By Sara Patterson
Prof. Martha C. Nussbaum has built her storied career on championing underdogs. Now, the influential philosopher and humanist is turning her attention toward the entire animal kingdom.
The University of Chicago scholar argues for both an ethical revolution and new legislation to protect animals against mistreatment, including the poaching of elephants and rhinos and the devastation of natural habitat through climate change and human greed. But how do we create a wholly new approach to protect diverse animals?
Nussbaum will further that conversation during her keynote address on Humanities Day, hosted Oct. 17 by UChicago’s Division of the Humanities.
Her address, titled “Animals: Expanding the Humanities,” will be held at 11 a.m. CDT during the first fully virtual celebration of Humanities Day. Now marking its 40th anniversary, Humanities Day highlights the power of art, literature, philosophy, music, linguistics and language—presenting the public with a snapshot of leading humanities research at the University of Chicago.
In this Q&A, the Ernst Freund Distinguished Service Professor of Law and Ethics, appointed in the Law School and the Philosophy Department, discusses how human beings have traditionally framed the ethical treatment of animals with our capacity to relate to them. But is such an approach enough? Contending that non-human animals matter for their own sake, Nussbaum uses the Capabilities Approach—the theoretical framework she pioneered—to argue for the value and dignity of all species.
How do you feel the Division of the Humanities at the University of Chicago contributes to its academic excellence on campus and in the world at large?
In many more ways than I can begin to tell you in this brief interview. Let me just say, however, that the Humanities have always asked the big questions about what our lives are, what values should direct them, what might be the meaning of suffering and grief, and how we can arrange to live decently and justly with one another. The departments in the Division of the Humanities confront these big questions in their own ways. They also model a community of rational and respectful deliberation, as our scholars pursue these big questions. Our society sorely needs to keep focusing on the large questions of value, and it also needs to try, despite our polarized times, to cultivate inquiry and debate that illustrate mutual respect and civic friendship.
Is your Humanities Day keynote address about animals part of a book project you’re working on?
Yes, I have a contract with Simon and Schuster, and a wonderful editor there who is giving me comments on chapters as I draft them. At this point, six of the 12 chapters are already in draft, and the whole thing is due at the end of calendar 2021. My plenary lecture is an overview of parts of the argument. But the fun for me is so often in the details. We are in a golden age of research on animal behavior and animal intelligence, and I love finding out new things about animals I know a lot about, such as elephants and whales, but especially about animals I know less about, such as birds, fish, and octopuses.
Why is it necessary to make both ethical and legal changes to protect animals’ rights?
Well ethics has included wonderful concern for animals for millennia, both in non-Western philosophy (Buddhism and some aspects of Hinduism) and in Western philosophy (the Greek Neoplatonists Porphyry and Plutarch—and I include Aristotle despite his flaws, since he really is the ancestor of my Capabilities Approach. The whole argument of my book might be said to flow from my doctoral dissertation, on Aristotle’s little work On the Motion of Animals. But these approaches have not been dominant.
For the most part, human beings have been both arrogant about human specialness and obtuse about animals, and things got much worse in the last century with the creation of the factory farming industry, which daily tortures countless animals. There are many things ethically sensitive people can argue about, such as the limits of medical experimentation, or whether any type of meat-eating can be ethically OK. But no ethical person can condone what goes on in the places where chickens and pigs are raised for our food. So, there is urgency ethically. In other areas too, we are wrecking the lives of sea creatures by heedlessly filling the seas with trash. We are destroying the habitats of countless creatures, both by taking over their land and by not containing global warming.
Legally, our approaches to animal lives are a mess, a gappy patchwork of some international treaties, some federal laws in each nation and thousands of state and local laws. There is huge lack of coordination and numerous inconsistencies. Thus, domesticated animals are pretty well protected, though by an inconsistent mess of local statutes. The animals we eat have basically no protection, though some states and some nations do better.
International treaties are also a mess: the minute the international treaty concerned with whaling was amended to ban the harpooning of whales, the Japanese simply withdrew from the Treaty organization. There is nothing anybody can do about that.
My approach defends some tough and consistent ethical goals that should be benchmarks for law, but then it is up to courageous legal organizations to figure out how to make progress within our existing legal framework. My daughter, who died in December 2019, was a lawyer for one such organization, Friends of Animals, and my work takes inspiration from her life’s work and attempts to continue it.
In both ethics and law, we urgently need the Humanities. Philosophy can provide cogent arguments for a coherent set of norms that we can keep our eyes on as we move forward. As I say in the lecture, the arguments supporting some current approaches are very weak, so philosophers need to get to work and do better.
Among your central human capabilities, you discuss our ability to live with concern for and in relation to animals, plants, and the world of nature. Why is this a significant change in perspective of our capabilities and ethics?
As I say in the talk, that is what the human-centered list says, but it is not enough, because it is all about what human beings need. Already in the late 1980s, I found, working with an international group that I could get a robust agreement among international development workers that this was a good goal.
But the next step, saying that animals matter for their own sake, not just for the sake of human beings, is much harder. Even my longtime collaborator Amartya Sen was unwilling to go there, and many participants in our Human Development and Capability Association are upset with me, because they think that we must solve all the urgent problems of human beings first, before showing any concern for other animals. I don’t agree: the goals need not be seen as at odds, and they should be understood to support one another. The way we treat the sentient beings with whom we share this planet is an aspect of our humanity. And if we neglect this issue, we fail as human beings.
What type of laws would acknowledge we share the world with other species—and that what they are able to do and be matters greatly to us?
You name it. As I said above, some issues are especially heinous: for example, the factory food industry. Because of the huge power of big agriculture in U.S. politics, however, I fear this one is one of the toughest to change.
We can all express ourselves as consumers, making ethical choices. Whole Foods has enabled a lot more choice as to the sourcing of our food. And some states, especially California, have used legislation to restrict the types of practices that are permissible: for example, only cage-free eggs may be sold in California. But anyway, that is one area where legal progress is urgent but very hard.
With respect to domesticated animals, things are looking up. It’s all a patchwork of local laws, that’s the problem, but some communities are making real progress. The Chicago Bar Association has a very active animals’ section that has been working on the issue of puppy mills, which is a form of fraud as well as of cruelty, since consumers are usually unaware of the mistreatment of young animals. Laws against declawing cats are also important locally, as well as more traditional laws against dog fighting and other forms of cruelty.
We’re also more aware of the humane treatment of formerly wild animals that are now living among us: coyotes, for example. As for wild animals, typically they need to be protected by cooperative international legal action, and that is difficult and uncertain, as my example of Japanese whaling shows. But we can help at our end by refusing to allow trophies from hunted wild animals (for example elephant tails, beloved of modern-day hunters) to enter the U.S. California has been pursuing this issue effectively. A worldwide ban on ivory, if it could be attained, would cut back on poaching, though enforcement will remain difficult. Banning the confinement of orcas in marine theme parks is almost achieved, thanks to the film Blackfish. But there are so many issues, habitat issues, poaching issues, confinement issues. Each person can do something useful by starting locally.
How can your Capabilities Approach be expanded beyond human beings to encompass all of animal nature without a single linear ranking, one that focuses on our propensity to hurt or destroy animals intentionally such as poaching or unintentionally such as climate change?
The whole point of the Capabilities Approach is to avoid linear rankings of forms of life and to focus on supporting the actual form of life of each creature. I don’t think it’s enough in the end to get rid of the worst forms of cruelty. Sure, we must do that. But we need a positive vision of animal flourishing. That is really what the Capabilities Approach is about. I map out what it could be for the many types of animals to live together with us, and with one another in a way such that they flourish, each in their own way.
This means concessions on both sides, something we already understand in the case of domesticated animals. To flourish in a multi-species world, dogs and cats must accept certain constraints (on aggression, on fertility), but we too must adjust our lifestyle to live decently with them.
That is basically the idea I have about all animals: figure out how to get to that sort of multispecies society where all can flourish in their own way. There’s lots to be said about that, but no more space here, I fear.
How can the Capabilities Approach protect the complicated capacities of animals for many types of diverse, fascinating activities allowing animals to have full, flourishing lives?
As I say in the lecture: we should not just focus on ending pain and suffering, though that is urgently important. We should also imagine what needs for friendship and community each type of animal has, what needs for free movement, for pleasure, and for using their faculties in a happy way. This would utterly transform the idea of a zoo, if zoos persist at all. And I think fortunately some forward-looking research-oriented zoos, in which group I count the Lincoln Park Zoo, are already asking all the right questions. Law can do much more to regulate conditions in zoos.
How does the Capabilities Approach offer this theoretical framework as we pursue the urgent responsibility of ethical awakening?
It’s a map of what I call a virtual constitution, since it can’t at present hope to become a real constitution. The human Capabilities Approach is meant as a template for real constitution-making, but I fear that where animals are concerned that goal is remote. Still, the approach can direct our efforts, as we think, each of us: What am I in a position to do, in my own life and with my own opportunities, in my food choices, in my philanthropy, in my work, in my political action, to move at least some animals closer to that goal?
How does your appointment bring the Division of the Humanities together with the Law School at the University of Chicago?
I have full appointments in the Law School and the Philosophy Department, and Associate appointments in Classics, Political Science, and Religious Ethics in the Divinity School. I was appointed in the Law School to bring the Humanities into the Law School and teach cross-listed classes on issues of ethics and political thought. Every single class of mine, both graduate and undergraduate, is cross listed, usually in all five of those units, and contains students in different majors and disciplines.
The University of Chicago is the only university I know where this interdisciplinary cooperation is possible. If it is a graduate seminar in Philosophy, Law students can enroll only if they have a substantial philosophy background, but many do. If it is a Latin class on Roman philosophy, anyone can enroll who has the right amount of background in Latin, and I’ve had wonderful Law students reading Cicero alongside Humanities majors. Some classes, such as “Emotions, Reason, and Law,” are open to all Law students and most MA and PhD students, and those are especially rewarding. Teaching that class last spring generated such wonderful discussions of our current crisis and the emotions that we all have, and we urgently asked together how law ought to incorporate and respond to such experiences. Every year, I also teach an informal half-credit class for just 12 Law students, with her UChicago colleague, Richard Posner; these “Greenberg Seminars” meet in faculty homes and are informal. Mine are always on some law-literature topic.
Beyond teaching, there are some extracurricular things I do. For about 12 years, we have a group of law faculty who have organized conferences on law and literature. To date, we have published five books, and the sixth one, on war in law and literature, is in press. This book ventures to discuss music as well as literature: my paper is on Benjamin Britten’s War Requiem. Obviously, the speakers at our conference include Humanities Division faculty from here and elsewhere—as well as Justice Breyer on two occasions, and literary luminaries such as Joyce Carol Oates and Scott Turow. And we typically include a theatrical performance to make the role of literature in the law more vivid, with faculty and student actors.
For the third time next year, I am teaching a course on opera with Anthony Freud, General Director and CEO of Lyric Opera of Chicago. Entitled “Opera as Idea and as Performance,” it ponders the relationship between someone like me (I write program notes for Lyric), an armchair student of the form, and someone like Anthony, who marshals all the forces that make opera a multi-media artform, including staging, performance, costume design, lighting design, and so forth. Each class has a guest, who is from one of these areas of expertise. After presenting the opera of the day, we interview the guest. The course enrolls both graduate and undergraduate students.
What does this have to do with law? Well, frankly, money: the Law School generously pays most of the bill for Anthony and the guests, though the Humanities Division is able to supply a Course Assistant. And many Law students take the class; sometimes it is their first introduction to opera. They often write their papers on the many legal issues present in opera, from Wagner’s ideas about contract in the Ring to Benjamin Britten and E. M. Forster’s ruminations about sodomy laws in Billy Budd. But they can write about whatever they find exciting.
Now, we have a new organization in the Law School, which is entering its third year: Law Students for the Creative Arts. Of course, many young people who embark on a career in music or dance or theater don’t stay there, and law school is one place where they often end up. So, we have a lot of talented and passionate future lawyers, many of whom hope eventually to be lawyers in some role connected to the arts. So, this new organization, entirely student-led, generates all sorts of programs that bring the arts part of the Division of the Humanities together with the Law School.
For example, Augusta Read Thomas, our University Professor and resident composer, performed and discussed her new string quartet called “Chi,” depicting different aspects of the vital life force. A professional string quartet performed the work, she talked about it, and then I made a case for its relevance to law, through the idea that lawyers and judges are always dealing with bodily experience but often in too distanced a manner. I used Schopenhauer’s ideas about music (not uncritically!) to make my case.
These are just some of our enterprises, and I am always looking for new ways to extend these connections further.
For those interested in learning more, Humanities Day sessions are free and open to the public. Find out more and register today.