., 36.

77 Ibid., 161.

78 Unlocking the Cage (2016).

79 Ibid.

80 828 F.3d 1125 (9th Cir. 2016).

81 Ibid., 1142; see generally Horwitz (2015) (describing the sonar program in detail).

82 Pritzker, 828 F.3d, 1142.

83 Ibid., 1130–1131.

84 Ibid.

85 See Keymer (2017).

86 See the same Symposium. 

87 Nussbaum, “Constitutions and Capabilities: Perception Against Lofty Formalism,” Supreme Court Foreword, Harvard Law Review 121 (2007), 4–97. Reprinted in Quest for justice: Collection of essays, National Judicial Academy of India (Madhya Pradesh: National Judicial Academy, 2012), 30–73.