Extending the capabilities approach: Non-Human Animals and Justice

In last week’s session, we discussed the final chapter of Nussbaum’s book, titled ‘Beyond “Compassion and humanity”’. Whereas previous chapters are primarily concerned with justice for human beings situated outside of the social contract, this chapter revolves around extending the social contract to include non-human animals. Although many of us (including me) would react sceptically to this notion, Nussbaum offers us a framework through which such a contract can be made possible. Nussbaum’s criticism of social-contract theorist John Rawls and Utilitarianism is convincing, but her own framework lacks the same convincing argumentation.

Non-Human Animals.  Image: District 9

From the get-go, it is clear that Nussbaum is providing us with a theory to elevate non-human animals from 'the state of nature' into a social contract. She argues that human beings have much in common with non-human animals in terms of sentience and intelligence, and thinks it plausible that ‘our relationship with animals should be regulated by justice, instead of war for survival and power that obtains’ (326). Her criticism of contractarianism in general and John Rawl’s theory in specific focuses on core contractarian assumptions of mutual advantage, rough equality and self-interest, as well as the notion of Kantian personhood. Although Nussbaums 'capabilities approach' builds, for the most part, on Rawl's contractarian-based theory, it finds an ally in Utilitarianism with regard to animal justice, which has 'done more for recognizing animal suffering as evil than any other theory' (338). Utilitarianism, like the capabilities approach, is an outcome-oriented theory, as opposed to the more institutional-centered contractarian doctrines. Despite the merits of Utilitarianism, Nussbaum criticizes a few core concepts of Utilitarianism, of which consequentialism (the right act promotes the best overall consequences) and sum-ranking (concerned with aggregating all preferences in order to form a coherent outcome) form the biggest problems. She argues that consequentialism leads politicians to pursue 'the good' (whatever that may be), which might prove detrimental for individual liberties. In contrast, Nussbaum's capabilities approach focuses on providing subjects of justice the basics. Moreover, she claims that sum-ranking is prone to providing downright bad results, as it 'never rules out in advance results that are extremely harsh' (343).  Nussbaum argues that the capabilities approach is able to incorporate justice for non-human animals, because of its alternative approach to personhood and its focus on capabilities. Instead of following Rawls in using the Kantian conception of 'the person', for which rationality is pivotal, Nussbaum follows the Aristotelian conception. Here, rationality is not given a central role, but rather is seen as a trait of a particular species. Its focus, then, is based on viewing human beings as an animal among animals, regards all life as 'something wonderful and wonder-inspiring' (347) and renders no life form more important than others. Such a view allows us to extend the capabilities approach from solely human beings to all sentient creatures. This, in turn, would render it unjust and immoral not to view the individual animal as an agent and as an end in itself. Nussbaum thus focuses on the individual animal, instead of the species, and implores us that 'all moral relevance lies in the capabilities of the individual' (360). Therefore, she cleverly detaches herself from a difficult position, by argueing that, as long as the basic prerequisites of justice for individual animals has been secured, the survival or extinction of species is of no moral concern to us. However, since we have to view animals as agents, which obliges us to allow them to flourish (an ethical obligation), Nussbaum argues we have both positive and negative duties towards animals. Hence, she proposes that, next to the negative duty of refraining from harming animals, we have a positive duty to protect their flourishing as large numbers of animals live under the direct control of human beings (373). In such a context, zoos are permitted (and might actually be better for animals than nature), but should be focused on breeding inter-species friendship (376). We might even go so far as policing nature, as the capabilities approach regards 'torture of the gazelle is as bad when done by a tiger  as it is when done by a human' (397). Additionally, we are allowed to, for example, 'neutralize' rats to cancel the spread of a disease, although in the case of animal control, we should always use the least painful approach.
Although Nussbaum offers us an interesting approach to animal justice, I am not completely convinced by her arguments. First and foremost, Nussbaums primary reason to include justice for non-human animals in the book seems to be the regulation of justice between human and non-human animals. She argues that human beings often mistreat animals, and that we should thus move to a conception of justice in which we have the moral duty to prevent such infractions of animal justice, as well as providing non-human animals with the opportunity to flourish. This is by all means a noble goal. If her conception of justice would focus only on justice from human beings to non-human animals, her unconvincing method of 'imagination' to establish animals preferences might prove convincing after all. Although this method would only allow us to view animals in a human-centric perspective (hereby 'humanizing' animals), we would probably learn much about ourselves and our interaction with animals in the course of doing so. However, by extending our duties to policing the animal world and creating inter-species friendship, we run the risk of being over-paternalistic to animals, and ending up curbing their freedom and flourishing more than adding to it. Moreover, it is difficult enough to imagine the preferences of specific species, let alone individual animals. In the context of human-animal justice, it makes sense to opt for such an approach. However, I am not convinced that Nussbaums approach allows us to extend this method for animal to animal justice based solely on the argument that we should not worship nature. Additionally, I am not completely convinced of Nussbaum's criticism of Peter Singer's preference-Utilitarianism. She criticises preference utilitarianism for the 'ambiguity of the very notion of a preference' (341). However, Nussbaum does not offer a clear answer for what preferences, especially in the case of animals, are. Although Nussbaum appears not to want to 'impose on animals a form of life that is not what they “would choose”', it never really becomes clear how we would go about this.
In summary, Nussbaum provides us yet again with an interesting criticism of Contractarianism and Utilitarianism. Although her own arguments are certainly not completely airtight, she deserves credit for boldly forwarding an interesting theory. As in the case with the disabled and international settings, it forces us to re-think conventional ideas on justice and what our duties really are to our fellow creatures.

Source: Martha Nussbaum, Frontiers of Justice (Harvard University Press, 2006)

By Jasper Ginn (Second year student, LUC The Hague)