Cruelty to animals

by Chris Bertram on October 14, 2003

There was a particularly nasty court case in my home town of Bristol recently. I forget all the details, but the essence was that a stable-owner was fined for maiming and neglecting her horses and was banned from keeping horses for life. That seems to me to be entirely reasonable. In fact a great deal of animal-cruelty legislation, such as bans on dog and cock-fighting and on bear-baiting, is something that I’d want to support. Leaving aside controversial matters like fox-hunting (on which I have a pretty libertarian view), and just taking those most extreme cases of wanton cruelty, it seems to me that there’s a problem for both libertarians and liberals. Such legislation can’t be justified either in terms of protecting the rights of (human) individuals or without appealing to some controversial conception of what gives value to life that we can’t presume is universally shared. I’d welcome thoughts on how we might adapt or extend liberal or libertarian theories to cope with these cases.



dave heasman 10.14.03 at 11:50 am

In cases of animal cruelty at home, where the home has small children, the RSPCA automatically notifies the NSPCC, as people who are wilfully cruel to animals are very often cruel to children too. As for adapting theories, well you’re academics so I suppose that’s what you do.

Thinking before posting, I guess a theory isn’t such a bad thing, as it might give guidance in marginal cases, lobsters etc. But I hope there remains sufficient cultural homogeneity here to demonstrate severe disapproval of people cutting up horses.


Chris Young 10.14.03 at 12:32 pm

I think that historically the liberal justification for restraining cruelty to animals is that cock fighting etc. made participants and spectators insensitive to suffering in general and consequently predisposed them towards cruelty to humans. (This is explicit in Hogarth, and his campaigning engravings usually reflected contemporary ethical debate, but I’m not a professional philosopher so I couldn’t point you at a text. Both Pope and Johnson, not notable liberals, though notably humane , were firm on the subject.)

I have no idea what a libertarian justification for restrictions on animal cruelty could be. Need there be one? Libertarianism in the public sphere seems to require an unequivocally optimistic view of human nature, so perhaps the argument would be that humanity unchained would naturally be humane?


Eeksy-Peeksy 10.14.03 at 12:34 pm

Animals very clearly suffer. Causing needless suffering is bad; ask anyone but a psycho. It’s not hard to justify laws against causing suffering.


Chris 10.14.03 at 1:35 pm

eeksy-peeksy: I agree. But the question isn’t whether it is hard to justify such laws but rather whether the standard liberal (or libertarian) justifications for such laws can accomodate such cases.


Charles Stewart 10.14.03 at 2:20 pm

Which standard theories were you thinking of? Rawlsian theories seem to work just fine, if the veil of ignorance hides wether or not you will be a human…

More seriously, if you start with Aristotle’s two ingredient account of what makes us human, isn’t it reasonable to say that it is being animals that make our suffering count, and being rational that imposes duties of care on us? And Asimov’s laws for robots are only a step away!


claxton6 10.14.03 at 2:28 pm

What do you take to be the standard libertarian justification for such laws? Would something like Should trees have standing (PDF), by Christopher Stone go to your concerns? Stone argues that harm to natural objects (he’s mostly talking streams and trees, but I think he would pretty readily include animals) can be pretty straightforwardly assessed in terms of “making whole again.” If natural objects are granted some basic property rights over themselves, then any harm done to them becomes grounds for a legal hearing.

Or are you wondering through what justification might we extend those self-property rights to non-humans?


Registered Independent Joel 10.14.03 at 3:48 pm

I would not even attempt to construct a liberal theory that can justify bans of animal cruelty.

“Prevention of suffering” won’t work because it would lead to a ban on meat consumption, even on the part of other animals. Good luck enforcing that.

“Cruelty to animals leads to cruelty to humans” won’t work because it depends on social science, which as we all know has the shelf life of a banana.

The only liberal principle that can be consistently applied here is that of democracy. We’ll enact those laws that are produced by the usual representative democratic processes. It’s not philosophically satisfying, but it has the advantage of being practical.


Stentor 10.14.03 at 4:17 pm

I think “prevention of suffering” works well enough. On the one hand, maybe a ban on meat-eating is in fact required by our liberal principles. On the other hand, I think it’s possible that we can get around it. A utilitarian sort of liberalism is perfectly willing to accept harm or cruelty for the greater good. So it’s plausible that we could determine that the good of having a steak outweighs the harm of killing the cow (this could lead us to conclude that some of the more inhumane factory farming techniques are not justifiable), whereas the good of enjoying a cock fight does not outweigh the harm to the cock. In the “animals hurting animals” realm, this would justify intervening to prevent wanton cruelty by an animal (like a cat toying with a mouse) without requiring lions to eat soy gazelles. This type of logic seems like it could also lead to a justification for cannibalism* if we presume that animal suffering is to be weighed equally with human. But I think it’s perfectly reasonable to say that animal suffering is morally relevant but still less important than human suffering.

*one of my favorite Calvin and Hobbes strips is the one where he asks if the class can discuss whether cannibalism ought to be grounds for leniency in murder sentencing because it’s less wasteful.


Adam 10.14.03 at 4:56 pm

Universally accepted? For hundreds of years, it was not universally accepted that blacks were more than 60% human. It is still not accepted in some fringe circles. Should we therefore not afford them rights?


Jonas Cord 10.14.03 at 5:02 pm

…whereas the good of enjoying a cock fight does not outweigh the harm to the cock.

This argument strikes me as lazy. I’m assuming it rests on meat is food and therefore more important than entertainment from cockfighting. That’s intuitively true. But that’s all we’ve established – food is more important than entertainment. We haven’t ascertained that entertainment has passed some arbitrary threshold that makes the welfare of the cock “outweigh” that of the entertainment. In addition, should the cockfighters eat the cock after the match, that throws a whole wrench in the whole equation. Now we’re getting both entertainment and food -surely more valuable than the two alone.

I’m pretty much laissez-faire on animal cruelty legislation, excepting domesticated animals. I think there is a moral obligation to protect dogs, cats, other animals whose evolution has been part of ours and vice versa to the point where they are wholly dependent upon our goodwill to survive. But while cockfighting, bullfighting and so-forth strikes me as cruel and unnecessary, I don’t see it as being important enough to warrant restriction of liberty and tradition.


JP 10.14.03 at 5:05 pm

“Cruelty to animals leads to cruelty to humans” won’t work because it depends on social science, which as we all know has the shelf life of a banana.

Uh oh. Kieran isn’t going to read this, is he?


Chris 10.14.03 at 5:28 pm

The instrumental argument that Chris Y refers to is, I think, also favoured by Kant. Perhaps liberals (though not libertarians) could live with it as a justification for legal regulation of treatment of animals.

The trouble is, though it might fit the liberal template, it (a) doesn’t seem to have the right kind of fit to the case – what’s _really_ wrong with cruelty to animals and (b) depends on a dubious empirical claim about cruelty to animals engendering cruelty among humans.

Thanks for the references on trees etc. Self-ownership for trees and animals just looks wildly implausible to me though!


Chirag Kasbekar 10.14.03 at 5:44 pm

On these issues I tend towards the deep ecological. I think people like Holmes Rolston make a decent case that something like animal rights in general doesn’t make sense — it can’t apply to animals in the wild. What happens to those animals (even through humans, as long as they are respectful of the values of ecosystems) should be judged by values that are appropriate to ecosystems (that is, whether it was ecologically necessary).

But to the extent that animals are removed from the wild I vote for Adam Smith’s empathy as a reason for unnecessary hurt to animals. And unnecessary here would mean unnecessary ecologically, and unnecessary for in the human world.

But empathy of a different kind that recognises the species differences.

But I can’t say I have thought this one through.


Ratherworried 10.14.03 at 6:02 pm

I want to have voting rights for my dog Skippy. Merely protecting animals from suffering doesn’t do it, she deserves a vote as well. I think she is a liberal/independent. Didn’t like Arnold…


Nasi Lemak 10.14.03 at 6:30 pm

Chris, I don’t understand what you mean by “fit to the case – what’s really wrong with cruelty to animals”… it feels to me like the case that it is bad for people is exactly what’s wrong with it. Our empathy for suffering animals as such is too partial and inconsequential to be much of anything – wildlife film crews don’t, for example, get criticized for letting the lions eat the zebras although I’ve no doubt the latter die horribly.


Jason McCullough 10.14.03 at 6:41 pm

Well, you can treat animals as retarded humans, only more so. What’s wrong with that? Good luck combining it with “lets still eat animals”, though.


Chris 10.14.03 at 6:43 pm

Nasi, I’d want to condemn you for setting fire to your cat for fun (if you were to do such a monstrous thing), not because that’s bad for you (though it is) but because it is bad for the cat.


Jack 10.14.03 at 7:00 pm

I think that nobody is actually against preventing all cruelty to animals. Otherwise the world was wrong before people were even around.

It is hard to verify empirically that allowing cruelty to animals would engender cruelty to humans but I don’t think that empirics are the deepest problem. In any case you can’t get away from empirics that easily. Universal rights eithr have to cover everything which would clearly make things far too complicated to be even remotely comprehensible (are fires cruel to oxygen molecules, should we give viruses an even chance? can we countenance the exploitation of blood cells? arethe genes that cause cells to self destruct cruel? should we treat cancer by destroying cells that dare to be different? is ant society sick?)or have to have some kind of boundary which would again make things extremely scholastic. It’s basically do dogs have souls and how many cats equal a dog?

There is the impllication that cruelty to an animal has an impact on an observer that is not necessary, not uniform and not easily predicable and that might not even have an effect in an individual case. The example of the Ralph Fiennes character in Schindlers List (sorry for the weak reference, I haven’t read the book) makes the concept eaiser to believe for the simple reason that he deliberatelyseeks the effect. Every day he shoots a couple of people to remind himself that he must not treat Jews as humans. A more obscure example is in the film Fresh where the juvenile hero shoots his beloved dog to steel himself for the hard task ahead as he pursues revenge.

It also does a good job of fitting with common prejudice. Cock fighting and badger baiting are worse than fox hunting which is worse than fishing which is worse than eating meat which is worse than using leather which is worse than other big animals eating each other which is worse than big animals eating insects, etc. It even allows deploring cockfighting while not forcing lions to eat soy gazelles. It even seems to explain why fox hunting isn’t as bad as badger baiting but is worse than fishing which is convenient.

It certainly seems less problematic than self-owning trees protected by a presumably enormous judiciary. It’s not like property laws are straightforward or particularly natural. It doesn’t look very liberal to me but I guess that depends upon what sort of lliberal you are. It certainly presupposes a lot about what is good and is quite bearish about freewill.


Nasi Lemak 10.14.03 at 7:03 pm

Hm. So why *don’t* you go and intervene in the life-and-death struggles in your nearest nature reserve to prevent suffering of prey animals, starving predators, etc etc? I think if you were morally serious about animal suffering you would want to do at least *something* about the vast amount of non-human-caused animal suffering, just as anyone who is morally serious about human suffering wants to do something (a tenner to Oxfam or whatever) about it.


Nasi Lemak 10.14.03 at 7:05 pm

Oops, something went wacky with an automatic asterisk-to-boldface there – there should be an asterisk before “don’t”, and one after “something”, and the words in between ought not to be in bold. (real men don’t use preview)


Cobb 10.14.03 at 7:08 pm

I think that ‘prevention of suffering’ needs the qualifier ‘at the hands of humans’. What we want to regulate is human behavior because humans have recourse to change the system of regulation.

Granting legal standing to trees and the like goes too far. How can we assume that a tree has the same concept of self as property as humans do? Going by the guideline of ‘rights as gifts by the strong’, we can say that natural objects have rights but they don’t really.

To the extent that humans are capable of understanding the freedom / destiny of plants and animals we can restrict our own behavior consistently with plant and animal ‘interest’. But that implies that we understand, species by species, what animals do to put their own kind out of misery when they suffer. Still, it is out of this human understanding of ecological systems that we adopt a kind of enlightened laissez-faire. We can say things like ‘this forest needs to burn every 50 years or so’.


Chris 10.14.03 at 7:45 pm

Jesus …. let me try pressing the reset button …

1. We already have legislation against cruelty to animals. It is illegal to set fire to your cat.

2. Liberals (and libertarians) have distinctive views about what can justify legislation.

3. Can the _legal_ prohibitions under 1. be justified with the apparatus mentioned under 2?

[NOT *please* is it morally bad for lions to eat zebras? etc etc etc]

[… and those of you who did stick to the topic, please don’t be offended by this comment]


Micha Ghertner 10.14.03 at 8:09 pm

Chris, I don’t think legislation against cruelty to animals can be justified under liberal – or at least libertarian – premises. Also, I don’t think you can so easily dismiss the “immoral for lions to eat zebras argument,” considering that you just declared yesterday your support for depraved indifference rules. I have a post on Catallarchy fleshing out this seeming contradiction: Depraved Indifference and Animal Cruelty


Nasi Lemak 10.14.03 at 8:35 pm

Micha’s is the sort of point I was looking to make; sorry that this seems to have upset you.


Chris 10.14.03 at 9:30 pm

Micha, the earlier post was about moral responsibility and not about legal obligations or duties. The fact that I think they are morally culpable doesn’t commit me to the view that they should be liable to prosecution for their indifference.

That said, I guess I am, actually, quite friendly to the idea of there being some legally enforceable positive duties. But I still don’t see why I’m in danger of conceding some unrestricted duty to prevent or minimize all animal suffering. The duty we have to save a drowning child has a lot to do with recognizing that child as actually or potentially a rational and moral agent like ourselves, and very little to do with the prevention of suffering as such. (We’d be under just as much of a duty to save a child who suffers from chronic pain as one who doesn’t.) Not that the alleviation of suffering doesn’t have moral importance and generate reasons for action – I just don’t take it to be basic.

I don’t actually have a neat and tidy answer to why it is wrong to torture my cat. But I’d certainly want to say that in torturing it I fail utterly to respond to it appropriately as an object of value. It isn’t, though, that the act of torturing is bad because it is bad for me (say in virtue of its effects on my character), it is a really bad thing in itself. The cat doesn’t possess the same morally relevant characteristics as this child does, but it does possess its own (including the capacity for certain types of experience, pain etc).

I’m certainly not committed to the view that killing animals for food is wrong (though it may be), even if it causes them some suffering. Torturing them for fun certainly is, though, and I’m inclined to think that it is only a species like our own, possessed of self-consciousness, that has the ability to torture anyway. There’s nothing wrong, morally speaking, with lions killing antelopes.


Meatkils 10.14.03 at 9:59 pm

The basis of the animal rights argument is that interference on the part of a moral person into the lives of animals is something that should be stopped. Animals have negatives rights from humans to be left alone. The same tired canard that animal rights people have to be opposed to animal cruelty by other animals is always asserted, but never demonstrated. If animals aren’t moral people (and no animal rights person of which I am aware takes this position), then they have no moral duty toward each other. That doesn’t negate the moral duty that we as moral agents do have. I can’t stop lions form eating gazelles, and I wouldn’t if I could, because it’s part of their natural world. It’s necessary for them to survive, whereas for me it’s not necessary to survive on Whoppers and Arby’s.

So all this discussion misses the point, because the real question is what duties PEOPLE have toward animals, not what duties animals have to each other.


jimbo 10.14.03 at 10:04 pm

I think Joel has it right, here. Why must every law have a “theory” behind it? A majority of people in this country are disturbed by cockfighting and dogfighting, for more-or-less purely emotional reasons, so they have the right to act through their legislatures to ban the practice. That’s really all you need.

This need to treat the law as some kind of mathematical system wherein every component derives from some “first principal” comes from the modern tendency to see every legal question as a matter for some “wise” judge to decide. Can’t have those nasty people just go out and decide things for themselves by voting, y’know – why, they might get it wrong!

(Reminds me of the scene in “Meaning of Life” when the woman having a baby asks the doctors what she should do: “Nothing, you’re not QUALIFIED!”)


Jason McCullough 10.14.03 at 10:18 pm

“Can’t have those nasty people just go out and decide things for themselves by voting, y’know – why, they might get it wrong!”

As exciting as it is to vote for whatever’s your fancy, you might want to look into justifying it on occasion.


jimbo 10.14.03 at 10:51 pm

But on every occasion? Aren’t there at least some kinds of laws that are merely the codification of popular preferences?

The liquor stores are closed on Sunday in my state. I would prefer that they were open, and I would vote likewise, but thus far the good people of the Commonwealth have not agreed with me. Is there a “theory” of why I have a “right” to get a sixpack on Sunday (or not)? Should a federal judge order them open?


Pio 10.15.03 at 12:03 am

Jimbo: That’s all well and good, until the good people of your Commonwealth decide to be “disturbed” by the sight of women not covered head-to-toe. Or people who don’t go to church are evil. Or that murder ain’t that bad after all. Unrestricted democracy can easily go awry.

On subject: I don’t think a libertarian justification for animal cruelty laws is possible without first deciding the tricky question of what exact property of humans gives them rights, and then if that property applies to animals. If it is life, then all animals should have complete rights, so there goes eating meat. If that property is conscious thought, than we’ve got to figure out exactly what animals truly think, which is also a hard question. And if the property is rational thought, we’ve eliminated all animal rights, and justified the wanton murder of the insane and the retarded to boot.

Chris: If you assert the cat has a mind, in order to know what its experiencing, and then by extension is conscious, then why does the cat only get the right to be safe from cruel misuse? Why doesn’t it also gain complete control of its own life? (in other words, what now seperates it from humans?)


Micha Ghertner 10.15.03 at 12:50 am


It is not at all clear why sentience, self-awareness, rationality, or moral agency is the necessary prerequisite for rights and similar claims deserving of moral treatment. Is a severely retarded person who lacks these attributes undeserving of the same protections we would grant healthy people? Aren’t we simply trying to justify our prejudice against animals by focusing on what separates “us from them” rather than focusing on what we have in common? For the record, Peter Singer is also guilty of arbitrary line drawing when he claims that the important distinction is the ability to suffer, ignoring the possible claims of other living beings like plants and trees, or perhaps even non-living things like rocks and viruses.

But Singer does make a good argument against the rationality distinction by pointing to our intuitions regarding racism. His argument is as follows:

* If racism is clearly wrong, then either it’s factually clear that all races have equal abilities or it’s morally clear that similar interests of all beings ought to be given equal consideration.

* It’s not factually clear that all races have equal abilities.

* If it’s morally clear that similar interests of all beings ought to be given equal consideration, then it’s clear that similar interests of animals and humans ought to be given equal consideration.

* Therefore, if racism is clearly wrong, then it’s clear that similar interests of animals and humans ought to be given equal consideration.

I don’t feel like getting in to the distinctions between moral and legal obligations; I’m just trying to focus on the moral issues and whether the theories justifying them are consistent with our other moral beliefs.

As for my own opinion, I place animal torture in the same category as other “Yuk Factors” such as adult incest, eating one’s own placenta, and animal necrophilia, among others. Not immoral, but gross enough that I would disassociate myself from those who engage in such activities.


tom t. 10.15.03 at 12:55 am

This recent article from Slate reviews “Animal Cops: Houston,” a new animal rescue show on Animal Planet. The orignal Animal Precinct series focused on the animal rescue squad of the New York police department and thus focused mainly on animals that were pets. The Houston series focuses more on livestock operations, which raises stranger moral questions. No one likes to see a cat or a dog being badly treated, but in the case of a goat or a pig, even those who are well-treated in every way are likely still destined for the slaughterhouse in the prime of their lives.

Farmers learn to live with these contradictions, I guess. I was at a nearby Sheep & Wool festival last summer, and the awards table had an exhibit set up for the fair’s prize-winning “Best Lamb.” The exhibit consisted of poster-sized pictures of the owner holding the lamb in his arms while it suckled from a bottle, arranged around what looked to be a delicious rack of lamb.

Oh, and the woman staffing the rabbit kiosk asked of each customer who requested a rabbit, “pets or meat?”


Keith M Ellis 10.15.03 at 1:16 am

Actually, this discussion has been far freer of the crap that usually _instantly_ infects any animal rights discussion, anywhere, in any context. I’m not sure why it is, but people really get worked up about this. (I don’t just mean on the pro-animal-rights side, that’s expected. But I usually see a lot of instant virulence from the anti side.) So, good on ya.

It seems to me that the moral philosophical principles necessary are at hand. We’re just disinclined to use them because we’re wedded to our anthropocentric exceptionalism.

Libertarians argue on the basis of natural rights, but they are willing to agree (when pressed) that rights come into conflict and that a heirarchy of rights is a practical necessity. In that context, a libertarian rationale against cruelty toward animals is possible, and the problematic excesses people worry about will be answered by some sort of adjudication of competing claims.

A liberal moral philosophy that is not explicitly natural rights based will presumably root itself either in utilitarianism or something Kantian (or others, but those seem like the most likely to me). Here, too, I fail to see a large problem other than the necessity of abandoning exceptionalist anthropocentricism.

Chris, I disagree with you that the prohibition against torturing babies is rooted in a completely different reasoning than is preventing their drowning. I’m sorry, but our moral reasoning is mostly built–rightly or wrongly–around empathy, not around a valuation of a rational (or potentially rational) agent. That this is deeply true is easily demonstrated by people’s intuitive sense of the morality of AI. They have difficulty conjuring up empathy for an AI, even though they apparently have no difficulty whatsoever imagining such a creature being highly intelligent and willfull.


Keith M Ellis 10.15.03 at 1:54 am

“It’s not factually clear that all races have equal abilities.”

Does Singer really argue this? If so, I’m surprised. I suppose that he could be arguing that what we _think_ of as “race” _could_ exist, and, if it did, then while it would be possible, probably likely, that races would differ in abilities, we’d still want to hold to an egalitarian principle just the same. But, you know, if grandma had handles and two wheels, she’d be a wheelbarrow.

In any event, you’re kinda stuck with reaching for some pseudo-absolutist moral principle if you’re not postulating a genuine absolutist moral principle. (And, if you are, as many people do, I don’t really see how we could be having this discussion since, as a practical matter, most of those absolutist moral principles make quick work of this sort of question. Of course women don’t have souls. Oh, wait. Now they do. Or, you rename “soul” “consciousness”, assume it’s quantum like “soul” was, assume that humans have it and pretty much everything else doesn’t, and call it a day.)

The question is what could that principle be.

Pain and pleasure, insofar as they can mostly be agreed upon to apply to the higher animals, is an impoverished standard by which to organize a morality. Aristotle demonstrates this immediately at the beginning of _Ethics_ as he, rightly, expands his organizing principle, _eudaimonia_, beyond mere “pleasure” or even “happiness” (which eudaimonia is usually mistranslated as). I think Aristotle is reaching towards a sort of utilitarianism in _Ethics_ that is in no way hedonistic; and I strongly intuit that we would find a hedonistic rationale against cruelty against animals quite unsatisfying. A gedankenexperiment is provided by the “Hitchhiker’s Guide” with the genetically modified cow that takes great pleasure in being eaten. Most people find this morally repugnant.

And while Aristotle called man the “rational animal”, and a great many people have wanted to find in reason the principle we’re looking for, I think it, too, fails the sufficiency test. We intuitively and correctly (I think) value infants and the comatose and the severley retarded independently of their capacity for reason. While what we think of as formal reason, or at least higher cognition, as being the signature trait of humankind; it’s also clear that we value ourselves as ourselves and empathize on the basis of more than just it. Sometimes even in it complete absence.

And ultimately we’re stuck wondering if this entire enterprise isn’t hopelessly anthropocentric. In the end, aren’t we grasping for an abstraction of a quality in ourselves by which we can measure the entire universe? If that quality isn’t an absolutist principle independent of humanity, then we’re stuck with a moral relativism that has a scope wide enough so that as a practical matter there is no distinction. Since I think a lot of people would argue that this is likely necessarily the case, then one might rightly ask whether our agonizing over a sound theoretical foundation for our morality isn’t just a bunch of silly dwaddling, a way of avoiding the question? Because, really, we just need something that is *good* *enough*. We’re worrying about whether or not trees own themselves while great apes are still in captivity, subjects of medical experimentation, and, essentially, torture.


decnavda 10.15.03 at 2:09 am

“On subject: I don’t think a libertarian justification for animal cruelty laws is possible without first deciding the tricky question of what exact property of humans gives them rights, and then if that property applies to animals. If it is life, then all animals should have complete rights, so there goes eating meat. If that property is conscious thought, than we’ve got to figure out exactly what animals truly think, which is also a hard question. And if the property is rational thought, we’ve eliminated all animal rights, and justified the wanton murder of the insane and the retarded to boot.”

This is exactly what I was going to say, only put better than I probably would. I am re-posting it because I think it needs to be emphasized as the correct answer to Chris’s question, at least in terms of libertarians.


Micha Ghertner 10.15.03 at 2:24 am


I don’t know if Singer uses those exact words, as the argument is taken directly from a formal logic textbook (Introduction to Logic, Harry J. Gensler, Routledge, 76), but I assume that it is a fair approximation of his argument. I’m not sure what he means be “race,” but I think the argument works even if we replace the concept of race with some other criterion indicating that humans differ in mental and physical abilities, yet most of us still believe all humans should be entitled to equal moral consideration.


Decnavda 10.15.03 at 2:28 am

As for liberals, I do not know how Chris defines them, but my concept of liberal theory is that it is grounded in the social contract. A contractarian should *at least* include in the contract as citizens every individual capable of consenting to the contract. If bright line rules are to be drawn for convience, they should be drawn broadly enough to include all who are capable of consenting, even if it includes some individuals who can not consent. Deciding on a case-by-case basis who is SO psychotic or retarded as to not be able to consent would lead to inevitable injustices: better to simply give citizenship to all humans. Futher, is individuals of certain other species are shown empirically capable of consent (great apes?, bottle-nosed dolphins?), then all members of those species should be granted citizenship, as a good bright line rule.

As for cruelty to other animals from a contractarian standpoint, I would vote to ban it in most circumstances, but I am unsure of a justification.


Micha Ghertner 10.15.03 at 2:43 am


That is the position taken by Jan Narveson, and I find it pretty convincing, but then, I already agreed with his conclusions before I read his contractarian justifications.

However, I don’t believe contractarianism can give you a justification for prohibiting animal cruelty, as most – if not all – animals are incapable of acting as contractual agents.


Keith M Ellis 10.15.03 at 3:14 am

Micha: ah, but that’s the difference that makes all the difference. I mean, the attraction of the racial argument is that it lends scientific credibility to some sort of quantifiable differentiation that could be theoretically connected to moral capacity. In this sense it perpetuates the essential lie of racism and is deeply unfortunate, not to say irresponsible. In contrast, while no one denies that there is significant variation in human behavior and capacity, and that these variations arguably relate to moral capacity, it’s understood that we understand and are able to measure these variations so poorly as to make them irrelevant to any policy discussion that deals with _classes_ and not _individuals_. In any event, in my opinion, there’s a big problem right off the bat:

“If racism is clearly wrong, then either it’s factually clear that all races have equal abilities or it’s morally clear that similar interests of all beings ought to be given equal consideration.”

What’s this fallacy called? This is a false dilemma. And even if we assume this is a correct dilemma, then Singer still hasn’t established the mutually exclusive and sufficient nature of each of his conditions that he is assuming. For example, if hanging is clearly deadly, then it’s factually clear that falling through a trapdoor is deadly, or it’s factually clear that wearing a noose is deadly. But that’s not true. Hanging _is_ clearly deadly, and those two conditions are together sufficient for a deadly hanging, yet neither is sufficient alone. It seems to me that racism can be clearly wrong because, taken together, the uncertainty of the differentiation of ability and the similiar validity of similar interests make a compelling case for the injustice of racism. And once you do away with this bivalent logic, you’re left with a great variety of other measurements of “differing ability” and “similarity of interests” that produce different results for the “clear” appropriateness of discrimination of opportunity. We do not insist that all people have equal opportunity to play in the NBA, or to model women’s bikinis. _Clearly_, as abilities more reliably diverge, the more sanguine we are about discriminating against people with similar interests. And since it is also _clear_ that animals diverge more strongly from humans in regard to ability than humans do among themselves, then less are we required to weight our argument on the side of similar interests.

Surely Singer can do better than this.

At the very least he should argue on the basis of male/female differences, which are increasingly being shown to be quantifiable and significant. But that would be inconvenient, wouldn’t it?, since we are willing to tolerate limited sexism in a way that we are not willing to tolerate a limited racism. (I don’t mean to imply that _I’m_ sanguine about sexism; I most certainly am not.)


Micha Ghertner 10.15.03 at 3:46 am

I don’t really feel like getting into the Bell Curve debate, but it is pretty clear that the empirical evidence falls on the side of measurable differences between racial and ethnic groups, however you want to define them. Whether this is a result of nature or nurture, I think Singer’s argument still holds. If we don’t factor in differing abilities when granting humans rights, why should we exclude animals from moral consideration on the basis of ability?

You seem to be arguing that we should ignore racial or other class differences because our ability to measure these variations is poor. But what if that was not the case? What if, one day, scientists presented evidence that these variations can be measured and are significant? Would that change your world view? Would you no longer believe that people of differing abilities deserve equal moral consideration? If not, then it would seem that you agree with Singer’s point: we don’t care about differences in ability when allocating moral consideration.

And while it is true that the law allows unequal treatment by private parties (as I believe it should), this is separate from the argument over whether the law itself should treat all citizens equally, or whether all people are deserving of equal (negative) rights. This is why your NBA and model examples don’t work – we are talking about the prerequisites for moral consideration, not the prerequisites for legal consideration. If I deny, as I do, the existence of any positive rights, then it is not immoral to discriminate on the basis of race, religion, sex, etc. when hiring an employee, because no person is entitled to that job in the first place. At the same time, it would be immoral to violate negative rights – to kill, rape, or steal – on the basis of race or other factors, and according to Singer, these categorical differences should include differences in mental ability as well.


jimbo 10.15.03 at 3:52 am

“That’s all well and good, until the good people of your Commonwealth decide to be “disturbed” by the sight of women not covered head-to-toe. “

Woe, there – it’s a pretty far leap to go from closing liquor stores on Sunday (or outlawing cockfighting) to all-out Shar’ia…

Frankly, I’m kind of disturbed by some of what I read here. What I’m getting is that a majority essentially has no right to express it’s will in the law – that a “legal theory” (decided on, of course, by Platonic philosopher kings who are always right) is the only proper justification for any and all laws. (Because the people, left to themselves, will run off and start veiling women left and right…)

Sounds more like soft totalitarianism (or maybe “democratic centralism”?) than liberal democracy to me…


Micha Ghertner 10.15.03 at 4:05 am


You ask whether a “majority essentially has no right to express it’s will in the law.” Let me answer your question with a question: what is your opinion of the legal decision in Lawrence v. Texas? Was the Supreme Court wrong in overturning a law prohibiting sodomy even though that law was instituted by a democratic majority?

(Hint: liberal democracy also entails such things as individual rights and limits on democracy as stipulated by the Constitution.)


Micha Ghertner 10.15.03 at 4:26 am

On the question of why a moral theory is needed:

    It’s a popular thrill, saying ‘We don’t do that here.’ Leon Kass, chair of the Council on Bioethics in the Bush administration, wrote a famous article for The New Republic in 1997, entitled ‘The Wisdom of Repugnance.’ ‘Repugnance is the emotional expression of deep wisdom, beyond reason’s power to express it,’ he said. But this business of repugnance we can’t quite articulate should give us pause – should make us come to a screeching halt, in fact. Why can’t we articulate it? Could it be because there is nothing to articulate? If we have good reasons for doing or not doing a thing, aren’t we normally able to put them in words? ‘Because I said so’ is all right when telling children what to do, because who has time to explain every single thing to a five-year-old, but for an actual official indeed presidential council, one expects a little more. Arm-waving and saying ‘I can’t explain’ don’t really match the job description.
    Especially since people have always ‘just somehow known’ in their guts or their hearts or their gluteus maximus, without being able to say why, all sorts of things that the world would be better off if they hadn’t just known. That Africans should be slaves, that Jews were polluting Germany, that women should be kept under house arrest at all times, that witches should be burnt, that the races must never mix. We’re all too adept at thinking what we’re not used to is inherently disgusting. John Ruskin never consummated his marriage because he thought his wife’s pubic hair was disgusting. He’d never seen a living naked woman before, only paintings and statues, and he wasn’t used to it. No doubt he thought it was very wrong of Effie to have it. All sorts of things are disgusting. Slimy wet rotting vegetation is disgusting, pus is disgusting, a swollen decomposing squirrel in the woods is disgusting. But is there any moral content to this disgust? Should the squirrel pull itself together and stop decaying in that nasty way? Should pus take thought and transform itself into peach ice cream?
    Habit and familiarity have a great deal (though not everything) to do with what people find disgusting but very little to do with ethics. Cruelty, exploitation, injustice, violence don’t become better with repetition, they only become easier for the perpetrators, such as the regular guys turned obedient Jew-killers of Christopher Browning’s Ordinary Men. Disgust is good clean fun and provides endless amusement for children, but it’s worthless as a moral compass. Saying ‘Ew, ick, yuk, gross,’ and saying ‘That’s wrong’ are two different things. It’s a long-standing confusion, going back to Plato if not farther, to think the beautiful is the good and the good is the beautiful, but it’s not necessarily so.

    – Ophelia Benson, “The Yuk-Factor”

    This is not to argue in favor of or against the immorality of animal cruelty, just to note the importance of having a theory explaining exactly why (or why not) animal cruelty is wrong, instead of just saying, “because I find it unpleasant.”


Keith M Ellis 10.15.03 at 4:26 am

The only thing I’ll say about “The Bell Curve” and that statement you link to, in the context of my criticism of Singer using “race” in his example, is that the essentialy problem with “race” is that it has absolutely no meaningful biological definition. If you correlate “race” with intelligence (and for the sake of this argument I’ll grant that something meaningful is being measured as “intelligence”) then if you don’t know what the hell “race” is, you really can’t say a damn thing about your correlation. The argument against racism need go no farther than this because while genetic relatedness as it relates to differential ability is a valid concept, _race_ is _not_ a valid concept because it assumes a correlation between a very few superficial characteristics and a great many other intrinsic characteristics we _know_ does not exist. It has not been validated empirically and its assumed theoretical basis has been disproven (that these superficial traits correspond to genetic relatedness).

“If we don’t factor in differing abilities when granting humans rights…?”

But we do. Ability is the key factor in the rationale for denying children enfranchisement. For most people, I daresay, it’s the only factor aside from mere convention. And adults can have their basic rights limited as a result of being ruled mentally incompetent. People are held to be _not_ morally responsible as a result of their presumed incapacity to formulate moral judgments. Insanity is a legal defense because it is a moral defense. Sexual consent is not assumed to be possible while intoxicated. Children are not criminally tried as adults.

“What if, one day, scientists presented evidence that these variations can be measured and are significant? Would that change your world view? Would you no longer believe that people of differing abilities deserve equal moral consideration?”

It would change my view, and I would no longer believe that people of differing abilities deserve equal moral consideration. I mean, as I’ve pointed out, most of us already believe that. The context of the debate about rights and childhood versus adulthood is increasingly one of specific competency, and not equal interest. We choose one age for emancipation from parents, an age for sexual consent, another for voting, and another for the purchase and consumption of liquor. On the basis of differening interests? Or competency? Actually, both.

Let’s be clear here: I don’t for a minute believe in metaphysical “rights”. I recognize that there is little productive I can argue with someone who believes differently.


Pio 10.15.03 at 4:48 am

“Woe, there – it’s a pretty far leap to go from closing liquor stores on Sunday (or outlawing cockfighting) to all-out Shar’ia…”

I agree, but its not that far-fetched. After all, until less than a century and a half ago this country’s people allowed slavery. And the Nazis came into power in a democratic election. In times of trouble, people can easily be convinced to make dumb choices. Besides, most of my German friends would be hard-pressed to differentiate between no beer on sundays and shar’ia.

“Sounds more like soft totalitarianism (or maybe “democratic centralism”?) than liberal democracy to me…”

On the contrary, it is you who are supporting a dictatorship of the majority. You are saying that denying people the right to decide the affairs of others *just by virtue of being in the majority* is totalitarian. I would ask where that majority got the right to control my life in the first place.


Micha Ghertner 10.15.03 at 4:51 am

I’m certainly not going to try to come up with any biological definition of race, if one even exists. But I don’t think this argument of yours against racism is very persuasive. Consider a racist who bases his understanding of race on ethnic origin or some other non-biological standard. Perhaps he says, “I don’t believe people whose ancestors came to America from Africa deserve the same moral rights as non-Africans because this group differs in ability according to such-and-such test.” Will your response counter his argument? I think not.

It is interesting to note that back when people believed the differences between various ethnic groups and “races” were far greater than they actually turned out to be, the same kind of “Peter Singer” arguments were used to counter this racism.

Again, I would like to restict this discussion to only those human rights relevent to the animal cruelty debate: the right to life, the right to be free from torture, etc. You make excellent points about voting rights, consent, and criminal liability, but these are not the issues at point of contention with regard to animals.

I don’t believe in metaphysical rights either, so don’t worry. (The best conception of rights I’ve heard is Randy Barnett’s hypothetical imperative as described in Structure of Liberty) However, I don’t think ability is a useful measuring tool for granting basic human rights. Exactly what ability is necessary in order to deserve protection from murder and torture? Do children have this ability? Retarded children? People permanently stuck in a coma? What kinds of animals have this ability and which ones are lacking?

I tend to fall back on the ability to enter into contracts, but I do that for purely selfish reasons, because it results in my preferred outcome, but this isn’t very satisfying. I think I’m stuck with Chris in lacking a strong theory either way, although I fall on the opposite side of the argument.


Keith M Ellis 10.15.03 at 5:03 am

Kass taught at my alma mater, by the way. There was a recent profile of him in the alumni magazine. I find him a little embarassing, actually; but I’m used to it as there’s a contingent of faculty that he’s somewhat representative of. (Hell, the former President of the college from when I was there is now in charge of Iraq’s higher-education system. Being a Bennett/Cheney lackey paid-off for him, I guess.)

Kass is in good company when he rationalizes his intuitive predispositions as a supposedly reliable intellectual roadmap. To me, though, it seems like a pretty absurd argument. In some cases, and in some domains, our intuitive biases have been, in fact, reliable. In others, not at all. My primary (lay, mind you) focus is philosophy and history of science and in that domain one finds a profound tension between the reliability and unreliability of intuition. I think the signal characteristic of the history of western science has been an irresistable, even near-deductive, progression from the deeply intuitive and commonsensical into the deeply counter-intuitive and nonsensical. If we do away with the intuitive and commonsensical, we’d be nowhere with nowhere to go and no way to get there.

It’s perfectly reasonable to start from intuition if for no other reason than the practicalism of the asymmetry of all possibilities versus those intuited. And, as in the case of science, our intuitions can often be abstracted to something more universal and eventually those abstractions will applied in ways that undermine the intution. That’s a history of political liberalism, too. People like Kass are deeply conservative, or perhaps traditionalist, in that they are less interested in how their intuitions illuminate the cosmos than they are in how the cosmos can be shown to validate their intuitions. For them, intellectualism is about shoring up supposed certainties, it’s intellectual building maintainence and groundskeeping.

In my opinion, most people on both sides of the animal rights debate start from an intuitive reaction to the issue that is dominant for them, and then they contruct a rationale to support that intuition. It is generally either an empathic anthropomorphisizing by the animal rights camp, or an anthropocentric chauvinism by the anti-animal rights camp. It seems to me, though, that each of these two intuitions has some validity, within contraints. As I argue earlier, empathy is _not_ an trivial moral principle, it’s deeply involved in even our most sophisticated moral reasoning. Similarly, if empathy is built around a presumption of similarity, then the manifest similarity of humans to ourselves has to have a commensurate moral force, given the assumption of the validity of empathy as a moral principle. Thus, these two views are more complementary than they are in direct opposition.


Micha Ghertner 10.15.03 at 5:13 am

I certainly agree that intuition is a useful starting point, but useless without a theory. We must understand why we think a certain why; not simply that we think a certain way.

The animal rights debate is an interesting, albeit unsatisfying one, because like much of philosophy, there is no clear answer.

Our similarity with other humans helps explains why we have more empathy for fellow humans over animals, just as it explains why we have more empathy for members of our own family, neighborhood, tribe, ethnic group, etc. But this alone does not give us a good conception of where to draw the moral line, and can prove dangerous as the history of tribal warfare and ethnic genocide attests.


Keith M Ellis 10.15.03 at 5:35 am

“Will your response counter his argument? I think not.”

Yeah, but you seem to be assuming that I am necessarily opposed to his argument. I am not. I don’t think that many people are opposed to this way of thinking as a matter of deep principle, but they _do_ have reservations about how such thinking is applied as a practical matter. And because Americans, in particular, are deeply sensitive to abuses by empowered agents on the basis of this sort of discrimination, we are wont to assert an asbolute principle that disallows such thinking where we are most afraid of its misuse. Where we are not afraid of its misuse we, interestingly, argue on the contrary basis—that differences are intrinsic and non-equal outcomes are just.

I meant what I said earlier. For me, the essential issue is the matter of uncertainty. The greater the uncertainty, the more necessary it becomes to appeal to some quasi-absolutist principle that prohibits discrimination. I don’t really believe in such a principle, I just think it’s a good rule of thumb. When confronted by your hypothetical near-racist, were I being intellectually rigorous I would merely question the validity (and accept it were it to survive scrutiny) of the distinction he claims exists. Since I have every reason, however, to believe that _perceived_ generalized differences between classes of people are far more likely to be exagerated than not, and because the track record of attempts to prove such differences is very poor, if I’m feeling lazy or time-constrained I’ll dismiss his argument on the basis of this principle of “rights”.

I’m just not convinced by Singer’s argument. Frankly, as you may already tell, I’m not convinced that we don’t need a finer level of granularity in many current moral theories about human “rights”. Granularity and continua don’t bother me. I’m baffled (sorta) why the debate about animal rights is stalled at an impasse between “all” and “nothing”. I don’t find the problem of domesticated food animals the conundrum that many other (thoughtful) people do. We’ll decide. What’s worse: billions of enslaved and eventually murdered chickens, or chicken extinction? It’s a tough question, but I think we can come up with an answer. The only thing I unequivocably know is wrong is avoiding the question (I mean this generically) because it’s difficult. How the granularity will be, or should be, decided across the whole spectrum of Earth life is far beyond either my ability or my interest to ponder. I concentrate, now, mostly on worrying about where the ambiguity is least and the opportunity for improvement the greatest—the great apes, for example. Certain kinds of generally agreed-upon egregiously cruel and gratuitous animal testing. Organized urban deer hunts are low, low, low on my list. In fact, I think I probably support them.


Keith M Ellis 10.15.03 at 5:48 am

“We must understand why we think a certain why; not simply that we think a certain way.”

Yes, but unless one is an absolutist, one cannot expect an ultimate answer to that “why”. Without absolutism, _that_ we think a certain will ultimately have to suffice.

I’m a practical absolutist, a theoretical relativist. While I don’t think there’s a privileged moral position in the universe, I do think that there is in every case a moral system sufficiently universal as a practical matter. As time has gone by, our moral universe has gotten much larger and we have needed to abstract out new principles which are sufficient for the enlarged context. I think that those abstracted principles are _always_ going to be abstractions of intuitions, and that that is good enough. It’s not necessary that we believe that the universe is speaking to us an invariant moral truth, it’s that we are speaking a moral truth sufficient for the moral universe as we know it. That moral universe increasingly includes the rest of the natural world.


Keith M Ellis 10.15.03 at 6:14 am

By the way, I’m not dialectically operating at a level commensurate with either my implicit responsibilities here, or my pretense. I’ve participated heavily in this thread because I think the discussion an interesting one, and because I’m more than a little light-headed from lack of sleep.

But here on Crooked Timber, more than anywhere else I’ve regularly written, I feel intellectually and educationally inadequate and not infrequently like something of a poseur. So, I’d like to apologize if I’ve irritated anyone and to say that these sorts of things are a razor’s edge for many of us to walk, and I don’t do as good a job walking it as I’d like. (The razor’s edge of avoiding being an example of the Peter Principle, or worse.)

Thanks, Mischa, for a nice conversation. I suspect—hope—it would have been very productive had we had it in person. This group, in fact, would be very nice around the seminar table, it seems to me.


Micha Ghertner 10.15.03 at 6:22 am

Just to let you know, I’m not a professional either, but a lowly undergrad fresh into my 20’s. Think of me as a libertarian Matthew Yglesias, minus the fan base and intellectual acumen.


Jeremy Osner` 10.15.03 at 2:11 pm

“This group, in fact, would be very nice around the seminar table, it seems to me.”

Second that — or around a table at my local pub.

Keith, as regards your feeling like a poseur, please don’t allow that feeling to interfere with your prolific posting — both here and at Calpundit I have found your comments among the most consistently worthy of study.

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