by Jeroen Bouterse
The cover of Martha Nussbaum’s Justice for Animals (2023) shows a humpback whale breaching: a magnificent sight, intended to evoke both respect for the animal’s dignity, and interest in its particular forms of behavior. Here is a creature which has moral standing, without being a direct mirror of our human selves.
It is more than mere illustration of the argument. Nussbaum consciously relies on pathos as well as on philosophical reasoning: she announces from the outset that she seeks to awaken wonder and compassion in us with respect to our fellow animals, and productive outrage about how we treat them (9). No objection so far; our treatment of animals is, in many contexts (factory farming in particular), not at heart a philosophical issue, in the sense that there are no tenable metaphysical, anthropological, or ethical theories that can take a serious shot at justifying it. It is an issue that requires attention more than it requires deep or subtle thought.
This notwithstanding, Nussbaum also believes she has something to contribute on the theoretical side: several chapters of Justice for Animals are devoted to the case that her Capabilities Approach (CA) is more suitable than several alternatives in clarifying why and in what sense animals deserve moral consideration. The three alternatives she rejects are:
- That animals matter because they are like us (and to the extent that they are like us);
- the utilitarian perspective, that animals can experience suffering and pleasure, and this always counts (i.e. utilitarianism);
- the Kantian perspective, that animals, in pursuing goods, reveal themselves to be sources of value.
Of these three, she says the third (represented by Christine Korsgaard) is the closest to her own position, and her qualms about it are more metaphysical than ethical. The CA she herself defends is “about giving striving creatures a chance to flourish” (81). A theory originally centered around the capabilities of humans, it applies to animals because they are striving creatures, too. Though they strive for different things and this needs to be considered, there happen to be a lot of similarities: humans and other animals all strive for life, for instance, and for health, bodily integrity, and the use of our senses.
Is this indeed better than utilitarianism?
Granted, a list of capabilities that a creature should be able to actualize is more information-rich than the concepts of pleasure and suffering. If I need to take care of an animal and all I am told is “try not to make it suffer”, I will be less well prepared than if I also get information about how it enjoys running around at night, finding sunflower seeds, and not being eaten by cats. Obviously, I need to know what allows this particular animal to flourish. However, would I, as a utilitarian, not be interested in this information? How is flourishing different from pleasure, and how is CA different from utilitarianism plus an outline of what gives a creature pleasure?
For clarity, consider that there are creatures that (probably) cannot suffer, but can clearly flourish: plants, for example. Under a capabilities approach, do concepts of justice apply to them? Probably not, according to Nussbaum (148-152), but she gives multiple reasons and it is not completely clear which one does which part of the work. She says that striving involves “movement from place to place” (137), in which case plants are indeed out; but that criterion is itself puzzling. She says that plants are not individual creatures, so there is no unit for which things matter. She also says that the teleonomic behavior of plants seems to take place without being determined by anything like intentions or subjective striving. It seems most likely that this is the crucial point; that you need to be sentient for your capabilities to matter and for the CA to kick in.
That is consistent, but it seems vulnerable to a utilitarian reduction. Animals’ flourishing matters because it affects their subjective lives (which plants don’t have); well then, why not focus on those subjective lives? Why draw our attention to what people and animals can do in the world, if what matters at bottom is their potential as a subject – their sentience and possible experience? Why add – except for pragmatic, heuristic purposes – the extra layer of realizing your potential? Can’t we just say that CA is applied utilitarianism, since many animals tend to be happier when they get to exercise their capabilities than when they are frustrated in doing so?
Substandard conditions
Two points Nussbaum made in her chapter against utilitarianism stuck with me. The first is that pleasure is a rather abstract concept, covering a diversity of experiences that supervene on different activities. This is a reason we should reflect on the activity itself: the pleasure of doing X is simply not the same as the pleasure of doing Y. To illustrate this, Nussbaum notes that humans take pleasure in practices that make animals miserable; should those pleasures then count as goods? Nussbaum thinks this is a hard question for utilitarians (47). It isn’t, really. The answer is yes, the taste of meat or the sensation of wearing fur count as goods; but the suffering they cause massively outweighs the good.
This should not distract us from the important point Nussbaum makes: that not each pleasure is the same, and that when we think of the pleasure we take in doing some activity, it is hard to separate that particular kind of pleasure from that particular kind of activity. This is a good argument in favor of thinking in terms of capabilities and activities, in a way that doesn’t necessarily contradict the idea that pleasure comes first, but that does undermine its additive property. Note, by the way, that this doesn’t solve the problem of conflicts. Nussbaum recognizes, for instance, that many animals flourish by predating on other animals. It is no easier for CA to solve this tragic conflict than it is for utilitarianism.
In fact, it becomes harder once we admit a second argument she makes against a pain-pleasure-calculus: that animals, like people, can “adapt to substandard conditions”. Like women in sexist societies, animals in zoos “may not feel pain and dissatisfaction about their lack of free movement or social company, since they have never experienced these things, and since, like women, they are rewarded by their keepers for docility and punished for protest and aggression.” (48) A committed utilitarian like Peter Singer, she suspects, would “dig in and say that a satisfaction is a satisfaction, regardless of the process that led to it.” (52) Nussbaum, on the other hand, thinks that we should have a concept of flourishing that does not condone this kind of oppression; it shouldn’t be okay to game the utilitarian calculus by shaping creatures that enjoy their own subjugation.
My first thought in reading this was that this was tough talk for a book full of heart-warming anecdotes about caring, understanding, and self-sacrificing dogs. Nussbaum confronts this point directly in a chapter on pets: in dogs, she says, we really did create the “natural slaves” Aristotle is often criticized for hypothesizing in humans (197). We have been so thorough, however, that there is no way back: dogs and cats now flourish best if they live with humans, provided they are treated well.
It seems that Nussbaum’s objection to ‘substandard conditions’ does not run all that deep. “A capability may be described in multiple ways”, she muses in the section on predators. “We could say that what is typical of cats is the capability to kill small birds. We could also say that what is typical, and crucial, is the capability to exercise predatory capacities and avoid the pain of frustration.” Giving the cat a scratching post is fine, “unless we have overwhelming evidence […] that cats without bird-killing are depressed and miserable.” (248) Nussbaum knows that the capabilities of the cat can’t be cut at the joints; no alarms will go off if we redescribe them in such a way that we violate the essence of being a cat. When push comes to shove, the presence or lack of suffering decides whether an arrangement is acceptable. The language of capabilities is pliable; suffering is real.
Descriptions and intuitions
That descriptions of capabilities are negotiable is especially relevant in animal ethics, as animals cannot take part in those negotiations. Nussbaum thinks this is just a practical matter of representation. Not all humans go to court or even vote; and likewise, animals can be considered as fellow citizens even if their interests are in some way represented by humans (98). However, humans’ capacity to take active part in shaping the norms and institutions governing our societies is not just legal; humans also talk to each other frequently and often, using normative and value-laden language all the time, referring to models of how society works and influencing each other’s descriptions of social phenomena. Even when they don’t vote or don’t have the right to vote, they act as political animals. Now Nussbaum, too, argues (77) that we shouldn’t define citizenships too narrowly; but my point is that a broader view of active citizenship still requires language, and will therefore still exclude animals. Yes, some animals can communicate about their interests (97), but we cannot do politics with them in the sense that the CA is calling for: negotiating which capabilities, under which descriptions, are most valuable. We can only find out what their interests are, and then weigh them.
When Nussbaum says that it is probably necessary to neuter all stray cats (216), she seems to me to be quietly acknowledging this point. We make the call to reduce suffering, through an intervention that would be a major rights violation if it were applied to humans but clearly doesn’t have the same meaning when applied to cats. Cats can have no say in the matter, not just because we don’t speak Cat but because though they have stakes in the decision, they have no opinions about it. There is no answer to the question whether on reflection, cats would rather have their reproductive capabilities kept intact or allow the lives of cats in the area overall to be a little less miserable in the longer run. Those descriptions are there for us, because we need them for doing politics.
Because animals cannot resist the descriptions that inform the way in which we deal with them, we need to exercise extra care when talking about their interests, not projecting our own preferences on them. Here, I worry about the way in which Nussbaum treats our own emotions as epistemically relevant. When she describes a humpback whale starved to death because of all the plastic trash it ate, she concludes by saying: “He will not sing again” (xviii). This is true. However, the pathos captures better our sense that the world has lost something that is beautiful to us than it does the actual interest of the humpback whale in its own song. I don’t want to claim that whales don’t enjoy singing or hearing whale song; I mean that our own aesthetic intuitions are not a reliable guide to the preferences and interests of nonhuman animals, especially as they get more unfamiliar to us.
Nussbaum seems to think otherwise; she sees our emotions and intuitions as appreciating something real about animals. “Our sense of wonder is an epistemic faculty oriented to dignity”, she says (96). It is probably the sentence in the book with which I disagree the most. The natural objection to it is that we feel a sense of wonder when we look at any impressive natural phenomenon, such as a thunderstorm or an eclipse, and that this faculty therefore shows itself to be poor at picking out entities with moral standing. Nussbaum believes that the two kinds of wonder are different: “What seems wonderful about an animal life – say, the life of a cat – is its own active pursuit of ends, so our wonder and awe before such a life is quite different from our response to the Grand Canyon or the Pacific Ocean” (67). But this is just an explanation of how a cat is different from the Grand Canyon; it is not a description of how our faculty of wonder leads us to appreciate this difference. It is common for people to anthropomorphize or even worship lifeless natural phenomena, which suggests that we don’t always intuitively appreciate the difference.
Talking of a ‘faculty’ of wonder naturalizes and essentializes responses that are contextual, historically conditioned, and faulty: we can see an ocean (wrongly) as a god or (rightly) as an impressive but lifeless and amoral phenomenon; we can see a cat (rightly) as a creature with intentions and purpose or (wrongly) as a clock-like mechanism devoid of feeling. All these responses can become ‘intuitive’, which is a reason to be distrustful of responses we think are natural. Nussbaum believes we see the dignity of the striving animal intuitively “when we watch dolphins swimming freely through the water in social groupings, echolocating their way around obstacles and leaping for joy” (96). However, you cannot see an animal echolocate; again, the appeal to intuition is in fact an appeal to cultural knowledge, calling a birds’ eye view and David Attenborough’s voiceover into our minds.
What is it about this situation that our faculty of wonder perceives? It seems we are invited to imagine the good of simply being a dolphin; to contemplate the dolphins as such, doing what is natural to them, realizing their dolphin-ness. Indeed, Nussbaum expresses an interest in respecting each animal not for how it is like us, but for what “lies at the heart of its form of life” (33). Nussbaum avoids natural kinds-talk, but it is always right around the corner. The dolphin scene evokes an image of nature taking its uninterrupted course, where all natural striving aims at actualization of a form of life; but as a proposition, this it is not easily defended (and in fact, Nussbaum has a whole chapter in which she deconstructs the romantic notion of ‘the Wild’). More evidence, I think, that relying on our intuitive perception of animal dignity is problematic.
In fact, after all, nature is full of conflicts; the goals of evolved animals often run counter to each other – the cat wants to catch the mouse, the mouse has other plans that require it to continue living. Nussbaum confronts these conflicts honestly, and is bold and creative in her attempts to rise above and resolve them. However, her resolutions seem to rely on a healthy dose of utilitarianism, rather than on an insistence to let each animal lead its own best life. It is slightly easier for the utilitarian than it is for the CA theorist to say that a cat should be fine with canned meat substitute and a laser pointer. Under many plausible descriptions of a cat’s “form of life” – especially the ‘intuitive’ ones that care about when the cat looks most dignified – it is a life best led by killing small fauna.
In that case, the most forward-looking question is not how to allow the cat to be the best possible cat, but how to allow it to lead a contented life at minimal cost to the interests of other creatures. Often, this utilitarian question will give answers that should also satisfy a CA-informed perspective. Awareness of the cat’s inclinations and desires – asking what it strives for – is necessary for both. Even apart from this concurrence, Nussbaum’s argument has turned the application of CA to nonhuman animals into a live option for me, leaving the question in my mind whether it is not better to think in terms of striving and flourishing than of pleasure and suffering. However, I also believe it has many of the same problems that she attributes to utilitarianism, plus a few others; that her dismissal of utilitarianism is a bit too fast especially in this nonhuman context; and that in fact she often falls back on some sort of utilitarianism when adjudicating which strivings are worthy of protection, and under which descriptions. Philosophically, her book is not the last word on the matter. Politically, it is another welcome call against indifference to the plight of nonhuman animals. The last thing is what matters.