A Response to Martha Nussbaum
Reply to Martha Nussbaum, 'Justice for Non-Human Animals', The Tanner Lectures on Human Values, November 13, 2002
I begin in the same friendly spirit of alliance that Martha Nussbaum refers to when she notes that “Utilitarianism has contributed more than any other ethical theory to the recognition of animal entitlements.” In purely practical terms, I welcome her attempt to show that a distinct approach to political justice not only includes animals, in a fundamental way, within its scope, but also leads to consequences that in major respects are very similar to those that have for some years been advocated by utilitarians. Of the greatest possible importance, in this respect, is our agreement on the ethical imperative that we end factory farms as we know them.Every year, worldwide, tens of billions of animals suffer - and, one could add, are unable to exercise their most basic capabilities – through being crowded indoors, unable to form the social groups natural to them, in many cases unable even to stretch their limbs, some of them so tightly caged that they are unable even to turn around or walk a single step. Undoubtedly, in terms of the sheer numbers involved and the vast amount of suffering that results, ending factory farming should be the priority issue for all concerned with either the welfare, the preference satisfaction, or the capabilities, of nonhuman animals.
The European Union has, following advice from its own veterinarians and other experts in animal behavior, begun to phase out the worst aspects of this confinement. Indeed, the European consensus against factory farming is extremely broad. Even Roger Scruton, a conservative English philosopher who supports not only eating meat, but also foxhunting, has written: “Someone who was indifferent to the sight of pigs confined in batteries, who did not feel some instinctive need to pull down these walls and barriers and let in light and air, would have lost sight of what it is to be a living animal…”  More recently Matthew Scully, an American conservative and former speechwriter to George W. Bush, has called, in the name of simple mercy, for an end to factory farming.  Only a week ago, a majority of Florida voters supported an amendment to the constitution of that state that prohibits the keeping of pregnant sows in stalls that prevent them turning around – the first time that American voters have supported such an initiative. I hope that voices like those of Scruton, Scully, and Nussbaum will be heard, both here in Australia, and in the United States, for both these nations are falling far behind the more enlightened example that the European Union is setting.
So we are allies on the most important practical question of our time regarding human treatment of animals, and it is in the friendly spirit of an ally that I shall endeavor to show that Nussbaum, although often right, is not really offering a distinct ethical approach to the issues she discusses. The alliance between utilitarianism and the capabilities approach is, I believe, not so much like that between, say, Britain, the United States and the Soviet Union in the second world war, but rather more like that between the United States and Australia today.
Nussbaum’s specific criticisms of utilitarianism are well-aimed, but not new, and I do not have time to respond to them adequately. It is important to note, though, that utilitarianism is a normative ethical theory, and hence broader than an approach to political justice, which is how Nussbaum presents the capabilities approach. Of course, utilitarians will want societies to take that view of political justice that has better consequences than would result from taking any other view of political justice, but this does not imply that political justice should be directly utilitarian. Like John Stuart Mill, a utilitarian may argue for a view of political justice that is only indirectly utilitarian – one that, at the level of political justice, puts contraints on the direct promotion of the best consequences. Hence it is a mistake to assume that utilitarianism is defective because it does not, as a theory of political justice, protect the basic human rights and civil liberties that most of us hold dear. If, as I believe, the liberal state itself can be given a consequentialist grounding, then this objection is mistaken. If, however, the liberal state cannot be justified on consequentialist grounds, then its defense would need better arguments than Nussbaum provides.
I grant that some of the difficulties with preference utilitarianism to which Nussbaum points are real – in particular, the questions she raises about the nature of preferences, more specifically, about ignorant or greedy preferences, and adaptive preferences. My view is that the preferences we should satisfy, other things being equal, are those that people would hold if they were fully informed, reflective, and vividly aware of the consequences of satisfying their preferences. I believe that this approach offers a solution to the difficult issue of adaptive preferences that Nussbaum raises, but I admit that it is not possible to be totally confident of this. And there are further problems in elucidating what it means to be, for example, “fully informed.” If, for instance, fundamentalist Christians prefer to remain virgins until marriage because they believe that fornication will be punished in the afterlife, should we seek to satisfy this preference, or the preferences they would hold if the non-existence of life after death were part of their knowledge of the world?
Nussbaum also objects to utilitarian sum-ranking, evidently prefering some kind of inviolable protection for individual rights. She follows Rawls in saying that in this respect utilitarianism denies the separateness of persons. I’ve never seen the appeal of this claim. Obviously utilitarians know perfectly well that persons are separate. What they deny is that it follows from this separateness that one ought not to trade benefits to one person against benefits to another. Nussbaum doesn’t add anything to explain why this should follow.
What of the objection that utilitarianism makes the ethics of these trade-offs dependent on empirical calculations? Here I would say: I certainly hope so! [That was the point of Michael Smith’s question after yesterday’s lecture. Nussbaum’s denial that empirical calculations are relevant appears to require that if a society has only one member below the minimum entitlement level, it should spend all its resources on bringing that member above the entitlement level before it spends anything at all on raising the welfare level of anyone else, no matter how big a difference the resources could make to everyone else in society. That, surely, is an absurdity.]
I find it odd that Nussbaum appears to endorse Tom Regan’s objection to utilitarianism, that it provides a shaky basis for vegetarianism – as if our knowledge that it is right to be a vegetarian somehow comes first, before we have considered whether becoming a vegetarian will reduce suffering overall. Why should we assume that? If the rightness of vegetarianism is something we can know by intuition, that would certainly save philosophers a lot of work, but this seems implausible. The commitment to vegetarianism should not be stronger than the evidence that, when all the animals’ interests are weighed equally with the similar interests of humans, it will be better overall, in the long run, for us to become vegetarian.
It is one of utilitarianism’s great strengths that it does not, in a doctrinaire way, insist that something is wrong even when it is clearly for the best, overall. (As, for example, some people insist that voluntary euthanasia is wrong even if it benefits the person who wants to die and harms nobody else.) Again, the calculations may be at one of two levels. We may decide to calculate about particular trade-offs, because we believe we can reach better outcomes in that way – in other words, we can minimize overall suffering by calculating whether, for instance, banning battery cages for laying hens would, in the long run, save more suffering in hens than it causes in factory farm owners, and people who have to pay a little more for their eggs. Or, we may simply decide that because some calculations are very difficult and governments are likely to be swayed by their own interests and biases, it is better to set out general principles, and assume that outright cruelty, of the kind condemned by the Kerala High Court in the circus As I have said, that is the indirect approach that utilitarians often advocate regarding human rights, and it will also apply to animals in many situations.
I hold to the preference utilitarian approach because I cannot deny that for me, a good life is one in which my own considered, informed preferences are maximally satisfied. If I hold this judgment in a form that makes no particular reference to myself – as I must, if it is to be a moral judgment as I understand the term - then I must hold that this is true for others as well, other things being equal. This gives preference utilitarianism a strong, plausible foundation. Can we say the same of the capabilities approach?
Here is the way in which Nussbaum puts the central value claim of the capabilities approach:
… the approach has insisted that there is waste and tragedy when a living creature has the innate or "basic" capability for some functions that are evaluated as important and good, but never gets the opportunity to perform those functions.
At first glance, the capabilities approach seems to take the view that there is always value in having the opportunity to use innate or basic capabilities. This would suggest that it is, other things being equal, a tragedy if human beings lack the opportunity to wage war – a reasonably plausible candidate for an innate or basic capacity, at least among the male of the species, if what we know of human history and prehistory is any guide. Of course, Nussbaum might say that this is indeed a good, but one that is offset by the costs of war on others. So take something else. How about the innate capability humans have to swim? Is it a waste and a tragedy if someone who lives a contented life, far from large bodies of water, never wishes to get near enough to a lake, river, pool or sea, to perform that function? I can’t see that it is.
But it was only at first glance that the capabilities approach seemed to hold that there is always value in having the opportunity to use innate or basic capabilities. A second glance makes us aware of Nussbaum’s qualifying description of these capacities as thosee “that are evaluated as important and good”. So she may well say that the capability of waging war, or of swimming, is not one that is important and good. But now we need to know on what basis this evaluation is made. It is that evaluation, not the claim that it is a waste and a tragedy when a being has no opportunity to perform innate functions, that is the key ethical claim underlying the capability approach.
So how is the “important and good” evaluation to be made? On this crucial question, Nussbaum has relatively little to say. Nor, for that matter, does Amartya Sen, the founding father of the capabilities approach. In the spirit of a friendly ally, however, I am willing to help. I suggest that a capability be considered important and good if, without the opportunity to use it, the beings in question will not be able to satisfy some of their strongest considered preferences. This suggestion gives us a clear idea of which capabilities are to be considered important and good. But it turns the capabilities approach into a derivative form of preference utilitarianism – an approach to political justice that says we should pay attention to capabilities, because they enable beings to satisfy their preferences.
A hedonistic utilitarian, incidentally, might make a parallel suggestion – that we should consider capabilities important and good if, without the opportunity to use them, the beings in question will be less happy or more miserable. This would make the capabilities approach a derivative form of hedonistic utilitarianism.
If Nussbaum does not wish to accept that the capabilities approach to political justice rests on a utilitarian foundation, what else can she say. Here it is well to note that one possible answer will fall into a familiar problem faced by an Aristotelian cousin of the capabilities approach, namely natural law ethics. Natural law ethicists are kept constantly squirming between the underlying idea that what is natural is good, and the need to make some ethical distinctions between different forms of behavior that are, in biological terms, natural to human beings. This wasn’t an insoluble problem for Aristotle, who believed that everything in the universe exists for a purpose, and has a nature conducive to that purpose. Just as the purpose of a knife is to cut, and so a good knife is a sharp one, so Aristotle seems to have thought that human beings exist for a purpose, and their nature accords with their purpose. But knives have creators, and, unless we assume a divine creation, human beings do not. For the substantial proportion of natural law theorists who work within the Roman Catholic tradition, the assumption of a divine creator poses no problem. But to the others, and indeed to anyone who has accepts a modern scientific view of our origins, the problem is insoluble, for evolutionary theory breaks the link between what is natural and what is good. Nature, understood in evolutionary terms, carries no moral value.
Though Nussbaum explicitly rejects the view that what is natural is good, she nevertheless comes perilously close to it when she speaks of the value of animals “flourishing.” This is a term often used by advocates of the natural law tradition [Elizabeth Anscombe is a notable example], because it combines a biological idea with evaluative overtones. If we define “flourishing” in a biological sense, than a man who has the means to acquire and maintain a harem of women who proceed to bear him dozens of children, is as flourishing as anyone can be. So, for that matter, are the women fortunate enough to be selected for the pampered and secure life child-bearing that membership of a strong, wealthy man’s harem involves. If we deny that such men and women are flourishing, we are introducing evaluations that need to be explained.
In short, Nussbaum’s use of terms like “flourishing” should set off the sensors we philosophers have erected on the boundary between facts and values. Nussbaum owes us, therefore, an account of which capabilities she thinks important and good, and why. Without such an account, the capabilities approach cannot be considered an independent approach to ethics.
1 Roger Scruton, Animal Rights and Wrongs, 3rd ed., London, Metro, 2000.
2 Matthew Scully, Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy, New York, St. Martin's Griffin, 2002.