A New Voice for Animal Justice: The Formidable Martha Nussbaum

By Kenneth Ring, Ph.D.

Unless you read contemporary philosophers, you may never have heard of Martha Nussbaum, but in the world of modern American philosophers, she pretty much towers over her academic colleagues. In the pantheon of her fellow philosophic scholars, she is generally regarded as the queen who sits kingless on her throne.

She herself is such a formidable scholar, she sometimes simply scares her colleagues with the brilliance of her coruscating intellect. Now at the University of Chicago, she seems to have been denied tenure at Harvard because she intimidated many of her colleagues. Besides, some of them, mostly women no doubt, probably also resented her because she could then wear mini-skirts to great effect. Intellectually and physically, Martha Nussbaum, is a beaut. And even now, in her mid-seventies, she cuts an attractive figure. See for yourself.

But why, you ask, or should, am I talking about a scholar the fecundity of whose work is legendary? What does she have to do with the question of animal justice? Plenty, as you will learn. Among other things, Martha (if I can presume first name privileges, which she would probably regard as an inexcusable affront – look at those steely eyes!) is the author of the forthcoming book, Justice for Animals: Our Collective Responsibility, which will be published in December of this year. If I should live that long and still retain my wits and what’s left of my vision, I plan to read it. And maybe you might wish to do so as well when you learn more about her. In any case, owing to her reputation, it is sure to become an influential book.

Before exploring her views about justice for animals, and why I give them such importance, let’s enjoy getting to know more about this remarkable woman. Fortunately, a few years ago there was a wonderfully intimate profile of her in The New Yorker, which was written by Rachel Aviv. And since I am lazy and have had many obstacles to overcome before writing this blog, I am going to indulge one of my worst vices and simply quote a few paragraphs from Aviv’s article. Ready? Meet Martha Nussbaum.

A sixty-nine-year-old professor [at time his of this profile] of law and philosophy at the University of Chicago (with appointments in classics, political science, Southern Asian studies, and the divinity school), Nussbaum has published twenty-four books and five hundred and nine papers and received fifty-seven honorary degrees. In 2014, she became the second woman to give the John Locke Lectures, at Oxford, the most eminent lecture series in philosophy. Last year, she received the Inamori Ethics Prize, an award for ethical leaders who improve the condition of mankind. A few weeks ago, she won five hundred thousand dollars as the recipient of the Kyoto Prize, the most prestigious award offered in fields not eligible for a Nobel, joining a small group of philosophers that includes Karl Popper and Jürgen Habermas. Honors and prizes remind her of potato chips; she enjoys them but is wary of becoming sated, like one of Aristotle’s “dumb grazing animals.” Her conception of a good life requires striving for a difficult goal, and, if she notices herself feeling too satisfied, she begins to feel discontent.

Nussbaum is monumentally confident, intellectually and physically. She is beautiful, in a taut, flinty way, and carries herself like a queen. Her voice is high-pitched and dramatic, and she often seems delighted by the performance of being herself. Her work, which draws on her training in classics but also on anthropology, psychoanalysis, sociology, and a number of other fields, searches for the conditions for eudaimonia, a Greek word that describes a complete and flourishing life.

She divides her day into a series of productive, life-affirming activities, beginning with a ninety-minute run or workout, during which, for years, she “played” operas in her head, usually works by Mozart. She memorized the operas and ran to each one for three to four months, shifting the tempo to match her speed and her mood. For two decades, she has kept a chart that documents her daily exercises. After her workout, she stands beside her piano and sings for an hour; she told me that her voice has never been better.

Formidable, as the French say, n’est-ce-pas?

Now, at last, we must turn our attention back to our main concern, justice for animals, and explore how Nussbaum treats this issue. At one point in her career, the famous American philosopher, John Rawls, became one of her mentors. Rawls, one of the most influential philosophers of the twentieth century, was chiefly noted for his writings about justice -- and fairness. Nussbaum, too, has long been interested in matters of justice, and has recently begun to devote her considerable energy to developing a framework for creating a just world for non-human animals.

In a recent article, “What We Owe Our Fellow Animals,” which surely anticipates the argument she will enlarge upon in her forthcoming book, Nussbaum begins by reviewing many of the findings in recent animal research that demonstrate the remarkably complex cognitive and emotional lives exhibited by our fellow creatures. (In a number of my previous blogs I have explored much of this literature, so I need only allude to that here.) After her extensive introduction, she then pivots to her main theme, which she announces with her characteristic vigor:

The new learning about animal lives and their complexity has large ethical implications. At the most general level we must face up to the fact that many, if not most, animals are not automata or “brute beasts” but creatures with a point of view on the world and diverse ends toward which they strive—and that we interfere with these forms of life in countless ways, even when we do not directly cause pain. We deplete and reduce habitats, we fill the seas with plastic trash that often becomes lethal food for whales (once ingested it remains undigested, filling up their stomachs until the whales can no longer eat nutritious food), we disrupt marine mammal life by noise pollution (military sonar, air guns used by oil drillers to chart the ocean floor), we build brightly lit skyscrapers into which small birds crash—and the list goes on and on. If injustice involves wrongfully thwarted striving—and I think that’s a pretty good summary of the basic intuitive idea of injustice—we cause immense injustice every day, and injustice cries out for accountability and remediation.

She then begins her deliberations by recapitulating some of the findings I have already discussed when considering the unhappy case of Happy, the elephant, namely, the damage we do animals in captivity when we deprive them of the space they need to flourish and particularly the familial and social networks without which their nature can never be fulfilled. As Nussbaum puts it succinctly, “The test for whether captivity is ethical should always be to ask whether creatures can exercise their characteristic activities in attractive and typical surroundings.”

To help the animals we care for, Nussbaum says, we not only need good science and courageous activism, but in order to form a legal policy to ensure their welfare, we need an ethical theory. Unfortunately, however, according to Nussbaum, the theories that have been articulated so far are in her words, “pretty crude and unhelpful.”

Clearly, she is on her way to developing one that remedies the flaws and deficiencies she sees in the ethical theories of others, but first she wants to show us the weaknesses that must be overcome. So what are the theories that she seeks to replace?

She begins her brief survey by picking bones with the approach of Steven Wise and his NnRP colleagues. Although she was one of the persons who filed an amicus brief in the case of Happy, the elephant (in vain, as we now know), she has had serious disagreements with Wise. She says, flatly and without qualification, that Wise’s theory, which she mocks by calling it a “So like Us” approach, is “surely a mistaken theory.”

She has two principal objections to it. First, it slights the sheer complexity and strangeness of animal lives, focusing on superficial similarities to humans while ignoring issues of animal sentience and sociality. Second, she says that mere similarity to humans cannot be the basis for sound ethical theory. Why privilege chimps, for example, and disregard creatures like octopuses, which seem so alien to us?

Instead, Nussbaum writes, “If we search for a more adequate theoretical basis, what the new learning immediately suggests is that we might begin by looking at what matters to each animal.” Her final objection to this theory hints at where her thinking will take us: The So Like Us theory “short-circuits curiosity, when the question we ought to ask is what each creature strives for and needs, and how various arrangements made by humans foster or impede that striving.”

A more promising theory, Nussbaum contends, would seem to be that of Peter Singer, the Australian philosopher, who famously promoted the idea of “animal liberation” almost a half century ago. Singer’s theory is really rooted in the concept of Utilitarianism, which was originally articulated by Jeremy Bentham in the eighteenth century. Its basic idea is simple: the goal is to maximize pleasure and minimize pain.  Sounds good (who could object to that?), but Nussbaum is quick to point out its flaws and shortcomings.

First, it fails to address the diversity of goals each animal life pursues. Happy, for example, might not suffer pain if well cared for, but she would still lack space for free movement and the company of other elephants. Second, Utilitarian theories tend to ignore the individual creature in order to focus on the pleasure/pain balance in the aggregate, e.g., elephants in general. Finally, Nussbaum writes that “the theory neglects agency, treating animals as [passive] vessels of experience rather than active beings who move toward what they want and need.”

This brings us at last to where Nussbaum wants to take us, namely, to the theory propounded by her and one of her lovers, the Nobel Laureate (in economics), Amartya Sen (Nussbaum, in her amatory life, by her own admission, always seems to go for very distinguished professional men). They have called their theory the Capabilities Approach (or CA, for short). Nussbaum’s exposition of this theory takes several pages and essentially concludes her article, but its basic idea is simple: Do whatever is necessary to enable the animal to flourish in its environment. Provide it with the food it needs, the space that it requires, the social contacts that are essential to its well being and in accord with its nature. This is how to put ethical theory into practice. 

After all, if you think about it, isn’t this what we humans would all crave, at least at a minimum? Why should animals be treated any differently? Best, of course, is not to hold any animal in captivity, but if it we do, we have an ethical obligation to ensure its well being in every possible way we can.

Nussbaum then goes on to say “With valuable input from a group of younger members of the international Human Development and Capability Association, I have recently been developing my theory into a theory of justice for nonhuman animals.” And then spends several pages giving examples on how animal activists have begun to put her theory into practice. Apparently, it has already begun to affect how animals are being treated and no doubt she will elaborate on this in her forthcoming book.

Her article concludes with this passionate plea and promise:

Achieving even minimal justice for animals seems a distant dream in our world of casual slaughter and ubiquitous habitat destruction. One might think that Utilitarianism presents a somewhat more manageable goal: Let’s just not torture them so much. [This, you will recall, is the position of Steven Pinker.] But we humans are not satisfied with non-torture. We seek flourishing: free movement, free communication, rich interactions with others of our species (and other species too). Why should we suppose that whales, dolphins, apes, elephants, parrots, and so many other animals seek anything less? If we do suppose that, it is either culpable ignorance, given the knowledge now so readily available, or a self-serving refusal to take responsibility, in a world where we hold all the power.

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A personal afterword

In the course of writing this blog, which took an uncommonly long time owing to various interruptions and other annoying vicissitudes, I kept hearing about animal rights activists whose work and writings are in accord with Nussbaum’s ethical approach to the treatment of animals. For example, a law professor named Jessica Rubin at the University of Connecticut, where I taught for many years, has become an influential advocate for animal rights. The article I read about her work begins: 

In 2016, a new statute known as Desmond’s Law took effect in Connecticut. Named for an abused shelter dog, Desmond’s Law allows courts to appoint legal advocates in animal cruelty cases. It was the first law of its kind in the country, and allows supervised law students to serve in this capacity. The law also allows lawyers working pro bono to act as advocates.  Soon after Desmond’s Law took effect, UConn School of Law Professor Jessica Rubin established the Animal Law Clinic.

And then, by the merest chance, when browsing through the last issue of The New York Review of Books, I happened to notice an advertisement for a book by an anthropologist named Barbara J. King, whose work on animal welfare I had already come across and was impressed with. Already the author of two books on the lives and minds of animals, her latest one, which I immediately purchased and have just started to read, is entitled Animals’ Best Friends: Putting Compassion to Work for Animals in Captivity and in the Wild.

In addition, there were about a half dozen books about the lives of animals that Nussbaum herself reviewed in the article I drew on for this blog, “What We Owe Our Fellow Animals,” which was published in The New York Review of Books on March 10th of this year (but you can find it online, and it is very much worth reading).

There are other such books, of course, and I already have some in my own library. I particularly love the books of the primatologist, Frans de Waal. My favorite is one called Mama’s Last Hug, about the emotional life of animals, which my girlfriend, Lauren, read aloud to me. And before that, I had read his wonderfully engaging book, Are We Smart Enough to Know How Smart Animals Are? (Unfortunately, I lent both books to a couple of friends of mine, and am still waiting to get them back!)

The reason I mention these books is simply to say that in writing my many blogs over the past few years on the lives of animals and this new series on animal justice, I have barely scratched the surface of the work that is currently going on in the fields of animal cognition and the advocacy for the rights of animals. As for the latter endeavor, my impression is that Nussbaum is not just prepared to lead the charge; it is already happening. The movement for animal justice seems to be gathering force already, and we have reason to hope that it will continue to grow.

I’m sure many of you already love animals, as I do, and perhaps some of you are yourselves animal activists. It is my hope that my blogs will lead others to become involved in this movement.

Humans have done so much in the past to cause many animals to become extinct. At present, the remaining terrestrial megafauna, elephants and rhinoceroses, are imperiled as are our large aquatic mammals. Surely, to act to preserve and protect these remaining species and others, and to accord them the rights they deserve, is long overdue. So to make amends for our past transgressions, that would only be just, wouldn’t it?