My favourite argument for being vegan goes along the lines of:
If the wonder that we experience in viewing wild animals is not ‘how similar to us they are’, but their ‘real opportunities to do and be what they have reason to value’ and one sufficient reason we grant this freedom at least to a basic extent to humans is they have a desire to achieve what they find valuable then; the fact non-human animals experience this desire too means we ought extend these freedoms to animals.
And I’ll quote further explanation of this capabilities approach by its originator Martha Nussbaum, then go into how we might frame the law:
Animal Liberation Act of 2521The 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. With Aristotle and Marx, the approach has insisted that there is waste and tragedy when a living creature has the innate, or basic capability for some functions that are evaluated as important and good, but never gets the opportunity to perform those functions. Failures to educate women, failures to provide adequate health care, failures to extend the freedoms of speech and conscience to all citizens, all these are treated as causing a kind of premature death, the death of a form of flourishing that has been judged to be worthy of respect and wonder. The idea that a human being should have a chance to flourish in its own way, provided it does no harm to others, is thus very deep in the account the capabilities approach gives of the justification of basic political entitlements.
The species norm is evaluative, as I have insisted; it does not simply read off norms from the way nature actually is. The difficult questions this valuational exercise raises for the case of non-human animals will be discussed in the following section. But once we have judged that a central human power is one of the good ones, one of the ones whose flourishing defines the good of the creature, we have a strong moral reason for promoting its flourishing and removing obstacles to it.
Dignity and Wonder: The Intuitive Starting Point
The same attitude to natural powers that guides the approach in the case of human beings guides it in the case of all forms of life. For there is a more general attitude behind the respect we have for human powers, and it is very different from the type of respect that animates Kantian ethics. For Kant, only humanity and rationality are worthy of respect and wonder; the rest of nature is just a set of tools. The capabilities approach judges instead, with the biologist Aristotle (who criticized his students’ disdain for the study of animals), that there is something wonderful and wonder-inspiring in all the complex forms of animal life.
Aristotle’s scientific spirit is not the whole of what the capabilities approach embodies, for we need, in addition, an ethical concern that the functions of life not be impeded, that the dignity of living organisms not be violated. And yet, if we feel wonder looking at a complex organism, that wonder at least suggests the idea that it is good for that being to flourish as the kind of thing it is. And this idea is next door to the ethical judgment that it is wrong when the flourishing of a creature is blocked by the harmful agency of another. That more complex idea lies at the heart of the capabilities approach.
So I believe that the capabilities approach is well placed, intuitively, to go beyond the contractarian and utilitarian views. It goes beyond the contractarian view in its starting point, a basic wonder at living beings, and a wish for their flourishing and for a world in which creatures of many types flourish. It goes beyond the intuitive starting point of utilitarianism because it takes an interest not just in pleasure and pain, but in complex forms of life. It wants to see each thing flourish as the sort of thing it is.
So I can imagine the synopsis of the law reading like this:
An act to make provision for the legal rights of non-human animals to have a refuge in dense wildlife habitat where they aren’t subject to human cruelty. With the few exceptions where the law is overridden by right to self-defence or special dispensation from the government for example to practice some scientific testing to cure diseases, as well as breed and keep guide dogs for the blind.
Then here’s a section of the UK law on animal welfare as an example slightly edited by me:
But I’d ideally like to move away from a language of reducing suffering and instead towards freeing capabilities. Final long quote by Nussbaum, slightly edited by me:A person commits an offence if:
a) an act of his, or a failure of his to act, causes an animal to suffer,
b) he knew, or ought reasonably to have known, that the act, or failure to act, would have that effect or be likely to do so,
c) the suffering is unjustified
The considerations to which it is relevant to have regard when determining for the purposes of this section whether suffering is unnecessary include:
(a) whether the suffering could reasonably have been avoided or reduced;
(b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment;
(c) whether the conduct which caused the suffering was for a legitimate purpose, such as— (i) the purpose of benefiting the animal, or (ii) the purpose of protecting a person, property or another animal;
(d) whether the suffering was proportionate to the purpose of the conduct concerned;
(e) whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person.
Life. In the capabilities approach, all animals are entitled to continue their lives, whether or not they have such a conscious interest. All sentient animals have a secure entitlement against human cruelty e.g. killing for taste pleasure. Although intelligently respectful paternalism supports euthanasia for elderly animals in pain.
Bodily Health. One of the most central entitlements of animals is the entitlement to a healthy life. So wildlife habitat should not be cut down such that a species is confined to a range smaller than it requires.
Bodily Integrity. This goes closely with the preceding. Under the capabilities approach, animals 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.
Senses, Imagination, and Thought. For humans, this capability creates a wide range of entitlements: to appropriate education, to free speech and artistic expression, to the freedom of religion. It also includes a more general entitlement to pleasurable experiences and the avoidance of non-beneficial pain. By 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 environment that stimulates and pleases the senses. The freedom-related part of this capability has no precise analogue, and yet we can come up with appropriate analogues in the case of each type of animal, by asking what choices and areas of freedom seem most important to each. Clearly this reflection would lead us to reject close confinement and to regulate the places in which animals of all kinds are kept for spaciousness, light and shade, and the variety of opportunities they offer the animals for a range of characteristic activities.
Emotions. Animals have a wide range of emotions. All or almost all sentient animals have fear. Many animals can experience anger, resentment, gratitude, grief, envy, and joy. A small number—those who are capable of perspectival thinking—can experience compassion. [16] Like human beings, they 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. We understand well what this means where our cherished domestic animals are in question. Oddly, we do not extend the same consideration to animals we think of as ―wild. Until recently, zoos took no thought for the emotional needs of animals, and animals being used for research were often treated with gross carelessness in this regard, being left in isolation and confinement when they might easily have had decent emotional lives. [17]
Practical Reason. In each case, we need to ask to what extent the creature has a capacity to frame goals and projects and to plan its life. To the extent that this capacity is present, 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. Affiliation. In the human case, this capability has two parts: an interpersonal part (being able to live with and toward others) and a more public part, focused on self-respect and non-humiliation. It seems to me that the same two parts are pertinent for non-human animals. Animals are entitled to opportunities to form attachments (as in capability 5) and to engage in characteristic forms of bonding and interrelationship. They are also entitled to relations with humans, where 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. This entitlement does not just mean protecting them from instances of humiliation that they will feel as painful. The capabilities approach here extends more broadly than utilitarianism, holding that animals are entitled to world policies that grant them political rights and the legal status of dignified beings, whether they understand that status or not.
Play. This capability is obviously central to the lives of all sentient animals. It calls for many of the same policies we have already discussed: provision of adequate space, light, and sensory stimulation in living places, and, above all, the presence of other species members.
Control over One’s Environment. In the human case, this capability has two prongs, the political and the material. The political is defined in terms of active citizenship and rights of political participation. For non-human 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. It is important, however, that animals have entitlements directly, so that a human guardian has standing to go to court, as with children, to vindicate those entitlements. On the material side, for non-human animals, the analogue to property rights is respect for the territorial integrity of their habitats, whether domestic or in the wild.
In general, the capabilities approach suggests that it is appropriate for nations to include in their constitutions or other founding statements of principle a commitment to animals as subjects of political justice and a commitment that animals will be treated with dignity. The constitution might also spell out some of the very general principles suggested by this capabilities list. The rest of the work of protecting animal entitlements might be done by suitable legislation and by court cases demanding the enforcement of the law, where it is not enforced. At the same time, many of the issues covered by this approach cannot be dealt with by nations in isolation, but can only be addressed by international cooperation. So we also need international accords committing the world community to the protection of animal habitats and the eradication of cruel practices.