Objection Your Honour! The Plaintiff is a whale.
Art by Yii-Jeng Deng
Jack Sagar considers Martha Nussbaum's Justice For Animals: Our Collective Responsibility (Simon & Schuster 2023) and Alice Crary and Lori Gruen's Animal Crisis: A New Political Theory (Polity Press 2022).
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‘We expect extinction after people arrive on an island…survival is the exception.’ So summed up David Steadman, the curator of ornithology at Florida’s Natural History Museum, when commenting on the decline of biodiversity in a 2009 New Yorker essay. Since the publication of the piece, over 160 additional species have been officially declared extinct by the International Union for the Conservation of Nature. It is therefore no wonder that feminist and earth scientist Jill Schneiderman has termed our current geological epoch the ‘elachistocene’, coming from the Greek elachistos, meaning an epoch characterised by diminished new life.
With the horrors of the ‘elachistocene’ in mind, that two recent works of philosophy have recently sought to grapple with the human destruction of the environment and its effects on non-human animals. Martha Nussbaum’s Justice for Animals: Our Collective Responsibility and Animal Crisis: A New Critical Theory, co-authored by Alice Crary and Lori Gruen, have some salient similarities. Both work think about the place of legal and political institutions in shaping human-animal relationships. At a structural level, they give a critical sketch of the current state of play in the philosophical field of animal ethics before eventually articulating their own theories in full.
As for their differences, they emerge slowly, as each work tackles the previous failure of animal rights theory to liberate animals from our dominion over them. Take, for instance, Christine Korsgaard’s Fellow Creatures: Our Obligations to Other Animals. Korsgaard is a Kantian, which gives her an extra challenge in making sense of our moral duties to animals, given Kant himself famously thought animals did not matter morally. This is because, Kant thinks, they lack the qualities we humans possess that make us deserving of dignified treatment; in particular, the capacity to take up certain ends and pursue those ends rationally.
Kant’s philosophy is a fine example of the entrenched opposition to animal rights that philosophers working in the field must struggle against. Naturally then, Korsgaard’s Fellow Creatures trades in the general strategy of challenging our preconceptions about animal subjectivity to make a case for their moral status.
To include animals within the scope of Kantian moral concern, this means Korsgaard has to contend that animals do have the ability to deem things as valuable and to subsequently pursue them. To make it work, though, Korsgaard softens Kant’s criteria for dignity, because she agrees with him that animals are not able to pursue those ends in a rational fashion.
This does not satisfy Crary and Gruen. Echoing the political philosopher Will Kymlicka, the authors question modern attempts to rethink the category of ‘dignity’ in times of environmental catastrophe and animal crisis. These attempts merely reinscribe distinctions between animals and humans that obscure our shared existence ‘as vulnerable creatures dependent on the health of our common earthly home for survival’. This is not a minor point of contention, but is in fact central to their development of animal ethics.
Theirs, they contend, is the first critical theory of animals. Offering a critical theory of animals means offering theoretical resources for illuminating how power operates in both the social and natural world. For Crary and Gruen, political ecology – the study of the relationships between political, economic and social factors, and environmental change – just is ecology; there is no getting at objective ecological reality from a position that is ethically and politically neutral. It is non-neutral, they think, because what features of the world we attend to and how we imaginatively draw connections between them betrays a sense of what – and who – we think matters.
Crary and Gruen locate essential resources in several strands of ecofeminist theory that offer ways of thinking about how the destruction of nature interacts with the systematic oppression of marginalised groups and peoples. This gets to what is special about their intervention.
Their central complaint with contemporary animal ethics is that no existing accounts take the form of critiques, meaning they do not offer the resources necessary to reveal how institutional and social forces operate with insidious, life-destroying prerogatives. Korsgaard’s preservation of a philosophical difference between humans and animals amidst ecological distress is, for Crary and Gruen, a damaging distortion.
Nussbaum also takes issue with Korsgaard’s work, but for broadly different reasons. Her distinctive 'capabilities approach’ to justice argues that what is of the utmost moral importance is the freedom to achieve a state of well-being. The best way to make good, therefore, is to think about the material conditions necessary to guarantee the ‘capabilities’ that make-up the freedom to achieve such well-being. For humans, ‘central capabilities’ are things like bodily health; bodily integrity; practical reason; affiliation (both intimate and neighbourly); play; and control over one’s environment, either through democratic rights or through the ownership of private property.
The capabilities approach functions as a guide for ‘constitution-making’. Nussbaum writes, ‘[a] nation’s constitution must supply a threshold for reach of these, whether in a written text or through incremental interpretation’. It is designed to be superior to a vision of social justice cast merely in terms of ‘rights’, for ‘rights’ are abstractions absent concrete guarantees.
By thinking in terms of capabilities, we won’t lose sight of the critical role ‘material empowerment’ plays in creating a just world. To break away from a liberal tradition of leaving animals out, Nussbaum aims to illustrate that if the lives of ‘sentient animals’ are placed into jeopardy – mammals, reptiles and birds, perhaps fish and crustaceans at a push – this is an issue of justice.
This is because, as Nussbaum rightly points out, animals strive for their own sense of the good. This gets us to justice: ‘our pre-philosophical idea of injustice...involves...the idea that someone is striving to get something reasonably significant, and has been blocked by someone else – wrongfully, whether by malice or negligence’.
Like Crary and Gruen, Nussbaum tries to show this in part through appeals to the grim realities of animal lives today. Contrasting descriptions of animals impinged upon by human action alongside stories of those same animals flourishing, Nussbaum narratively works herself out of the limits of the liberalisms she has inherited.
By inviting us to attend to the humpback whale with a stomach full of discarded waste, the murdered elephant and her trafficked offspring, and the air once full of birdsong now only filled with pollution, we begin to see how Nussbaum intends to modify her capabilities approach for animals. We must take up the task of determining what reasonable threshold of capabilities each animal requires to live a flourishing life characteristic of its kind.
By making animals the concern of justice, this work intends to level the unequal hierarchies humans have artificially drilled and scorched into nature. As Nussbaum puts it in her first chapter: ‘I believe any reason for supporting our own claim to use the planet to survive and flourish is a reason for animals to have the same right’. This is another point of agreement between Justice for Animals and Animal Crisis, but Nussbaum’s broadly liberal vision now points us in the direction of how the two depart.
As intellectual historian Katrina Forrester has said of disagreements between liberal and radical politics, disagreements arise not at the level of description, but explanation. In understandings of how injustices form, conditions persist and change happens. As Forrester puts it, liberals like Nussbaum ‘will recognise the unjust and exploitative realities of capitalist society as described by Marxists. But they do not share the diagnosis’.
As a liberal egalitarian, Nussbaum spends more time discussing why animals meet the criteria for citizenhood than she does doing systematic thinking about animal oppression, its connection to the oppression of human beings, and the climate catastrophe as a whole. The causes of ecological distress remain an open mystery, with the idea of human greed being touched upon, but never developed.
Her politics inevitably ends up in the courts. With a focus on legislative change, she asks we find the civic virtue to act in legal standing for animal plaintiffs, birds and whales and octopi whose interests have been harmed by inexplicably greedy human hands. Put another way, Justice for Animals is the kind of animal ethics Crary and Gruen wish to transcend.
In stark opposition, Animal Crisis is a call for political resistance fortified by interspecies solidarity, the kind of solidarity that comes with recognising that the same structures responsible for the oppression of human beings are also those that oppress animals. It does not define its vision of social justice without first examining how things appear to those who live politics on the ground and for whom the pursuit of justice is not a civic option.
Readers should make up their own minds on these tremendous works of philosophy. But in evaluating each work, it is useful to grapple with the idea that political ecology just is ecology. Only then might we get to the bottom of the fact that one of these books shows us precisely how the animal crisis is bound up with our own plight, and why the other – for all its virtue – wants to imaginatively and procedurally invite orcas to take the stand.
JACK SAGAR read Philosophy & Theology at Mansfield. All of his work is driven mostly by spite.
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