Martha Nussbaum is a leading thinker on matters of justice, including justice for animals. But she never accounts for the a primary obligation to create just and mutually empowering relations, in the actual birth, development and emancipation of the humans who will interact with nonhumans. How does justice, without that need being fulfilled, benefit animals? It can’t, and Nussbaum is disoriented – using a version of “separate but equal” policy that undoes in birth inequity the beneficial impacts she seems to want, while enriching mostly white kids at deadly cost to countless children of color.

She remains so until she takes account of the primacy of her positionality, and acts on it. 

We can’t get to justice, legitimacy and an obligation to follow the law from the injustice of violating children’s birthrights and assuming children of color deserve exponentially less resources and more risk. Doing that has done more harm than we did good. How? Exploiting mothers’ vulnerability to ensure growth, and not first ensuring reparative family reforms that assure children birth and development conditions consistent with the Children’s Condition, does more harm to all of our missions than we are doing good, because the power dynamics that choice creates is degrading the ecological capacity of the planet to ensure infant health – the first and only measure of value.

At the end of this post we ask her to prioritize intergenerational justice, not as an issue siloed from her animal work, but as the correct basis for it.

Introduction 

The climate crisis is intensifying, and killing millions who had little role in causing or exacerbating it. At the same time a small percentage of persons have become obscenely wealthy. Many are asking if there has been a fundamental failure of justice – in the actual creation, at birth, of power relations – that we should all address. Many entities in those nations most responsible for the crisis are using the same fraudulent political systems, and impact / reporting standards, that caused the crisis in order to hide liability.

Fact: The failure of world leaders for decades to ensure a measurable fair start in life, both ecologically and socially, for all children has done more to harm the practice of justice than Nussbaum and other luminaries have done to further it. There is no form of justice, and certainly not animal justice, that ignores the actual creation of human and nonhuman relations. And it’s very hard to change a future child’s prospects once they are born, so true justice first focuses on thresholds beneath which children should not be born. Most thinking about that threshold seems focused on welfare. But if we use a metric or value like self-determination, the idea of intergenerational justice actually becomes a the first necessary condition for political obligation, the first rule, or what is required to owe others our allegiance to a legal system. Nothing is more primary than our birth-determined relations to others.

Nussbaum’s work ignores this primary issue – the largest determinant of animals lives.   

This is a failure many funding the fields of animal law and justice are eager to ignore because they made their wealth on the growth and inequity that together are killing many as temperatures rise. Climate change and inequality are interconnected crises that disproportionately harm the most vulnerable, requiring immediate, systemic action. This is not a choice on a menu of public interest interventions. This work relates to the inescapable system of costs, benefits, and obligations we are all born into, the largest driver of outcomes, and the choice to exploit that system or legitimate it.

How did Nussbaum, in her work, account for how children entering the world impacts nonhumans? This is not a complex question. Where in her work does she account for the injustice of her birth positioning, derived from a form of isolationist reproductive autonomy devoid of racial or nonhuman equity? Did her drawing attention to downstream forms of justice, while ignoring the fundamental role of inequitable growth, decoy efforts away from effective work, and exacerbate situations like heat exposure combined with racial disparities in access to air conditioning?

There is no universe in which beneficial impacts, taken out of context from their relative position to birth equity, occurred. Use of such-out-of-context claims hides the fundamental driver for the deaths: Enabling the powerful over the vulnerable

Fair Start is writing Nussbaum openly for a reason

For years Fair Start activists had been encouraged to engage in private academic discourse and debate about our work while also assuming and benefitting from default systems of birth entitlements (like white wealth), protected by the violence of the legal system, that were contrary to the ideals of animal justice.

That backchannel and time consuming discourse is what one might call distracademia. In light of the immediate horrors of things like growth-exacerbated heat waves, much in the modern animal protection movement – like the academy and its questionable impact – seems more like a self-aggrandizing garden club that has been funded by the clear cutting of local forests than drivers of a true social justice movement.

At a meta level, beyond the façade, is Nussbaum assuming entitlements she should not?

Liberalism, and freedom, mean being empowered. How could that possibly happen outside of the context creation, development and emancipation? Are academics exempt from this relative positioning? Those who reject fair creation obligations limit themselves to a version of freedom that is leading to the death of others. Why not change the entitlements default while engaged in the discourse to avoid that? Would Martha have focused on this change, decades ago, if she had known how the climate crisis would unfold?

It’s very possible we should define fundamental political group membership, and the deserving of collective protection, based on the level of protection members would extend to infants and animals. Those rejecting self-determining protections for these vulnerables through things like parental delay and readiness incentives would themselves fall outside the scope of being owed protection because there would never be a way to explain why they have shown the reciprocity necessary for membership. They are not included in any collective “we.” Deserving that, being included in a legitimate system, is not onerous and could just require backing high level birth protections for infants. For those who do not, it’s unclear why they deserve basic protection in political systems which are, at base, premised on inclusion.

That is all we are asking Nussbaum to do – to consider resetting the default for obligation, and protection, while she engages in discourse.

There is an analogy for the shift that is needed: 

All work is done on a floor that is falling apart, and some want to keep going while others fall through. These free riders threaten us all. Why? It is physically impossible to be free, as in self-determining, if we cannot ask and then assure that persons are created, developed and emancipated in ways that offset equally their capacity to influence political systems equally, relative to a neutral position or objective standard for evaluation.

Those entering the world are either not empowered, or we all have no choice but to be subjected to their power and influence – including their degradation of the environment around us. We should instead empower the governed, not the government and the wealthy.

All evidence suggests that not ensuring all children a measurable fair start in life, and birth and development conditions consistent with the Children’s Rights Convention and the Human Right to a Healthy Environment, has done more to harm all social justice goals, including individual freedom, than any other efforts have done to further them. In many cases when one factors in loss of political equity, or one’s effective shares in democracy to control the influence of others, many public interest organizations have spent more on lavish travel and events than furthering their missions.

But we don’t talk about this because it means admitting the historic subversion of civil rights through family inequity, and the treating of children of color as deserving a fraction of what white kids deserve, while assuming those children of color should suffer the brunt of the climate crisis. The wealth we see in the world today carries massive debt because we all benefitted from the violation of children’s rights to make it, bringing children into the world as means and not rights-bearing ends.

Whatever Nussbaum said, she lived a life of benefiting from not having to assure her own values in the birth-creation of others’ power relations, for example, in the funding that would have backed her work. All of that wealth would have been made in disregard of the lives of animals and the most vulnerable children because their interests are absent in the fundamental family creation norms that entitle wealth.

Nussbaum clearly avails herself of the benefits of our legal system, to protect herself for example, without deriving that system back to, and conditioning its legitimacy upon, measurably empowering those subject to it. That is the problem – one the impacts the freedom of others in a way that calls for a reaction.

Abstract academic debates about ethics, often funded by concentrations of wealth and power reliant on inequity and growth, threaten to exacerbate the results of the climate crisis by forestalling law and policy reforms. Many of the debates derive from the same Eurocentric vestige of colonialism described above – the historic entitlement of wealthy families to exploit birth positionality relative to colonized nations – nesting in the human-rights regime.

Academia should be objective and that doesn’t mean ignoring one’s positionality. It actually means first accounting for it, especially to avoid contradictory exploitation and entitlements that conflict with one’s values.

Most of the academics in these debates contradict in their writings the basic values they exhibited throughout their lives, e.g., 1) seeking minimum thresholds of personal welfare while letting at risk children and certainly many members of future generations die in infancy through deprivation and abuse that could have been avoided; 2) expecting equal access to opportunities while the exponentially discriminatory birth positioning of others resign them to a life of servitude, 3) participating in and adhering to political/legal systems that purported to represent the governed while ignoring the way dilution and positionality ensure the voices of some carry no weight, 4) using and enjoying an environment relatively conducive to human and nonhuman health while others are born into the deadly results of racist ecocide, and 5) enjoying a right to have a child in relatively safe conditions while others and those in the future have no such option, etc.

You can identify these academics because they will avoid discussions of how shared values relate to the actual creation of power relations. They will pontificate on values while enjoying the benefits of their birth lottery outcome.

They will silo off values, like animals’ rights, from the issue of who the humans – the performance of which those rights depend on – should be. They will avoid discussions of their full positionality. They will avoid explicitly conditioning state authority on empowering each person equally.

If the micro-liberation of nonhumans looks like open rescues at factory farms, the macro would look like “real new deal” social contract demands for reparations in exchange for child-centric planning that would ensure a truly climate-restored and bio-diverse future in which humans are empathetic enough to be inclined to treat nonhumans well. But many academics, whose interests do not align with macro reforms, ignore the latter.

These academics often assist funders in coaptating the values, imitating and redefining things like animal rights and mutual self-determination of humans and nonhumans, creating something that looks like the value but more aligned with their interests.

Fair Start has shown that a necessary condition for something to constitute “animal law” would be that it can actually benefit nonhumans, including accounting for the creation – through our birth and development – of their relations with humans. There are influential funders in this space however that define the field to specifically avoid that issue, going so far as to selectively report developments in the field to hide the way macro forces like growth undo the value of granular “victories” at a macro level. This benefits the funders, and wealthy their kids, as deadly cost to nonhumans and mostly vulnerable children of color. Both Nussbaum and the funders have affirmed their views of animal law and justice in this regard, with Fair Start activists in communications the activists can provide.

Our language, by not including the impact children entering the world has on our values, work, and missions, hides costs we foist on others and blocks our ability to derive obligations to follow the law back to a condition of its actually measurably empowering those subject to it. The hiding means we value the things in our lives by taking the idea of self-determination out of context, ignoring how our lives very much determine others – climatologically for example. At a subject-subject level of animal liberation, it would not mean that we have social contract obligations with nonhumans as voters or contractors. It would means that their presence influences who the human persons we share our democracy with are and should be. That’s what matters to nonhumans. 

As discussed below, one solution is to legally require disclosures contrasting claims about values with the actual ecosocial baseline children need to experience value, and how their birth and development alters that baseline in a way that harms infants’ needs.

We have all benefitted at deadly cost to future generations, a fact quickly manifesting now as the climate crisis intensifies.

None can be allowed to ignore creation ethics / positionality. Where, when and with which resources we are born is the largest determinant of outcomes in things like the climate crisis. And in terms of justice, and political obligation, there is no more basic a choice than how to deal with and offset our creation positionality, and the benefits and costs it conveys, intergenerationally for example.

Our collective failure to deal with the unjust and unsustainable system of growth that created our own birth, developmental, and emancipatory positionalities is leading to the death of millions. Academics are not immune from this systems of benefits and costs. In fact leaders in the academy are some of the most responsible given their decoy effects.

We should all admit our benefitting at deadly cost to others based on never ensuring all children the fair start in life justice required. Doing so now, and changing policies to internalize the costs we foist on others, can save lives. Doing so would allow us to require fundamental social coordination around a norm which is infinitely easier to use than a written constitution of the sort we have in the U.S., a thing unknowable to most – and more backed by guns than collective reason and understanding.

Nussbaum’s work and claims contain the same self-serving baseline error as the work of Cass Sunstein. Instead of self-determination in the accurate sense, law and policy forced our thinking into an immediate focus on other humans that veiled our creation. How? Again, our legal and political systems treated having children as an act of autonomy, bundled up with the act of not having children, because that form of autonomy would define the concept of power in a way that avoided questioning certain entitlements.

The dangerous and powerful were the men with guns in government, and the castle of the home was an autonomous zone to be protected from it. That’s not the definition of the conception of power that makes democracy work. Power is any form of human influence, the mass aggregate of human activities that is killing millions in the climate crisis, and it begins as we—and our relations to others—are created fundamentally through birth and development. Watch for others entering the world, not the leaders with money and guns they will become.

 

 

This was power over others, not self-determination for all, and the misconception mainly operated by taking the element of time out of the equation and assuming certain relations rather than requiring birth and developmental self-determination. However, families are not just part of the social contract but constitutive of it.

Instead of racing others to the bottom for how bad we can act or be, the natural and temporalized threshold for being is based on hard metrics linked to physical conditions in the world, and it is much easier to see and achieve in a collective setting, like care modeling, than a nuclear family. This is a binary choice between acting obligated towards bottom-up systems of investment and inclusion, or top-down systems of governmental violence that exploit low levels of child welfare to create growth that kills animals and destroys nature.

One chooses higher climate and related damage assessments (on eight levels at least) based on true freedom or lower assessments that continue the powerful determining the vulnerable paradigm. The former is the standard for terms like “green/sustainable,” “democratic,” or “inclusive” that would have saved those dying in the crisis. The latter is the standard wealthy investors use to make money.

But as the climate and relate crises worsen, there are fewer reasons to continue to make that mistake. In essence, if we do not change the standard, we are inclined to “double dip,” to ignore birth positionality – the fundamental system most driving the outcomes, the main determinant, while pretending we are saviors ensuring justice. The Fair Start, “Tell the Truth,” theory of change takes claims each of us have made that assumed state authority and wealth entitlements not conditioned on the actual empowerment of constituents, has us admit those claims were fallacious, and urged us to now commit to elevating the empowerment threshold as an obligation above state authority.

This mimics some of the truth and reconciliation work in other contexts, but with future children.

Nussbaum is a luminary. She is also a person who simply benefitted at deadly cost to others, as many of us have. She can be a leader in fixing the fundamental cause of that. Martha will have air conditioning this summer. Some infants near her in Chicago will not.

TAKE ACTION: Contact Nussbaum and urge her to admit the harm done, and back concrete reforms in human rights law that would ensure all children a fair start in life as the first and overriding human right.

For example, we could ask whether she would consider who – between wealthy families uniquely responsible for the climate crisis seeking to defend their wealth, and impoverished would-be mothers needing resources to defend their future children’s choices in life, would have a superior claim to use state violence?