Dec. 6, 2022

By David Marchese

Over the course of her long career, the distinguished philosopher Martha C. Nussbaum has written key books about foundational human subjects: sex and gender, ethics, politics and justice, to name a few. With her upcoming book, though, she has fully turned her formidable attention to the nonhuman as well. In “Justice for Animals: Our Collective Responsibility,” published on Jan. 3, 2023, Nussbaum, who is 75, argues for, among other things, increased legal standing for animals as well as an ethical framework in which animals’ right to pursue flourishing lives is not subordinate to our own. The book is dedicated to her daughter Rachel, an animal rights lawyer who died in 2019 at 47 from an infection following transplant surgery. “Each individual animal of each kind should have a decent shot at living a life that’s characteristic of that creature,” Nussbaum says. “But so many problems stand in the way.”

It seems clear that things like factory farming and illegal poaching impede animals’ right to pursue flourishing lives, which is a right humans take for granted. It also seems reasonable that animals should have legal recourse when that right is impeded. But does it then follow that we think of animals’ lives as being equal in value to humans’? For example, if a passer-by saw a dog and a child in a burning house and saved only the child, I suspect that most people would think that was an understandable decision. But if it was the reverse, and a passer-by saved the dog instead of the child, I’m guessing that would be seen as an egregious moral error. Why is that? I think it’s about the same thing that would make us want to save a member of our own family over a stranger: an intuitive sense of affiliation. That’s not terribly bad. It has guided us well in many cases, but what it misses is that both choices involve wrongdoing. It’s a kind of Sophie’s choice. If we do save just one on the basis of affiliation, we have to recognize that it was wrong that the other one perished. That would lead to redoubling our efforts to make sure animals don’t perish in the future. In personal life a sense of affiliation is OK, but public policy should not be based on interest-group affiliations. What’s good is to have a theory of justice that guides the large scope of our public actions and then leaves spaces where within that, we can favor our own children or whatever. It’s the difference of spheres.

How do we delineate separate spheres when it comes to justice for animals? Their lives and well-being are so completely intertwined with humanity. There are two models of this. The first would be, What can we do now? The other would be, What kind of long-term goal are we aiming for? My book is mainly about the second question. If we have a sense of the long-term goal — what I call the virtual constitution — that the world should be aiming at, then we can say more sensibly, OK, where do we begin? I’m an incrementalist. We have to start with correcting the worst abuses. The factory-farming industry, they’re subsidizing actions that create a false veneer of acceptability over the practices of the meat industry. We have to get people to know what’s going on and then try to figure out different ways that we can take concerted action toward justice. It’s hard because some animals are within national boundaries, some wander across the world. We have most hope where action can be locally coordinated. If you want to stop puppy mills from marketing their wares in Chicago,you can do that. But we have to have a long-term goal, and I’m trying to articulate that.

What about the long-term goals of, say, elk hunters? They can make the argument that their long-term goal is the health of elk populations and that they contribute to that goal by supporting conservation, that death by a gunshot is preferable to death by disease or predation, that the money they pay for licenses generates revenue that helps to support wildlife commissions and so on. So does that mean hunting elk for sport is ethically just? The elk problem is really interesting. I do feel that there has to be population control both on the part of humans and animals. Now, the available methods of contraception for animals are not always good.

But humans and animals have to limit our own population growth in order for the world to be minimally just. With the elk, there are things that have been tried: shooting them in cold blood; some kind of population control; introducing wolves to tear the elks limb from limb. People say that’s better because it’s nature. I don’t like that argument. For the elk, a bullet to the brain — if the person knew how to shoot, which a lot of hunters don’t — would be a lot better than the wolf’s tearing them apart. So I think the only reasonable long-term solution is some form of population control.

What you just said about wolves is making me think about a sentence you have in the book about vulnerable animals in the wild: “It simply is not part of the form of life of these creatures to be eaten by predators.” Isn’t it, though? How could it not be, given that predators do exist? Nature is not harmonious, and nature is not just. Just think: Women are often raped, and that has been so all throughout human history. That doesn’t mean women were made to be raped. They were made to lead their own lives with considerable autonomy. But in fact, they’re in an environment where other people have the power, so they all too often get raped. That doesn’t mean we should perpetuate that and say it’s the nature of women. So, too, with predation. Now, as an incrementalist I want to be cautious here because I don’t think that predatory animals are doing anything wrong. I don’t think they should be deprived of their way of life. We also don’t know what terrible imbalances will be created in the ecosystem if we start protecting all the antelopes from getting killed. We do know that with our companion animals we teach them substitute behaviors. People who let their cats go outside try to stop them from eating little birds and to teach them, well, they can scratch a tree. If they’re indoor cats, they can have a scratching post. They want morally acceptable ways of getting the satisfaction of their predatory instincts.

But wild carnivores aren’t going to stop being predators. That’s what humans have done over the centuries: The fact that more women and children don’t get raped and tortured and so forth is due to the fact that we’ve invented deflections, like professional football and other competitive sports, as an outlet for the aggressive instincts that men have had over the centuries. I think that’s not working real well. It’s leading to a lot of culture of rape and bogus masculinity, but that’s a separate issue. I think substitute behaviors would be best. In a zoo they’ll give the tiger a weighted ball to play with, then give it humanely killed meat. Which is a lot better than tearing apart the little creature.

The comparison you just made between predation and rape is one you also made in your book. But isn’t the subsistence aspect of predation a big difference between that and rape? Wild carnivores have to eat other animals, otherwise they’ll die. OK, that’s a good point. I think sometimes in wartime and other cases too, men feel that they need to rape because they have to have a partner and they have to have children, and even today, you know, this growing incel movement says, “I have the right to go out and rape women because I can’t get a date.” There is that strand in the rape culture, but, anyway, it’s not subsistence, as you say. That’s why I don’t want to say that animals are doing anything wrong. Of course the fact is that everywhere big cats live humans are in control, so they can feed them if they want to, but I would discourage doing that in the large animal refuges because it’s too uncertain what would happen to the whole environment. But in principle you would do what the San Diego Zoo does: give them humanely killed meat. Eventually it could be lab-grown meat that wouldn’t involve killing at all, and we would let them exercise their predatory instincts in some other way. But that’s not something we should be in the business of doing now.

You said before that nature isn’t just. But aren’t questions of justice irrelevant to things that happen in the wild beyond human control or intervention? When people make this kind of argument, they don’t understand the extent to which humans are in control in these spheres. They think a wildlife refuge in Africa is a pristine space that has no human stewardship in it, and that’s simply false. They think the seas are places with no human activity, and that is very false. The skies, too. So we better realize that. But why would people think that because something happened in the course of nature that made it just? Morality and what actually happens have never been thought to do very well together, and it would only be by the most absurd straining, like the Panglossian view in “Candide,” that you would think it did. When people say that, one of the things they’re doing is comforting themselves. If it isn’t a beneficent god doing it, it’s nature, and nature is just the way things happen. Now there is no nature in the world because we’re in charge everywhere. The only question is are we going to be benign and fostering stewards or not?

Let me ask about animals and legal standing. One criticism of giving increased legal standing to individual animals is that, for people, being part of the legal system implies some degree of both social responsibility and accountability, neither of which animals can have, at least not to nearly the same degree. Does that argument hold water? Look, the criteria for standing involves there’s an injury, and you’re injured as a particular being. You don’t have to have accountability. It’s the injury that gives you standing. Standing just means a lawyer can represent you in court.

 So we’re talking about lawyers who would represent the animal’s interest. The problem comes when there is no “you” to be the agent of the animals’ good. When the animal is suffering — if you’re beating your dog and the laws aren’t being enforced, there isn’t anyone who can intervene and say, “I’m going to go to court as the ally of that animal and sue for enforcement of the laws.” In the case of animals who are localized, and not just domesticated animals — animals in our cities — there should be a department of animal welfare that would exercise a similar function.

Just to make it concrete, what’s an example of a good law that isn’t being enforced? Most states have extensive laws against cruelty to domestic animals and farm animals, and those laws are rarely enforced. Laws about how you can transport cattle, what conditions have to be in the railroad car, how long they can be there, what kind of food they have to have. As for dogs and cats, if somebody is abusing an animal, right now there’s no enforcement mechanism if the laws are not being enforced. Standing would allow you to do other things as well: not just enforce existing laws but also make constitutional challenges of various kinds. But at least we can start with the laws we have, and if you read the Animal Welfare Act, that’s a very expansive law that has extensive federal protections for species, but there’s basically no enforcement. I think there need to be offices at the local, state and national level. At the local level, Chicago has a department of child welfare. There should be the same thing, a department of animal welfare, and then a mechanism of mandatory reporting, where citizens not only may but must report animal abuse that they see. Then at the state level you can do this as well and at the federal level we need tougher laws too.

 Ultimately we could do what India has done, which is to give animals recognition as persons under constitutional law. Animals have now been recognized as persons within the meaning of Article 21 of the Indian Constitution, which is their equivalent of our 14th Amendment. You can’t deprive an animal of life or liberty without due process of law. That would be the goal.

You described yourself earlier as an incrementalist, but if we were to follow through on the arguments in the book for animal justice, it would mean totally rethinking big swaths of contemporary society, from land ownership to the food we eat. What’s the best historical parallel for the kind of change that you’re envisioning? I would think the onward movement of women. For thousands of years, women were thought of as mere things, property of men. If you read Homer’s “Iliad,” a woman is a prize to be given out to a hero. That was the standard view of women, though of course there were counterviews all along. In the case of animals, there’s the same treatment of them as mere things, mere property. People ask me why I’m such an optimistic person, but being a feminist and being a woman, you can hardly help it. In 1890, no nation offered women the vote, and now even in Saudi Arabia, women, after a fashion, have the vote. There’s this onward march. There are setbacks here and there, but because women are outperforming men in higher education everywhere in the world, I think it is not, in the long term, going to be stopped. With animals it’s the same but slower, because their voices are not recorded, and they don’t participate directly in public policy. It’s only through the good-will engagement of humans that this progress will take place. But I think it will take place.