Nature, Toothless and Declawed

Martha Nussbaum’s dubious case for animals as liberal subjects
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In “Bisclavret,” a twelfth-century narrative poem by Marie de France, the moment in which the unwilling werewolf is recognized as a disguised human is one of wonderment mingled with fear.

He seizes the King’s stirrup-ring,
And kisses his foot and leg.
The King sees this, and feels great fear;
He calls all his companions over.
“My lords,” he says, “come, come here!
Behold this marvel, see this wonder.
How this beast bows down to me!
Its sense is human. It begs for mercy.
Drive me those dogs away again,
See that no-one strikes a blow!
This beast understands, feels like a man.”

The wolf, with his sudden, feudal, vividly human actions, is no longer neatly categorizable: He is at once beast and quarry, vassal and supplicant. This moment of recognition captures an uneasiness lodged deeply in all human-to-beast transformation stories: animal brides, werewolves, Actaeon torn apart by his own hounds.

We cannot be sure what animals are, because we cannot be sure what we are. We are beasts among beasts, and something qualitatively different. The boundary between these two kinds of being is always ready to dissolve by moonlight.

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Simon & Schuster ~ 2023 ~ 400 pp.
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But that boundary feels bright and clean in Martha Nussbaum’s latest rationalizing project, Justice for Animals, even if she draws it in a different place. The book is an intriguing attempt to find a simultaneously comprehensive and minimally metaphysically committed account of what we owe animals. It is also a plea, with dramatic upshots on questions like the justice of humans eating animals — even the justice of animals eating animals. The sort of liminal uneasiness we find in “Bisclavret” has no place here.

Nussbaum’s philosophical targets include utilitarian accounts, for focusing too narrowly on pleasure and pain alone; Christine Korsgaard’s Kantian view, for involving unnecessary and divisive metaphysical claims; and any arguments involving the old idea of a hierarchical “chain of being,” or scala naturae, for being fundamentally wrongheaded.

Instead, Nussbaum proposes an inclusive theory of basic justice, or rather injustice: “Injustice centrally involves significant striving blocked by not just harm but also wrongful thwarting, whether negligent or deliberate.” Nussbaum develops this theory by uniting it to her long-standing “capabilities approach,” hitherto used as a guide to human societies, and here extended to animals. What matters for justice, Nussbaum contends, is not maximizing pleasure over plain, as utilitarians say. What matters is the ability of sentient creatures to flourish in the specific form of life of their species — for the pigs to wallow and root and farrow, for the dolphins to swim long distances and play, for the ruminants to range freely in a herd, and so on. Underlying these differences are capabilities — goods — common to all: bodily integrity, health, mobility, and others.

This outline of her philosophical project, while covering a significant portion of Justice for Animals and undergirding its arguments, doesn’t really give a sense of the book’s scope or variety. Nussbaum tackles the practical implications of her theory throughout the book’s latter chapters, taking up questions such as whether it is always wrong to kill animals, whether there are tragic conflicts between our duties toward animals and other obligations, what we owe to companion and working animals, what, if anything, we owe to animals in the wild, and whether we can form friendships with animals. The book’s last chapter is an overview of, as Nussbaum persuasively depicts it, America’s miserably inadequate patchwork of limply enforced statutes protecting animals.

Many of the practical proposals she comes up with seem, if contentious, nonetheless sensible enough on the face — for example, the appointment of a political office with the legal standing to sue on animals’ behalf in court. They follow the contours of basic moral intuitions most people have about animals: Whatever the differences in specific lines drawn, almost no one thinks the beasts should be completely at the mercy of human caprice or cruelty, or that prohibitions on certain kinds of treatment should lack a robust enforcement mechanism.

But many of the conclusions she draws seem either thinly supported or stratospherically counterintuitive. For example, she concludes that it is always wrong to kill an animal that has a sense of temporality (except in self-defense or to end chronic suffering), since death interrupts the completion of temporally extended projects or rituals. Among such temporally aware animals she includes “all primates, elephants, birds, rodents, cattle, pigs, marine mammals, dogs, cats, and horses.” But defining this list seems like a fool’s errand, because whatever we include on it, the interruption of projects hardly seems a weighty enough rationale to support the prohibition of killing for food. The temporal rationale seems even thinner in the human context: totally disproportionate to the abhorrence with which we hold the murder of other humans.

In her chapter on what we owe to animals in the wild, she proposes that since prey animals have a right to live their lives free from fear and harm, we should, while not blaming predators for their tendencies, ideally substitute predation for humanely killed or laboratory-grown meat and encourage tigers to develop substitute behaviors, as we do with domestic cats. To Nussbaum, the fact that we currently lack the knowledge to manage such a massive ecosystem shift is a tragic limitation that circumstances may one day, hopefully, void.

I described the latter half of the book as Nussbaum working out “the practical implications of her theory.” This is true, but incomplete as a description of her approach. As she writes in the introduction, “even though the time has come to recognize our ethical obligations to the other animals, we have few intellectual tools to effect meaningful change.” The theory she proposes in the book is a tool to shape outcomes. Her project is both instrumental and explorative: she wants an intellectual framework to rationalize the intuitions she already has, and, having constructed one, uses its implications to push past the original intuitions that gave rise to it.

To be clear, this is not an intellectually bankrupt or unworthy type of project — doubly so because Justice for Animals is obviously a labor of love, a continuation and expansion of the advocacy work Nussbaum carried out with her recently departed daughter, Rachel, on behalf of marine mammals. But the somewhat self-contained nature of the project means that if you do not already share the shape and extent of Nussbaum’s intuitions, the movement from intuition to theory to conclusion may be unconvincing. In particular, Nussbaum’s reliance on concepts like “wonder” may fall flat.

“Wonder,” Nussbaum writes, “is connected to our perception of striving: we see that creatures have a purpose, that the world is meaningful to them in some ways we don’t fully understand, and we are curious about that.” She expands on Aristotle’s conception of the phenomenon, suggesting that wonder is specially related to sentience. “We see and hear these creatures moving and doing all these things, and we imagine that something is going on inside: it’s not sheer random motion, but somehow directed by an inner awareness, by a someone.” This, Nussbaum believes, at least obliquely suggests her basic theory of justice. “This idea is at least closely related to an ethical judgment that it is wrong when the flourishing of a creature is blocked by the harmful agency of another.”

But surely wonder is as appropriate a response to the roots of plants, sharing nutrients through mycorrhizal networks, an astonishingly complex and busy web of life, foundational yet hidden beneath the seeming inertia of the rich black earth. For that matter, who has not felt wonder over a river, the immense power with which it moves water over its course, the fragile communities native to its domain? Wonder may keep us from the worst excesses of the libido dominandi, from a belief that all of the created world is ours to contemptuously use any which way we please. But it cannot extend this general inhibition to any particular conception of justice, such as Nussbaum’s “significant striving.”

Wonder, by Nussbaum’s account, does not only prepare us for an account of justice that respects all strivers — it will also help us do away with the old, bad scala naturae in favor of respect for each form of life on its own terms.

The scala naturae is a medieval idea (Nussbaum is careful to distinguish the scholastic commentary on Aristotle from Aristotle proper) that she describes in the following terms:

Nature is a ladder, with lower rungs and higher rungs, reaching toward the divine. On the topmost rung is the human being, closer to the divine than any other living being in virtue of having reason and language — as well as an ability to understand, if not necessarily to abide by, moral distinctions of right and wrong.

This, to Nussbaum, is nothing but domineering narcissism, a way to rig the game so that the characteristics humans possess by mere evolutionary happenstance come out on top in the value hierarchy. In her view, even animal rights activists can be blinkered by the adoption of this view — for example those who advocate special treatment for elephants on the grounds of their similarity to us.

She would have us turn from this pettifogging sorting exercise and instead approach our fellow creatures with a kind of open-ended appreciation:

In short, if we line up the abilities fairly, not prejudging in favor of the things we happen to be good at, many other animals “win” many different ratings games. But by this time the whole idea of the ratings game is likely to seem a bit silly and artificial. What seems truly interesting is to study the sheer differentness and distinctiveness of each form of life.

The differentness and distinctiveness of each form of life is the object of Nussbaum’s often lyrical admiration. The particular form that life takes in a given species also, by her account, determines which capabilities we must empower in different animals. But because, for Nussbaum, justice is strictly a matter of fostering the significant strivings of agents in pursuit of their own ends, the issue of particular forms of flourishing only arises after a primary question has been asked and answered: Which creatures are sentient? Sentience, a subjective view of the world, is the condition that renders strivings significant.

To be a coherent, discrete system integrated toward its own end is not enough: plants are not objects of justice. Nor, for that matter, are lower forms of animal life, such as insects, because their ends do not involve perceptive, subjective striving. They lack sentience; they are not agents; they cannot be owed anything. This, as we’ll see, is a liability for Nussbaum’s project, if the contours of sentience were to become redrawn by some general agreement.

In my use of “lower forms of animal life” I have invoked, at least indirectly, that mean old scala naturae. But like a bad habit, the scala naturae proves hard to get rid of. “Higher” and “lower” as descriptors refer not only to proximity to the divine, but simply to levels of complexity, internal organization, and autonomy — by Nussbaum’s own account, the accidental byproducts of evolutionary advantage, which are illicit to privilege in terms of rational or moral status, but licit to privilege in terms of subjective perception and self-directing mobility. It is not clear that Nussbaum has fully done away with Aristotle’s (and the scholastics’) distinction between rational, animal, and vegetable souls. She has erased this tripartite distinction and reconstituted it as a hard boundary between sentient animal life and all other forms.

It is within the context of political liberalism that the attraction of Nussbaum’s account of justice becomes clear. The boundary of sentient striving allows animals to be considered under the same terms as other subjects in a liberal polity: as individual choice-makers among individual choice-makers. Her vision of justice is a bright boundary line, on one side of which all subjects are covered under the same blanket terms.

And this binary account of justice is, for Nussbaum’s purposes, suitably “thin.” That is, it has “definite ethical content,” yet does not “impose some overall doctrine of the good life, politically, on people who have their own ideas and are attached to them.” As far as what we owe animals, it involves only practical distinctions between what different types of species are owed, not moral distinctions between different types of creaturely dignity that a more comprehensive, metaphysically entangled account would entail. And it allows her to avoid such metaphysically laden terms as soul.

But while the claims involved may be suitably thin, the demands this account of justice makes are neither trivial nor intuitively obvious — as Nussbaum’s admirable willingness to follow her theory into the strange territory of predator domestication makes clear. Any hope that the reshaping of the world that Nussbaum’s ethic demands could be accomplished without winners and losers — both ideological and practical — is a nonsensical fantasy. The claim that this reshaping is inherently more respectful when justified on the narrow grounds congruent with political liberalism seems dubious. It might, after all, be more tolerable for the losers were there a thicker, more complete rationale behind their loss.

A more modest claim, that political liberalism disposes its adherents to respectful gentleness toward the losers, also seems questionable.

In a chapter on tragic dilemmas — dilemmas occasioned by competing and mutually exclusive ethical claims — Nussbaum uses Zulu bull slaughter, Inuit whaling, and Chippewa deer hunting as examples of bad arguments for killing animals to preserve cultures. She describes the Chippewa claim thus:

The Chippewa people hunt white-tailed deer as a necessary part of their material survival and cultural integrity. They claim that venison not only provides essential nourishment, but also fosters bonds of community, and, by ritual sharing with less physically able members of the people, fosters a sense of the equal dignity of all community members. The hunt itself is structured by prayers and rules that are central to the Chippewa belief system.

But Nussbaum tidily sweeps away any potential tragic conflict between her proposed ethics and the life ways of various indigenous groups. At best, she says, appeals to cultural preservation suffer from an intractable problem of “whose voices count”; at worst, they are merely the privileging of machismo. About Inuit whaling she writes:

Most appeals to the values of a culture attend to the voices of the powerful leaders of that group, usually male. They ignore women, critical voices, alienated voices, and so forth. In this case, the young male hunters are being heard, and all sorts of other people with Inuit credentials are not being heard: women, those who moved away out of dissatisfaction with tradition, those who criticize tradition, and so forth.

Aside from the baffling implication that only men are involved in hunting, or that only men have an investment in the continuance of traditional forms of life, there is an odd singling out of the “whose voices count” issue as a problem unique to indigenous political communities advocating for the preservation of tradition (and in many cases, simply lobbying qua sovereign nation for the enforcement of previously guaranteed treaty rights), rather than a problem common to all democracies, all forms of political representation and legitimation — problems that we seem able to live with while defending, say, majoritarian rule as a good.

Indigenous cultures can survive a ban on hunting and re-imagine the goods involved, Nussbaum contends. Thus, “there is no truly tragic dilemma here.” This is true enough as far as it goes. Various Native American cultures survived the Carlisle Indian School founder’s famous dictum, “Kill the Indian in him, and save the man.” They will doubtless survive “Kill the Indian in him, and save the deer.”

Only the most vulgar relativism or pusillanimous deference is unwilling to ever say that a given group’s cultural practices are evil. But it is worth bearing a few salient facts in mind in this particular case. The annihilation of buffalo herds is only the most famous entry in the long, sad story of the destruction of Native American food systems, in more than one case explicitly conceived as a method of breaking all capacity for resistance. After being forced onto reservations, various tribes were cut off from their subsistence capacities and made dependent on government rations — usually nutritionally subpar staples like flour, sugar, lard, and canned meat. Rates of debilitating chronic disease such as diabetes skyrocketed, to say nothing of “merely” social problems.

It may or may not be ethically incumbent upon all people to cease all consumption of animals. But to count the significant loss of remaining avenues of food sovereignty, of the ability to pass on subsistence capacities to the next generation, as mere archaic preference or preening machismo, unworthy even of the dignity of tragedy, is breathtaking arrogance at odds with the humility evinced elsewhere in the book.

Animals are in some ways the ideal subjects for the sort of political liberalism Nussbaum espouses: arguments can be made on their behalf, but they will never intrude with their own comprehensive accounts of the world, disputing what exactly counts as or enjoins “fair cooperation.” A bear will never sue for his right to hunt deer.

But as objects of concern, animals also expose the cracks and patchwork in Nussbaum’s liberalism. Nussbaum wants to afford animals a type of concern indistinguishable from other subjects in a liberal polity: as rights-bearing choice-makers among other rights-bearing choice-makers. To think about our obligations to them in any other terms would pose a problem: it would indicate limits on the political theory’s ability to deal with the actually existing world. But to achieve this necessary homogeneity of rights-bearers, Nussbaum must attribute to animals a form of human life — a move forbidden by her policy of purely lateral appreciation for difference. The boundary line of sentience is, of course, an exception to this preference for the purely lateral: sentience renders the strivings of creatures significant, and marks them as agents, as appropriate subjects for a liberal policy. All these tensions, admittedly different from the one embedded in “Bisclavret,” lead to confusions as striking as the werewolf himself.

For instance, Nussbaum claims that we owe animals the lives they would lead if they could communicate their choices. In doing so, she provisionally imputes to animals a deliberative capacity that is not merely impaired in a given individual, but totally orthogonal to the way most animal species seek their good as they move through the world.

She tentatively accepts contraception as a welfare measure that animals would probably consent to, if they could. But in human terms, non-consensual contraception or sterilization of cognitively impaired people is arguably a serious violation of their dignity, even when done in the interests of their welfare. For Nussbaum’s position to hold, animals must be something other than temporarily embarrassed consenting adults. (Of course, in fairness to the charge of inconsistency, some liberals have at various points proved themselves happy to sterilize the cognitively disabled.) Animals, Nussbaum also claims, are not to blame for their predatory qualities, even though these qualities violate the rights of prey animals and should be curtailed to the extent of our limited power. Elsewhere, she claims that saying antelopes exist to be eaten is like saying women exist to be raped. But sexual violence is not evil only qua subjective violation or harrowing experience. Its particular evil requires a deliberate act on the part of another moral agent — we consider victims of sexual assault to have suffered a different type of wrong than the recipient of a dog’s embarrassing attempts at coitus with the human leg. For predation to operate on the level of rape, it must implicate the predator.

But the sentience criterion for who counts as a rights-bearing choice-maker has a more fundamental flaw. It is one thing to bring the whole of the sentient animal kingdom under the domain of moral concern, which it then falls to humans to enforce. But, in theory, there is no reason we might not someday realize we need to include plants too. After all, there are those who attest that plants can feel pain, respond to loving care, coordinate mast years and defensive strategies — even that individual cells may be sentient. If the scientific consensus ever coalesces on their side, it will probably be even more difficult to integrate these wildly alien and mutually interdependent minds tidily into parameters of justice-as-fairness.

Not all accounts of justice toward the natural world require plants to be non-sentient. But any reasonably strong consensus around the sentience of plants would be a further problem for Nussbaum’s theory. If plants are owed the same treatment on the same grounds she proposes for animals, all but an extremely narrow slice of ongoing life will be implicated; metabolism will be suspect.

This is a fanciful scenario, but we need not imagine the future where plants are elevated in this way to see what Nussbaum’s account already implies about the circle of life as we understand it now. It may, by Nussbaum’s account, simply pose a tragic dilemma, a situation where one moral imperative (not killing) is in unsought conflict with another (sustaining life). But if tragic dilemma is written into the very ongoing grounds of life, it is difficult to see what the point of the capacious ethical prohibition against killing animals is. In any case, explaining why murder is prohibited among humans requires more intellectual and moral resources than explaining why animals eat each other.

There are traditions in which a tragic futility is written into the current world, a futility that will someday be negated in ways we can barely and insufficiently imagine. But until then, whether through competition, predation, or exploitation, from mushrooms to magpies, the price of life is life itself.

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