The Holberg Lecture, by Laureate Martha C. Nussbaum

08.06.2021

2021 Holberg Laureate Martha C. Nussbaum's Holberg Lecture is published here in full.

Justice for Animals: Practical Progress through Philosophical Theory

Animals suffer injustice at our hands: the cruelties of the factory farming industry, poaching and trophy hunting, assaults on the habitats of many creatures, and innumerable other instances of cruelty and neglect.  Human domination is everywhere: in the seas, where marine mammals die from ingesting plastic; in the skies, where migratory birds die in large numbers from air pollution; and, obviously, on the land, where the habitats of many large mammals have been destroyed almost beyond repair.  Addressing these large problems requires dedicated work and effort. But it also requires a good normative theory to direct our efforts.  I will argue that an approach based on my version of the Capabilities Approach is the one we need, and I’ll show how it directs our efforts better than rival approaches.

Justice as Thwarted Striving

What is injustice?  Here are some stories that will yield an intuitive account. My examples will be only the smallest sample of what can befall an animal, and only a sampling of animal kinds.  I will pair two descriptions: one of the animal going about its own life, flourishing, and another of the animal brought to grief by wrongful treatment.

Because non-human animals are so often treated as mere things, not individual sentient beings, and because one aspect of that thing-like treatment has been the refusal of a proper name, scientists today insist on giving proper names to the individual animals they study.  I follow this practice here, taking names from both fact and fiction. Let me, then, introduce you to three particular animals. Virginia is a sensitive female elephant in Kenya, described (and named) by elephant scientist Joyce Poole, in her memoir Coming of Age With Elephants. Hal Whitehead is a great whale scientist, especially focused on whale song, so I have given his name to a humpback whale who is proficient at singing, one of a group I observed from a whale-watching boat near the Great Barrier Reef in Australia.  No fictional pig is more imperious and more striking than Empress of Blandings in the novels of P. G. Wodehouse, a noble black Berkshire sow in superb condition, who wins many medals. 

The Mother Elephant: Virginia’s Story

Virginia has large amber eyes.  When she hears music she likes, she stands very still, and her lids droop.  Joyce Poole spends her days with the whole matriarchal group, and finds that Virginia – smaller than the older matriarch, Victoria – has a particular fondness for singing, “Amazing Grace” being a favorite.  Often, however, Virginia is on the move, covering huge tracts of grassland, her huge feet padding noiselessly across the floor of Kenya’s Amboseli National Park.  Her new baby elephant walks beneath her belly, sheltered by that enormous maternal frame. (Elephants are wonderful mothers, highly protective of their young, and even known to sacrifice their lives to save young elephants from danger.)

Now consider something that might happen, that does often happen.  Virginia lies on her side, dead, her tusks and trunk hacked off by a machete or hacksaw, her face a bloody red hole.  (The ivory trade flourishes despite many attempts to curb it. And the market for animal trophies, such as tails and trunks, flourishes with few impediments: it is not even illegal to import such trophies into the United States.) The other females gather around her and try vainly to lift her body with their trunks. Eventually, giving up the effort, they sprinkle earth and grass upon her body. The baby elephant is missing – taken, very likely, to sell to some commercial zoo (often in the U.S.) that is not too particular about origins.

The Humpback Whale: Hal’s Story

Our small whale-watching boat cuts through the choppy surf off Australia’s Great Barrier Reef. In the distance, several pods of humpback whales appear, breaching and slapping their tails and flukes. Their huge backs gleam in the sun.  One of them is Hal.  Over the boat’s motor we hear the whales singing, the patterns of sound too complex for our ears to chart them, although we know that humpback whale song has a complicated syntactic structure and enormous variety, and is constantly changing – sometimes, apparently, out of sheer fashion and interest in novelty. A variant that originates here may make its way to Hawaii in a year’s time, as whales imitate one another. The sound is beautiful to us, and profoundly mysterious.

Now look at Hal: washed up, dead, on a beach in the Philippines. His once healthy frame is emaciated. Inside, researchers find 88 lbs. of plastic trash, including bags, cups, and other single-use items. (Another whale similarly choked on plastic was found to contain, among the refuse, a pair of flip-flops.)  Hal has starved to death. Plastic gives whales a sensation of fullness but no nutrition. Eventually there is no room for real food to enter. Some of the plastic in Hal’s stomach had been there so long that it had calcified, turned into a plastic brick. He will not sing again.

The Sow: The Story of Empress of Blandings

Empress of Blandings is a noble black Berkshire sow of enormous size.  Cared for as a favorite companion on the estate of Blandings Castle, she loves her trough, where appetizing food is always offered her by her human caretaker, Cyril Wellbeloved.  When Wellbeloved has to go to jail for a short time for drunken and disorderly conduct, however, she begins to pine and loses her appetite. Her human family, especially the very pig-focused Lord Emsworth, worry helplessly about her well-being, tempting her  with various treats, but in vain.  By a stroke of good fortune, however, James Belford turns up at Blandings, and his skill in hog-calling, learned during a period of work on a farm in Nebraska, brings the Empress back to her usual good spirits. She eats with gusto, making “a sort of gulpy, gurgly, plobby, squishy, wofflesome sound” that delights Lord Emsworth. Shortly thereafter she takes her first Silver Medal at the eighty-seventh Shropshire Agricultural Show, in the Fat Pigs class.

Now imagine a different life for the Empress: instead of flourishing among the kindly people and fostering surroundings of Blandings Castle, and the gentle world of P. G. Wodehouse, where all beings are treated with love and humor, the Empress has the bad fate to be living on a hog farm in Iowa in the early twenty-first century.  Now, newly pregnant, she has been thrust into a “gestation crate,” a narrow metal enclosure the size of her body, with no bedding, floored with slats of concrete or metal to allow waste to descend into sewage “lagoons” below.  She cannot walk or turn around, and she cannot even lie down. No kind hog-caller speaks to her; no pig-loving humans admire and love her; no other pigs or other farm animals greet her.  She is just a thing, a breeding machine.  Most of the approximately 6 million sows in the US are on factory farms, and these crates are used in most states, though banned in nine states and in several countries. As animal researcher Temple Grandin says, “Basically, you’re asking a sow to live in an airline seat.”

Sows in gestation crates show loss of muscle and bone mass from lack of exercise. They exhibit behaviors such as bar biting and tongue rolling, indicative of boredom and frustration.  One type of frustration is being forced to defecate where they live, because sows normally choose to defecate far from where they sleep and eat. Another is deprivation of all society, for pigs are highly intelligent and social animals. Though the use of crates is justified on the grounds that sows not confined will fight with one another, this specious argument simply assumes that the sows could not possibly be given enough space to go and come and move as they choose.  In a poignant allusion to the fact that pigs are not mere automata but have a characteristic form of life, the Pew Commission on Industrial Farm Animal Production recommended in 2008 "the phase-out, within 10 years, of all intensive confinement systems that restrict natural movement and normal behaviors, including swine gestation crates."

These stories summon us to both compassion and what I would call Transition-Anger, that is an anger that is not retributive but forward-looking and corrective. We feel: “That is outrageous. It should not happen going forward.” But why do we react this way? What do the three stories have in common? First, in all three cases, we are aware that we are dealing with a sentient being, a creature who feels pain, who perceives, who has its own perspective on the world.  Second, the creature is trying to live, and to live a life characteristic of an animal of that kind: that is what the good stories bring out, describing a flourishing life for each animal. Third, the animal’s striving for flourishing has been thwarted, and it has been thwarted by conduct that is either deliberate or negligent.

These are, for me, the basic intuitive ingredients of injustice: the wrongful thwarting of a sentient being’s striving.

Three Flawed Approaches

Let us now examine three prominent philosophical approaches that have been directing practical and legal efforts to combat injustice toward animals.  I confine myself to Western philosophy, and I don’t delve back far into its history, where late Platonism, in the works of Porphyry and Plutarch, makes striking contributions to thinking about animal rights.  As for non-Western thought, I note that Indian Buddhist and Hindu philosophy has rich resources for defending the rights of animals, and an Indian court has declared animals “persons” under Article 21 of the Indian Constitution, which makes it illegal to deprive a person of life or liberty without due process of law.

The first flawed approach is one that I call the “So Like Us” approach. It is based on the traditional idea of a scala naturae, a ladder of nature with humans securely at the top.  Users of this approach – in particular legal thinker Steven Wise and his “Nonhuman Rights Project” argue that a group of creatures who seem to them to be very like humans in intelligence – especially great apes, but more recently they have included whales, and elephants – should count as persons in law and should receive various protections, on the grounds of their likeness to humans. It was used recently in the US, unsuccessfully, to argue for the transfer of a group of apes from an experimental facility to an animal sanctuary.

There are many flaws in this approach. First, it offers nothing for the sufferings of so many creatures who are deemed not sufficiently “like us.” Indeed, by offering similarity to humans as the decisive reason for good treatment, it positively discourages attention to the predicaments of other animals.

Second, it is deeply flawed empirically and lacking in curiosity, not willing to investigate the manifold forms of intelligence and cognitive complexity in the animal world.  It turns out that intelligence and cognitive complexity take manifold forms in our world, and creatures from the octopus to marine creatures of many types, to birds, amazingly versatile and long underestimated, have many different types of intelligence, some of which we humans do not possess.  Birds can navigate over huge distances by picking up magnetic fields, a sensory apparatus we lack. Dolphins can determine what is inside an object they approach by their sensory capacity for “echolocation,” perceiving by the reverberating that come back to them from the object.  (A surprising instance: a captive dolphin became aware of her trainer’s pregnancy before the trainer herself was even aware of it, and the dolphin signaled it to her.)  So nature does not present a ladder, it presents, instead, amazing “horizontal” variety, each creature having the capacities suited to its niche and form of life. 

Third, it values animals for the wrong reasons: because of us, not because of them. It is narcissistic and complacent, first assuming our first-place value and then conceding that some few other creatures manage to attain value by likeness. But an animal’s goals are its own, and its life is its own.

Second is the Utilitarian approach, which began with Jeremy Bentham’s clarion call to concern in a famous long footnote in his Introduction to the Principles of Morals and Legislation (1789). Bentham’s overall view holds that the only good thing is pleasure and the only bad thing is pain. In the footnote he insists that animals are just as vulnerable to pain and suffering as humans are, and that the day will come when our harsh domination over animals will seem just as heinous as the slave trade now does to right-thinking people (or so he says, somewhat exaggerating the degree to which British thought had progressed by that time and totally ignoring atrocities in America).  Just as the color of a person’s skin should not be a reason for differentially bad treatment, so too, he says, the “villosity of the skin and the curvature of the os sacrum” should not be a reason for brutal oppression of animals. Bentham followed this up with other writings denouncing hunting and fishing for sport, although he still thought it was permissible to kill animals for food if done in a painless fashion. Bentham’s great student, John Stuart Mill, followed his lead, both writing about the rights of animals and leaving all his money to the Society for the Prevention of Cruelty to Animals. Today Utilitarian philosopher Peter Singer, their philosophical heir, has been a leader in calling for the abolition of cruel practices toward animals. 

This approach is a lot better, and it does zero in on a key issue in our exploitation of animals: pain. But it flattens the world too much. Animals do need freedom from pain, but they also need the ability to move freely, to play, to choose their own paths through the world, to enjoy social relationships.  Sometimes animals who have never been exposed to these good things do not feel pain when they are without them: they form what economists call “adaptive preferences.” So as in the human case, the Utilitarian criterion can be an ally of an unjust status quo. Furthermore, the Utilitarian goal is a state: pleasure, or in Singer’s version, satisfaction of preferences. So the value of agency is neglected. People don’t just want to end up in a state of satisfaction, they want to strive, and to attain what they attain by their own efforts. Finally, what Utilitarianism really recommends is not individual-focused enough. The goal is either the greatest total pleasure or the greatest average pleasure, depending on what version we use.  So complicated empirical calculations are required in order to balance the pleasure of meat-eating against the pain of animals, and there is no guarantee at all that the animal-protective result will actually be superior: the condition of those at the bottom of society’s ladder does not have any intrinsic importance, a notorious problem for Utilitarianism generally.

Third is the Kantian approach of Christine Korsgaard’s important recent book, Fellow Creatures. This approach does better still, developing an attractive account of what it is to treat an animal as an end rather than a means. In many important respects its practical recommendations dovetail with my own. Korsgaard diverges from Kant, who held that animals are just property that we may use as we please, and develops a promising approach from both Kantian and Aristotelian materials.  But Korsgaard clings too much to Kant to satisfy me: she insists that humans are the only creatures capable of normative thinking and self-direction, and that for this reason the other creatures can only be “passive citizens”, not active participants in indicating what justice is for them.  I criticize this argument both empirically and normatively.  Human ethical capacities are part of our animal heritage, and we share them to a greater or lesser degree with many animals.  Moreover, it doesn’t make normative sense to me to conclude that a creature not capable of ethical thought cannot be an active citizen.  Creatures of many kinds, including human children and people with disabilities, lack the higher Kantian moral abilities, and yet we consider them active citizens, allowing their preferences to be heard when laws are made, even though in many circumstances they will have to be represented by a guardian. Why not say the same about animals?

The Capabilities Approach: Striving and Forms of Life

Let us turn now to my own “Capabilities Approach” (CA).  As an approach to justice in the human world, it holds that a minimally just society will provide each and every citizen with a threshold level of ten significant capabilities.  Capabilities are substantive opportunities for choice, not just inner abilities or abstract possibilities. As an approach to justice for animals, my approach holds that all sentient creatures (all who have an internal subjectivity, a point of view on the world, a category that includes all vertebrates and some invertebrates) ought to have the opportunity to live a flourishing life in accordance with the characteristic life-form of their own species.  Let me elaborate.

A Virtual Constitution

In the human case, the CA supplies a template for constitution-making.  The list has both content and a tentative threshold for each item.  A nation aiming at minimal justice can consult it, and also consult its own particular environment and history, and frame its own list with more locally specific accounts of each of the major capabilities on the list.  For two reasons this approach to the other animals is not possible at present. First, the other animals often roam across national borders, or occupy regions of air and sea that are not the property of a single nation; so a national constitution is not sufficient to protect migratory species.  Second, there is not anything like sufficient political will in most of the nations of the world to enact any such protections any time soon.

Right now, therefore, the CA aims to supply a virtual constitution to which nations, states, and regions may look in trying to improve (or newly frame) their animal-protective laws.  It is my hope that over time this virtual constitution can increasingly become the object of a Rawlsian political “overlapping consensus,” both within each nation and across national boundaries. This will take time and work; so too does the task of framing and protecting human rights.  Still, this flexible approach permits nations to stride boldly ahead without waiting to get a global consensus.  The basic goal is that all animals would have the opportunity to live lives compatible with their dignity and striving, up to a reasonable threshold level of protection, and with exceptions for self-defense and the defense of others.

Lists and Lives

Ideally we should learn enough to make a separate list for each type of creature, putting on the list the things that matter most when it comes to survival and flourishing.  In effect, the list is really made by the animals themselves, as they express their deepest concerns as they try to live.  The people who can be trusted to record the unheard voices of animals are people who have lived with a given type of animal for years and with love and sensitivity. Ideally there should be a group of such people for each species, because any individual is fallible. These guardians and listeners should know individual animals within the species in all their variety, and know the obstacles each creature faces, and what interventions prove helpful.

That means a huge number of different lists. However, I believe that if we focus on the large general rubrics of the CA list for humans, as it exists now, it offers good guidance as a starting point in virtually all cases. That should come as no surprise, since the CA list captures, in effect, the shared terrain of vulnerable, striving animality that each species inhabits in its own way. All strive for life; for health; for bodily integrity; for the opportunity to use whatever senses, imagination, and thought are characteristic for that kind of creature. Practical reason sounds, at first, too human to be a good guide: but really it isn’t. All creatures want the opportunity to make some key choices about how their lives will go, to be the makers of plans and choices.  Affiliation is crucial for all animals, though its types vary greatly.  All seek to related well to the world of nature around them, and this usually includes members of other species.  Play and fun are not peculiar to humans, as researchers increasingly understand, but key aspects of animal sociability.  And all animals seek types of control over their material and social environment.  If there are other large rubrics pertinent to animal lives that the human list omits, I can’t think of them now, but would be totally open to expanding the large rubrics of the list, if any should be convincingly brought forward. 

The Central Capabilities

People might worry that such a list is bound to be anthropomorphic, verging on some of the errors of the “so like us” approach.  I understand this charge, but think it mistaken. The list was made up not by thinking of what is distinctively human, but by thinking in very general terms about vulnerable and striving animality, a topic Aristotle already addressed in the small work on which I wrote my doctoral dissertation, On the Motion of Animals. In that work he proposes a “common explanation” for why and how animals move through the world to get the things they need – allowing for significant variations at the specific level, but insisting that at a general level we can find a common pattern.  I think so too, though we must always be on our guard against obtuseness or self-privileging perception.

Sometimes the “common explanation” will include items within the finer rubrics of the human list that appear at first blush not to matter to the lives of animals.  Consider “freedom of association” and “freedom of speech.”  What are most zoos but means of denying freedom of association to animals?  As for speech, animals express what they need and want in their own ways, often very sophisticated, often possessing even syntactic complexity.  Under formal U. S. law, freedom of speech pertains to many forms of expressive activity, not just to words on paper. Why then should this legal category not be thought to include the ways animals speak? It certainly could, if only animals had legal standing in the first place. It’s not that they don’t speak, it’s that we humans usually don’t listen. Animals are not free to speak, however, when their complaints are ignored, when information about conditions in the factory farming industry are systematically screened from public view, when even human allies of the afflicted pigs and chickens are prevented by “ag-gag” laws (laws restricting reporting) from describing those conditions.  Freedom of speech is hugely pertinent to animals, and it is important for exactly the reasons John Stuart Mill, a defender of animal rights, gave when he defended free speech in On Liberty: free speech gives information we need to make our society better; it challenges complacency and smugness; it brings forward unfashionable positions that deserve, indeed require, a hearing.

Some finer rubrics of the human list matter for animals in a slightly different way.  Some of the specific sub-categories seem inappropriate to animals: for example, “freedom of the press” or “political participation.”  However, let’s pause and think again.  Animals do not write newspaper articles, but the free circulation of information about their predicament is a crucial part of their good, in this world where humans dominate all animal lives.  Just as the great famine in China was not known even to Mao for a long time, because of the absence of a free press, so too restrictions such as “ag-gag” laws prevent information about animal suffering from getting out into the public domain, where action can be taken. To be sure the articles and books will have to be written by humans, and the videos will have to be photographed by humans. But they matter for and in the lives of the animals whose voices of complaint they record and whose intolerable conditions they display.

Much the same is true of political participation.  Most animals, though often political enough within their own species group, have little interest in political participation in the human-dominated world, and are unaware of elections, assemblies, and offices.  Nonetheless, what happens there matters hugely for them.  In the human-dominated world, politics determines the rights and privileges of all denizens of a given place, and makes crucial decisions about matters of welfare, habitat, and so forth.  So it matters that animals have a political say, which means, I believe, legal standing and legal representation. Right now we allow surrogate representation for humans with cognitive disabilities, so the proposal involves nothing terribly surprising.  Creatures who live in a place should have a say in how they live.

At the level of the concrete rubrics of the list, there will, then, be surprising instances of overlap. At this level, however, there will also be much divergence, and we should always be open to surprise and learning: thus each kind of animal has its own form of social organization, and even of sense-perception. Some animals have senses we lack (echolocation, navigation by magnetic fields). And usually the senses that we do have are realized differently in animal lives (different types of hearing, sight, perhaps especially smell). Only painstaking and loving study will show what should be said.

Fertile Functionings, Corrosive Disadvantages

Because the approach I envisage is specific to each type of animal life, its demands are many and heterogeneous.  But within each case, and even across many cases, there are likely to be capabilities that are particularly fertile, promoting good life across the board, and capability failures that are especially damaging. For all animals, subjection to arbitrary human violence is a corrosive disadvantage, whether it takes the form of whales’ vulnerability to harpooning, elephants’ vulnerability to poaching, female pigs’ confinement in “gestation crates,” or a dog’s vulnerability to an “owner”’s cruelty and neglect.  Another corrosive disadvantage across the board is environmental pollution, which causes lethal conditions, whether of air or water, for many species and depletes their habitats.  So the opposite of these ills – bans on cruel practices and a dedication to environmental cleanup, will prove fertile, enhancing capabilities across the board for many animals.

Species Members Are Individuals

So far, I’ve spoken of a list for each species of animal.  But for animals as for humans, each individual creature should be treated as an end.  And animals are individuals not just numerically (each one matters), but also qualitatively: each species member is subtly different one from every other. People who live with companion animals know that the personalities and preferences of their companions are highly individual, and that what is good for one dog or one cat is not necessarily good for all. We usually fail to notice this variety in the case of animals with whom we don’t live, but people who do live with a given type of animal recognize and emphasize these differences.  Each baboon, each elephant, is a member of baboon (elephant) society, but each individual has a unique way of inhabiting that world. So too with every type of animal that we have been able to study carefully.

But if each individual is both separate from others (having its own life to live, not anyone else’s) and qualitatively different in some ways from others, isn’t it a mistake to frame the lists as centering around a species form of life?  Isn’t that to deny each animal’s uniqueness? Isn’t it obtuse, even objectifying, to speak of “the dolphin” and “the dolphin form of life,” rather than to create a separate story, and list, for each individual dolphin – for example for Fungie, the beloved dolphin in Dingle Bay, Ireland, whose disappearance in October 2020 has caused widespread distress? The inhabitants of Dingle came to know Fungie over the decades as a dolphin with a unique personality – quirky, oddly solitary for a dolphin, atypically social toward humans.  Why wouldn’t Fungie’s uniqueness be obliterated by an approach based on the species?

All law is general, but good law is based on a knowledge of many particulars, and can be revised when new particulars come to light.  Moreover, the list is a list of capabilities, not mandatory functions. The opportunities it creates can be used by different people in different ways, or not used at all, if the person does not want to use them.  Capabilities are entitlements, a type of rights. People typically do not think that human rights reduce all humans to a cookie-cutter model: they are spaces within which varied individuals are free to choose.

I think it’s the same story with each kind of animal.  We study communities belonging to a given species (and “species,” as we recall, is a rough term for what’s common to various populations, not a metaphysical entity).  We frame a list.  Then the qualitatively different species members can use those entitlements each in their own ways. Fungie is different from every other dolphin, but the capabilities that protect dolphins in general will also protect him, and be used by him in his unique way.  He doesn’t have to socialize with a large pod if he doesn’t want to, and he is perfectly free to hang around the coast.  And if one day he decides to go off in search of a larger pod, he is protected in that choice too. (That’s one possibility for what happened to him, although, given his relatively advanced age, death is another possibility.) That’s how the approach respects individual creatures: by creating protected spaces for them to seek flourishing, each in their own way. Through future judicial specification the list will get refined.  And if people who live with and care about that type of animal were to protest that the list is incomplete or mistaken, it can always be changed.

One more point: part of the goal will sometimes include inter-species relationships. There are some animals whose lives are pretty much wrapped up in the life of their kind. Dolphins and elephants do not seem to rely on robust relationships with other species as a crucial element in their good (although that’s not to say that a friendship across the species barrier might not arise under suitable conditions). But there are other animals whose form of life is far more relational across the species barrier: dogs, cats, many horses, and farm animals who are not tortured. These animals cultivate relationships with one another, and they all seem to seek and need relationships with humans. So this simply gets built into the list we would make for each type of creature, as a desideratum. Reliance on a species norm does not imprison a creature within its own species.

Practical Implications: Some Examples

In a way the practical applications distinctive to this approach are obvious: show respect for all forms of life, nut just those that seem like us.  Don’t just focus on pain, but look at the whole form of life.  Many zoos do not inflict pain, but they do thwart, in many cases, the animal’s characteristic form of life. And don’t treat animals as passive recipients of a handout, but allow their intelligent strivings and expressions of preference to determine the course of legal action.  To return to my three stories: my approach would mean strenuous efforts worldwide to stop poaching and the abduction of young animals.  It would mean an end to the whole factory farm industry In the short term, and, in the long term, an end to our reliance on killing animals for meat, in favor of artificial meat, and perhaps “real” meat grown from stem cells without killing.  In Hal’s case it would mean a concerted effort on the part of all humanity to reform our heedless behavior with regard to plastic trash, and aggressive cleanups to remove the plastic that is already out there.

I end this lecture with just one detailed example of f legal implementation of the spirit of my approach: a happy harbinger of what may be a new era in law, in the form of a remarkable 2016 opinion by the U. S. Court of Appeals for the Ninth Circuit Court of Appeals. In Natural Resources Defense Council, Inc. v. Pritzker, The US Court of Appeals for the Ninth Circuit ruled that the U. S. Navy violated the law in seeking to continue a sonar program that impacted the behavior of whales. To some extent the opinion is a technical exercise in statutory interpretation of the Marine Mammal Protection Act: the court says that the fact that a program has “negligible impact” on marine mammals does not exempt it from a separate statutory requirement, namely that it establish means of “effecting the least practicable adverse impact on” marine mammal species. What is significant, and fascinating, is that the argument relies heavily on a consideration of whale capabilities that the program disrupts:

Effects from exposures below 180 dB can cause short-term disruption of abandonment of natural behavior patterns. These behavioral disruptions can cause affected marine mammals to stop communicating with each other, to flee or avoid an ensonified area, to cease foraging for food, to separate from their calves, and to interrupt mating. LFA sonar can also cause heightened stress responses from marine mammals, Such behavioral disruptions can force marine mammals to make trade-offs like delaying migration, delaying reproduction, reducing growth, or migrating with reduced energy reserves.

The opinion does not give whales standing; no such radical legal move is necessary to reach the clear result that the program is unacceptable. Because the whales did not have standing, they had to depend on the luck of having protection through the Marine Mammal Protection Act, a law made by human legislators but with some concern for the interests of whales.

The whales also had to depend on judges who read the law imaginatively, taking very seriously a set of obstructions to the whales’ form of life that did not involve the infliction of pain.  The opinion – written (for a unanimous three-judge panel) by Judge Ronald Gould, who sits in and has long lived in the state of Washington, where whale-watching is a common pastime--  concluded that obstructing a characteristic form of life-activity, even without pain, is an “adverse impact.”  I imagine this judge as someone who has really looked at whales, with curiosity and wonder.  But whether he or his clerks have really gone out whale-watching, the opinion displays ethical and imaginative attunement of a type increasingly seen in coastal areas of the U. S., perhaps in the Seattle area above all.  It sees whales as complex beings with an active form of life that includes emotional well-being, affiliation, and free movement: in short, a variety of species-specific forms of agency. The opinion goes well beyond Bentham, and it also steers clear of the “so-like-us” approach. Nor, like the Kantian, does it view whales as merely “passive citizens.”  It is a harbinger, it is to be hoped, of a new era in the law of animal welfare, and animal justice.

Martha C. Nussbaum
Ernst Freund Distinguished Service Professor, University of Chicago;  2021 Holberg Laureate
8 June, 2021