Is Freeganism a Positive Form of Advocacy for Legal Animal Rights? | Ishkah Vs. Trashcarcass

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Here’s the full debate:

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And here’s a condensed text version of the discussion below:

Table of Contents

• Debate Proposition
• My Opening Statement
• My Main Arguments
• My Opening Summary
• Choice of terms
• What Is the Effectiveness of Advocatng Animal Rights At Food Not Bombs Stalls
• Treating animals as a commodity
• Cannibalism comparison
• Do animals worry about events past their death?
• More ethical uses for the rescued animal material
• Slippery Slope
• Devaluing the homeless by offering them less valuable options
• Grey areas and not coming off as dogmatic
• Appendix – Formal Arguments
• References

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Debate Proposition

Stone: We have Ishkah and Trashcarcass here for this debate. Ishkah is going to be taking the view that “using rescued animal products at food not bomb stalls has been a positive form of advocacy towards the goal of attempting to end all unjustified captivity” and Trashcarcass is going to be taking the opposition.

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My Opening Statement

Theo: So the main thing I’m gonna be arguing is that when discussing ethical grey areas to veganism I think it’s important not to look like dogmatists, so I’m going to try and ground the discussion around using rescued animal material in the real world of food not bomb stalls.

And, we might descend into an abolitionist vs. welfarist debate, where I defend harm reduction, but I’m also going to argue that abolition can coincide with welfare reform, such that food not bomb stalls should be viewed as the revolutionary vanguard of the abolitionist movement for creating radical grassroots communities that are principled, serve the needs of people worst off and so, can rival carnist culture.

Finally, it’s going to be a niche philosophy debate, but hopefully it will give people the tools to defend rescuing animal material and so, to stay open to lots of strategies for bringing about a vegan world.

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My Main Arguments

Theo: Firstly it can be great animal rights advocacy in rare circumstances like so; by setting up a Food not Bombs stall in the town centre and putting up a vegan sign in front of a big pan of vegan stew and a freegan sign infront of rescued bread. The vegan sign can provoke lots of interesting conversations about the ethics of breeding and killing animals. While the freegan sign can get people talking about a further layer of if it is true that harming animals for their meat, milk and eggs was necessary to feed the population, how come so very much meat, milk and eggs ended up rotting in supermarket skips instead? Which can provoke further conversation about the evils of producing such an energy intensive product like meat to just become food waste, while people are starving around the world.

Secondly non-human animals we farm don’t experience a worse quality of life worrying about whether they’re going to be eaten by other humans after they’re dead, humans do as a species norm.

Thirdly there exists healthy human cultures in which humans being eaten by non-human animals after they’re dead is seen as a positive, for example in Tibet, having your energy transferred into that of a bird is seen as a beautiful thing or green burials where your body can more easily become nutrients for both animals and plants. So then, healthy human cultures in which non-human animals are eaten by humans is also likely possible.

And finally, even if it’ll be a better world when everyone is vegan and we’re all disgusted by animals products (in the same way as if no one ever felt pressured by sexist beauty standards to shave their legs again), that doesn’t mean that it’s not morally permissible to consume some of those animal products at the moment i.e. it’s not comparable to cannibalism where you’re causing worse quality of life in other humans by normalizing it or normalizing the standard that women should have their genitals mutilated as neither the choice to shave your legs or eat thrown out animal products necessitates violating anyone’s rights or causing harm to anyone.

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My Opening Summary

Theo: So, to go back to the food not bombs stall example that we’re debating. Here’s a bunch of topics that come up on on a lot of food not bombs stalls which make it a positive form of animal rights advocacy:

We cooked vegan soup, so no profits needed to go to an industry which breeds and kills animals.

Here’s some freegan bread with milk powder in it which was rescued, so no harm to animals and it’s carbon negative.

Isn’t it amazing they kept those cows captive and milked them only for it to go in the trash. So that’s one sign farming animals isn’t necessary to feed the population, if so very much meat, milk and eggs end up rotting in supermarket skips instead.

Isn’t it sad that politicians subsidize such an energy intensive product like meat to just become food waste, while people are starving around the world.

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Choice of terms

Stacy: So, firstly I have a problem with the term freegan and that would be because it so closely relates itself to the word vegan and I don’t think they have anything to do with each other. There’s other words for example like frugivore, why does it have to be freegan? Because if you say that to somebody it sounds like it’s similar to veganism in that if it’s free, it’s okay, and still vegan. And I would say in most situations it wouldn’t be. Veganism is a moral philosophy.

Theo: I actually think it’s really positive to promote freeganism as a term for helping explain veganism because if we go by the colloquial definition of veganism meaning ‘an animal products boycott’, it does include freeganism. And it gets back to the historically accurate reason for why the vegan society came about. It would also have broader appeal for other liberation causes like anti-racism and anti-sexism to see it as a strategy of action which is useful for their struggles also.

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What Is the Effectiveness of Advocatng Animal Rights At Food Not Bombs Stalls

Stacy: I’ve worked next to food not bombs people, I’ve worked at feeding the homeless and I happen to know that the majority of people that come there are indeed homeless, but there are some people that just come there because it’s free food. And some of those people, if not most, don’t really care what it is, so having these moral discussions with them, I’m not really sure how far you’re going to get with that.

Theo: Well, I would just counter that if done well, it can be a real community building exercise. You can get people joining learning to cook and put time into rescuing all this amazing food. People have time to read political material you put out while they’re eating their food. And I just have had lots of great conversations and made positive connections.

By showing slaughterhouse footage, we’re making people sad, even though we wish we didn’t have to. So, by doing food not bombs stalls as well, it’s this really important counter balance of showing the positive side to what you can gain from this community.

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Treating animals as a commodity

Stacy: You say ‘look at all this waste, why did they breed these animals for it to go to waste?’ I think you’re only going to reinforce the idea in their head of how they need to be feeding animals to humans. ‘It’s not going to waste’, as you said, ‘if you are feeding it to humans, it’s okay.’

Theo: Well, that’s an environmental point, but I think it does tie in positively to both human and animal rights, in that I’m talking about the evils of producing such an energy intensive product like meat to just become food waste, while people are starving around the world and while wildlife habitat like the rainforest is getting torn down to produce these products, when we could just eat plants for less land use, so, protect and rewild habitat for more animals to be able to express their capabilities in.

So, yeah I just disagree with the idea that trying to get people to believe ‘it’s always wrong to feed animals to humans’ will help us get to a vegan world faster.

You have to explain why you think it would be against ours or animals’ best interests.

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Cannibalism comparison

Stacy: Vegan footsoldier made this analogy comparing freeganism to cannibalism about how these cannibals were killing these children and eating them. And some human rights activists caught up with them, but when they didn’t get to one of the children quickly enough and the child died from their injuries he went home with his leg and ate this child’s leg so they wouldn’t go to waste.

And then you came back with an analogy that had to do with human rights activists and female genital mutilation, I’m not really sure if I followed because they didn’t leave with a body part at the end, so I would think that would make more sense for a freegan analogy.

Theo: Yeah Footsoldier made the same point, about how he thought the story should end with the human rights activists performing genital mutilation on their own child to be a fair comparison.

But, if I had ended the story like that it would have just been the same story almost word for word with the same effect of implicitly shaming people for actions which could mistakenly be attributed to furthering a harmful culture. So, for his story analogy, carnism/speciesism & freeganism, but in mine sexism & girls pressured into shaving their legs.

With the video I made I wanted to make explicit that you can have all the same intense disgust reactions to an evil action done without people’s consent like killing children to eat them, and similarly with genital mutilation. But that the comparison to eating rescued human meat doesn’t follow for all rescued animal products because you can have healthy human cultures rescuing animal products in which no one is suffering a worse quality of life worrying about their interests being disrespected after their death. In the same way as you can have people choosing to shave their legs without harming anyone regardless of if there exists a harmful patriarchal culture which pressures some people to do it, like with forced genital mutilation.

So you can imagine that the parents getting FGM performed on their daughter is one trajegectory the parents could have gone down if you like, but my story diverges into a tale about how instead they simply had to deal with their daughter asking to be able to shave thier legs, and how it’s different in the same degree to genital mutilation as freeganism is to cannibalism.

Stacy: Well, I think the way a culture of cannibalism differs from freeganism is because eating animal products is still the norm, and I think in all these instances it is a decision by a human being whether it be upon another human being or another animal it’s still humans making these decisions, it’s never the other animal making this decision in any of those cases and therefore I think this is a human-centric view.

Theo: Right, but the sexist culture of women being emotionally pressured into shaving their legs is also the norm and yet women can still choose to do it for reasons that don’t have to do with being emotionally pressured into it. So, in that way being a freegan in a carnist culture is more similar to choosing to shave your legs in a sexist culture, than it is to cannibalism.

And again there is no mental capability for animals to make a choice about how they would desire other humans or other animals treat them after they’re dead, so there can be no issue of fairness or justice either way. Animals do make the decision to eat human flesh. And we even encourage it in Tibetan culture. So, that’s a sign that we’re not necessarily promoting a culture of devaluing animals by eating animal material when there exists cultures valorising animals eating us. We are when we kill them because there is a clear going against their interests, but there are no interests to go against in the case of what they would desire other people or animals do with them after they’re dead.

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Do animals worry about events past their death?

Stacy: You made a point about how you think ‘animals aren’t worrying about events past their death, they aren’t suffering a worse quality of life imagining they’ll be eaten by humans after they’re dead’. Well, actually I think that non-human animals do worry about being killed all the time, they have an instinct to fear being preyed upon and far more so than humans do.

Also, we don’t worry about humans eating us after our death, I know I don’t sit around worrying about my death or what’s going to happen to my body after I die, so would that be reasonable grounds for somebody to kill me?

Theo: So, definitely animals worry about being killed, for instance, if you were cutting into a deer corpse and eating the raw meat in front of another deer, then I’m sure it would provoke a fear response in the deer.

I’m not talking about it being ok to unjustifiably kill or keep animals captive and I’m not arguing that every single situation involving eating rescued animal material is ethical, the same way you can be buying plant material and still be doing something unethical in specific situations.

The reason for me to never eat human meat is because someone in the world could experience anguish on a long-term basis worrying that would happen to them after they’re dead, even if it’s irrational. For instance, say a friend had to have their arm amputated and I asked for the severed arm to cook it up because I thought it was a funny thing. If I did that in a hypothetical vacuum I think that would be fine, but I wouldn’t do that because I understand that we live in social contracts and other humans could experience anguish that I would treat a human like that and then worry what might happen to them.

I don’t think animals are experiencing worry on that level, they worry that they’re going to be killed, they might experience fear if somebody was eating another animal right in front of them, but I don’t think they’re experiencing this worse quality of life worrying about what’s going to happen after the dead.

Even if it’s just one person in 7 billion. It would be against my interest to possibly cause that one person harm, but the fact that it just can’t happen in animals means that it’s not an ethical issue for me, as long as I’m it’s virtuous in that it’s carbon negative, like less land needs to be taken up for growing edible material, and if I’m accounting for all these externalities like being strong willed enough not to fall down a slippery slope of habits.

Stacy: Again, I just think probably animals are more concerned about what happens to their body than humans, just from the way that we treat our own bodies, you know we smoke cigarettes, do drugs, we do all these extreme sports that can cause bodily injury, we live like there’s no tomorrow, especially when we’re young.

These animals live in constant fear for their safety, especially the animals that are preyed upon and it’s instinctual for them. I think we can’t possibly know what they are thinking, so to assume that it’s okay to use their bodies after they die, I don’t really think that’s an argument because like I said I don’t care what happens in my body after I die but I can make that decision I have that autonomy and I don’t think it’s fair for us to make that decision for them.

Theo: Ok, so there’s a scientific experiment called ‘the false belief test’ where they’ve discovered only recently that great apes can have theory of mind, in that they can anticipate complex thoughts another animal is having in rare circumstances.

They originally did this test on toddlers to see what age we start to individuate. It’s hard to explain in text, so I’ll just link a short 2 minute video on the experiment:

Anyway, this is only something that chimpanzees can do and a few other great apes, it’s called theory of mind. Where you understand what other people’s intentions will be other than your own & they’re only thinking about this in rare circumstances. And we aren’t relying on theory of mind for most of our physical interactions throughout the day, so it is this rare development. We do much more predicting what other people are going to do based on stereotypes of patterns we’ve observed or what we would do when presented with similar situations.

So, all this is to say that we plan for after our death, we have gravestones and we do all these things because we know how we want to be remembered, we’re planning for our legacy and how we want to be respected and how we want to plan for that to happen, but animals just aren’t doing this on that level.

They fear for how they might die, so we’re definitely right to be vegan and not unjustified kill animals and not unjustifiably keep them captive which hurts their well-being, but we just don’t need be concerned about their non-interests, unless we’re talking about our own interests, and whether it’s for our own dignity whether it’s self-harm for us.

We don’t need to be worried about something which animals are literally incapable of doing in terms of worrying about other people’s intentions after they’re dead.

So that’s what I think the science says.

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More ethical uses for the rescued animal material

Stacy: Why not feed rescued animal material to wildlife or stray animals that have no moral agency? Or put it on the compost?

Theo: That is one option, but what about having moral agency should stop us from eating rescued animal material, why is it morally wrong?

Also for some items like bread which you might eat anyway, you’re getting more pleasure out of the material specifically designed for humans, than an animal would. And you’d be saving the environment more by putting that energy to good use in consuming it yourself and using a compost loo, than just putting it straight on the compost.

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Slippery Slope

Stacy: I had a goddaughter who used to dumpster dive and eat roadkill with her boyfriend. They both considered themselves vegans and I said it was a slippery slope, it was going to lead them back to thinking it’s okay to eat flesh and sure enough the next thing you know they’re eating from fast food restaurants. So, I think it’s the same with food not bombs stalls.

Theo: So, yeah definitely in the psychology of habits that can happen, but it can also go the other way, for instance, if someone is really into cheese because cheese has monosodium glutamate crystals, which is like opium, so if someone wanted to become vegan, and they have no aversion to eating rescued cheese, then it could be a helping hand in encouraging them to stay strong in their decision to go vegan, by just slowly tapering it off. I know I was completely stripped of the value of baked goods, like croissants and doughnuts when they existed as this mountain in the kitchen of a squat I lived in. Knowing it was this sugar crash I could have whenever I wanted, I stopped seeing it as such a hot option. Like some people on diets have a set time where they can eat one treat a day that they can look forward to, whereas before they would eat sweets whenever they wanted.

Stacy: But, what if you go from thinking it’s okay to eat it from a food not bomb stall to eating some birthday cake at friends’ party because otherwise it might get thrown in the bin, I mean when does it stop? I wouldn’t because it’s a moral philosophy I’ve got to stick with.

Theo: But, what is the principle behind the reason never to eat animal products, just that it’s a slippery slope?

The principle argument for why I’m an animal rights advocate is if the wonder that we experience in viewing wild animals is not ‘how similar to us they are’, but their ‘real opportunities to do and be what they have reason to value’ and one sufficient reason we grant this freedom at least to a basic extent to humans is they have a desire to achieve what they find valuable then; the fact non-human animals experience this desire too means we ought extend these freedoms to animals.

So, a holistic world-view of not wanting to reduce both the quality and quantity of positive experiences humans can have with animals, as well as animals with other animals for low-order pleasures such as taste/texture.

So, just because I might use rescued animal products as a form of advocacy for animal rights, doesn’t mean I can’t also get my friends to respect the principle reason I’m an animal rights advocate by not buying more cake on the pretense that I’ll not want to see it wasted. The same way just because I showed an interest in horses, I would still be capable of making sure to let my friends know not to book any horse riding holidays, and even if they did like with the birthday cake, it’s just a rare situation of friends getting confused and an opportunity to help them get a deeper understanding where they didn’t have one before.

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Devaluing the homeless by offering them less valuable options

Stacy: You’re kind of treating homeless people as scavengers, like they’ll take what they can get and perhaps that is true, but is it really fair to put them in that situation? I’ve actually met some homeless people that did not like the fact that they couldn’t choose to be vegan, so I think that does hurt human dignity in that sense to not just give them the vegan food.

Theo: Well, I see the meaning behind veganism is that it’s an animal products boycott. I think people can go further in being animal rights advocates. But, so I wouldn’t be able to relate to why a homeless person desired not to even eat, for instance, rescued bread with whey in it. So, it would be like meeting a homeless Hare Krishna who didn’t want to eat garlic or onions. If it’s that rare, and I would feel comfortable eating it myself, I wouldn’t feel the need to cook food with those rare people in mind. Even if that trace amount of whey was unhealthy for me, it would be to the same extent I’d desire to eat dark chocolate.

Stacy: But, hospitals are not looking to get you better, because they want to keep you as a customer. People get stuck in these systems of being ill all the time, keep going to the hospital, then they owe everything that they earn to hospitals and pharmacies and it keeps them poor and that cycle gets pushed on to the next generation and over and over again. Now, if we’re pushing unhealthy animal products onto homeless people is that fair?

Theo: But, it’s just such a minute amount in that bread, it’s a binding agent.

Stacy: But, where’s the line we draw? It’s a minute amount in that bread, but what if you found a quiche, you’re gonna tell me it’s okay to throw away a quiche, but it’s not okay to throw away the bread?

Theo: The line is it would be against my interests to eat that quiche because it’s unhealthy, so I wouldn’t offer it to other people. The same way there’s one line with plant products, in that I encourage people to boycott animal products because it’s one easy way people can avoid profiting an evil industry, but there will be 1000s of other lines it would be good to draw also around plant foods like an Israeli boycott and just avoiding luxury foods, so that you can spend your money better elsewhere.

And it’s one way of helping the environment by being carbon negative and freeing up more land for wildlife habitat.

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Grey areas and not coming off as dogmatic

Theo: I think it’s really important to be open about grey areas where we have exceptions to the rule. Like I know people who have gone out to Syria to fight ISIS and this is a really extreme gray area where they’re vegan and they tried not to eat any animal material out there and they wanted to go out there to help fight ISIS and free people and from that tyranny, to save people from being harmed in that way and they’ve had to resort to eating animal material because the militia hasn’t rationed enough plant products, so they’ve had to eat like spam out of a tin.

So, that was a way of achieving more well-being in the world by fighting other other liberation causes in this extreme situations, so I think it’s good to acknowledge these things.

Stacy: Well, I don’t blame the people in the andes that were in the plane crash for eating people that died.

But, when we take something that came from someone who was murdered, I think that that’s wrong, if we are able to make another choice, I think that it’s the wrong choice to take a product of murder.

Theo: What about roadkill then? Would it be ethically wrong to do that?

Stacy: If you don’t have to you shouldn’t. If you were stranded and there’s nothing around, I wouldn’t be mad at you for eating roadkill.

Theo: But, so whether the animal was killed unjustifiably isn’t relevant then.

I just think it’s important to admit grey areas, as it helps show what ideal situation we’re working towards.

I think people come off looking insane when they bite the bullet on some grey areas like for instance when some vegans say they would rather accept a 30-year lifespan if the vegan diet was really harmful to them.

Stacy: I say that and I would stick by that, but that’s for me, I’m not saying that I would judge somebody else if they were in a survival situation.

Theo: But, if you want to be the change you want to see in the world, and people are looking to you to understand where is that intuition coming from, why is that a desirable thing for you to take that stance?

Stacy: It’s my own moral choice for myself, it would be a spiritual choice I guess.

Theo: Okay, well I mean the way I advocate that people become animal rights advocates, is that they can join this community and political movement which seeks to gain collective legal rights for animals to have a refuge in dense wildlife habitat where they aren’t subject to human cruelty. But, I’m fine with my definition being softer on for example subsistence hunters. I’ve got a video on my channel of Penan tribes people in Indonesia explaining how it would be repulsive to them to keep animals in captivity to farm, and I think this is great animal rights advocacy.

So, I just think we should be working towards this world where we’re able to preserve and rewild more habitat for wild animals to express their capabilities in and live full lives. And it’s good that we’re moving towards a situation where where we can design diets and live really healthy lives with less land use, but the reason hunting would be against my interests is it would be a form of self-harm for me to kill an animal when I know that I can eat plant foods, but if veganism only gave me a 30-year lifespan, that would be more self-harm to me to not hunt animals, so long as they’re living long life in the wild. So, I just don’t see how this intuition is compatible with the ideal vision that it’s useful to advocate other people invest in.

Stacy: Actually, I’m more of a misanthrope, so I would say just get rid of the humans.

Theo: Well, yeah that’s all I’d say, when you’re taking these stances against rescued animal products and being willing to die at 30 if the vegan diet was that harmful, I just don’t think that’s appealing to people in terms of advocating veganism and animal rights, so that’s why these grey areas are important I think.

Stacy: That’s because humans have human interests or self-interests.

Theo: But, I don’t think that’s a bad thing.

Stacy: My philosophy is more altruistic in that I’d rather the human race die out and let the animals live their lives.

Theo: But, we could ideally be good caretakers, like rescuing and releasing wildlife who were injured. So, we can play this really positive role in the world for our own self-interest and for other animals’ interests by staying alive and working towards this vision of looking after ourselves and also providing wildlife habitat for animals, which can include using rescued animal material in our animal rights advocacy. Anyway, I’ll end it there.

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Appendix #1 – The Animal citizens Critique of Freeganism

I found this cool paper critiquing freeganism after the discussion called The freegan challenge to veganism.

My response would be I understand the basic intuition that you wouldn’t like to be gaining sustenance or pleasure from a domesticated animals remains where you would have liked to consider that animal a kind of citizen of your community who you would like to give funerary rights to. But, I think it’s more respectful to think of them like their wild ancestors, where it would be normal for other animals to eat them after they’re dead.

Any legal rights we fight to afford domesticated animals should be shaped by a long-term vision of letting them go extinct in habitat where they can best express their capabilities, choose their social relationships and are protected from predators because we were the cause of their hereditary deformities that make them more vulnerable to predators.

To this end, if a person desired to eat rescued non-human animal flesh and it was healthy for them to do so, then it would be a positive character virtue on their part to do so because if it had gotten eaten by less intelligent animals like maggots which can survive on any food like rotting vegetables or even just composted, then:

1. It would be much less dignity than you could show the animal by putting that energy to use in the value of the happy flourishing you could achieve yourself and in how you would be setting an example for others. And…
2. It would be treating the animals’ final remains more similar to the way the animals’ wild ancestors would have been treated after death. So, with more dignity than the way we bred infantile traits into them and with more dignity than the toxic relationship we would be perpetuating by anthropomorphically infantilising them as infant humans who could have grown up to be people who could suffer a worse quality of life worrying about how other people might intend to treat their body after their death.

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Appendix #2 – Formal Arguments

Here’s my formulation of an anti-freegan argument which is IMO unsound:

A1) Kant’s Indirect Principle Against Advocating For Freeganism

P1) If I accept Kant’s axioms then I accept the indirect principle established in the groundwork of the Metaphysic of Morals

P2) If I accept the indirect principle established in the groundwork of the Metaphysic of Morals then I would agree that treating non human animals without dignity would harm myself

P3) If I accept the indirect principle established in the groundwork of the Metaphysic of Morals then I have a moral duty to not harm myself

P4) If I agree that treating non human animals without dignity would harm myself and that I have a moral duty to not harm myself then I should live in a way which treats animals with dignity

P5) If I should live in a way which treats animals with dignity then I should reject consuming animal products (as it is the antithesis of treating animals with dignity)

P6) If I should reject consuming animal products then I shouldn’t promote freeganism (as to do so would constitute promoting self-harm)

P7) I accept Kant’s axioms

C) Therefore I should be against freeganism

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Through most virtue ethics & consquentialist frameworks it’s easy to come to the conclusion that the ethical issue with eating animal bodies is when you fund the industry which breeds and kills these animals, cutting short their interests to express their capabilities to their full in the wild. And that if non-human animals aren’t experiencing worse quality of life worrying about whether they’re going to be eaten by other humans after they’re dead, then there’s no ethical issue to freeganism.

Through some deontological frameworks however, you might think you should reject consuming all animal products on principle as you feel it is the antithesis of treating animals with dignity.

So the arguments I’d suggest you use on such a person is firstly you could use a simple comparison to argue the way the person is applying dignity is a category error, like I do in the story analogy by saying:

It probably will be a better world when everyone is vegan and we’re all disgusted by thrown out animal products. And it would be great if no one ever felt pressured by sexist beauty standards to shave their legs again!

But at the end of the day, it’s not like cannibalism, where you’d be causing worse quality of life in other humans by foretelling a gruesome ending. And the same goes for normalizing the standard that women should have their genitals mutilated. Both ideas are barbaric, and rightly rejected.

Neither the choice to shave your legs or eat thrown out animal products necessitates violating anyone’s rights, so I don’t really see why people ought not do it.

And in formal logic terms:

A2) Rejecting the utility of culturally specific disgust reactions

P1) Non-human animals don’t experience a worse quality of life worrying about whether they’re going to be eaten by other humans after they’re dead, humans do.

P2) IF there exists healthy human cultures in which humans being eaten by non-human animals after they’re dead is seen as a positive (for example in Tibet, having your energy transferred into that of a bird is seen as a beautiful thing or green burials where your body can more easily become nutrients for both animals and plants) THEN healthy human cultures in which non-human animals are eaten by humans is also likely possible

P3) There exists healthy human cultures in which humans being eaten by non-human animals after they’re dead is seen as a positive

P4) If non-human animals don’t experience a worse quality of life worrying about whether they’re going to be eaten by other humans after they’re dead, humans do AND healthy human cultures in which non-human animals are eaten by humans is likely possible THEN even if it’ll be a better world when everyone is vegan and we’re all disgusted by animals products (in the same way as if no one ever felt pressured by sexist beauty standards to shave their legs again), that doesn’t mean that it’s not morally permissible to consume some of those animal products at the moment (i.e. it’s not comparable to cannibalism where you’re causing worse quality of life in other humans by normalizing it or normalizing the standard that women should have their genitals mutilated as neither the choice to shave your legs or eat thrown out animal products necessitates violating anyone’s rights)

P5) IF (even if it’ll be a better world when everyone is vegan and we’re all disgusted by animals products, that doesn’t mean that it’s not morally permissible to consume some of those animal products at the moment) THEN (IF I should live in a way which treats animals with dignity THEN I should not reject consuming animal products [as it is not the antithesis of treating animals with dignity])

P6) I should live in a way which treats animals with dignity

C) I should live in a way which treats animals with dignity, and I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

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Or secondly without even challenging their gut disgust reaction to thinking it would be treating the animal without dignity you could try something close to a consequentialist argument:

A3) Refutation of P5 of A1 using Tom Regan’s worse-off principle

P1) If I should live in a way which treats animals with dignity then I should promote freeganism on rare occasions where it’s an effective advocacy tool at encouraging people to stop buying animal products because the principle that I should avoid very minor self-harm in the disgust it brings to mind when advocating shouldn’t override the principle that it’s immoral to pass up easy opportunities to encourage people to stop buying animal products (which leads to the breeding and killing of animals) because I wouldn’t want to live in a world in which everyone passed up on those opportunities, so I should act according to that maxim by which I can at the same time will that it should become a universal law

P2) I should live in a way which treats animals with dignity

P3) P1 entails if I should live in a way which treats animals with dignity then I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

C) I should live in a way which treats animals with dignity, and I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

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Or thirdly you could you could try challenging the necessity of the disgust reaction:

A4) Kant’s Indirect Principle For Advocating For Freeganism

P1) If I should live in a way which treats animals with dignity THEN I should promote freeganism on rare occasions where it’s an effective advocacy tool at encouraging people to stop buying animal products because although killing an animal isn’t treating the animal with dignity, eating an animal to prevent waste is, because you’re eating food that would otherwise have been thrown out, so less food needs to be produced, causing less harm to the environment AND if it had gone to the landfill it might have gotten eaten by maggots which can survive on any food like rotting vegetables, but it would be much less dignity than you could show the animal by putting that energy to use in achieving happy flourishing yourself and setting an example for others.

P2) I should live in a way which treats animals with dignity

P3) P1 entails if I should live in a way which treats animals with dignity then I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

C) I should live in a way which treats animals with dignity, and I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

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Or finally you could try nudging them away from deontology with a kind of virtue ethics argument a la W.D. Ross:

A5) Refutation of P5 of A1 using W.D.Ross’s principle of prima facie duties

P1) If I accept W.D.Ross’s theory of prima facie duties THEN I accept any felt obligation is a prima facie duty, though it can be overridden depending on the circumstances by another one, that doesn’t mean that the original obligation disappears, it simply means that it’s defeasible and it usually continues to operate in the background.

P2) If I accept any felt obligation is a prima facie duty, though it can be overridden depending on the circumstances by another one, that doesn’t mean that the original obligation disappears, it simply means that it’s defeasible and it usually continues to operate in the background THEN I accept when I have a felt obligation that talking positively about the consumption of animal products is disgusting and would be an act of self-harm to myself AND I learn about people using freeganism as an effective advocacy tool in turning people vegan who wouldn’t otherwise have considered it, such that I now feel a stronger felt obligation to do the same that the duty to do the latter is overriding, but I’m going to work extra hard to advocate for veganism such that I can know I’ve contributed to a future world in which no one needs to talk about the positive effects of consuming animal products, because the initial obligation still operates in the background even though it was overridden.

P3) I accept W.D.Ross’s theory of prima facie duties

P4) P2 entails if I should live in a way which treats animals with dignity then I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

P5) I should live in a way which treats animals with dignity

C) I should live in a way which treats animals with dignity, and I should not reject consuming animal products (as it is not the antithesis of treating animals with dignity)

–

References

Re; ‘Freeganism Is Evil’ – A Pro-Freegan Story Analogy

The idea for the analogy came from this great video called Thoughts On Freeganism by Catherine Klein:

“I understand that shaving my legs and my armpits and everything is a sexist double standard, why are women expected to be completely hairless in order to be seen as attractive? It doesn’t make sense and I think it’s totally badass when women break this norm and go all natural. It does make me question my choices like I probably should be like fuck the patriarchy and stop shaving, just like I probably should be horrified by my leather boots and throw them out because one could argue that shaving your legs is an example of internalized oppression, but at the end of the day, neither of my choices here are causing direct harm to anyone, so I don’t really see changing my ways as a moral necessity.”

Freeganism article

Freeganism video catalogue

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A Theory of Habitat Rights for Wild Animals by John Hadley – Final Chapter

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Animal Property Rights: A Theory of Habitat Rights
for Wild Animals by Josh Hadley

A legal argument to considering animals a right to their habitat as property. The podcast interview below also mentions a contrasting commons land take by Josh Milburn.

Companion material:

• Property Rights Approach to Animal Rights | New Books Network #64
• Review by Josh Milburn

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Final Chapter – Recapitulation of the Main Elements and Implications

Animal property rights theory consolidates the project of inclusion initiated by the first-generation of animal rights philosophers. While the task of the first generation was to make the case for the inclusion of animals within the so-called sphere of moral concern, the task of a second-generation philosopher, like me, is to take the next step: to examine which rights it is logically possible to extend to animals, assuming that they [animals] do matter. With this as my rationale, this book has primarily been an exercise in logical analysis, not normative argument. Apart from the basic needs argument in Chapter 4, I have eschewed making normative claims about animals and the environment, and instead focused on the institutional design tasks associated with explicating a theory of property rights for animals.

As a clear conception of a property owner is needed to answer the logical possibility question, I began the analysis ‘where we are’, that is, with the institution of property as it exists today, in theory and practice. For the purposes of this book, I presupposed the institution of property to consist in traditional property rights theory and existing systems of property rights. The most important implication of this presupposition is that, in theory and practice, the default picture is that property is an ostensibly person-centered institution. The person-centeredness of property makes it difficult to extend traditional justifications for property rights, such as labor and first occupancy, to animals. Because animals are not actually persons (or, at least, not acknowledged as persons by the lights of orthodox mainstream scientific opinion), any attempt to argue for animal property rights on person-centered grounds is likely to be contentious.

 

Where Do Animal Property Rights Come From?

If a person-centered justification of animal property rights is too fraught with epistemological difficulties, what is the most suitable normative ground for extending property rights across the species barrier? In the above, I began the derivation of animal property rights with a banal descriptive claim: animals use natural ‘goods’ (land, vegetation, watercourses, rocks, soils, etc.) to meet their basic needs and those of their offspring. As having their needs met adds to an animals’ welfare, it is meaningful to say, consistent with an interest-based theory of rights, that animals ‘have an interest’ in using natural goods. The question then becomes whether this interest meets the normative significance test. Is the animal interest in using natural goods important enough to qualify for rights status?’ As far as the development of animal property rights theory is concerned, this was the most important ethical question in this book. My suggestion is that if we think about the promiscuity of the institution of property, that is, how easy it is for human beings to meet the normative significance test, then animals qualify because basic needs, intuitively, is on an ethical par (if not prior) to ‘non-critical’ or ‘low-level’ human desires, which over the course of history, in theory and practice, have giving rise to property rights in land and natural resources. To say this much, however, does not amount to surreptitiously importing an animal rights position into the animal property rights theory, but simply reflects the status of animals, witnessed by their presence in the legislation and norms which bear upon their lives in existing societies.

Once the animal interest in using natural goods meets the normative significance test, the task then becomes one of institutional design: how can we translate the animal property right into the existing property rights system? Firstly, notice that we are dealing with property rights in particular. As property rights specify rights of access to and usage of land and natural resources, when the animal interest in using natural goods passes the normative significance test, the effect is to give rise to a property right. In so far as the individual with the interest is an animal, the property right in question is an animal property right.

How will the animal property right translate on the ground in existing property rights systems? If the land upon which the animal resides is owned by a human being, then the animal property right must impair the rights of existing landholders in some way. (This is the sense in which animal property rights theory is in large measure a theory of property rights impairment.) Short of allowing the wholesale extinguishment of animal property rights (an option that would fly in the face of the normative foundation established by the first generation of animal rights philosophers and fail to reflect the presence of animals in a raft of legislation and codes of practices in liberal democracies), my suggestion was that the animals’ property right co-exists with the property rights of the human being. What does it mean to co-exist? Logically, the options are many and varied, and we can imagine different jurisdictions balancing out the competing interests in different ways to reflect their particular ethical and policy priorities. In the interests of theoretical completeness and practical application, I suggested that animals be afforded guardianship representation or a ‘right to negotiate’: when animals are at risk due to habitat loss or modification, human landholders are obliged to discuss their land-management objectives with a designated guardian for the animals. The rationale is that a mandated period of deliberation will serve to give animals a voice and act as a cooling-off period by inserting a pause in the casual chain that ordinarily leads to habitat loss.

 

Externalities and Transaction Costs

Of course, the potential benefits of an animal property rights guardianship system must be weighed against potential costs. In theory, guardianship threatens to compromise the (purported) efficiency of existing property rights systems by imposing additional costs and causing delays to land management decision making. Even if they were willing to extend property rights to animals in the first place, proponents of the economic approach to property rights will presumably reject animal property rights theory on the issue of potential inefficiencies alone. There is also a danger that animal property rights guardianship will add to transaction costs which are an important influence on the success of existing property-based habitat conservation planning systems. But, as they are currently designed, existing habitat conservation systems have shortcomings; not least of which, judging by increasing rates of habitat loss and biodiversity decline, is the absence of institutional design elements that give enough weight to the interests of resident animals at risk.

 

Guardianship

In terms of the institutional design of the animal property rights system, the eligibility of people to serve as guardians turns upon their capacity to apply the best interest test, and the negotiations between guardians and landholders must proceed in a climate of good faith. With these normative requirements in place, any foreseeable acrimony and litigiousness is no more a criticism of the institutional design of animal property rights than it is of any other legal or policy instrument, such as family court mediation, restorative justice tribunals, and native title negotiations, established for the purpose of dealing with conflicts between rights bearers. Beyond the normative parameters set by good faith and the best interest test, however, it is easy to imagine animal property rights playing out in different ways in different jurisdictions.

I suggested existing property-based habitat conservation programs were the ideal space for negotiations between human landholders and animal property rights guardians to occur. Not only do such programs provide the necessary infrastructure; implicit in each property-based habitat conservation program is the normative idea that landholders need to be more cognizant of how their actions impact upon resident animals and modify their behaviour accordingly. It needs to be stressed, however, that there is an important difference between existing habitat conservation mechanisms and animal property rights theory. The animal property rights guardian enjoys a degree of independence greater than any representative of a regulatory agency currently charged with taken into account the interests of resident animals. In existing habitat conservation systems, regulatory agency personal must balance the interests of animals against those of a range of stakeholders and are subject to political pressures that compromise their capacity to represent animals.

The normative requirement to consider non-owners is a long-standing feature of property rights theory traceable to the natural law doctrine known as the ‘initial patrimony’― the idea that the Earth was given to humans by God for the preservation of human life. The initial patrimony is, at bottom, a problem of fair shares against the background of existing ownership arrangements. So too the global problem of habitat loss is about ensuring that some natural areas are left for their inhabitants by placing constraints upon the actions of the humans who own and use these areas. In other words, the problem of habitat loss is a cross-species initial patrimony problem.

 

The Ubiquity of Property Rights

While it is reasonable to suggest that property rights are part of the problem in so far as environmental destruction is undertaken by people exercising property rights, it is also true that they are part of the solution or, at least, that they must figure prominently in any solution. Why is this? Because it is unlikely that liberal democracies will overturn or substantially amend the currently existing system of property rights anytime soon. This will seem a serious drawback to theorists who lay the blame for the world’s parlous environmental state at the feet of Locke and liberalism. [1] But, one can only be dismissive of the kind of insurgent amelioration project undertaken in this book, if it’s conceptually incoherent to suggest that there is scope to debate the limits of the Lockean proviso and, indeed, its extension to animals. There is nothing I can say to anti-property theorists other than to acknowledge that I have a different idea to them about what constructive research consists in. Maybe my natural optimism serves to explain why I think that it is not enough for theorists to simply be critical and good theory requires making positive suggestions. [2]

 

Existing Mechanisms for Addressing Habitat Loss are Property-based

The ubiquity of property in liberal democracies extends to environmental policy: policy options for addressing the biodiversity extinction crisis are themselves property-based. Outside of protected area systems (national parks, wilderness areas and conservation reserves, etc), habitat protection policy measures are property-based. Property-based habitat protection measures are directed at the behavior of owners or users of land and natural resources―they restrict certain actions and provide incentives for others. Thus, if the experts are right and the solution to the biodiversity crisis is to halt habitat loss, then we need a mechanism that constrains the exercise of people’s property rights. This is another reason why animal property rights theory is a theory of property rights impairment.

It is important to bear in mind that different societies place contrasting emphasis on specific property rights incidents. While some societies may have laws or norms that effectively render certain incidents as meaningless; in other jurisdictions, the same incidents may be held as sacrosanct. The point to stress is that ownership is not static and does not take place in a void. Laws and norms, legal and ethical, serve to give shape to ownership regimes. The successful extension of property rights to animals requires that many of the incidents be meaningfully applied to animals. This places an obligation on proponents of animal property rights to make plain whether their usage of established property concepts amounts to adaptation of them or fundamental change to them.

 

Indigenous Rights and Animal Property Rights

Proponents of indigenous rights may argue that the extension of property rights to animals represents a setback for the cause of justice for indigenous people. I argued that in many cases the animal interest in using natural goods to meet their basic needs is consistent with the flourishing of indigenous communities and that property rights for animals in such circumstances may be unnecessary or simply of symbolic significance. This claim was predicated on two qualifications: firstly, the morality of hunting is a separate issue to the territorial interests of resident animals and what human co-owners may owe to them in light of the interests; and, secondly, the extent to which animal property rights are uncalled for on indigenous land turns upon whether values such as environmental sustainability or ‘respect for nature’ inform land-management decision making.

 

Animal Rights Theory and Environmentalism

Proponents of animal rights theory and environmentalism ought to embrace a theory for the impairment of human property rights. For proponents of animal rights, the thesis above extends the call for animal rights beyond claims to bodily integrity to a right to the natural areas in which animals live. This is a welcome development because a secure habitat means that animals are effectively free to live out their lives without human beings violating their rights. In essence, animal property rights theory serves to theoretically underpin the animal rights goal of ‘leaving animals be.’ As well as being an instrument with potential public policy and land management implications, animal property rights theory lays to rest the criticism from environmentalists that animal rights theory lacks the conceptual resources for protecting natural collections like ecosystems or wilderness areas.

For their part, environmentalists also ought to welcome animal property rights theory. Theoretically, a check on habitat modification or destruction protects ecosystem stability and integrity, and thereby maintains the intrinsic value that environmentalists hold dear. Practically, animal property rights holds out the hope of addressing some of the shortcomings of the existing property-based habitat protections systems. Given the ubiquity of property rights, even environmentalists who reject property rights as an anathema to environmental protection can view animal property rights as bad tasting medicine.

It is true, however, that from an environmental perspective, animal property rights theory comes with some philosophical baggage. Ecological holists might argue that an animal property rights system will have a negligible impact on securing the health of entire ecosystems because the boundaries of ecosystems extend further than the boundaries of animal territories. But, it needs to be borne in mind that the territorial interests of many species of sentient animals extend over large areas and may even cross into different ecosystems. Insofar as an attribution of an animal property right entails that these quite possibly large areas will be free of deleterious human impact, the scope for ecosystem protection is significant. A similar point can be made to environmentalists who might argue that animal property rights are sentience-focused and cannot extend protection to non-sentient individuals, such as insects or plants. On the basis of the protection it secures for large swathes of land within an animals’ territory, an animal property right will maintain the flourishing conditions of all life, sentient or nonsentient, within the territory.

The question remains as to the efficacy of animal property rights in areas in which there are no sentient animals. While it is true that an animal property rights system cannot offer direct protection to such areas, damaging these areas could result in a spillover effect which may deleteriously impact upon animal property areas. Alternatively, in cases where the absence of sentient animals is due to extinction, the property rights system could be implemented as part of a reintroduction or re-wilding program. To draw upon an analogy with human health, once people start to focus on their health, they generally want to improve it even more: their first goal may be to stabilize their weight or blood pressure, but after a time their aim becomes to reduce it. In like manner, animal property rights may initially serve to check habitat loss on a given parcel of land and then, in order to promote biodiversity on a wider scale, they could be extended to neighboring properties.

 

The Multiple Owner Problem

Perhaps the most important objection to animal property rights theory concerns its scope: will all individual animals be eligible for property rights? If so, does this mean that many hundreds of guardians will be representing many hundreds of different animals within the same geographical area? While I suggested some possible responses, such as group ownership and guardian committees, the ‘multiple owner problem’ is an aspect of animal property rights theory that needs much greater attention. An appropriate unit needs to be identified to play the role of the bearer of animal property rights. Even if the metaphysical vagaries of territorial behaviour could be sorted out, extending guardianship to all individual animals renders the design of the institution of animal property extraordinarily complex and difficult to administer in the real world. Alternatively, extending the property rights to some collective entity, such as a group or committee, detracts from the normative significance of basic needs, which registers most profoundly at the level of the individual animal. My hope is that I’ve said enough in this book to establish the credibility of the basic concept of animal property rights, and will leave it to others sympathetic to the idea of animal property rights, and more familiar with applicable legal or ecological concepts than me, to develop responses to the multiple owner problem.

What is the connection between the property status of animals and animal’s status as putative property owners? In other words, how can property own property? I offered a response to this question in the form of a rhetorical question directed at a signature animal rights claim that animals are owed one right, the right not to be property. How can property have a right not to be property? If it is conceptually meaningful to speak of property objects having the right not to be a property object, then presumably it is meaningful to speak of property objects having a right to property in the form guardianship representation during land management decision making. If it is meaningful to talk about animals as bearers of any rights, then it is logically meaningful to talk about them as potential bearers of property rights.

 

Animal Property Rights Theory versus Wild Animal Sovereignty Theory

In Zoopolis, Donaldson and Kymlicka described animal property rights theory as ‘underdeveloped’ and ‘ad hoc’, and they said that it left many important questions unanswered. [3] This book serves to addresses such criticisms. But, even though Donaldson and Kymlicka were ostensibly charging animal property rights theory with being a work in progress, their own theory was incomplete in many of the same respects, most notably, the system of guardianship [4], and the use of territorial behaviour to demarcate sovereign animal territories. [5] The very same questions that Donaldson and Kymlicka direct at early animal property rights theory could just as readily be put to the wild animal sovereignty theory as it appears in Zoopolis. Indeed, sovereignty specific vocabulary aside, it’s reasonable to assume that ultimately the wild animal sovereignty theory will incorporate theories of guardianship and territorial determination substantially similar to the systems outlined above in Chapter 4.

Obvious similarities aside, there are some important differences between animal property rights theory and wild animal sovereignty theory. The most important is philosophical justification: animal property rights are grounded in the individual animal interest in using natural goods to meet their basic needs; wild animal sovereignty rights are grounded in the competent agency demonstrated by groups of animals. Notice that the significance of the basic needs justification registers at the individual level; whereas the significance of competent agency registers at the group level. Thus, an important difference is that, conceptually, animal property rights are individual rights, wild animal sovereignty rights are group rights.

 

Animal Property Rights and Traditional Property Rights Theory

Like their counterparts throughout the history of property theory, contemporary property theorists face the problem of reconciling public-interest restrictions on ownership rights with exclusive claims to property. Between the seventeenth and nineteenth century, the task was to reconcile the Natural Law theory-derived moral claims of non-owners with existing property arrangements. Likewise today, property theorists are seeking to do justice to the interests of everyone within the constraints existing property arrangements impose upon the design of viable policy measures capable of promoting sustainability. My hope is that I have said enough in this book for readers to think that animal property rights theory constitutes a novel approach to addressing this problem.

 

References

1. Val Plumwood, Environmental Culture: The Ecological Crisis of Reason (Oxon: Routledge, 2002), 214-216.
2. Donaldson and Kymlicka make a similar response to critics of liberalism in “Reply: Animal Citizenship, Liberal Theory and the Historical Moment,” 770-772.
3. Donaldson and Kymlicka, Zoopolis: A Political Theory of Animal Rights, 177.
4. Donaldson and Kymlicka, Zoopolis: A Political Theory of Animal Rights, 209.
5. See Donaldson and Kymlicka, “A Defense of Animal Citizens and Sovereigns,” 152.

 

Beyond Compassion and Humanity; Justice for Non-human Animals by Martha Nussbaum

Interesting essay vegans can draw on for a virtue ethics answer to why we should hold the principle of not breeding a sentient life into captivity when you know you could leave room for other animals to enjoy happy flourishing being able to express all their capabilities in wild habitat. So not wanting to parasitically take away life with meaning for low-order pleasure in our hierarchy of needs which we can find elsewhere.

The distinction between this philosophy and consequentialism would simply be if you wished to act this way because fundimentally it’s about who you want to be and who you want to let animal be.

It goes beyond the contractarian view in its starting point, a basic wonder at living beings, and a wish for their flourishing and for a world in which creatures of many types flourish. It goes beyond the intuitive starting point of utilitarianism because it takes an interest not just in pleasure and pain [and interests], but in complex forms of life. It wants to see each thing flourish as the sort of thing it is. . .[and] that the dignity of living organisms not be violated.

Counter-intuitively the author does still cling to a hedonistic view of the right to take life, but hopefully not for much longer:

If animals were really killed in a painless fashion, after a healthy and free-ranging life, what then? Killings of extremely young animals would still be problematic, but it seems unclear that the balance of considerations supports a complete ban on killings for food.

 

BEYOND “COMPASSION AND HUMANITY”

Justice for Non-human Animals

MARTHA C. NUSSBAUM

Certainly it is wrong to be cruel to animals… The capacity for feelings of pleasure and pain and for the forms of life of which animals are capable clearly impose duties of compassion and humanity in their case. I shall not attempt to explain these considered beliefs. They are outside the scope of the theory of justice, and it does not seem possible to extend the contract doctrine so as to include them in a natural way.

—JOHN RAWLS, A Theory of Justice

In conclusion, we hold that circus animals…are housed in cramped cages, subjected to fear, hunger, pain, not to mention the undignified way of life they have to live, with no respite and the impugned notification has been issued in conformity with the…values of human life, [and] philosophy of the Constitution… Though not homo-sapiens [sic], they are also beings entitled to dignified existence and humane treatment sans cruelty and torture… Therefore, it is not only our fundamental duty to show compassion to our animal friends, but also to recognise and protect their rights…If humans are entitled to fundamental rights, why not animals?

—NAIR V. UNION OF INDIA, Kerala High Court, June 2000

 

“BEINGS ENTITLED TO DIGNIFIED EXISTENCE”

In 55 B.C. the Roman leader Pompey staged a combat between humans and elephants. Surrounded in the arena, the animals perceived that they had no hope of escape. According to Pliny, they then ―entreated the crowd, trying to win their compassion with indescribable gestures, bewailing their plight with a sort of lamentation.‖ The audience, moved to pity and anger by their plight, rose to curse Pompey, feeling, writes Cicero, that the elephants had a relation of commonality (societas) with the human race. [1]

We humans share a world and its scarce resources with other intelligent creatures. These creatures are capable of dignified existence, as the Kerala High Court says. It is difficult to know precisely what we mean by that phrase, but it is rather clear what it does not mean: the conditions of the circus animals in the case, squeezed into cramped, filthy cages, starved, terrorized, and beaten, given only the minimal care that would make them presentable in the ring the following day. The fact that humans act in ways that deny animals a dignified existence appears to be an issue of justice, and an urgent one, although we shall have to say more to those who would deny this claim. There is no obvious reason why notions of basic justice, entitlement, and law cannot be extended across the species barrier, as the Indian court boldly does.

Before we can perform this extension with any hope of success, however, we need to get clear about what theoretical approach is likely to prove most adequate. I shall argue that the capabilities approach as I have developed it—an approach to issues of basic justice and entitlement and to the making of fundamental political principles [2] —provides better theoretical guidance in this area than that supplied by contractarian and utilitarian approaches to the question of animal entitlements, because it is capable of recognizing a wide range of types of animal dignity, and of corresponding needs for flourishing.

 

KANTIAN CONTRACTARIANISM: INDIRECT DUTIES, DUTIES OF COMPASSION

Kant’s own view about animals is very unpromising. He argues that all duties to animals are merely indirect duties to humanity, in that (as he believes) cruel or kind treatment of animals strengthens tendencies to behave in similar fashion to humans. Thus he rests the case for decent treatment of animals on a fragile empirical claim about psychology. He cannot conceive that beings who (in his view) lack self-consciousness and the capacity for moral reciprocity could possibly be objects of moral duty. More generally, he cannot see that such a being can have dignity, an intrinsic worth.

One may, however, be a contractarian—and indeed, in some sense a Kantian— without espousing these narrow views. John Rawls insists that we have direct moral duties to animals, which he calls ―duties of compassion and humanity. [3] But for Rawls these are not issues of justice, and he is explicit that the contract doctrine cannot be extended to deal with these issues, because animals lack those properties of human beings ―in virtue of which they are to be treated in accordance with the principles of justice‖ (TJ 504). Only moral persons, defined with reference to the ―two moral powers,‖ are subjects of justice.

To some extent, Rawls is led to this conclusion by his Kantian conception of the person, which places great emphasis on rationality and the capacity for moral choice. But it is likely that the very structure of his contractarianism would require such a conclusion, even in the absence of that heavy commitment to rationality. The whole idea of a bargain or contract involving both humans and non-human animals is fantastic, suggesting no clear scenario that would assist our thinking. Although Rawls’s Original Position, like the state of nature in earlier contractarian theories, [4] is not supposed to be an actual historical situation, it is supposed to be a coherent fiction that can help us think well. This means that it has to have realism, at least, concerning the powers and needs of the parties and their basic circumstances. There is no comparable fiction about our decision to make a deal with other animals that would be similarly coherent and helpful. Although we share a world of scarce resources with animals, and although there is in a sense a state of rivalry among species that is comparable to the rivalry in the state of nature, the asymmetry of power between humans and non-human animals is too great to imagine the bargain as a real bargain. Nor can we imagine that the bargain would actually be for mutual advantage, for if we want to protect ourselves from the incursions of wild animals, we can just kill them, as we do. Thus, the Rawlsian condition that no one party to the contract is strong enough to dominate or kill all the others is not met. Thus Rawls’s omission of animals from the theory of justice is deeply woven into the very idea of grounding principles of justice on a bargain struck for mutual advantage (on fair terms) out of a situation of rough equality.

To put it another way, all contractualist views conflate two questions, which might have been kept distinct: Who frames the principles? And for whom are the principles framed? That is how rationality ends up being a criterion of membership in the moral community: because the procedure imagines that people are choosing principles for themselves. But one might imagine things differently, including in the group for whom principles of justice are included many creatures who do not and could not participate in the framing.

We have not yet shown, however, that Rawls’s conclusion is wrong. I have said that the cruel and oppressive treatment of animals raises issues of justice, but I have not really defended that claim against the Rawlsian alternative. What exactly does it mean to say that these are issues of justice, rather than issues of ―compassion and humanity? The emotion of compassion involves the thought that another creature is suffering significantly, and is not (or not mostly) to blame for that suffering. [5] It does not involve the thought that someone is to blame for that suffering. One may have compassion for the victim of a crime, but one may also have compassion for someone who is dying from disease (in a situation where that vulnerability to disease is nobody’s fault). ―Humanity I take to be a similar idea. So compassion omits the essential element of blame for wrongdoing. That is the first problem. But suppose we add that element, saying that duties of compassion involve the thought that it is wrong to cause animals suffering. That is, a duty of compassion would not be just a duty to have compassion, but a duty, as a result of one’s compassion, to refrain from acts that cause the suffering that occasions the compassion. I believe that Rawls would make this addition, although he certainly does not tell us what he takes duties of compassion to be. What is at stake, further, in the decision to say that the mistreatment of animals is not just morally wrong, but morally wrong in a special way, raising questions of justice?

This is a hard question to answer, since justice is a much-disputed notion, and there are many types of justice, political, ethical, and so forth. But it seems that what we most typically mean when we call a bad act unjust is that the creature injured by that act has an entitlement not to be treated in that way, and an entitlement of a particularly urgent or basic type (since we do not believe that all instances of unkindness, thoughtlessness, and so forth are instances of injustice, even if we do believe that people have a right to be treated kindly, and so on). The sphere of justice is the sphere of basic entitlements. When I say that the mistreatment of animals is unjust, I mean to say not only that it is wrong of us to treat them in that way, but also that they have a right, a moral entitlement, not to be treated in that way. It is unfair to them. I believe that thinking of animals as active beings who have a good and who are entitled to pursue it naturally leads us to see important damages done to them as unjust. What is lacking in Rawls’s account, as in Kant’s (though more subtly) is the sense of the animal itself as an agent and a subject, a creature in interaction with whom we live. As we shall see, the capabilities approach does treat animals as agents seeking a flourishing existence; this basic conception, I believe, is one of its greatest strengths.

 

UTILITARIANISM AND ANIMAL FLOURISHING

Utilitarianism has contributed more than any other ethical theory to the recognition of animal entitlements. Both Bentham and Mill in their time and Peter Singer in our own have courageously taken the lead in freeing ethical thought from the shackles of a narrow species-centered conception of worth and entitlement. No doubt this achievement was connected with the founders’ general radicalism and their skepticism about conventional morality, their willingness to follow the ethical argument wherever it leads. These remain very great virtues in the utilitarian position. Nor does utilitarianism make the mistake of running together the question “who receives justice?” With the question “who frames the principles of justice?” Justice is sought for all sentient beings, many of whom cannot participate in the framing of principles.

Thus it is in a spirit of alliance that those concerned with animal entitlements might address a few criticisms to the utilitarian view. There are some difficulties with the utilitarian view, in both of its forms. As Bernard Williams and Amartya Sen usefully analyze the utilitarian position, it has three independent elements: consequentialism (the right choice is the one that produces the best overall consequences), sum-ranking (the utilities of different people are combined by adding them together to produce a single total), and hedonism, or some other substantive theory of the good (such as preference satisfaction). [6] Consequentialism by itself causes the fewest difficulties, since one may always adjust the account of well-being, or the good, in consequentialism so as to admit many important things that utilitarians typically do not make salient: plural and heterogeneous goods, the protection of rights, even personal commitments or agent-centred goods. More or less any moral theory can be consequentialized, that is, put in a form where the matters valued by that theory appear in the account of consequences to be produced. [7] Although I do have some doubts about a comprehensive consequentialism as the best basis for political principles in a pluralistic liberal society, I shall not comment on them at present, but shall turn to the more evidently problematic aspects of the utilitarian view. [8]

Let us next consider the utilitarian commitment to aggregation, or what is called ―sum-ranking. Views that measure principles of justice by the outcome they produce need not simply add all the relevant goods together. They may weight them in other ways. For example, one may insist that each and every person has an indefeasible entitlement to come up above a threshold on certain key goods. In addition, a view may, like Rawls’s view, focus particularly on the situation of the least well off, refusing to permit inequalities that do not raise that person’s position. These ways of considering well-being insist on treating people as ends: They refuse to allow some people’s extremely high well-being to be purchased, so to speak, through other people’s disadvantage. Even the welfare of society as a whole does not lead us to violate an individual, as Rawls says.

Utilitarianism notoriously refuses such insistence on the separateness and inviolability of persons. Because it is committed to the sum-ranking of all relevant pleasures and pains (or preference satisfactions and frustrations), it has no way of ruling out in advance results that are extremely harsh toward a given class or group. Slavery, the lifelong subordination of some to others, the extremely cruel treatment of some humans or of non-human animals—none of this is ruled out by the theory’s core conception of justice, which treats all satisfactions as fungible in a single system. Such results will be ruled out, if at all, by empirical considerations regarding total or average well-being. These questions are notoriously indeterminate (especially when the number of individuals who will be born is also unclear, a point I shall take up later). Even if they were not, it seems that the best reason to be against slavery, torture, and lifelong subordination is a reason of justice, not an empirical calculation of total or average well-being. Moreover, if we focus on preference satisfaction, we must confront the problem of adaptive preferences. For while some ways of treating people badly always cause pain (torture, starvation), there are ways of subordinating people that creep into their very desires, making allies out of the oppressed. Animals too can learn submissive or fear-induced preferences. Martin Seligman’s experiments, for example, show that dogs who have been conditioned into a mental state of learned helplessness have immense difficulty learning to initiate voluntary movement, if they can ever do so. [9]

There are also problems inherent in the views of the good most prevalent within utilitarianism: hedonism (Bentham) and preference satisfaction (Singer). Pleasure is a notoriously elusive notion. Is it a single feeling, varying only in intensity and duration, or are the different pleasures as qualitatively distinct as the activities with which they are associated? Mill, following Aristotle, believed the latter, but if we once grant that point, we are looking at a view that is very different from standard utilitarianism, which is firmly wedded to the homogeneity of good. [10]

Such a commitment looks like an especially grave error when we consider basic political principles. For each basic entitlement is its own thing, and is not bought off, so to speak, by even a very large amount of another entitlement. Suppose we say to a citizen: We will take away your free speech on Tuesdays between 3 and 4P.M., but in return, we will give you, every single day, a double amount of basic welfare and health care support. This is just the wrong picture of basic political entitlements. What is being said when we make a certain entitlement basic is that it is important always and for everyone, as a matter of basic justice. The only way to make that point sufficiently clearly is to preserve the qualitative separateness of each distinct element within our list of basic entitlements.

Once we ask the hedonist to admit plural goods, not commensurable on a single quantitative scale, it is natural to ask, further, whether pleasure and pain are the only things we ought to be looking at. Even if one thinks of pleasure as closely linked to activity, and not simply as a passive sensation, making it the sole end leaves out much of the value we attach to activities of various types. There seem to be valuable things in an animal’s life other than pleasure, such as free movement and physical achievement, and also altruistic sacrifice for kin and group. The grief of an animal for a dead child or parent, or the suffering of a human friend, also seem to be valuable, a sign of attachments that are intrinsically good. There are also bad pleasures, including some of the pleasures of the circus audience—and it is unclear whether such pleasures should even count positively in the social calculus. Some pleasures of animals in harming other animals may also be bad in this way.

Does preference utilitarianism do better? We have already identified some problems, including the problem of misinformed or malicious preferences and that of adaptive (submissive) preferences. Singer’s preference utilitarianism, moreover, defining preference in terms of conscious awareness, has no room for deprivations that never register in the animal’s consciousness.

But of course animals raised under bad conditions can’t imagine the better way of life they have never known, and so the fact that they are not living a more flourishing life will not figure in their awareness. They may still feel pain, and this the utilitarian can consider. What the view cannot consider is all the deprivation of valuable life activity that they do not feel.

Finally, all utilitarian views are highly vulnerable on the question of numbers. The meat industry brings countless animals into the world who would never have existed but for that. For Singer, these births of new animals are not by themselves a bad thing: Indeed, we can expect new births to add to the total of social utility, from which we would then subtract the pain such animals suffer. It is unclear where this calculation would come out. Apart from this question of indeterminacy, it seems unclear that we should even say that these births of new animals are a good thing, if the animals are brought into the world only as tools of human rapacity.

So utilitarianism has great merits, but also great problems.

 

TYPES OF DIGNITY, TYPES OF FLOURISHING: EXTENDING THE CAPABILITIES APPROACH

The capabilities approach in its current form starts from the notion of human dignity and a life worthy of it. But I shall now argue that it can be extended to provide a more adequate basis for animal entitlements than the other two theories under consideration. The basic moral intuition behind the approach concerns the dignity of a form of life that possesses both deep needs and abilities; its basic goal is to address the need for a rich plurality of life activities. With Aristotle and Marx, 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. Failures to educate women, failures to provide adequate health care, failures to extend the freedoms of speech and conscience to all citizens—all these are treated as causing a kind of premature death, the death of a form of flourishing that has been judged to be worthy of respect and wonder. The idea that a human being should have a chance to flourish in its own way, provided it does no harm to others, is thus very deep in the account the capabilities approach gives of the justification of basic political entitlements.

The species norm is evaluative, as I have insisted; it does not simply read off norms from the way nature actually is. The difficult questions this valuational exercise raises for the case of non-human animals will be discussed in the following section. But once we have judged that a central human power is one of the good ones, one of the ones whose flourishing defines the good of the creature, we have a strong moral reason for promoting its flourishing and removing obstacles to it.

Dignity and Wonder: The Intuitive Starting Point

The same attitude to natural powers that guides the approach in the case of human beings guides it in the case of all forms of life. For there is a more general attitude behind the respect we have for human powers, and it is very different from the type of respect that animates Kantian ethics. For Kant, only humanity and rationality are worthy of respect and wonder; the rest of nature is just a set of tools. The capabilities approach judges instead, with the biologist Aristotle (who criticized his students’ disdain for the study of animals), that there is something wonderful and wonder-inspiring in all the complex forms of animal life.

Aristotle’s scientific spirit is not the whole of what the capabilities approach embodies, for we need, in addition, an ethical concern that the functions of life not be impeded, that the dignity of living organisms not be violated. And yet, if we feel wonder looking at a complex organism, that wonder at least suggests the idea that it is good for that being to flourish as the kind of thing it is. And this idea is next door to the ethical judgment that it is wrong when the flourishing of a creature is blocked by the harmful agency of another. That more complex idea lies at the heart of the capabilities approach.

So I believe that the capabilities approach is well placed, intuitively, to go beyond both contractarian and utilitarian views. It goes beyond the contractarian view in its starting point, a basic wonder at living beings, and a wish for their flourishing and for a world in which creatures of many types flourish. It goes beyond the intuitive starting point of utilitarianism because it takes an interest not just in pleasure and pain, but in complex forms of life. It wants to see each thing flourish as the sort of thing it is.

By Whom and for Whom? The Purposes of Social Cooperation

For a contractarian, as we have seen, the question ―Who makes the laws and principles? is treated as having, necessarily, the same answer as the question ―For whom are the laws and principles made? That conflation is dictated by the theory’s account of the purposes of social cooperation. But there is obviously no reason at all why these two questions should be put together in this way. The capabilities approach, as so far developed for the human case, looks at the world and asks how to arrange that justice be done in it. Justice is among the intrinsic ends that it pursues. Its parties are imagined looking at all the brutality and misery, the goodness and kindness of the world and trying to think how to make a world in which a core group of very important entitlements, inherent in the notion of human dignity, will be protected. Because they look at the whole of the human world, not just people roughly equal to themselves, they are able to be concerned directly and non-derivatively, as we saw, with the good of the mentally disabled. This feature makes it easy to extend the approach to include human-animal relations.

Let us now begin the extension. The purpose of social cooperation, by analogy and extension, ought to be to live decently together in a world in which many species try to flourish. (Cooperation itself will now assume multiple and complex forms.) The general aim of the capabilities approach in charting political principles to shape the human-animal relationship would be, following the intuitive ideas of the theory, that no animal should be cut off from the chance at a flourishing life and that all animals should enjoy certain positive opportunities to flourish. With due respect for a world that contains many forms of life, we attend with ethical concern to each characteristic type of flourishing and strive that it not be cut off or fruitless.

Such an approach seems superior to contractarianism because it contains direct obligations of justice to animals; it does not make these derivative from or posterior to the duties we have to fellow humans, and it is able to recognize that animals are subjects who have entitlements to flourishing and who thus are subjects of justice, not just objects of compassion. It is superior to utilitarianism because it respects each individual creature, refusing to aggregate the goods of different lives and types of lives. No creature is being used as a means to the ends of others, or of society as a whole. The capabilities approach also refuses to aggregate across the diverse constituents of each life and type of life. Thus, unlike utilitarianism, it can keep in focus the fact that each species has a different form of life and different ends; moreover, within a given species, each life has multiple and heterogeneous ends.

How Comprehensive?

In the human case, the capabilities approach does not operate with a fully comprehensive conception of the good, because of the respect it has for the diverse ways in which people choose to live their lives in a pluralistic society. It aims at securing some core entitlements that are held to be implicit in the idea of a life with dignity, but it aims at capability, not functioning, and it focuses on a small list. In the case of human-animal relations, the need for restraint is even more acute, since animals will not in fact be participating directly in the framing of political principles, and thus they cannot revise them over time should they prove inadequate.

And yet there is a countervailing consideration: Human beings affect animals’ opportunities for flourishing pervasively, and it is hard to think of a species that one could simply leave alone to flourish in its own way. The human species dominates the other species in a way that no human individual or nation has ever dominated other humans. Respect for other species’ opportunities for flourishing suggests, then, that human law must include robust, positive political commitments to the protection of animals, even though, had human beings not so pervasively interfered with animals’ ways of life, the most respectful course might have been simply to leave them alone, living the lives that they make for themselves.

The Species and the Individual

What should the focus of these commitments be? It seems that here, as in the human case, the focus should be the individual creature. The capabilities approach attaches no importance to increased numbers as such; its focus is on the well-being of existing creatures and the harm that is done to them when their powers are blighted.

As for the continuation of species, this would have little moral weight as a consideration of justice (though it might have aesthetic significance or some other sort of ethical significance), if species were just becoming extinct because of factors having nothing to do with human action that affects individual creatures. But species are becoming extinct because human beings are killing their members and damaging their natural environments. Thus, damage to species occurs through damage to individuals, and this individual damage should be the focus of ethical concern within the capabilities approach.

Do Levels of Complexity Matter?

Almost all ethical views of animal entitlements hold that there are morally relevant distinctions among forms of life. Killing a mosquito is not the same sort of thing as killing a chimpanzee. But the question is: What sort of difference is relevant for basic justice? Singer, following Bentham, puts the issue in terms of sentience. Animals of many kinds can suffer bodily pain, and it is always bad to cause pain to a sentient being. If there are non-sentient or barely sentient animals—and it appears that crustaceans, mollusks, sponges, and the other creatures Aristotle called ―stationary animals‖ are such creatures—there is either no harm or only a trivial harm done in killing them. Among the sentient creatures, moreover, there are some who can suffer additional harms through their cognitive capacity: A few animals can foresee and mind their own deaths, and others will have conscious, sentient interests in continuing to live that are frustrated by death. The painless killing of an animal that does not foresee its own death or take a conscious interest in the continuation of its life is, for Singer and Bentham, not bad, for all badness, for them, consists in the frustration of interests, understood as forms of conscious awareness. [11] Singer is not, then, saying that some animals are inherently more worthy of esteem than others. He is simply saying that, if we agree with him that all harms reside in sentience, the creature’s form of life limits the conditions under which it can actually suffer harm.

Similarly, James Rachels, whose view does not focus on sentience alone, holds that the level of complexity of a creature affects what can be a harm for it. [12] What is relevant to the harm of pain is sentience; what is relevant to the harm of a specific type of pain is a specific type of sentience (e.g., the ability to imagine one’s own death). What is relevant to the harm of diminished freedom is a capacity for freedom or autonomy. It would make no sense to complain that a worm is being deprived of autonomy, or a rabbit of the right to vote.

What should the capabilities approach say about this issue? It seems to me that it should not follow Aristotle in saying that there is a natural ranking of forms of life, some being intrinsically more worthy of support and wonder than others. That consideration might have evaluative significance of some other kind, but it seems dubious that it should affect questions of basic justice.

Rachels’s view offers good guidance here. Because the capabilities approach finds ethical significance in the flourishing of basic (innate) capabilities—those that are evaluated as both good and central (see the section on evaluating animal capabilities)—it will also find harm in the thwarting or blighting of those capabilities. More complex forms of life have more and more complex capabilities to be blighted, so they can suffer more and different types of harm. Level of life is relevant not because it gives different species differential worth per se, but because the type and degree of harm a creature can suffer varies with its form of life.

At the same time, I believe that the capabilities approach should admit the wisdom in utilitarianism. Sentience is not the only thing that matters for basic justice, but it seems plausible to consider sentience a threshold condition for membership in the community of beings who have entitlements based on justice. Thus, killing a sponge does not seem to be a matter of basic justice.

Does the Species Matter?

For the utilitarians, and for Rachels, the species to which a creature belongs has no moral relevance. All that is morally relevant are the capacities of the individual creature: Rachels calls this view ―moral individualism.‖ Utilitarian writers are fond of comparing apes to young children and to mentally disabled humans. The capabilities approach, by contrast, with its talk of characteristic functioning and forms of life, seems to attach some significance to species membership as such. What type of significance is this?

We should admit that there is much to be learned from reflection on the continuum of life. Capacities do crisscross and overlap; a chimpanzee may have more capacity for empathy and perspectival thinking than a very young child or an older autistic child. And capacities that humans sometimes arrogantly claim for themselves alone are found very widely in nature. But it seems wrong to conclude from such facts that species membership is morally and politically irrelevant. A mentally disabled child is actually very different from a chimpanzee, though in certain respects some of her capacities may be comparable. Such a child’s life is tragic in a way that the life of a chimpanzee is not tragic: She is cut off from forms of flourishing that, but for the disability, she might have had, disabilities that it is the job of science to prevent or cure, wherever that is possible. There is something blighted and disharmonious in her life, whereas the life of a chimpanzee may be perfectly flourishing. Her social and political functioning is threatened by these disabilities, in a way that the normal functioning of a chimpanzee in the community of chimpanzees is not threatened by its cognitive endowment.

All this is relevant when we consider issues of basic justice. For a child born with Down syndrome, it is crucial that the political culture in which he lives make a big effort to extend to him the fullest benefits of citizenship he can attain, through health benefits, education, and the reeducation of the public culture. That is so because he can only flourish as a human being. He has no option of flourishing as a happy chimpanzee. For a chimpanzee, on the other hand, it seems to me that expensive efforts to teach language, while interesting and revealing, are not matters of basic justice. A chimpanzee flourishes in its own way, communicating with its own community in a perfectly adequate manner that has gone on for ages.

In short, the species norm (duly evaluated) tells us what the appropriate benchmark is for judging whether a given creature has decent opportunities for flourishing.

 

EVALUATING ANIMAL CAPABILITIES: NO NATURE WORSHIP

In the human case, the capabilities view does not attempt to extract norms directly from some facts about human nature. We should know what we can about the innate capacities of human beings, and this information is valuable, in telling us what our opportunities are and what our dangers might be. But we must begin by evaluating the innate powers of human beings, asking which ones are the good ones, the ones that are central to the notion of a decently flourishing human life, a life with dignity. Thus not only evaluation but also ethical evaluation is put into the approach from the start. Many things that are found in human life are not on the capabilities list.

There is a danger in any theory that alludes to the characteristic flourishing and form of life of a species: the danger of romanticizing nature, or suggesting that things are in order as they are, if only we would stop interfering. This danger looms large when we turn from the human case, where it seems inevitable that we will need to do some moral evaluating, to the animal case, where evaluating is elusive and difficult. Inherent in at least some environmentalist writing is a picture of nature as harmonious and wise, and of humans as wasteful overreachers who would live better were we to get in tune with this fine harmony. This image of nature was already very sensibly attacked by John Stuart Mill in his great essay ―Nature,‖ which pointed out that nature, far from being morally normative, is actually violent, heedless of moral norms, prodigal, full of conflict, harsh to humans and animals both. A similar view lies at the heart of much modern ecological thinking, which now stresses the inconstancy and imbalance of nature, [13] arguing, inter alia, that many of the natural ecosystems that we admire as such actually sustain themselves to the extent that they do only on account of various forms of human intervention.

Thus, a no-evaluation view, which extracts norms directly from observation of animals’ characteristic ways of life, is probably not going to be a helpful way of promoting the good of animals. Instead, we need a careful evaluation of both ―nature‖ and possible changes. Respect for nature should not and cannot mean just leaving nature as it is, and must involve careful normative arguments about what plausible goals might be.

In the case of humans, the primary area in which the political conception inhibits or fails to foster tendencies that are pervasive in human life is the area of harm to others. Animals, of course, pervasively cause harm, both to members of their own species and, far more often, to members of other species.

In both of these cases, the capabilities theorist will have a strong inclination to say that the harm-causing capabilities in question are not among those that should be protected by political and social principles. But if we leave these capabilities off the list, how can we claim to be promoting flourishing lives? Even though the capabilities approach is not utilitarian and does not hold that all good is in sentience, it will still be difficult to maintain that a creature who feels frustration at the inhibition of its predatory capacities is living a flourishing life. A human being can be expected to learn to flourish without homicide and, let us hope, even without most killing of animals. But a lion who is given no exercise for its predatory capacity appears to suffer greatly.

Here the capabilities view may, however, distinguish two aspects of the capability in question. The capability to kill small animals, defined as such, is not valuable, and political principles can omit it (and even inhibit it in some cases, to be discussed in the following section). But the capability to exercise one’s predatory nature so as to avoid the pain of frustration may well have value, if the pain of frustration is considerable. Zoos have learned how to make this distinction. Noticing that they were giving predatory animals insufficient exercise for their predatory capacities, they had to face the question of the harm done to smaller animals by allowing these capabilities to be exercised. Should they give a tiger a tender gazelle to crunch on? The Bronx Zoo has found that it can give the tiger a large ball on a rope, whose resistance and weight symbolize the gazelle. The tiger seems satisfied. Wherever predatory animals are living under direct human support and control, these solutions seem the most ethically sound.

 

POSITIVE AND NEGATIVE, CAPABILITY AND FUNCTIONING

In the human case, there is a traditional distinction between positive and negative duties that it seems important to call into question. Traditional moralities hold that we have a strict duty not to commit aggression and fraud, but we have no correspondingly strict duty to stop hunger or disease, nor to give money to promote their cessation. [14]

The capabilities approach calls this distinction into question. All the human capabilities require affirmative support, usually including state action. This is just as true of protecting property and personal security as it is of health care, just as true of the political and civil liberties as it is of providing adequate shelter.

In the case of animals, unlike the human case, there might appear to be some room for a positive-negative distinction that makes some sense. It seems at least coherent to say that the human community has the obligation to refrain from certain egregious harms toward animals, but that it is not obliged to support the welfare of all animals, in the sense of ensuring them adequate food, shelter, and health care. The animals themselves have the rest of the task of ensuring their own flourishing.

There is much plausibility in this contention. And certainly if our political principles simply ruled out the many egregious forms of harm to animals, they would have done quite a lot. But the contention, and the distinction it suggests, cannot be accepted in full. First of all, large numbers of animals live under humans’ direct control: domestic animals, farm animals, and those members of wild species that are in zoos or other forms of captivity. Humans have direct responsibility for the nutrition and health care of these animals, as even our defective current systems of law acknowledge. [15] Animals in the wild appear to go their way unaffected by human beings. But of course that can hardly be so in many cases in today’s world. Human beings pervasively affect the habitats of animals, determining opportunities for nutrition, free movement, and other aspects of flourishing.

Thus, while we may still maintain that one primary area of human responsibility to animals is that of refraining from a whole range of bad acts (to be discussed shortly), we cannot plausibly stop there. The only questions should be how extensive our duties are, and how to balance them against appropriate respect for the autonomy of a species.

In the human case, one way in which the approach respects autonomy is to focus on capability, and not functioning, as the legitimate political goal. But paternalistic treatment (which aims at functioning rather than capability) is warranted wherever the individual’s capacity for choice and autonomy is compromised (thus, for children and the severely mentally disabled). This principle suggests that paternalism is usually appropriate when we are dealing with non-human animals. That conclusion, however, should be qualified by our previous endorsement of the idea that species autonomy, in pursuit of flourishing, is part of the good for non-human animals. How, then, should the two principles be combined, and can they be coherently combined? I believe that they can be combined, if we adopt a type of paternalism that is highly sensitive to the different forms of flourishing that different species pursue. It is no use saying that we should just let tigers flourish in their own way, given that human activity ubiquitously affects the possibilities for tigers to flourish. This being the case, the only decent alternative to complete neglect of tiger flourishing is a policy that thinks carefully about the flourishing of tigers and what habitat that requires, and then tries hard to create such habitats. In the case of domestic animals, an intelligent paternalism would encourage training, discipline, and even, where appropriate, strenuous training focused on special excellences of a breed (such as the border collie or the hunter-jumper). But the animal, like a child, will retain certain entitlements, which they hold regardless of what their human guardian thinks about it. They are not merely objects for human beings’ use and control.

 

TOWARD BASIC POLITICAL PRINCIPLES: THE CAPABILITIES LIST

It is now time to see whether we can actually use the human basis of the capabilities approach to map out some basic political principles that will guide law and public policy in dealing with animals. The list I have defended as useful in the human case is as follows:

The Central Human Capabilities

1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living.
2. Bodily Health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter.
3. Bodily Integrity. Being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction.
4. Senses, Imagination, and Thought. Being able to use the senses, to imagine, think, and reason—and to do these things in a ―truly human‖ way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training. Being able to use imagination and thought in connection with experiencing and producing works and events of one’s own choice, religious, literary, musical, and so forth. Being able to use one’s mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise. Being able to have pleasurable experiences and to avoid non-beneficial pain.
5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us and to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one’s emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial to our development.)
6. Practical Reason. Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life. (This entails protection for the liberty of conscience and religious observance.)
7. Affiliation. (A) Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another. (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliation, and also protecting the freedom of assembly and political speech.) (B) Having the social bases of self-respect and non-humiliation; being able to be treated as a dignified being whose worth is equal to that of others. (This entails provisions of non-discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin.)
8. Other Species. Being able to live with concern for and in relation to animals, plants, and the world of nature.
9. Play. Being able to laugh, to play, to enjoy recreational activities.
10. Control over One’s Environment. (A) Political. Being able to participate effectively in political choices that govern one’s life; having the right of political participation; protections of free speech and association. (B) Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers.

 

Although the entitlements of animals are species specific, the main large categories of the existing list, suitably fleshed out, turn out to be a good basis for a sketch of some basic political principles.

1. Life. In the capabilities approach, all animals are entitled to continue their lives, whether or not they have such a conscious interest. All sentient animals have a secure entitlement against gratuitous killing for sport. Killing for luxury items such as fur falls in this category, and should be banned. On the other hand, intelligently respectful paternalism supports euthanasia for elderly animals in pain. In the middle are the very difficult cases, such as the question of predation to control populations, and the question of killing for food. The reason these cases are so difficult is that animals will die anyway in nature, and often more painfully. Painless predation might well be preferable to allowing the animal to be torn to bits in the wild or starved through overpopulation. As for food, the capabilities approach agrees with utilitarianism in being most troubled by the torture of living animals. If animals were really killed in a painless fashion, after a healthy and free-ranging life, what then? Killings of extremely young animals would still be problematic, but it seems unclear that the balance of considerations supports a complete ban on killings for food.
2. Bodily Health. One of the most central entitlements of animals is the entitlement to a healthy life. Where animals are directly under human control, it is relatively clear what policies this entails: laws banning cruel treatment and neglect; laws banning the confinement and ill treatment of animals in the meat and fur industries; laws forbidding harsh or cruel treatment for working animals, including circus animals; laws regulating zoos and aquariums, mandating adequate nutrition and space. Many of these laws already exist, although they are not well enforced. The striking asymmetry in current practice is that animals being raised for food are not protected in the way other animals are protected. This asymmetry must be eliminated.
3. Bodily Integrity. This goes closely with the preceding. Under the capabilities approach, animals have direct entitlements against violations of their bodily integrity by violence, abuse, and other forms of harmful treatment—whether or not the treatment in question is painful. Thus the declawing of cats would probably be banned under this rubric, on the grounds that it prevents the cat from flourishing in its own characteristic way, even though it may be done in a painfree manner and cause no subsequent pain. On the other hand, forms of training that, though involving discipline, equip the animal to manifest excellences that are part of its characteristic capabilities profile would not be eliminated.
4. Senses, Imagination, and Thought. For humans, this capability creates a wide range of entitlements: to appropriate education, to free speech and artistic expression, to the freedom of religion. It also includes a more general entitlement to pleasurable experiences and the avoidance of non-beneficial pain. By now it ought to be rather obvious where the latter point takes us in thinking about animals: toward laws banning harsh, cruel, and abusive treatment and ensuring animals’ access to sources of pleasure, such as free movement in an environment that stimulates and pleases the senses. The freedom-related part of this capability has no precise analogue, and yet we can come up with appropriate analogues in the case of each type of animal, by asking what choices and areas of freedom seem most important to each. Clearly this reflection would lead us to reject close confinement and to regulate the places in which animals of all kinds are kept for spaciousness, light and shade, and the variety of opportunities they offer the animals for a range of characteristic activities. Again, the capabilities approach seems superior to utilitarianism in its ability to recognize such entitlements, for few animals will have a conscious interest, as such, in variety and space.
5. Emotions. Animals have a wide range of emotions. All or almost all sentient animals have fear. Many animals can experience anger, resentment, gratitude, grief, envy, and joy. A small number—those who are capable of perspectival thinking—can experience compassion. [16] Like human beings, they are entitled to lives in which it is open to them to have attachments to others, to love and care for others, and not to have those attachments warped by enforced isolation or the deliberate infliction of fear. We understand well what this means where our cherished domestic animals are in question. Oddly, we do not extend the same consideration to animals we think of as ―wild. Until recently, zoos took no thought for the emotional needs of animals, and animals being used for research were often treated with gross carelessness in this regard, being left in isolation and confinement when they might easily have had decent emotional lives. [17]
6. Practical Reason. In each case, we need to ask to what extent the creature has a capacity to frame goals and projects and to plan its life. To the extent that this capacity is present, it ought to be supported, and this support requires many of the same policies already suggested by capability 4: plenty of room to move around, opportunities for a variety of activities.
7. Affiliation. In the human case, this capability has two parts: an interpersonal part (being able to live with and toward others) and a more public part, focused on self-respect and non-humiliation. It seems to me that the same two parts are pertinent for non-human animals. Animals are entitled to opportunities to form attachments (as in capability 5) and to engage in characteristic forms of bonding and interrelationship. They are also entitled to relations with humans, where humans enter the picture, that are rewarding and reciprocal, rather than tyrannical. At the same time, they are entitled to live in a world public culture that respects them and treats them as dignified beings. This entitlement does not just mean protecting them from instances of humiliation that they will feel as painful. The capabilities approach here extends more broadly than utilitarianism, holding that animals are entitled to world policies that grant them political rights and the legal status of dignified beings, whether they understand that status or not.
8. Other Species. If human beings are entitled to ―be able to live with concern for and in relation to animals, plants, and the world of nature,‖ so too are other animals, in relation to species not their own, including the human species, and the rest of the natural world. This capability, seen from both the human and the animal side, calls for the gradual formation of an interdependent world in which all species will enjoy cooperative and mutually supportive relations with one another. Nature is not that way and never has been. So it calls, in a very general way, for the gradual supplanting of the natural by the just.
9. Play. This capability is obviously central to the lives of all sentient animals. It calls for many of the same policies we have already discussed: provision of adequate space, light, and sensory stimulation in living places, and, above all, the presence of other species members.
10. Control over One’s Environment. In the human case, this capability has two prongs, the political and the material. The political is defined in terms of active citizenship and rights of political participation. For non-human animals, the important thing is being part of a political conception that is framed so as to respect them and that is committed to treating them justly. It is important, however, that animals have entitlements directly, so that a human guardian has standing to go to court, as with children, to vindicate those entitlements. On the material side, for non-human animals, the analogue to property rights is respect for the territorial integrity of their habitats, whether domestic or in the wild.

Are there animal capabilities not covered by this list, suitably specified? It seems to me not, although in the spirit of the capabilities approach we should insist that the list is open-ended, subject to supplementation or deletion.

In general, the capabilities approach suggests that it is appropriate for nations to include in their constitutions or other founding statements of principle a commitment to animals as subjects of political justice and a commitment that animals will be treated with dignity. The constitution might also spell out some of the very general principles suggested by this capabilities list. The rest of the work of protecting animal entitlements might be done by suitable legislation and by court cases demanding the enforcement of the law, where it is not enforced. At the same time, many of the issues covered by this approach cannot be dealt with by nations in isolation, but can only be addressed by international cooperation. So we also need international accords committing the world community to the protection of animal habitats and the eradication of cruel practices.

 

THE INELIMINABILITY OF CONFLICT

In the human case, we often face the question of conflict between one capability and another. But if the capabilities list and its thresholds are suitably designed, we ought to say that the presence of conflict between one capability and another is a sign that society has gone wrong somewhere. [18] We should focus on long-term planning that will create a world in which all the capabilities can be secured to all citizens.

Our world contains persistent and often tragic conflicts between the well-being of human beings and the well-being of animals. Some bad treatment of animals can be eliminated without serious losses in human wellbeing: Such is the case with the use of animals for fur, and the brutal and confining treatment of animals used for food. The use of animals for food in general is a much more difficult case, since nobody really knows what the impact on the world environment would be of a total switch to vegetarian sources of protein, or the extent to which such a diet could be made compatible with the health of all the world’s children. A still more difficult problem is the use of animals in research.

A lot can be done to improve the lives of research animals without stopping useful research. As Steven Wise has shown, primates used in research often live in squalid, lonely conditions while they are used as medical subjects. This of course is totally unnecessary and morally unacceptable and could be ended without ending the research. Some research that is done is unnecessary and can be terminated, for example, the testing of cosmetics on rabbits, which seems to have been bypassed without loss of quality by some cosmetic firms. But much important research with major consequences for the life and health of human beings and other animals will inflict disease, pain, and death on at least some animals, even under the best conditions.

I do not favor stopping all such research. What I do favor is (a) asking whether the research is really necessary for a major human capability; (b) focusing on the use of less-complex sentient animals where possible, on the grounds that they suffer fewer and lesser harms from such research; (c) improving the conditions of research animals, including palliative terminal care when they have contracted a terminal illness, and supportive interactions with both humans and other animals; (d) removing the psychological brutality that is inherent in so much treatment of animals for research; (e) choosing topics cautiously and seriously, so that no animal is harmed for a frivolous reason; and (f) a constant effort to develop experimental methods (for example, computer simulations) that do not have these bad consequences.

Above all, it means constant public discussion of these issues, together with an acknowledgment that such uses of animals in research are tragic, violating basic entitlements. Such public acknowledgments are far from useless. They state what is morally true, and thus acknowledge the dignity of animals and our own culpability toward them. They reaffirm dispositions to behave well toward them where no such urgent exigencies intervene. Finally, they prompt us to seek a world in which the pertinent research could in fact be done in other ways.

 

TOWARD A TRULY GLOBAL JUSTICE

It has been obvious for a long time that the pursuit of global justice requires the inclusion of many people and groups who were not previously included as fully equal subjects of justice: the poor; members of religious, ethnic, and racial minorities; and more recently women, the disabled, and inhabitants of nations distant from one’s own.

But a truly global justice requires not simply that we look across the world for other fellow species members who are entitled to a decent life. It also requires looking around the world at the other sentient beings with whose lives our own are inextricably and complexly intertwined. Traditional contractarian approaches to the theory of justice did not and, in their very form, could not confront these questions as questions of justice. Utilitarian approaches boldly did so, and they deserve high praise. But in the end, I have argued, utilitarianism is too homogenizing—both across lives and with respect to the heterogeneous constituents of each life—to provide us with an adequate theory of animal justice. The capabilities approach, which begins from an ethically attuned wonder before each form of animal life, offers a model that does justice to the complexity of animal lives and their strivings for flourishing. Such a model seems an important part of a fully global theory of justice.

 

NOTES

This essay derives from my Tanner Lectures in 2003 and is published by courtesy of the University of Utah Press and the Trustees of the Tanner Lectures on Human Values.

1. The incident is discussed in Pliny Nat. Hist. 8.7.20–21, Cicero Ad Fam. 7.1.3; see also Dio Cassius Hist. 39, 38, 2–4. See the discussion in Richard Sorabji, Animal Minds and Human Morals: The Origins of the Western Debate (Ithaca, N.Y.: Cornell University Press, 1993), 124–125.
2. For this approach, see Martha C. Nussbaum, Women and Human Development (Cambridge: Cambridge University Press, 2000), and ―Capabilities as Fundamental Entitlements: Sen and Social Justice, Feminist Economics 9
   (2003): 33–59. The approach was pioneered by Amartya Sen within economics, and is used by him in some rather different ways, without a definite commitment to a normative theory of justice.
3. All references are to John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), hereafter TJ.
4. Rawls himself makes the comparison at TJ 12; his analogue to the state of nature is the equality of the parties in the Original Position.
5. See the analysis in Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001), ch. 6; thus far the analysis is uncontroversial, recapitulating a long tradition of analysis.
6. See Amartya Sen and Bernard Williams, introduction to Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), 3–4.
7. See the comment by Nussbaum in Goodness and Advice, Judith Jarvis Thomson’s Tanner Lectures (Princeton, N.J.: Princeton University Press, 2000), discussing work along these lines by Amartya Sen and others.
8. Briefly put, my worries are those of Rawls in Political Liberalism (New York: Columbia University Press, 1996), who points out that it is illiberal for political principles to contain any comprehensive account of what is best. Instead, political principles should be committed to a partial set of ethical norms endorsed for political purposes, leaving it to citizens to fill out the rest of the ethical picture in accordance with their own comprehensive conceptions of value, religious or secular. Thus I would be happy with a partial political consequentialism, but not with comprehensive consequentialism, as a basis for political principles.
9. Martin Seligman, Helplessness: On Development, Depression, and Death (New York: Freeman, 1975).
10. Here I agree with Thomson (who is thinking mostly about Moore); see Goodness and Advice.
11. Peter Singer, ―Animals and the Value of Life,‖ in Matters of Life and Death: New Introductory Essays on Moral Philosophy, ed. Tom Regan (New York: Random House, 1980), 356.
12. James Rachels, Created from Animals: The Moral Implications of Darwinism (New York: Oxford University Press, 1990).
13. Daniel B. Botkin, ―Adjusting Law to Nature’s Discordant Harmonies,‖ Duke Environmental Law and Policy Forum 7 (1996): 25–37.
14. See the critique by Martha Nussbaum in ―Duties of Justice, Duties of Material Aid: Cicero’s Problematic Legacy,‖ Journal of Political Philosophy 7 (1999): 1–31.
15. The laws do not cover all animals, in particular, not animals who are going to be used for food or fur.
16. On all this, see Nussbaum, Upheavals of Thought, ch. 2.
17. See Steven Wise, Rattling the Cage: Toward Legal Rights for Animals (Cambridge, Mass.: Perseus, 2000), ch. 1.
18. See Martha C. Nussbaum, ―The Costs of Tragedy: Some Moral Implications of Cost-Benefit Analysis,‖ in Cost-Benefit Analysis, ed. Matthew D. Adler and Eric A. Posner (Chicago: University of Chicago Press, 2001), 169–200.