Renowned scholar and philosopher Martha C. Nussbaum believes that when it comes to animals, the world needs an ethical revolution, “a consciousness raising movement of truly international proportions,” as she puts it. Friends of Animals couldn’t agree more. That’s why we are elated about our new program, the Right to Ethical Consideration Project, made possible with support from Nussbaum.
The goal of this pioneering project is to establish standing for non-human animals in the eyes of the law and a right to ethical consideration for all animals. Legal standing, by definition, is a person’s right or ability to sue.
For a "person" under the law to have standing it must prove three things: that you have been "injured," that the injury was caused by the action of the defendant for which you are suing, and that the court has the ability to redress the injury to you with a favorable decision.
Unfortunately for non-human animals, to have standing you must be a "person" — although, shockingly, this hasn’t stopped some corporations from being granted legal personhood status. “So far, both in the United States and in the international community, law has been lagging behind the evolving ethical consciousness of humanity. Animals still lack standing under both U. S. and international law. They also lack any rights of ethical consideration,” Nussbaum said.
“All human animals are treated as persons and ends (no matter how immature the human is), but all non-human animals are treated as mere things, as property. Law must find ways to make animals legal subjects and not mere objects. We need to move toward a world in which human beings are truly friends of animals, not exploiters or users.”
Some anti-cruelty laws exist, of course, however outside of these specific protections it is unlikely for animals to get their day in court, no matter how bad they are abused or exploited. “To make progress, we need theoretical approaches that are sound in terms of reality, grappling with what we know about animals, and that also direct law in a useful fashion,” Nussbaum said.
For Nussbaum, the best approach is her version of the capabilities approach, a view of justice for humans and other animals she has developed over the years that truly takes into consideration the diversity of nature and an appreciation for its many distinctive life forms. Nussbaum’s new theory of justice advocating the capabilities approach was recognized in 2016 when she was awarded the Kyoto Prize in Arts and Philosophy.”
The honor, bestowed annually by Japan’s Inamori Foundation but given only once every four years in the sub-category of thought and ethics, is among the most significant international accolades for scholarly work. Nussbaum felt compelled to donate part of the cash award from the Kyoto Prize to Friends of Animals.
“I decided to support the Wildlife Law Program because I think that Friends of Animals is the most exciting animal welfare organization around, exploring new ideas and new frameworks for thinking about the ethical treatment of animals,” she said.
“The Right to Ethical Consideration Project is brilliantly innovative, and promises real progress in both ethics and law. FoA's work thinks of animals not as quasi-humans but as worthy of respect and consideration for their own complex forms of life.
“I feel hopeful that judges will recognize this revolutionary approach, because it corresponds to reality. Anyone who looks at animal lives closely sees that there is wonder and dignity there, worthy of ethical consideration, because of the many unique ways animal species strive for flourishing lives.”
A NEW FRONTIER IN ANIMAL LAW
The Right to Ethical Consideration Project, overseen by Friends of Animals’ Wildlife Law Program, will combine Nussbaum’s philosophical component with scientific and legal components in papers, presentations and litigation. In doing so, the goal is to establish tactics that are superior in directing ethical attention and legal strategy than past approaches, creating a new frontier in animal law.
“Application of Martha’s work is revolutionary for animal lawyers. Many animal rights lawyers often start with the premise that animals, like humans, have autonomy and that to protect such autonomy animals should be given some of the legal protections and privileges normally associated with humans,” said Mike Harris, director of Friends of Animal’s Wildlife Law Program.
“But not everyone, and certainly not Martha, is convinced that legal rights for animals rests in showing their autonomy, which often sounds shorthand for intelligence.” Harris explains that the term autonomy has not been well-defined and has many different meanings depending on the philosophical approach one chooses to consider or apply.
More practically, judges have demanded that animal lawyers show more than autonomy as a basis for granting primates and other animals the legal status of personhood. They also have demanded that lawyers demonstrate that primates could take an active role in fulling the “rights and duties” of citizenship within a society.
“Thus, what is intriguing about Martha’s approach is the ability to now argue that fulfilling ‘rights and duties’ of citizenship is not the proper basis for determining personhood; instead it is the ability of an animal to lead a meaningful life and even enrich the lives of other animals around him or her,” Harris said.
A CLOSER LOOK AT THE CAPABILITIES APPROACH
The capabilities approach is a theoretical framework that entails two core normative claims: first, the claim that the freedom to achieve well-being is of primary moral importance, and second, that freedom to achieve well-being is to be understood in terms of people's capabilities, that is, their real opportunities to do and be what they have reason to value.
“It was developed using materials drawn from Aristotle, who advocated that we seek what is shared among all animals and seek a ‘common explanation’ for the self-maintaining and self-reproducing striving that characterizes all animal lives. So it is not surprising that it proved easy to extend it to the lives of animals,” Nussbaum said. “The capabilities approach argues that the right thing to focus on, when asking how well a group of humans (or a nation) is doing, is to look not at average utility, and not simply at opulence (GDP per capita), but, rather, at what people are actually able to do and to be.”
Nussbaum’s proposed list of 10 capabilities that must be secured to a minimum threshold level, if a nation is to have any claim to justice: life, bodily health, bodily integrity, senses, imagination and thought; emotions; practical reason; affiliation; other species; and play and control over one’s environment.
She has also urged adopting a similar list of capabilities as ethical goals for all animals. In the human case she justifies the list by arguing that these opportunities are inherent in the notion of a life worthy of human dignity. She then argues that dignity belongs to other animals as well: all are worthy of lives commensurate with the many types of dignity inherent in their many forms of life.
“All animals, in short, should have a shot at flourishing in their own way,” Nussbaum said.
“The list seems to be a good guide, which can then be specified further for each animal after a study of its form of life. If the human list is a template for constitution-making, so too is the list for each animal species: it’s a written basis for an unwritten constitution for that species. It tells us the right things to look for, the right questions to ask.”
WHY THE CAPABILITIES APPROACH WORKS BETTER
FoA’s new project kicked off on Jan. 30, 2017, with an event we sponsored along with the Institute for Human-Animal Connection at the University of Denver that included a lecture and panel discussion with Nussbaum. She made the case that other influential approaches to animal entitlements in philosophy, which have implications for law and policy, are defective intellectually and in terms of strategy.
First she took on the “so like us” approach of Steven Wise. In this approach law seeks recognition of legal personhood, and some autonomy rights, for a specific set of animal species, on the grounds of their human-like capacities. It’s problematic for Nussbaum, because it validates and plays upon the old familiar idea of a scala naturae, or ladder of nature, with humans at the top. “Some animals get in, but only because they are like us.
The first door is opened, but then it is slammed shut behind us: nobody else gets in. Instead of the old line, we have a slightly different line, but it is not really all that different, and most of the animal world still lies outside in the dark domain of mere ‘thinghood,’ Nussbaum said. “Anthropocentrism is a phony sort of arrogance. How great we are! If only all creatures were like us...well, some are, a little bit.
Rather than unsettling our thinking in a way that might truly lead to a revolutionary embrace of animal lives, Wise just keeps the old thinking and the old line in place, and simply shifts several species to the other side.” In terms of the least common denominator approach, the question is not, “Can animals reason?” but, “Can they suffer?” While this is valuable because it points to something clearly relevant to animals themselves, and a salient fact about their lives, for Nussbaum it doesn’t go far enough.
“Unfortunately, there is no room for the special value of free movement, of companionship and relationships with other members of one’s kind, of sensory stimulation, of a pleasing and suitable habitat. Like Wise’s approach it refuses to consider fully, and positively value, the many complex forms of life that animals actually lead. Pleasure and pain simply are not the only relevant issues when evaluating an animal’s chances to flourish," Nussbaum said.
A HAPPY HARBINGER—ONE STEP CLOSER TO LEGAL STANDING
In July 2016, the U.S. Ninth Circuit Court of Appeals ruled that the U. S. Navy violated the law in seeking to continue a sonar program that impacted the behavior of whales. Nussbaum called this decision “remarkable.” “I think the sonar case was significant, because it did not try to assimilate whales to humans, and it also did not make the opposite error, of thinking that only pain matters.
The argument relies heavily on a consideration of whale capabilities that the program disrupts: disruption of breeding patterns, feeding and migration,” Nussbaum said. “That disruption, whether or not accompanied by pain, was considered ethically significant. Whether those judges were whale watchers or not, they showed an informed sensitivity to the whale form of life, and ruled that whales ought to have the opportunity to carry out their characteristic form of life— even when the other side raised issues of national security.
“The opinion does not give whales standing; no such radical move is necessary to reach the clear result that the program is unacceptable. But it does recognize whales as beings with a complex and active form of life that includes emotional well-being, affiliation, and free movement: in short, a variety of species-specific forms of agency. It is a harbinger, it is to be hoped, of a new era in the law of animal welfare.”