nussbaum 2004 - beyond compassion and humanity

nussbaum 2004 - beyond compassion and humanity - 14 MARTHA...

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Unformatted text preview: 14 MARTHA C. NUSSBAUM BEYON D “COMPASS ION AND HUMANITY" justicefbr Non/airman Animals Certainly it is wrong to he 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. ——]OHN RAWLS, ATheory ofJusticc In conclusion, we hold that circus animals . . . are housed in cramped cages, subjected to Fear, hunger, pain, not to mention the undignified way oflife 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 homosapicns [sic], they are also beings entitled to dignified existence and humane treatment sans cruelty and torture. . i . Therefore. it is not only our fundamental duty to Show compassion to our animal friends, but also to recognise and protect their rights. . . . Il‘ihumans are entitled to fundamental rights, why not animals? __NAIR V. UNION OF INDIA, Ketala High Cotirt,]tiiie 2000 “BRINGS ENTITLED TO DIGNIFIED EXISTENCE” In 55 B.('L'. 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 7-99 NEW DIRECTIONS plight, rose to curse Pompey, feeling, writes Cicero, that the elephants had a relation ofcommonality (rodents) 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 nor mean: the conditions ofthe cir- cus animals in the case, squeezed into cramped, filthy cages, starved, terror— ized, and beaten, given only the minimal care that would make them pre— sentable 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, entitle- ment, 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, how— ever, 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 devel- oped it—an approach to issues of basic justice and entitlement and to the making of fundamental political principlesZ—provides better theoretical guidance in this area than that supplied by contractarian and utilitarian ap' proaches to the question ofanimal entitlements, because it is capable of rec— ognizing 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 du— ties to animals are merely indirect duties to humanity, in that (as he be« lieves) cruel or kind treatment of animals strengthens tendencies to behave in similar fashion to humans. Thus he tests 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 dury. 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 ofjustice, and he is ex— plicit that the contract doctrine cannot be extended to deal with these is sues, because animals lack those properties of human beings “in virtue of which they are to be treated in accordance with the principles ofjustice” (7] 304). Only moral persons, defined with reference to the “two moral pow— ers,” are subjects of justice. 300 BEYOND “COMPASSION AND l"IUi‘vIANiTY” To some extent, Rawls is led to this conclusion by his Kantian concep— tion of the person, which places great emphasis on rationality and the car pacity for moral choice. But it is likely that the very structure of his contrac— tarianism 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 nonhuman animals is fantastic, suggesting no clear scenario that would assist our thinking. Although Rawls’s Original Pow sition, like the state of nature in earlier contractarian theories,‘i is not sup— posed to be an actual historical situation, it is supposed to he a coherent fic— . tion that can help us think well. This means that it has to have realism, at least, concerning the powers and needs ofthe parties and their basic circum— stances. 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 nonhuman 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 mu— tual advantage (on fair terms) out of a situation of rough equality. To put it another way, all contractualist views coniiate 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 cri- terion of membership in the moral community: because the procedure imagines that people are choosing principles for Maintainer. But one might imagine things differently, including in the group for whom principles of justice are included many creatures who do not and could. nor 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 jusrice, but I have not really defended that claim against the Rawlsian alter- native. W/hat exactly does it mean to say that these are issues of justice, rather than issues of “compassion and humanity”? The cmorion of compas~ sion involves the thought that another creature is suffering significantly, and is not (or not mosrly) to blame for that sufferingfl it does not involve the thought that someone is to blame for that suffering. One may have compas» sion for the victim of a crime, but one may also have compassion for some- one 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 corn— passion omits the essential element of blame for wrongdoing. That is the ' first problem. But suppose we add that element, saying that duties of com- 301 NILW’ DiRI‘iC'l'lONS passion involve the thought that it is wrong to cause animals suffering. That is, a duty of compassion would nor be just a duty to have compassion, but a duty. as a result ofone’s compassion, to refrain from acts that cause the suf— fering that occasions the compassion. I believe that Rawls would make this addition, although he certainly does not tell us what he takes duties of com- passion to be. 'What is at stake, further, in the decision to say that the mis— treatment ofanimals is not just morally wrong, but morally wrong in a spe- cial way, raising questions of jusrice? This is a hard question to answer, since justice is a much—disputed no— tion, 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 acr 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 ofjustice is the sphere of basic enti« tlements. When I say that the mistreatment of animals is unjust, I mean to say not only that it is wrong ofus 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 unv air 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. \V hat 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 exis- tence; this basic conception, I believe, is one of its greatest strengths. UTII.,ITARIANISM 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 eth- ical 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 mor~ ality, their willingness to follow the ethical argument wherever it leads. These remain very great virtues in the utilitarian position. Nor does utilitar» ianism make the mistake of running together the question “Who receives justice?" with the question “\Y/ho 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 difi‘iculties with the utilitarian View, in buth of its forms. As 302 BEYOND ”COMPASSION AND iiUMANiTY” Bernard Williams and Amartya Sen usefully analyze the utilitarian position, it has three independent elements: comrquentialism (the right choice is the one that produces the best overall consequences), rant—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).‘3 Consequentialism by itself causes the fewesr difficulties, since one may always adjusr 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— ccntered 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 prin- ciples in a pluralistic liberal society, 1 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 “sunvranking.” Views that measure principles of justice by the outcome they produce need not simply add all the relevant goods to— gethcr. 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 per— mit inequalities that do not raise that person’s position. These ways of con— sidering 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. Utilitariauism nororiously 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 ma ward a given class or group. Slavery. the lifelong subordination of some to others, the extremely cruel treatment of some humans or of nonhuman animalsfinone 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 preferw ences. For while some ways of treating people badly always cause pain (tor- 303 NEW DIRECTIONS ture, starvation), there are ways of subordinating people that creep into their very desires, making allies out of the oppressed. Animals too can learn sub— missive or fearainduced preferences. Martin Seligman’s experiments, for ex- ample, 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 preva— lent within utilitarianism: hedonism (Bentham) and preference satisfaction (Singer). Pleasure is a notoriously elusive notion. Is it a single feeling, vary— ing only in intensity and duration. or are the different pleasures as qualita— tively distinct as the activities with which they are associated? Mill, follow— ing 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 con— sider 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 4 P.M., but in return, we will give you, every sin— gle day, a double amount of basic welfare and health care support. This is jusr 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 altruisv tic sacrifice for kin and group. The grief ofan animal for a dead child or par— ent, or the suffering of a human friend, also seem to be valuable, a sign of attachments that are intrinsically good. There are also had pleasures, in“ cluding 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 prefer— ences and that of adaptive (submissive) preferences. Singer’s preference utili— tarianism, moreover, defining pmfirt’m‘e in terms of conscious awareness, has no room for deprivations that never register in the animal’s consciousness. 304 BEYOND ”COMPASSION AND iiUMANiTY” But of course animals raised under bad conditions can’t imagine the better way oflife 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 exisred but for that. For Singer, these births of new ani» mals are not by themselves a bad thing: Indeed. we can expecr 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 ani— mals 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 FLOURJSHING: 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,” capa— bility 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 free doms of speech and. conscience to all citizens—all these are treated as cans» ing 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 a...
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