11 December 2017

Nudges and Capabilities

'The Folly of Categorization: Why Nudges are Even More Defensible than Their Advocates Suppose' by Douglas Husak in (2016) 14 The Georgetown Journal of Law and Public Policy comments
Count me among those philosophers who believe that most of the normative controversies about nudging or so-called libertarian paternalism are vastly overblown. I hope we are many, but it is hard to be sure. Nearly all of the worries brought against nudges qua nudges expressed by or attributed to moral philosophers are misdirected and/or exaggerated. My modest goal is to support this claim by attempting to show that Cass R. Sunstein—who almost certainly is the most well-known champion of nudges or libertarian paternalism—takes several of the philosophical objections to his proposals too seriously and responds to them less forcefully than he might.
'Working With And For Animals: Getting The Theoretical Framework Right’ by Martha Nussbaum in (2017) 94(4) Denver Law Review 609 comments
Friends of animals have lots to complain about and lots of work to do. To the familiar list of horrors—torture of animals in the meat industry, misery inflicted on puppies by puppy mills, the damages of research using animals, the manifold harms endemic to the confinement of apes and elephants in zoos, we have some further issues that have only become issues in the past few decades: depletion of whale stocks by harpooning, the confinement of orcas and dolphins in marine theme parks, the poaching of elephants and rhinos for the international black market, the illicit trafficking of elephants from Africa into U.S. zoos, the devastation of habitat for many large mammals through climate change. New issues arise all the time. The world needs an ethical revolution, a consciousness raising movement of truly international proportions. 
But bad behavior also needs law. No major crimes against sentient beings have been curbed by ethics alone, without the coercive force of law—although it typically takes an ethical movement to goad law into action. And so far, both in the U.S. and in the international community, law has been lagging behind the evolving ethical consciousness of humanity. Animals still lack standing under both U.S. and international law. They also lack any rights of ethical consideration. All human animals are treated as persons and ends (no matter how immature the human is), but all non-human animals are treated as mere things, as property. Law must find ways to make animals legal subjects and not mere objects. We need to move toward a world in which human beings are truly Friends of Animals, not exploiters or users. 
To make progress, we need theoretical approaches that are sound in terms of reality, grappling with what we know about animals, and that also direct law in a useful fashion. In this Article I will examine two extremely influential approaches to animal entitlements in philosophy, both of which have implications for law and policy: the “So Like Us” approach and the “Least Common Denominator” approach. I shall argue that both are defective intellectually, and also in terms of strategy. A version of the Capabilities Approach, an approach to justice for both humans and other animals that I have developed over the years, does far better in directing ethical attention. Does it also do better in directing legal strategy?
‘The Legal Status of Whales: capabilities, entitlements and culture’ by Rachel Nussbaum Wichert and Martha C. Nussbaum in (2016) 72 Sequência (Florianópolis) comments
Whales, among our planet's most majestic, mysterious, powerful, and intelligent beings, are profoundly endangered. International law has for some time attempted to protect them from extinction. Our paper addresses the legal status of whales and argues that they should be regarded as creatures with rights, not simply as commodities. Currently, international law does not recognize whales as creatures with rights. International organizations, particularly the International Whaling Commission (IWC) and its founding document, the International Convention for the Regulation of Whaling (ICRW), have focused on the issue of overfishing and have allowed exceptions to usual standards based both on the alleged needs of scientific research (in the case of Japan) and on the alleged claims of culture (in the case of aboriginal groups in the Arctic).
 The authors state
In a related paper, we have explored the moral basis of animal entitlements, in the context of evolving legal debates about whether animals can be granted "standing" to approach a court of law (through an advocate, as is now the case with human with severe disabilities)1. Many animal rights activists have urged that the best basis for legal (and moral) standing for animals is suffering, an approach that can be traced to Jeremy Bentham, the founder of Utilitarianism. While we support Bentham's radical extension of moral concern to all sentient beings, we argue that suffering is not the only relevant notion. Intelligence and the ability to be social are qualities that are at least as important. Indeed, there is a strong case for considering cetaceans "non-human persons" and according them legal rights, most importantly standing to sue in their own right. Whales cannot be said to be "like" humans in terms of DNA, but they have their own form of intelligence and deserve protection under the law. 
On the other hand, we reject as misguidedly anthropocentric the form of this argument that exalts intelligence above physical suffering. Each animal species has its own form of life, and each deserves opportunities to flourish in its own way. We argue that ultimately the best philosophical approach to these issues is an analysis of animal lives in terms of a range of distinct but related capabilities, intertwined into a form of life. This approach, however, has never been accepted in either domestic or international law, despite years of argument by environmental groups urging courts to treat marine mammals as creatures with moral and legal rights.
They conclude
If environmentalism and conservation are an important part of the IWC's mission, it is well placed to take action on the specific question of whale protection. It is the major organization specifically focused on whales. In the process, it should also consider the threat posed by climate change. If significant portions of the Arctic open up for commercial oil and gas drilling in the future, this will pose further dangers for the marine mammals who live there and for their entire ecosystem. 
The issue, then, ultimately comes back to the moral and legal question of standing. By now most of the international community agrees that the harms done by cultural traditions must be limited in the name of human rights. But they don't reach the same conclusion about marine mammals, because they do not grant them legal or moral standing. The international community must decide: are whales person-like beings with legal entitlements, or are they not? At present, they are not, under customary international law. But customary international law is at odds, here, with moral reasoning grounded on empirical fact, and at odds with the moral judgments of a growing proportion of the international community. The romanticization of traditional whaling is no more morally defensible than the romanticization of domestic violence and child prostitution. Whales are person-like beings with intelligence, social interactions, and the capacity for not just suffering but a wide range of experiences and activities. The time has come for international law in general, and the IWC in particular, to recognize this.