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Martha Nussbaum on Animal Rights

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Martha Nussbaum on Animal Rights
Anders Schinkel

Ethics & the Environment, Volume 13, Number 1, Spring 2008, pp.
41-69 (Article)

Published by Indiana University Press

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MARTHA NUSSBAUM ON
ANIMAL RIGHTS
ANDERS SCHINKEL

There is quite a long-standing tradition according to which the morally

proper treatment of animals does not rely on what we owe them, but on
our benevolence. Nussbaum wishes to go beyond this tradition, because
in her view we are dealing with issues of justice. Her capabilities
approach secures basic entitlements for animals, on the basis of their
fundamental capacities. At the same time Nussbaum wishes to retain the
possibility of certain human uses of animals, and to see them as morally
justifiable. This article shows that these things do not go together with
her capabilities approach to animal rights. More specifically, they clash
with the attitude towards animals that Nussbaum’s approach intends to
foster in human beings.

INTRODUCTION: NUSSBAUM ON ANIMAL RIGHTS

In an early nineteenth-century children’s book, the following guiding
remarks by the author precede the actual story:
“Their mamma, therefore, to amuse them, composed the following
Fabulous Histories; in which the sentiments and affections of a good
father and mother, and a family of children, are supposed to be pos-
sessed by a nest of Redbreasts; and others of the feathered race are, by
the force of imagination, endued with the same faculties: but before
Henry and Charlotte began to read these Histories, they were taught
to consider them, not as containing the real conversations of birds (for

ETHICS & THE ENVIRONMENT, 13(1) 2008 ISSN: 1085-6633

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 that is impossible we should ever understand), but as a series of FA-
BLES, intended to convey moral instruction applicable to themselves,
at the same time that they excite compassion and tenderness for those
interesting and delightful creatures, on which such wanton cruelties are
frequently inflicted, and recommended universal benevolence.” (Trim-
mer 1817, introduction)1

There is quite a long-standing tradition according to which the

morally proper treatment of animals does not rely on what we owe them,
but on our benevolence; animals should be treated with ‘compassion and
tenderness.’ John Rawls stands firmly in this tradition. According to him,
we have ‘duties of compassion and humanity’ towards animals (Rawls
1971, 512; quoted in Nussbaum 2006, 331). Hence, animals are excluded
from the scope of his theory of justice. Nussbaum’s recent book, Frontiers
of Justice (2006)—her Tanner Lectures—is intended to draw attention to
those groups that fall outside the reach of prevalent considerations of jus-
tice, considerations that stem from the social-contract tradition in
political thought, of which John Rawls is the most important twentieth-
century exponent. Nussbaum detects “three unsolved problems of social
justice whose neglect in existing theories seems particularly problematic”
(Nussbaum 2006, 1). The first is “the problem of doing justice to people
with physical and mental impairments;” the second is “the urgent prob-
lem of extending justice to all world citizens;” thirdly, “we need to face
the issues of justice involved in our treatment of nonhuman animals.”
This article is concerned with her treatment of the third problem.
The sixth chapter in Frontiers of Justice is entirely devoted to ‘justice
for nonhuman animals.’ However, Nussbaum’s views were in preparation
and development for quite some time. Her philosophical interest in ani-
mals goes back at least to her dissertation of 1975 (Nussbaum 1975;
republished as Nussbaum 1978). As to animal rights, by my knowledge,
Nussbaum started with a short review article of Richard Sorabji’s Animal
Minds and Human Morals (1993) (Nussbaum 1996). Five years later, she
wrote a large review article about Steven Wise’s Rattling the Cage (2000)
(Nussbaum 2001a).2 Here we already find much of the material on ani-
mal rights that Nussbaum presented in her 2002 Tanner Lectures.3
Nussbaum’s first independent (i.e. non-review) article on animal rights,
and her first systematic exposition of her views on the subject in writing

42 ETHICS & THE ENVIRONMENT, 13(1) 2008

was published in 2004 (Nussbaum 2004). It is basically a shorter version
of the Tanner Lectures. The chapter on animal rights in Frontiers of Jus-
tice is a more extensive version of the same text that underlay the 2004
article. Between 2001 and 2006, Nussbaum’s position remains constant.
From the structure of Frontiers of Justice it is clear that Nussbaum’s
work on animal rights is part of a greater project, aimed at extending and
correcting the dominant theory of justice—that of the social contract tra-
dition—and Rawls’ version of that theory in particular. From her reading
of Richard Sorabji’s Animal Minds and Human Morals, Nussbaum de-
rives a question that falls in with her doubts regarding the adequacy of
contractarian theories of justice, and which sets the stage for her own
work on the issue of animal rights: “How did the philosophical tradition
bequeath us a view that posits a wide gulf between ourselves and the
other animals, denying that questions of justice arise for our treatment of
them?” (Nussbaum 1996, 403) The first two sections of her article in An-
imal Rights, as well as of chapter six in Frontiers of Justice, explain why
she wishes to go ‘beyond compassion and humanity’ (which is what
Rawls can spare for animals)—because we are dealing with ‘issues of jus-
tice’ (Nussbaum 2004, 301; Nussbaum 2006, 326, 336). A first idea of
the way to go about a theory that goes beyond compassion and human-
ity in this sense is expressed in her review of Sorabji’s book: Sorabji,
Nussbaum writes, concludes “that any theory of our moral relation to an-
imals that relies on a single basis of concern (utility, rights) is probably
too simple. The manifold continuities and discontinuities between hu-
mans and other animals require a multifaceted, flexible ethical theory, dif-
ferent from any Sorabji has yet seen” (Nussbaum 1996, 404).
Nussbaum took up this challenge for the first time in her extensive
review of Steven Wise’s Rattling the Cage. Here, Nussbaum starts to
sketch out how an adequate theory of animal rights would look, because
she feels that such a theory is lacking at this moment—and not just in
Rattling the Cage, which she considers as “a work of activism more than
a work of scholarship” (Nussbaum 2001a, 1548). Nussbaum still shares
Sorabji’s aforementioned conclusion—she criticizes contractarian/Kant-
ian views and utilitarian views, critically evaluates rights-based views, and
finally sets out a neo-Aristotelian view, which cannot be said to ‘rely on a
single basis of concern.’ Nussbaum wishes to extend the ‘capabilities

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 43

 approach’—“an approach to issues of basic justice and entitlement and to
the making of fundamental political principles”—to animals (Nussbaum
2004, 300; Nussbaum 2001a, 1538). This approach is neo-Aristotelian,
but Nussbaum, no doubt desiring a ‘multifaceted theory,’ claims that she
favors a combination of rights-based views and views based on an idea of
capability and functioning (neo-Aristotelian views), “though not without
recognizing the considerable importance of [utilitarian views] in fixing
our eyes firmly on the issue of suffering” (Nussbaum 2001a, 1527). We
will see that it is her attempt to combine certain aspects of other
approaches with the capabilities approach that (occasionally) bring her
into trouble.4
In some respects, the 2001 review of Wise’s Rattling the Cage is more
extensive than the 2004 article, “Beyond ‘Compassion and Humanity.’ ”
The latter, for instance, does not contain a discussion of rights-based
views, nor does the chapter in Frontiers of Justice. But in one important
respect the two more recent texts go beyond the 2001 review article, they
contain a list of animal capabilities that is analogous to Nussbaum’s list
of the central human capabilities.5 This list is a first step, it provides a
framework that could be used for many species, and refined and adapted
to suit each separate species—for each species has its own good.6 In 2001,
Nussbaum stated that what we need is a “principled account how the
capabilities view ought to deal with [certain] difficult questions [regard-
ing human-animal relationships]” (Nussbaum 2001a, 1543). The 2004
article does not provide that, nor does Frontiers of Justice, even though
the book provides a more extensive exposition of her views and her
methodology, and introduces some new ideas.
Nevertheless, Nussbaum’s work seems to be moving in the appointed
direction. There is all the more reason, then, to critically survey her work
so far, so that any problems with it may be pointed out in this early stage,
and may perhaps be remedied. Problems in the elaboration of her
approach so far, some of which already show up in 2001, mostly spring
from her attempt to combine different theoretical approaches. Nussbaum
wishes to go beyond compassion and humanity (because we are dealing
with issues of justice), but she goes such a long way beyond compassion
and humanity (leaving also moderate rights-based views far behind), that
she can no longer hold on to certain things she is unwilling to let go of—
namely, killing for food and the use of animals in research. These

44 ETHICS & THE ENVIRONMENT, 13(1) 2008

practices are compatible with approaches that do not go beyond compas-
sion and humanity—that is, they are compatible with animal welfare
approaches. They are even compatible with moderate rights-based
views—views that grant animals rights but hold that human rights and
interests trump those of animals in these matters. What I intend to
demonstrate in this article is that the possibilities of human use of animals
that Nussbaum wishes to retain and wishes to see as morally justifiable,
do not go together with her capabilities approach to animal rights. More
specifically, they clash with the attitude towards animals that Nussbaum’s
approach intends to foster in human beings. This article does not counter
Nussbaum’s view with arguments stemming from another perspective.
Rather, it draws out certain important inconsistencies inherent in Nuss-
baum’s own approach, with a view to achieving greater consistency.7 The
object, then, is not to break down, but to help construct this important,
ambitious and promising approach by one of today’s leading ethicists.
Five years ago, Nussbaum wrote: “In general, my strategy has been to
publish versions of my capabilities view as records of work in progress,
in order to elicit what I have very often received, criticism that would help
me make the view better.” (Nussbaum 2000a, 102–03) I take it that this
applies equally to her capabilities view with regard to animals, especially
since there, too, she stresses that it is work in progress. From this perspec-
tive, this article can be seen as a response to an open invitation.

THE CAPABILITIES APPROACH TO ANIMAL RIGHTS

Central in the capabilities approach is a list of capabilities that, in the
case of human beings, is ‘a set of social goods’, ‘correlated with innate
abilities of human beings’ (Nussbaum 2001a, 1536). It is meant to show
which basic requirements have to be met to enable someone to strive to
attain the good life for human beings. Basic human capabilities give rise
to social duties, “duties to move that capacity from its rudimentary form
to the higher level of capability that figures on the list” (Nussbaum
2001a, 1537). Nussbaum explains that “[t]he 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” (Nussbaum 2004, 305). Human beings
have innate capacities that hold promises for future development into
richer and more complex capabilities. The political organization of a soci-

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 45

 ety should be such as to provide support (‘up to a threshold level’) for the
development of those innate capacities and the exercise of those devel-
oped capabilities ‘evaluated as important and good’ (Nussbaum 2004,
305). This does not entail a paternalistic society, but a pluralistic one, in
which the emphasis lies on enabling (as a task of the state) and on choice
(as the human freedom to develop their capacities) (Nussbaum 2001a,
1536–1537). The list of central human capabilities can be found in Nuss-
baum’s Women and Human Development (2000a).8 It lists such ‘central
human capabilities’ as ‘Life’ (“Being able to live to the end of a human
life of normal length…”), ‘Bodily health,’ ‘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…”), ‘Practical Reason,’ and
‘Play,’ to name a few.
In analogy to the list of central human capabilities, Nussbaum devises
a list of central animal capabilities that she believes covers all animal
capabilities—if it is ‘suitably specified’ for each species (Nussbaum 2004,
317).9 Each animal capability bears the same name as the corresponding
human capability. The list points out what is essential to the good life for
(a species of) animals. It helps us determine what basic requirements have
to be met, so as to enable animals to pursue the good life for them. Each
capability on the list is accompanied by an explication of the immediate
implications of its recognition for human behavior towards and interac-
tion with animals. Below is a condensed version of the list.10

1. Life. “[A]ll animals are entitled to continue their lives,

whether or not they have such a conscious interest.” (p.
314)
2. Bodily Health. “One of the most central entitlements of ani-
mals is the entitlement to a healthy life.” (p. 315)
3. Bodily Integrity. “[A]nimals 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.” (p. 315)
4. Senses, Imagination, and Thought. In the human list, it
reads: “Being able to use the senses, to imagine, think, and
reason—and to do these things in a ‘truly human’ way…”
Presumably, we can substitute ‘animal’ for ‘human’ here.
Nussbaum states that this capability “includes a more gen-

46 ETHICS & THE ENVIRONMENT, 13(1) 2008

 eral entitlement to pleasurable experiences and the avoid-
ance of nonbeneficial pain,” and comments that “[b]y 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 envi-
ronment that stimulates and pleases the senses.” (p. 315–
16)
5. Emotions. “[Animals] 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.”
This implies “thought for the emotional needs of animals.”
(p. 316)
6. Practical Reason. “To the extent that [the creature has a
capacity to frame goals and projects and to plan its life], 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.” (p. 316)
7. Affiliation. “Animals are entitled to opportunities to form
attachments and to engage in characteristic forms of bond-
ing and interrelationship. They are also entitled to relations
with humans, when 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.…
[A]nimals are entitled to world policies that grant them
political rights and the legal status of dignified beings,
whether they understand that status or not.” (p. 316)
8. Other species. “[Animals are entitled to] ‘be able to live
with concern for and in relation to animals, plants, and the
world of nature’…. This capability…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 sup-
planting of the natural by the just.” (p. 316–317)

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 47

 9. Play. “[This capability] calls for...provision of adequate
space, light, and sensory stimulation in living places, and,
above all, the presence of other species members.” (p. 317)
10. Control over One’s Environment. “For nonhuman 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.… On the material side, for nonhu-
man animals, the analogue to property rights is respect for
the territorial integrity of their habitats, whether domestic
or in the wild.” (p. 317)
As with the list of central human capabilities, the emphasis lies on
autonomy, in the sense that animals should be in a position to pursue ‘ani-
mal flourishing’, the good life for their species, themselves (Nussbaum
2004, 312–13).11 This approach has (Nussbaum’s interpretation of) Aris-
totle’s view of animals and animal capacities as its background. In her
review of Wise’s book (2001a, 1516–19), she refers to (her book on) Aris-
totle’s De Motu Animalium (On the Movement of Animals) (Nussbaum
1978), Aristotle’s De Partibus Animalium (On the Parts of Animals) and
De Generatione Animalium (On the History of Animals) (Balme 1972),
and David Balme’s (1972) commentary on the latter two works (Nuss-
baum 2001a, 1517–18).12 She also refers to one of her own essays,
“Rational Animals and the Explanation of Action,” in which she gives an
interpretation of Aristotle’s views on intentional and voluntary action by
animals (Nussbaum 1995, 264–89). A central term here is orexis (liter-
ally: ‘desire’), which in Nussbaum’s interpretation of Aristotle’s view is a
“common feature shared by all cases of goal-directed animal movement”
(Nussbaum 1995, 273). It can be translated as intentionality, which must
be taken to involve two things: a reaching out towards objects, and a
responsiveness to the world as seen by the animal. That last qualification
is important—the animal has a perspective. Tom Regan would say they
are “subjects-of-a-life” (Regan 1983, 243ff.).
Nussbaum does not simply state her interpretation of Aristotle’s
views regarding animals, but also subscribes to them. An important part
of Nussbaum’s criticism of the Kantian (and contractarian) approach is
aimed at the rigidity with which it makes the distinction between human
and nonhuman animals, and more particularly at “the idea that at bottom
we are split beings” (Nussbaum 2001a, 1528 ) that results from it:

48 ETHICS & THE ENVIRONMENT, 13(1) 2008

 “For Kant, human dignity and our moral capacity, dignity’s source, are
radically separate from the natural world…. [Our animality is] left to
one side…. [This split] ignores the fact that our dignity just is the dig-
nity of a certain sort of animal. It is the animal sort of dignity.... [it]
wrongly denies that animality can itself have dignity; thus [it] leads us
to slight aspects of our own lives that have worth and to distort our
relation to the other animals” (Nussbaum 2001a, 1528)13

Nussbaum’s approach can be seen as an attempt to correct such distor-

tion. Her interpretation of Aristotle provides the background for this, by
pointing out the commonality of human and nonhuman animals.14 This
commonality is reflected in Nussbaum’s use of the same list of capabili-
ties for human beings and animals, though with different interpretations
for each species.

PROBLEMS AND INCONSISTENCIES

There are some minor problems with Nussbaum’s approach, which
can be remedied relatively easily, and there are some more serious prob-
lems. A very conspicuous minor problem is that the end of the seventh
capability, Affiliation, (“[A]nimals … or not.”) simply states that which
the whole approach was intended to provide a foundation for. The capa-
bilities approach, with the list of central animal capabilities at its core, is
meant to provide the necessary theoretical support for a notion of animal
rights (moral and political). Therefore, it is somewhat odd, to say the
least, to find the entitlement to those rights already included in the list of
capabilitities. This entitlement should be seen as founded upon the whole
of the capabilities list, not as the corollary of one capability.
Another problem (minor only in the sense that it can relatively easily
be removed from Nussbaum’s approach) is that the eighth capability,
Other Species, in so far as it is intelligible, must be considered utopian.
Nussbaum states that it “calls for the gradual formation of an interdepen-
dent world in which all species will enjoy cooperative and mutually
supportive relations with one another,” recognizes that “[n]ature is not
that way and never has been”, and concludes that as a consequence this
capability calls “for the gradual supplanting of the natural by the just”
(Nussbaum 2004, 317).15 What this means, in effect, is not so much a
gradual transformation of this world, but simply the destruction of the
(animal) world as it exists today. In the natural world, carnivores predate

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 49

 on other animals. Whatever level of justice social animals may be capable
of reaching within their own societies, no animals (human beings aside)
seem capable of extending justice to other species. If the relations between
predators and prey animals must be made just, or else controlled so as to
stay within the limits set by justice, that would be the end of the natural
world as we know it.16
Nussbaum realizes that the need for the ‘supplanting of the natural
by the just’ arose only because of global human interference with and
influence on the natural world. Had not human influence been so perva-
sive, “the most respectful course might have been simply to leave them
alone, living the lives that they make for themselves” (Nussbaum 2004,
307). As it is, humans have a responsibility even with regard to ‘wild’ ani-
mals. Only human beings might reach an overlapping consensus
concerning the rights of animals. Justice can only reign in the natural
world in the sense that humans, in a ‘respectfully paternalistic’ way, give
each their due (Nussbaum 2006, 380). This would mean protecting
gazelles from attacks by tigers—it would mean policing nature. Nuss-
baum admits that this seems absurd in one sense, but at the same time
finds herself almost bound to accept the necessity of policing nature
(Nussbaum 2006, 379). This problem remains unsolved.
It seems to me that it could be removed from her approach quite eas-
ily, if only she took more seriously what she herself wrote concerning
human intervention with a view to animal flourishing: “Moral individu-
alism says too little to guide us in such matters” (Nussbaum 2006, 366).
Where domesticated animals are concerned, or animals supported by
humans, moral individualism may work just fine. But for wild animals
(however much their environment is influenced by human activity) it is
inappropriate. Instead of prescribing the protection of individual gazelles,
the capabilities approach should here focus on the flourishing of species
(or, more accurately perhaps, populations). Trying not to disturb the bal-
ance between different animal populations is probably the best way to
translate one’s respect for different animal forms of life into action. This
way we avoid many problems—making an even bigger mess of things for
one.

Problems relating to ‘killing for food’

The more serious problems are present in Nussbaum’s review of
Wise’s Rattling the Cage (2001a), in “Beyond ‘Compassion and Human-

50 ETHICS & THE ENVIRONMENT, 13(1) 2008

ity’ ” (2004), and in Frontiers of Justice (2006). They attach to what Nuss-
baum herself regards as ‘difficult cases.’ In her explanation of the first
animal capability—which starts by saying that “all animals are entitled to
continue their lives, whether or not they have such a conscious interest”
(Nussbaum 2004, 314)—after mentioning the clear-cut cases of ‘gratu-
itous killing for sport’ and ‘euthanasia for elderly animals in pain,’ she
says:
“In the middle are the very difficult cases, such as the question of pre-
dation to control populations, and the question of killing for food….
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 a free-ranging
life, what then? [I]t seems unclear that the balance of considerations
supports a complete ban on killings for food.” (Nussbaum 2004, 315)

Nussbaum repeatedly speaks of ‘killing for food’ as a difficult case, in

all three texts, but does not really address the issue, simply because she
does not have a clear answer. My criticism concerns what she says in the
above quotation, which is similar to what she says in the 2001 article: “I
share Singer’s doubts about whether a painless death is really a depriva-
tion.” (Nussbaum 2001a, 1542)
Let us start with the simple and seemingly innocent word ‘after’ in the
above quotation from the first capability. It is a treacherous word—not
intended as such, I am sure, but it seems that Nussbaum fell victim to its
treacherousness, just like any reader might. It sounds almost pleasant—to
be killed in a painless fashion after a healthy life. If only it were true that
the killing occurred after the animal’s life—in fact, of course, the killing
occurs in the middle of a healthy life.17 It is the killing that ends the life,
and with that it ends every capability the animal had, everything it strove
for—it puts an end to its orexis, the characteristic that, it is not too much
to say, formed the basis for Nussbaum’s defence of animal rights. In Fron-
tiers of Justice, the passage is changed in a way that suggests that
Nussbaum had become aware of the problem. Here, she says about pain-
less predation that it does not mean “that no harm is done by painlessly
killing a creature in its prime,” and she recognizes that “animals who are
killed for food…are typically killed in their prime or even in their youth”
(Nussbaum 2006, 394, 386).18
It is also hard to see how an entitlement of animals to continue their
lives is to be compatible with a justification of killing for food. Perhaps

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 51

 the clue lies in the second sentence of the explanation of the first capabil-
ity: “All sentient animals have a secure entitlement against gratuitous
killing for sport.” (Nussbaum 2004, 314; my italics) If that entitlement is
secure, maybe that means that the first entitlement is not? But if it is not,
is it really an entitlement? It seems that Nussbaum gives with one hand,
but takes away with the other. In Frontiers of Justice, she says “when
there is a plausible reason for the killing (preventing harm to crops or
people or other animals, preventing pain, even gaining necessary or use-
ful food), no entitlement based on justice has been violated” (Nussbaum
2006, 393; my italics). But ‘useful’ is surely very different from ‘necessary.’
When is meat useful? When eating it contributes to my health? But is it
then not necessary? Or is there a minimum of health for which meat
could in some conditions be said to be necessary, while above that mini-
mum, it might be useful but not more than that? And can meat still be
said to be useful when there are alternatives of equal usefulness, and meat
is therefore clearly no longer necessary? Nussbaum leaves us in the dark
here. The problem is even more complex if we compare the above claim
with the earlier one that “killing...is not to be chosen simply for the
human’s convenience” (Nussbaum 2006, 385). We are also left to figure
out the crucial difference between ‘convenience’ and ‘usefulness,’ that
makes the difference between unjustified and justified killing.19
With respect to the justification of killing for food, it should also be
noted that Nussbaum made the following very clear theoretical commit-
ment somewhat earlier in “Beyond ‘Compassion and Humanity,’ ” (2004)
as well as again in 2006—“[The capabilities approach] is superior to util-
itarianism 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”
(Nussbaum 2004, 307; my italics; also Nussbaum 2006, 351). Animals
raised and killed for food are obviously used as a means to the ends of
others. In view of the above theoretical commitment, then, it is hard to
see how Nussbaum can allow this practice.
Capability 3 reads: “animals have direct entitlements against viola-
tions of their bodily integrity…whether or not the treatment in question
is painful” (Nussbaum 2004, 315). First of all, does not killing, too, con-
stitute a violation of bodily integrity—the severest possible? It is by being
killed that a body, in a sense, loses its integrity. Secondly, the second part:

52 ETHICS & THE ENVIRONMENT, 13(1) 2008

“whether or not the treatment in question is painful,” is hardly consistent
with the phrase under capability 1 in the 2004 article: “If animals were
killed in a painless fashion...” (p. 315 ) If painlessness does not matter in
the one case (violations of bodily integrity), why would it make a differ-
ence in the other (killing for food)? The only answer could be: because the
former is more absolutely wrong than the latter, which can be allowed, if
it is guaranteed to be painless. But then we are back at the first point: is
killing not the most severe violation of bodily integrity?
A fundamental inconsistency attaches to Nussbaum’s remarks (in
both the 2001 and the 2004 articles) concerning painless killing. She has
taken pains to emphasize the advantages of her own approach over utili-
tarian approaches, among others on the point of ‘adaptive preferences’
and the conscious registration of deprivations (Nussbaum 2004, 305;
Nussbaum 2001a, 1530, 1541). Nussbaum emphasizes that something
may be a deprivation, even if it is not consciously registered as such. She
wishes to take such deprivations into account. Why, then, does she come
up with ‘painlessness’ as something that would excuse killing? When it
comes to killing for food, Nussbaum is persuaded to take a utilitarian
position, as she herself recognizes (Nussbaum 2001a, 1542).20 But is it not
a deprivation to be killed? It seems that to be killed deprives an animal of
all those things Nussbaum sums up in her capabilities list.21
This brings me to my next point. Capabilities 2 through 10 are all
dependent on the first capability—that is, on the continuance of life. The
exercise and development of all those capabilities, whether it be the use
of the senses, the forming of emotional attachments, or play, is only pos-
sible when the animal is alive. If these capabilities are considered as
intrinsically valuable, or as the sources of the intrinsic value of the ani-
mal, as Nussbaum does, there is clearly a tension with the possibility of
justified killing for food. This tension could only be resolved by pointing
out that human and animal interests need to be weighed against each
other, in which case it would be possible that the human interests out-
weigh those of the animals concerned. Nussbaum sometimes tends
towards such a position, but, as should be clear by now, she cannot do so
consistently. However, given the fact that Nussbaum wishes to leave room
for justified killing for food, it seems that the list of animal capabilities
should be qualified in the following manner: capability 2 would read, in
abbreviated form, “entitlement to a healthy life…until we eat them”; 3

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 53

 would read, “entitlements against violations of bodily integrity…until we
eat them”; 4, “access to sources of pleasure…until we eat them”; 5, “enti-
tled to lives in which it is open to them to have attachments to others, to
love and care for others…until we eat them”; 6, “the capacity to frame
goals and projects and to plan [a] life ought to be supported…until we eat
them”; and so on. This places the capabilities list in a whole new light.

Problems regarding tragedy

Nussbaum notes that “[o]ur world contains persistent and often
tragic conflicts between the well-being of human beings and the well-
being of animals” (Nussbaum 2004, 318; also Nussbaum 2006, 402). She
seems to suggest that the ‘very difficult cases’ (‘difficult issues’, ‘difficult
problems’) of killing for food and research on animals are examples of
tragic conflicts. (I say ‘seems to suggest’ because, as we will see, she is not
as explicit about this in the case of killing for food as she is with regard
to research on animals.) Instead of inconsistency in her theory, we would
have tragedy in the world. Does this strategy work?

A) The first question we should ask is whether ‘killing for food’ and
the use of animals in research really constitute examples of tragic situa-
tions. Nussbaum seems to think so. After the above quoted remark
concerning ‘tragic conflicts,’ she notes some examples of bad treatment of
animals that “can be eliminated without serious losses in human well-
being” (Nussbaum 2004, 318; Nussbaum 2006, 402). These are examples
of non-tragic conflicts. Then, she says that “[t]he 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 vege-
tarian sources of protein, or the extent to which such a diet could be made
compatible with the health of all the world’s children” (Nussbaum 2004,
318; Nussbaum 2006, 402).22 Nussbaum seems to imply that this might
be a tragic conflict, but whether it really is depends, in Nussbaum’s view,
on information we do not (and perhaps cannot) have. She is explicit
about the use of animals in research (‘a still more difficult problem’); this
constitutes a tragic dilemma: “…such uses of animals in research are
tragic…they do in some cases violate basic animal entitlements” (Nuss-
baum 2006, 403–05; cf. Nussbaum 2004, 318).
In her article “The Costs of Tragedy,” she distinguishes between two

54 ETHICS & THE ENVIRONMENT, 13(1) 2008

questions people can pose themselves in situations where they are
required to act (in which I include refraining from action). The first is
what she calls the ‘obvious question’—“the question of what he ought to
do” (Nussbaum 2000b, 1006). It may be very difficult to answer, and it
may also be very difficult to find the best method of answering it. The sec-
ond question is the ‘tragic question’—the question “whether any of the
alternatives available...in the situation is morally acceptable” (Nussbaum
2000b, 1007). A situation is tragic when each of the available alternatives
for action involves serious wrongdoing, or put the other way around,
when none of the alternatives open to the actor is ‘free from serious moral
wrongdoing’ (Nussbaum 2000b, 1005). This may be difficult to deter-
mine, but it may also be easy. The tragic question is not necessarily more
difficult to answer than the obvious one (though people generally find it
more difficult to pose the tragic question).
So the first subquestion for us is: does the killing of animals for food
involve serious wrongdoing, and does the alternative involve serious
wrongdoing as well? Is neither alternative morally acceptable? Nussbaum
is unclear on this point. On the one hand, she seems to feel that it involves
serious wrongdoing, for otherwise it would be unintelligible why it would
constitute a difficult case—as she clearly does not mean to say that it is a
difficult case in terms of the obvious question. The reason it is a difficult
case is that the moral status of the alternative is as yet undetermined (and
perhaps indeterminable), hence it cannot be ascertained what the answer
to the tragic question ought to be. She seems to doubt whether the pain-
less killing of animals for food constitutes serious wrongdoing. The
consistent thing for Nussbaum to hold, however, would be that ‘killing
for food’ does involve serious wrongdoing, and is in itself morally unac-
ceptable. The difficulty then lies with the alternative—does a prohibition
of the use of animals for food involve serious wrongdoing? Would basic
human entitlements be violated? At this moment, it is difficult (if at all
possible) to prove that life-long vegetarianism necessarily impairs a per-
son’s health in any way, when alternatives to meat are used (like soy and
certain nuts, for instance). But there are many other matters that would
have to be considered, therefore—though I doubt whether it could defin-
itively be proven that basic human entitlements would be violated by a
prohibition of killing animals for food—I will leave open the possibility
that it constitutes a tragic dilemma.

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 55

 The second subquestion to our first question is whether the use of
animals in research is an example of a tragic dilemma.23 For those who
think so, the matter is obvious—using animals in research involves seri-
ous wrongdoing to the animals, but it helps a lot of people who would
otherwise have suffered and/or died. We do good by doing wrong, but if
we refrain from doing wrong in this way, we do wrong in another, namely
by letting people suffer and perhaps die who could otherwise have been
cured, or whose suffering could have been diminished. So we always do
wrong, but at the end of the day, we should prefer the lives of people over
those of animals, tragic though it may be.24 But is this a proper construal
of the situation? It is construed like a typical lifeboat case: a lifeboat con-
tains people and animals, but it is too full. A number of them will have to
go overboard, or the boat will sink and all will drown. It is them (the ani-
mals) or us (the human beings). But if we look closely, we see that this is
not a proper analogy to the case of the use of animals in research. The
animals are not in the lifeboat at all, until we take them on board.25 In
reality, there is no proper analogue for the benefit the animals in the
lifeboat would receive if human beings sacrificed themselves. Sick people
that die ‘because’ no research has been done on animals do not sacrifice
themselves for the animals. What happens is that human beings, like all
creatures, fall ill sometimes. If it is serious, they may die. All this does not
affect the lives of animals, so long as we do not make it so. To begin with,
there is no lifeboat. Research on animals constitutes the lifeboat itself;
only when we see research on animals as part of the initial situation—
when we accept this as given—can we say that there is a lifeboat, that it
is us or them. Research on animals involves serious wrongdoing. Can we
say that the alternative (not creating the lifeboat situation) constitutes
serious wrongdoing? Is it in itself morally unacceptable not to make
human suffering the animals’ concern? There is a moral obligation to help
the sick, but is there also a moral obligation to make animals suffer to
help the sick?
It seems, firstly, that the issue revolves around the moral distinction
between acts and omissions. It is quite generally recognized (though still
debated) that one needs stronger reasons to justify a positive act than to
justify an omission—not killing is morally more basic than saving lives.26
The use of animals in research entails the suffering and death of many
animals. This is a serious wrongdoing, inherent in a positive act. To

56 ETHICS & THE ENVIRONMENT, 13(1) 2008

refrain from such research may entail that certain human lives cannot be
saved, and certain human suffering not or less relieved. But this is ‘merely’
an omission.27 So the least we can say is that this tragic dilemma is not
symmetrical: it is not a matter of furthering A at the cost of B or further-
ing B at the cost of A, but a matter of furthering A at the cost of B or
omitting to further A, which spares B—it would be too much to say that
it benefits B (the animals).
This brings us to a second, more important point: if we look closely,
we must conclude that, though the case is presented as if the human good
and the animal good were in the balance, in fact only one good is at stake
here—the human good (in the form of human health). It is about the
human good alone, and the question is how far we are willing to go in
furthering it. This, too, is the conclusion towards which my discussion of
the lifeboat analogy points. The human good is at stake, the animal good
is not, until we make it so. The human situation can be bettered, the ani-
mal situation can either stay the same or deteriorate. The animals stand
to gain nothing, because their good is not initially in play, and once it is,
it is so in another way than the human good.28
So the case is radically different from certain cases in which two cen-
tral human or animal capabilities (or two basic rights) are in the balance.
In certain poorer countries, for instance, we may see tragic conflicts
between the well-being of human beings and animals arise. For the pro-
tection of a population of animals (of an endangered species) it may be
necessary to designate a large area of land as a nature reserve. However,
this limits the possibilities of neighbouring communities to support them-
selves. They may then be required to find their means of existence
elsewhere. The protection of endangered species, in such instances,
clashes with the needs of local communities, and with the economic devel-
opment of certain regions in general. The economic development of
poorer countries is a goal in itself—a goal that the so-called ‘developed’
countries feel it their duty to further. Here, we see that there are really two
goods at stake, and that to further the one goes at the cost of the other.29
The difference with the case of the use of animals in research raises
doubts as to whether that really constitutes a tragic dilemma, in which
two goods are at stake. But if it still is a tragic dilemma, than it is an
asymmetrical one, which may have consequences for the way in which it
is resolved. The asymmetry is double: there is only one good in play,

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 57

 instead of one good on either side, and this fact leads to the act/omission
asymmetry. For if there were two acts in the balance, there would either
be two goods in play, or there would be no tragic dilemma.
But, with all the above doubts and qualifications, let us grant Nuss-
baum that we are still dealing with a tragic conflict. We can then return
to the question posed in the beginning of this section: Nussbaum accepts
the need for the use of animals in research, but urges us to acknowledge
that this is tragic, that it violates basic entitlements—but does this strat-
egy work? Does it make the use of animals in research consistent with her
approach?

B) I will argue that it does not. If we ignore the fact that Nussbaum
explicitly sides with utilitarians when it comes to these ‘difficult cases’—
a breed of ethical theorists not particularly known for its feeling for
tragedy—we can still see that it leads to a serious problem. In her review
of Wise’s Rattling the Cage, Nussbaum notes that “despite all the evi-
dence that animals have lives…we humans treat them like things much of
the time. We are capable of the most extraordinary feats of ‘doubling’—
the term used by psychologist Robert Jay Lifton to describe Nazi doctors
who carried out cruel experiments on Jews while living ethically decent
family lives at home” (Nussbaum 2001a, 1509). It is exactly such ‘dou-
bling’ that Nussbaum unintendedly requires of us—if we are to take the
attitude towards animals that she stimulates us to take while remaining
able to kill animals for food or use them in research. To view animals the
way Nussbaum does, to care for them in a corresponding way, and at the
same time to retain the ability to eat them or experiment on them,
requires a kind of moral schizophrenia. Although Nussbaum posits the
tragic question primarily at the level of society, I will first discuss this
claim at the level of individuals, because it will illuminate the structure of
the problem on the societal level, too, and also because it is not com-
pletely clear that the tragic question, in this case, belongs to the societal
level alone.
Nussbaum’s approach fosters in human beings an attitude of respect,
care, and admiration for animals. The respect animals receive is what they
deserve, what we owe them, on the basis of their animal dignity—the
same kind of dignity we ourselves have. We are asked to consider animals
very much like we consider our fellow human beings: as subjects of their

58 ETHICS & THE ENVIRONMENT, 13(1) 2008

own life, with their own goals, and their own capacities for flourishing.
By treating animals in a way that corresponds with the capabilities in
Nussbaum’s list—with care for, an interest in, and attention to their needs
and feelings—we are saying (to the animals, to others, and to ourselves)
that this is what they deserve. With our actions, we are saying that an
important value is (or important values are) realized in an animal’s life,
that this individual life is intrinsically valuable. But at the end of the day,
according to Nussbaum, we should be able to experiment on the animals
we have seen in this light and treated in this way, and we should be able
to kill and eat them.
In her criticism of utilitarianism (which can be found throughout her
writings), Nussbaum explains that there is something wrong with people
who, in tragic situations, figure out what is to be done by means of a
detached and cool calculation, and then simply do it, without any psycho-
logical difficulties, in the knowledge that they have done the morally right
thing.30 A virtuous person, a good person, would recognize the tragic
character of the situation, and acknowledge that something valuable is
lost, some evil realized, whatever is done. Applying this to the cases at
hand, this would mean that killing for food and the use of animals in
research (provided it meets certain requirements concerning the welfare
of the animal) can be allowed, as long as people recognize the tragic
aspect of it and are aware of the evil that is realized, the value that is lost.
I do not think this gets Nussbaum out of trouble. If tragic conflicts
occurred only very rarely, it would perhaps be psychologically possible
for people to deal with them the way Nussbaum suggests. They would
then be able to feel the appropriate pain involved in the final decision.
‘Killing for food’ however, is not something that occurs only every now
and then—it is an ongoing practice, an enormous industry.31 Nussbaum
cannot expect butchers to have a vivid awareness of the value that is lost
when they slice another throat, nor even a more abstract awareness of the
tragic aspect of the situation. That would require a split personality. The
same goes for the use of animals in research. Here, Nussbaum asks for
“acknowledgement that such uses of animals in research are tragic, vio-
lating basic entitlements,” these acknowledgements “reaffirm dispositions
to behave well toward them where no such urgent exigencies intervene”
(Nussbaum 2004, 318).32 Again, the problem is that one cannot expect
people to cultivate two opposing dispositions at the same time. On the

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 59

 one hand, the animals used in research would have to be cared for in a
way consistent with the list of animal capabilities. This means cultivating
a disposition to behave well towards animals, but also the way of look-
ing at animals described earlier in this section. On the other hand, people
would have to cultivate a different disposition, one that enables them to
experiment on animals, infect them with diseases, and so on. This need
not be a disposition of behaving badly towards animals, but it must be a
disposition to remain unmoved by the emotions and interests of the ani-
mals concerned. Researchers need to blunt their sensitivity to a certain
extent, because the use of animals in research is not something that hap-
pens very rarely, but constitutes daily work. Now, a disposition can
survive occasional frustration by exceptional circumstances, but it cannot
coexist with an opposed and simultaneously cultivated disposition. This,
however, is what would be required of the individuals involved.33
Perhaps it was wrong, then, to consider the matter on the level of
individuals. The recognition of tragedy Nussbaum asks for is primarily, as
I noted before, a public matter. It accompanies public discussion of these
issues (Nussbaum 2004, 318; Nussbaum 2006, 404–05). If this means
that Nussbaum does not expect individual persons to develop ‘moral
schizophrenia’ after all, is the problem solved? I fear not. It would mean,
first of all, that Nussbaum accepts the fact that a significant number of
people develop a blunted sensitivity towards animal needs and emotions,
or simply a lack of sensitivity towards animal suffering. Secondly, it
would mean that the moral schizophrenia, the feat of ‘doubling’, is sim-
ply moved upwards from the individual to the societal level. Society as a
whole would then need to cultivate two opposed dispositions, producing
both people that care for animals and respect them in a way consonant
with the capabilities approach, and people that are willing and able to kill
animals for food or experiment on them. These two balls cannot be held
in the air at the same time—if the one goes up, the other must fall. A soci-
ety that regards animals in the way required by Nussbaum’s approach,
undermines its own willingness to use them for food or in research.34
Approval of killing for food and the use of animals can go together
with the prevention of cruelty and a certain level of care for the animals.
Animal welfare theories need not and do not absolutely condemn these
practices, nor need all animal rights theories do so. But these practices
cannot consistently be allowed for within the framework of Nussbaum’s

60 ETHICS & THE ENVIRONMENT, 13(1) 2008

capabilities approach, which entails a thoroughgoing respect for animal
autonomy and dignity. Nussbaum’s approach entails that “[n]o creature
is being used as a means to the ends of others, or of society as a whole”.

EVALUATION
In her review of Wise’s Rattling the Cage, Nussbaum writes the fol-
lowing: “This is an area in which we will ultimately need good theories
to winnow our judgments because our judgments are so flawed and shot
through with self-serving inconsistency.” (Nussbaum 2001a, 1548) I
would not dare to accuse Nussbaum of something as unpleasant as ‘self-
serving inconsistency.’ Nevertheless, whether or not self-serving,
Nussbaum’s views do suffer from inconsistency. Nussbaum recognizes
that our judgements tend to reflect our felt interests, or at minimum suf-
fer from a perspectival distortion. Therefore, by taking the animal(’s)
point of view, she goes a long way in trying to avoid such distortion. A
consistent elaboration of her capabilities approach, however, would seem
to require a prohibition of killing for food where other sources of nutri-
tion are available, and the abandonment of the use of animals (the
animals that are mostly used now, anyway) in research. It is not that lev-
els of awareness do not matter. That (utilitarian) point is well taken.
However, at present it is not meaningfully integrated in the capabilities
approach.
It seems to me that the capabilities view can be made consistent in
two ways: 1) by reducing the importance of utilitarian considerations
with regard to the ‘difficult cases’—this would entail a condemnation of
killing for food where other food is available, and a ban on the use of ani-
mals in research; 2) by toning down the capabilities approach in such a
way that it would still go beyond compassion and humanity, but without
going beyond a moderate rights-based view (that can allow, without
inconsistency, that human rights and interests trump those of animals). I
feel most for the first option, which I think is most in line with Nuss-
baum’s approach as a whole, despite her obvious sympathy for
utilitarianism in the fight for animal rights. She explicitly distinguishes
her approach from utilitarianism, and does so in a way that in fact pre-
cludes the possibility of justifying ‘killing for food’ and the use of animals
in research on utilitarian grounds. It is a threshold-based approach; it
specifies “a minimum threshold, below which justice has not been

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 61

 done”—and below which utilitarian considerations do not apply (Nuss-
baum 2006, 381). In most parts of the world, humans can live
‘adequately’ as vegetarians—when animals are then still killed for food,
justice (according to Nussbaum’s view) is not done. I also find it hard to
believe that, when animals are worn out and finally killed by the research
that is done on them, the threshold of justice has been reached.
Nussbaum’s treatment of ‘difficult cases,’ then, betrays a lack of com-
mitment to her own approach. She sometimes avoids the most basic
questions, as when she writes that animals raised for food should be pro-
tected (against cruel treatment) the way domestic animals should, but the
most striking asymmetry is that the former are killed for food—should
they also be protected against that? (Nussbaum 2006, 394) Related to
this lack of commitment is a problematic way of dealing with the tension
between moral ideals and pragmatic considerations. She sometimes uses
the latter to avoid answering basic theoretical questions (Nussbaum
2006, 393; cf. 402). With regard to research on animals, she does admit
that “[a]s a matter of ideal entitlement theory, this research is morally
bad,” but she adds that “[a]s a matter of current implementation, I do not
favor stopping all such research immediately” (2006, 404). This is odd;
one would expect her to say that as a matter of current implementation
she does not think it feasible to stop all such research immediately. Again,
she seems to be undecided on the theoretical (or ideal) level.
Many problems have remained undiscussed. I have merely touched
upon the matter of ‘policing nature,’ and Nussbaum also mentions the
problem of species equality and equal dignity, but sets it aside as largely
irrelevant to her approach.35 And there are fundamental theoretical diffi-
culties that need to be resolved if this approach is to become a
competitive alternative to existing theories—difficulties relating, for
instance, to the liberal idea of an overlapping consensus and its place in
Nussbaum’s approach to animal rights (Nussbaum 2006, 388–89).
Nussbaum admires the utilitarian’s ‘willingness to follow the ethical
argument wherever it leads’. It was, to some extent at least, her admira-
tion for utilitarianism that led her not to do the same. This is a shame. I
hope this article will contribute to a more consistent capabilities
approach to animal rights.

62 ETHICS & THE ENVIRONMENT, 13(1) 2008

 NOTES
1. I owe this reference to Eva Moraal.
2. Nussbaum’s book on emotions, Upheavals of Thought, was also published
in 2001. It includes more than a whole chapter concerning human-animal
commonalities (and differences).
3. The Tanner Lectures on Human Values were delivered at the Australian
National University, 12–13 November 2002. In March 2003, they were
delivered at Cambridge University. They were published as Nussbaum
2006.
4. Problems with Nussbaum’s approach often relate to attempts to incorpo-
rate elements of utilitarian approaches in her own capabilities approach. In
Frontiers of Justice, she writes: “In general, the capabilities approach is a
close ally of contractarian approaches and is more deeply critical of Utili-
tarianism. And yet in this particular area things look different.” She
remarks on utilitarianism’s historical contribution to the ethical considera-
tion of animals, and in connection with that on some ‘great virtues in the
Utilitarian position’ (in particular ‘their willingness to follow the ethical
argument wherever it leads’); moreover, she approves of utilitarianism’s
‘outcome-oriented view of justice,’ because this “seems required in order to
deal well with all three of our problems”, and sees the utilitarian’s focus on
‘the sentience that links humans with all other animals’ and on ‘the bad-
ness of pain’ as ‘particularly attractive starting points’ for considering
issues of justice involving animals (Nussbaum 2006, 338–39).
5. The chapter in Nussbaum 2006, of course, is more extensive than Nuss-
baum 2001a in several other ways, too.
6. Nussbaum 2001a, 1542: “We need a capabilities list for each level and type
of life, which means a continuum of capabilities lists.”
7. Such work as I do not intend to do is being undertaken by Peter Singer,
among others (Singer 2002).
8. Cf. Nussbaum 2001a, 1536 (note 123), or Nussbaum 2004, 313–14.
9. Nevertheless, “in the spirit of the capabilities approach we should insist
that the list is open-ended, subject to supplementation or deletion”.
10. The full list is in Nussbaum 2004, 314–17; an expanded, but very similar
version is in Nussbaum 2006, 392–401.
11. It is not completely clear whether it is the autonomy of individual animals
that matters, or that of species. Nussbaum speaks of ‘species autonomy’,
and explains that for the capabilities approach ‘species matters’ (Nuss-
baum 2004, 309), but she also says that “the focus should be on the
individual creature” and that “damage to species occurs through damage
to individuals, and this individual damage should be the focus of ethical
concern within the capabilities approach” (308). In Nussbaum 2001a,
1544, she states: “[T]he capabilities view does not support a special con-

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 63

 cern for the preservation of species as such. Its focus is on the individual
creature.”
12. Nussbaum’s incomplete reference is to Balme (1972). For De Partibus Ani-
malium she also mentions a Greek edition from the Loeb Classical Library,
ed. A.L. Peck (1937). Also mentioned is Sihvola, 1996.
13. Cf. 1537: “[T]he capabilities approach…has the advantage of not commit-
ting itself to the split between humanity and animality that is in many ways
built into Rawls’s theory.” Cf. Nussbaum 2006, 131–33, where Nussbaum
enumerates four reasons why the “[t]he Kantian split between personhood
and animality is deeply problematic.” Nussbaum (2006, 329; 2004, 300;
2001a, 1527) also argues against Kant for his (in)famous view that human
beings have no direct duties to animals, all our duties to them being indi-
rect duties towards humanity. She is much more favourably inclined to
Locke (Nussbaum 2006, 45), who, however, used the same argument long
before Kant, and applied it to ‘the meaner sort of people, particularly ser-
vants’ as well (Locke 1968, 225–26 [§ 116], 227 [§ 117]). So much for
Locke’s ideas on ‘natural equality’ and ‘human dignity,’ of which Nuss-
baum thinks so highly. So much, too, for Nussbaum’s assertion that
“Hobbes and Locke say nothing interesting about animals,” which is the
reason why she looks to Kant as “the only evidence for what classical
social contract theory says about [human-animal relations]” (2006, 445,
note 4 to p. 329). That assertion is especially surprising, given that Nuss-
baum herself (2006, 40–41) had already referred to Hobbes’ statement
that “[t]o make Covenants with bruit Beasts, is impossible; because not
understanding our speech, they understand not, nor accept of any transla-
tion of Right; nor can they translate any Right to another: and without
mutuall acceptation, there is no Covenant” (Hobbes 2000, 97).
14. Nussbaum 2001a, 1518: “Throughout his work, Aristotle insists on the
continuum of abilities that links plants with animals and animals with
humans.” See also Nussbaum 2001, chapters 2 and 3.II for the commonal-
ity and differences between ‘humans and other animals’ with regard to
their emotions.
15. In Nussbaum 2006, 390, she writes: “Nature is not just.” If so, she should
have added that it is not unjust either—that these terms simply do not
apply with regard to nature.
16. Compare this remark, some pages earlier (Nussbaum 2004, 311): “[W]e
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.”
(My italics.)
17. And even that is a euphemism, as animals used for meat tend to have very
short lives, whether they are raised ‘decently’ or not.

64 ETHICS & THE ENVIRONMENT, 13(1) 2008

18. She also introduces a new problem by suggesting sterilization instead of
predation (cf. 371, 380)—Do we know that it is not a deprivation for sen-
tient animals not to be able to raise their own young?
19. It is important to note that Nussbaum nowhere distinguishes between the
consumption of animals in general, and the consumption of animals when
no other adequate sources of nutrition are available. She speaks of ‘gaining
necessary or useful food’ (my italics). It can very well be argued that the
consumption of a certain amount of certain kinds of meat (including fish)
is ‘useful’ from a health perspective, even if it cannot (I think) be proven to
be necessary. Where it is necessary for humans to eat meat to stay alive, we
might say there is a tragic conflict between human and animal interests;
but as we will see in the next section, Nussbaum does not consider the pos-
sibility that killing for food might constitute a tragic situation along these
lines. Thus, she confirms what we found here, namely that she is consider-
ing the permissibility of ‘killing for food’ under non-extreme
circumstances—that is, as the kind of practice we know now. That this
practice, this industry, in fact, is what she has in mind is also evident when
she diverts attention away from the most basic question (whether animals
should be raised for food at all) towards the question of their treatment:
“[I]t appears that the best solution might be to focus initially on good
treatment during life and painless killing…” (2006, 402); She also men-
tions the ‘meat industry’ (2006, 393-394; Cf. also Nussbaum 2004, 315).
20. Cf. Nussbaum 2004, 315: “As for food, the capabilities approach agrees
with utilitarianism in being most troubled by the torture of living animals.”
(‘Living’ seems superfluous.)
21. Although in 2006 (384–88), Nussbaum avoids the problem of painless
killing (though still allowing for the possibility of there being such a thing
as ‘humane killing’), and although she recognizes that being killed may
constitute a deprivation for sentient animals, she does not resolve the
inconsistency involved in allowing, for instance, killing for food. She lists
nine basic animal entitlements that human beings should respect, all of
which depend on the first entitlement, that to life. Indeed, the inconsistency
has become more obvious—animals are said to have basic entitlements,
killing them is acknowledged to constitute a harm, and yet it is still allowed
for ‘useful’ (not necessary) food!
22. This remark stands in vivid contrast to her claim that a “further advantage
of the capabilities approach over Utilitarianism” is that “[u]nlike the Util-
itarian, we do not have to perform complicated and indeterminate
calculations of welfare in order to know whether an entitlement has been
violated. If people lose their jobs in the meat industry, that is no part of our
concern, as it must be for the Utilitarian: for they have no entitlement to
jobs that exploit and tyrannize.”

ANDERS SCHINKEL MARTHA NUSSBAUM ON ANIMAL RIGHTS 65

 23. I will not debate the utility of using animals in research here, but simply
grant it, though much can be said against it. See, for instance, Wenz 2001,
chapter 5, “Animal Rights and Medical Research,” especially the section,
“The Benefits of Experiments on Animals” (115–117). Nussbaum 2001a,
101 (note 30) also speaks of experiments on animals as posing a tragic
moral dilemma.
24. Keep in mind that, as this is a tragic situation, research on animals is not
allowed for frivolous ends or merely for human comfort—in that case
there would be no necessity for the research and thus no tragic conflict.
The idea is that research on animals (involving animal suffering and viola-
tions of basic animal entitlements; Nussbaum 2006, 405) should be
allowed when ‘human health and safety’ are at stake, or for the promotion
of ‘a major human or animal capability’—Nussbaum also allows research
on animals that benefits other animals.
25. Tom Regan made the same point at a discussion meeting at the Vrije Uni-
versiteit Amsterdam, May 20th 2005. See Regan 1983, 285–286, 324–325,
351–353, and 385–387 for discussions of lifeboat cases (involving four
people and a dog).
26. See the lemma ‘acts and omissions’ in Oxford Companion to Philosophy.
A sophisticated conception of the act/omission distinction can be found in
Hall 1989 and a new attempt to explain the asymmetry between the two
is made in Sartorio 2005. A symmetrical view of acts and omissions is put
forward in Fischer 1997. In Begley 1998, Ann-Marie Begley argues against
the moral relevance of the act/omission distinction. Nussbaum herself
would question the (moral relevance of the) distinction between acts and
omissions, given her criticism of the distinction between positive and neg-
ative duties (Nussbaum 2006, 372).
27. Furthermore, to call it an omission presupposes that it should be done, and
this is also still debatable.
28. Regan 1983, 385: “Animals are not to be treated as if their value were
reducible merely to their possible utility relative to human interests, which
is what the survivors [in the lifeboat] would be doing if they made the
healthy animal (who, after all, stands to gain nothing and lose everything)
run their risks in their stead.”
29. Nussbaum would emphasize that this might only be the case because
things are organized poorly. “[T]he recognition of tragedy leads us to ask
how the tragic situation might have been avoided by better social plan-
ning” (Nussbaum 2000b, 1017).
30. See, for instance: “The Discernment of Perception: An Aristotelian Concep-
tion of Private and Public Rationality,” in Nussbaum 1992, 54–105.
31. Recall that Nussbaum realizes this, and that this is what she refers to when
she talks about killing for food (see 3.1, esp. note 47).

66 ETHICS & THE ENVIRONMENT, 13(1) 2008

32. In Nussbaum 2006, 405, she writes that “such uses of animals in
research...in some cases violate basic animal entitlements” (my italics).
33. Thus, we may note that Nussbaum would not live up to Owen Flanagan’s
‘principle of minimal psychological realism,’ if indeed the tragedy were to
be situated at the level of individuals ((Flanagan 1991, 32).
34. I do not believe Nussbaum’s view can provide the basis for a justification
of the use of animals in research, but even assuming it did not exclude
the possibility of such a justification, Nussbaum is in troubled waters, for
she does not merely leave room for the possibility of justifying such
research, but she actually says that “we should probably continue some
forms of experimentation on animals such as rats and mice” (Nussbaum
2001a, 1542, my italics). This is a (hesitant) recommendation of the
practice.
35. Paul Taylor (1986) argues for species egalitarianism; David Schmitz argues
against Taylor in Schmitz 1998.

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