I examine Martha C. Nussbaum’s proposal of the ‘Capabilities
Approach’ as a ‘Theoretical Basis’1 for the defense of
an animal rights position. I outline the anthropocentric
and speciesist bias in several of her basic assumptions and I
emphasize that they produce normative claims that are incompatible
with the implications of the standard understanding of animal rights
theory. I then go on to defend necessary criteria that any application
of a capabilities approach must meet in order to be in meaningful
agreement with an animal rights position. Following an examination of
her critique towards liberal theories of justice and I defend the position
that a contractarian theory of basic rights for other animals remains
untouched by it.

Nussbaum frames her approach to a theory of social justice as
an “alternative Theory of Human Rights”.2 Departing from the
framework of the liberal ‘Theory of Justice’ by John Rawls,
Nussbaum is keen to ensure that her theory
“defines a minimal conception of social justice in terms of the realization
of certain positive outcomes, what people are actually able to do and to be”
and her theory is in this regard “outcome-oriented”.3 So what
are the outcomes for other animals?

For a start Nussbaum recognizes other animals4 as
“subjects of justice”.5 This entails at least two things: (1)
That the experiences of other animals matter directly for social
justice. A sentient nonhuman animal is
“a creature to whom something is due.”6 Violence against
nonhuman animals is immediately a public concern, and not only by
means of the conduit argument that this behavior may hurt feelings
of a fellow human or is detrimental to human character. (2) In her
discussion of the applicability of a utilitarian framework,
Nussbaum opts for the
“respect [for] each individual creature, refusing to aggregate the good of different lives and types of lives. No creature is [to be] used as a means to the ends of others, or of society as a whole.”7

With regards to the questions of using other animals as resources,
it has however been asked how serious Nussbaum can be about this
quite radical claim.8 Discussing the political implications of
her theory, Nussbaum approves of a good many uses of other animals
as resources for example in experiments,9 in zoos,10 in
horse-racing and as “pets”11 or most extensively as
“food”.12

In the cases of using other animals in experiments and as “food”
the contradiction is rather striking, as Nussbaum explicitly
appeals to the benefits of both practices that supposedly suffice
to justify the inflicted violence in each cases. In her treatment
of zoos, horse-racing and pet ownership, her argument is different
however. There she appears to assume that in all those cases the
relationship between the other animals and humans is best
characterized as “symbiotic”, mutually beneficial and not per se
exploitive. While she is warning us to be wary of a
“romanticized view” on the institution of animal ownership.13
There can however be no such symmetry in the legal (and moral)
relationship between any two beings, that Nussbaum appears to be
suggesting, as long as one is owning the other. As
[8] has thoroughly argued, the property status of other
animals in particular leads to a presupposed legal inferiority of
any nonhuman animal’s interest in favor of even the most trivial
interests of their owners.
“[T]o classify something as property is to defend its treatment solely as a means to the ends chosen by the property owner. Although there are laws – criminal and civil – that attempt to regulate animal use, these laws do not create a ‘right’ for animals in the way that we normally use that term to describe a type of protection that does not evaporate in the face of consequential considerations.”14

For the sake of argument I will therefore ignore her puzzling
claims on the political implications of the CA in this field and
just assume that she is indeed serious about the rejection of an
instrumental status of other animals. Therefore the question
becomes what argument can Nussbaum’s approach provide us with, in
order to reject a moral legitimacy of animal use? In the case of
her argument for basic human rights (where her conviction to it can
be taken more seriously) this justification is provided by a
concept of “human dignity”. This human dignity is argued to be a
“universal intuition” and her understanding of this dignity is
derived from the Aristotelian concept of a “good life” and a
Marxist
“idea that the human being is a creature ‘in need of a plurality of life-activities,’ it sees the rational as simply one aspect of the animal, and, at that, not the only one that is pertinent to a notion of truly human functioning.”15
While Nussbaum acknowledges that rationality and its use is
somewhat characteristic of (most) human beings and hence of
humanity as a species, she argues with Marx, that this is not the
singular and not even distinguished account of ‘human nature’. With
Aristoteles she then goes on to suggest that human social behavior,
cooperation and neediness of others is equally characteristic to
humanity and as well a characteristic that is shared with
‘animal nature’. Here rationality and practical wisdom become
demystified and are comprehended as just another capability among
many that enable human beings to lead
“a life that is fully human rather than subhuman, a life worthy of the dignity of the human being.”16

Her motivation to go down this road hybrid road using Marx’ and
Aristotle’s conceptions of a generic human, lies in the search for
a description of ‘the human being’17 that is not tied to the
Kantian notion of rationality or the Rawlsian notion of
productivity. For if such a description can be provided, the
normative notion of dignity can then be detached from the
requirement of reciprocal respect (call a dignity that requires
this ‘rational dignity’) or reciprocal gain of goods.
(‘productive dignity’) Bearing in mind Nussbaum’s intention to
account for the political entitlements of differently abled humans,
the need to depart from Kant’s and Rawls’ understanding of dignity
is indeed rather clear and thoroughly argued for by Nussbaum along
the normative and appalling conclusions that both Kant and Rawls
draw (and must draw) on the basis of their understandings of
dignity.

But Nussbaum goes even further in her critique as to not only
attack the essential qualities that account for ‘dignity’ in Kant
and Rawls. Instead she suggests that the concept of essentialism
might itself problematic from a metaethical perspective:18
“[Nussbaum’s] approach holds [instead] that the basis of a claim [to a right] is a person’s existence as a human being – not just the actual possession of a set of rudimentary ‘basic capabilities’ but the very birth of a person into the human community.”19
This appeal to the membership of a species specific community is
conserved in the application of her approach to the question of
social justice for other animals and could be understood as a
sophisticated endorsement of speciesism. Given the history of
animal use for human purposes that is not only ubiquitous in modern
culture, but has also gone so far to deliberately alter the very
bodies of the oppressed subjects to be more productive to their
masters, Nussbaum’s argument that the membership to a biological
class defines different types of dignity is not only in desperate
need of justification, but also appears to amount to a self-serving
quod licet Iovi, non licet bovi.

For the sake of simplicity, I will ‘only’ use Ryder’s original
definition of speciesism as
the discrimination based on species membership which fails to recognize equality of sentience.
“Our moral argument is that species alone is not a valid criterion for cruel discrimination. Like race or sex, species denotes some physical and other differences but in no way does it nullify the great similarity among all sentients [sic] – our capacity for suffering.”
[17 p.6]20

The argument for speciesism in Nussbaum is not quite as
straightforward, as Ryder and others usually argue, because unlike
Ryder or other authors who have proposed an animal rights theories,
Nussbaum does not base her argument for political entitlements on
sentience, i.e. the ability to suffer. [6] are on a
right track, I believe, in exposing the factual flaws in Nussbaum’s
Idea of species segregated communities and species specific
flourishing. They argue that this species-segregated concept of
flourishing in communities ignores the myriad realities of existing
modern interspecies communities. For many human and nonhuman
individuals, they argue, the capabilities to flourish are not tied
to the expression of those capabilities that are thought to be
characteristic or essential to that species. Nussbaum’s list of
‘essential capabilities’ in particular include a number of items
that arguably are irrelevant to some humans. Going through the
troubles of education, for the sake of upholding the segregation of
those communities, could even lead to the deprivation from possibly
more fruitful ways of engaging and flourishing with members of
other species. Instead they propose an extension of the concept of
citizenship, that is informed and enriched by modern approaches to
critical disability studies, to other animals.

The deeper problem with Nussbaum’s approach, however, appears to be
that any appeal to membership of a community will have a hard time
to justify the subjective character of basic rights21 in both
humans as well as other animals. If basic rights are to be inherent
to the rights-bearer, then the argument to support them, must
appeal to a quality that is inherent to the subject of a right. For
as soon as we appeal to something that is not inherent to the
subject of a right, we could (quite easily) construct a situation
where the individual is stripped off that condition. From this
simple argument follows, that there is not really any way around
identifying some essential quality that accounts for the
possession of subjective basic rights.

Nussbaum’s caution upon the choice of this quality that accounts
for basic rights is not at all without basis. The argument that a
particular characteristic, like the ability to engage in symbolic
communication (language), the ability to ‘reason’, having a concept
of one’s existence and sharing a concept of death have been very
prominent in the history of animal philosophy to either rationalize
a subordination of animal interests or to even dismiss any concern
about violence against animals from the outset. These attempts of
rationalization have been so influential that a meta-argument was
proposed to refute them all in one go.22 Consider the following
premises:

(1) For some subset of humans23 H everyone in it has basic
rights24 and those rights have the property to be (a) possessed
equally among all beings in H and to be (b) subjective. That
means, each being in H has basic rights in and for herself
alone.

(2) Species boundaries are continuous.

The argument from these premises goes then as follows: Because
basic rights are subjective the moral appeal to justify those
rights must be to a quality q that is found in any individual
of H. The fact that the rights are possessed equally, implies
that no being has them more then any other. Therefore q must be a
binary quality.25 Now we have a binary quality q that is
shared by each being in H. Because species boundaries are
continuous, q will be found in other animals. Therefore some
other animals must have rights.

As has been widely recognized by the proponents of this argument,
premise (1) requires that we start from a strong theory of human
rights. It only shows the implication if humans and in particular
‘marginal humans’ have rights, so must many other animals. It
cannot account for (1), that is the claim that anybody has any
right in the first place. The remarkable conclusion of
[3], to reject the rights of ‘marginal humans’ on the
basis of this argument, might serve us as a reminder of the
aparhent need to argue for it. This argument from ‘marginal cases’
is therefore only helpful to show us how far removed the categories
of ‘being human’ are from any reasonable candidate for a property
that can help us to argue for rights possession. Therefore
Nussbaum’s ‘outcome oriented approach’ on the question who has
basic justice is not only defiant of the scientific method, but
also not helpful because its outcome entails the defectuous
category of being human that is as irrelevant to the question of
the acceptability of being used as a replaceable resource as is the
possession or non-possession of a (white, human) penis. Given the
ubiquitous participation of humans in animal exploitation, it might
not be a good Idea to start an argument about justice for nonhuman
animals from a ‘broad consensus’ (that does not and cannot include
the claims of other animals) among human oppressors.

Because there is still a need to build a positive argument for
rights, one will also need to settle for a property that accounts
for the bearing of rights. One seemingly useful point of departure
in Nussbaum to build such an argument might be her criticism of
Rawls core motivation that drives the parties in the original
position to agree on the terms of justice. In her criticism of
Rawls Nussbaum stresses that the self-serving attitude of those
parties can not equip them with the conditions necessary to account
for the rights of those who can not contribute to a good that those
parties might value.26 Nussbaum proposes a feeling of love,
kinship or compassion to one another to make for the core
motivation of the engagement in a struggle for justice:
“[T]he citizen I imagine will not simply feel the sentiments required by moral impartiality, viewed as a constraint on her own pursuit of self-interest. Instead, she will feel compassion for them as a part of her own good.”
If this comprehension of interconnectedness of all our struggles
for freedom is taken seriously and not understood as a
species-specific compassion, there is certainly room for progress
in her approach. Marc Rowlands has even argued that this position
ready follows from a serious application of the veil of ignorance:
In his reading this concept of Rawls serves to give us some
guidance on which inequalities with regard to treatment and
economic power can be justified, because people have ‘earned’ them
and which ones cannot. The veil demands from the parties of justice
place themselves in a position that is independent of their own
‘position’ in society, so that they will agree on terms that would
be agreeable to themselves, even if they found themselves to be
born in the most ‘unprivileged’ position. While Ralws’ primary
concern was probably to control for ‘unmerited’ economic
advantage, it still appears not entirely unreasonable to extend his
concept to the social categories of racial-, gender-, ability-27
and species-constructions. Given the context of a western history
that is heavily influenced, if not characterized, by colonialism,
patriarchy and animal exploitation,28 all of those dimensions
(and more) are most certainly relevant to one’s economic situation
or one’s ‘possibilities for flourishing’. If we accept Rowlands’
extension of this concept that forces us to agree on the terms of
justice without the knowledge of our own embodiment, then we could
be ‘forced’ to understand the struggle of other animals’ basic
freedoms as our own even on purely egoistic terms.29 Note that
this generalization of the veil can provide for a a natural
justification for sentience (i.e. the capability to develop
subjective interests) as a necessary condition for the eligibility
for basic subjective rights: If one is not embodied into a sentient
organism, one could not, by definition, care less for what happens
to oneself.

Starting now from such a sense of kinship, (however it is actually
derived) we now have a solid reasons to care for violence that is
inflicted on other animals, and thus a promising candidate for an
axiom upon which to build a constructive argument for animal
rights. But before doing so, it is worthwhile to appreciate some
implications of this most basic notion of care: For if it means
anything, that we care for the violence inflicted on other animals,
it must at least entail, that we can no longer participate in
gratuitous violence against them. And again, whatever a
comprehensive definition of ‘gratuitous violence’ would look like,
if it is to mean anything it must at least outlaw, that we engage
in violence exclusively on the grounds that it is customary,
convenient or pleasurable to do so: We all agree, that setting a
hand full of mice on fire ‘for the lulz’ would be an outrageous
thing to do. Yet 99,9%30 of animal suffering and death that is
inflicted by humans can only be justified on the grounds that their
processed bodies and sexual secretions taste good or that the
consumption of those products has been cultivated and is in many
contexts socially expected and a convenience.

The fact that Nussbaum does not account for this obvious
atrocity31 is rather telling of her confusion with regards to
the practical politics of animal exploitation. In her treatment of
‘vegetarianism’ she dismisses its role as a moral baseline on the
grounds that the dominant religious discourses do not command for
it that there is therefore no ‘overlapping consensus’32 for it.
This endorsement of the entirely anthropocentric concept of an
‘overlapping consensus’ is obviously incompatible with her claims
about the capabilities and entitlements of other animals as beings
with lives of their own that matter and belong to them.

Nussbaum also appears confused about the merits of the utilitarian
position with regards to the ‘question of the animal’. While it can
be said that the publications of some utilitarians and of Peter
Singer in particular have generated an unmatched public interest in
animal ethics and have revealed some of the realities of modern
animal production, as an ethical framework it remains utterly
dysfunctional for the establishment of an animal rights position.
Even Singer himself often corrects the popular misunderstanding of
his position, as an animal rights proposal which he has at no point
promoted, as seen last in [1 pp.9–16]. In the human context we
generally understand the notion of a right to refer to the
protection of an interest that cannot be traded away on the grounds
of consequential considerations. It can easily be seen, that a
theory that is all about trading interests against each other to
determine right and wrong would have huge difficulties to account
for the protection of any interests that can not be traded away.
It has even been suggested by many commentators to understand the
core merit of the animal rights position in opposition to the
utilitarian position and to hold on a very fundamental level of
their theory a rejection of the understanding of other animals
exclusively as means to (human) ends, i.e. as resources, i.e. as
property.33 While it can be said that some utilitarians have
asked their readers to attribute greater or lesser consideration to
animal interests within the framework of their treatment as
replaceable resources, it is still logically impossible for them to
account for a view of any animal as an end in herself or to utter
any fundamental rejection of this status of property and therefore
to establish any ‘right’ for them.

Literatur

Aloi G. Animal Wrongs and Rights. Antennae 2011;1:125.

Bickenbach JE, Mccoll MA. Introduction to Disability. 1st ed. PhD MAM, PhD JEB, editors Bailliere Tindall. 1998

Carruthers P. The Animals Issue: Moral Theory in Practice. Cambridge University Press. 1992

Cudworth E. Social Lives with Other Animals: Tales of Sex, Death and Love. Palgrave Macmillan. 2011

Dombrowski DA. Babies and Beasts: The Argument from Marginal Cases. University of Illinois Press. 1997

Donaldson S, Kymlicka W. Zoopolis: A Political Theory of Animal Rights. Oxford University Press, USA. 2011

Dunayer J. Animal Equality : Language and Liberation. Ryce Publishing. 2001

Francione GL. Animals, Property, and the Law. Temple University Press. 1995

Francione GL. Rain without thunder: The ideology of the animal rights movement. Temple University Press. 1996

Loewe D. Inclusión de Animales No-humanos en un Marco de Argumentación Contractual. revista da Pontificia Universidade Catolica do Rio Grande do Sul 2008;53:145–162.

Nibert DA. Animal rights/human rights: entanglements of oppression and liberation. Rowman & Littlefield. 2002

Nussbaum MC. Upheavals of Thought: The Intelligence of Emotions. Cambridge University Press. 2003

Nussbaum MC. Frontiers of Justice: Disability, Nationality, Species Membership. Belknap Press of Harvard University Press. 2007

Nussbaum MC. Animal Rights: The Need for a Theoretical Basis. Harvard Law Review 2001:1506–1549.

Rowlands M, Campling J. Animal rights: a philosophical defence. Macmillan. 1998

Ryder RD. Animal revolution: Changing attitudes toward speciesism. Berg Publishers. 2000

Shue H. Basic rights: subsistence, affluence, and U.S. foreign policy. Princeton University Press. 1996

Sunstein CR, Nussbaum MC. Animal rights: current debates and new directions. Oxford University Press, USA. 2005

Sztybel D. The rights of animal persons. Animal Liberation Philosophy and Policy Journal 2006;4:1–37.


  1. An ambition that is apparent in the title of [15]

  2. [14 p.7]

  3. [14 p.248]

  4. As customary in critical animal studies I don’t use the term
    ‘animal’ as oppositional to ‘human’. If we want the commonplace
    phrase that ‘after all humans are animals’ to mean anything in
    practice, we should start not only to classify humans as animals
    but also to self-identify as animals. When I want to speak of
    those animals that are not humans, I will do so explicitly, thus
    not perpetuating the Idea of animal otherness. See generally
    [7] for a discussion of the linguistic process of
    constructing an animal other. See [4] for a discussion of
    how the production of generic ‘others’ produces and fortifies
    exploitative relations in the human animal relationships.

  5. [14 p.351]

  6. [14 p.337]

  7. [14 p.351]

  8. [20 p.8] [10 p.31]

  9. [14 pp.404–393]

  10. [14 p.375]

  11. [14 pp.376–377]

  12. [14 p.393]

  13. [15 p.117]

  14. [8 p.114]

  15. [14 p.159]

  16. [14 p.278]

  17. Critically note Nussbaum’s use of the singular.

  18. I define ‘essentialism’ as the view, that the justification for the
    possession of basic rights or dignity is provided by the presence
    of an essential quality in a group of beings. Note that ‘essentialism’ is
    sometimes defined the other way around i.e. to denote the belief that a
    certain group has certain moral entitlements and that therefore they
    must share a common essential quality.

  19. [14 p.285]

  20. I note however that this description of speciesism does not account
    for the degree of institutionalization and cultivated disregard
    of other animals’ suffering in a human society, nor does it account
    for economic incentives for animal exploitation by means of their
    property status in a capitalist global economy. Feminist theory, as
    in [4 p.41], has made a strong case for a different
    understanding of speciesism as a discourse of power relations
    rather then a discourse of individual discrimination.
    [12] offers an enlightening account of the interactions
    between the production of disregard for other animals and the
    mechanisms of capitalism. [8] has given an excellent
    account on the influence of the moral and legal status of other
    animals as property or replaceable resources and has later gone on
    to stress the need for abolitionist vegan practice and education as
    a means to reject this objectification of other animals in a
    powerful way.

  21. That is the idea that beings with basic rights have them for
    themselves.

  22. See [5] for an excellent overview to the myriad of
    contexts that this argument has been applied to and for a deep
    insight into the complexities of it’s applications and implications
    in each context.

  23. There is controversy among people who argue that humans have basic
    rights on the question which humans have them. Do unborn humans
    have rights? What about the “comatose”? The Argument works
    independently of how you answer those questions. H can even be
    any well defined set of beings that is mostly characterized by
    membership to the human species.

  24. To define ‘basic rights’ I follow [18]: A ‘right to X’ is a
    valid claim upon (human) society for the protection of one’s
    interest in X. A right to X is further qualified to be ‘basic’
    iff the possession of any other right becomes meaningless for the
    right-holder, when the interest in X is not protected.

  25. If q was not binary, we could always identify two right-holding
    beings that would possess q unequally. But q is by definition
    the quality that accounts for the possession of rights, therefore
    one of them would have a stronger claim to basic rights. Thus
    equality would be violated.

  26. [14 pp.90–92]

  27. The socio-political conceptualization of disability as
    “the interface between a person with a healtion and a society designed for non-disabled people”
    is, even though most appropriate for our context, not as well known
    as those other concepts of disability that describe disability as a
    condition inherent to the disabled person, thus excluding its
    political constituency from its understanding. See
    [2] for an introduction.

  28. [4] introduces the most lovely term of ‘anthroparchy’ to
    describe the cultural power-relationship shaped (primarily) by
    human oppression of other animals. Unfortunately its introduction
    and explanation is beyond the scope of this paper.

  29. [16 p.160]. Note the remarks in [11], where it is
    argued that this extension departs too far from liberalism, to
    deserve this label, because the core notion of genuinely
    self-interested parties is abandoned. This might be a valid
    observation, but in the absence of a critique on the actual
    proposal it appears, however, to reduce to a remark on mere
    terminology.

  30. The percentage is a(n educated) guess, admittedly; It is however
    informed by the fact that 60 billion land animals and an uncounted
    number of additional aquatic animals that is estimated to have an
    order of magnitude of a trillion (10¹²) are killed by humans
    globally every year for the production of so called ‘food’. A
    number that is unmatched by most known accounts of those intances of
    ‘animal abuse’, that people appear to be less uncomfortable talking
    about.

  31. Note that the recognition of it would not require a subscription to
    the animal rights position. All that is needed, is a subscription
    to some notion of care for other animals’ fates.

  32. This ‘consensus’ appears not even to be trying to pursue any honest
    evaluation of animal interests, for it completely obfuscates the
    desperate objections of those who are comodified and eaten. See
    suicidefood.blogspot.com for a disturbing collection of
    the most outrageous and revealing media products by animal
    producers that produce the widely believed Idea that other animals
    consent to and even enjoy their own consumption and exploitation.

  33. I use those three concepts interchangeably. See [9] for
    the standard distinction between animal rights, animal welfare and
    new welfare. He also provides an extensive introduction to the
    ethical frameworks that power those positions.