Thursday, September 27, 2007

Banning Foie Gras and the Illusion of “Balance”

On Tuesday evening, Mike and I attended a panel at Columbia Law School entitled “Cruel Farming Practices and the Law: The Israeli Ban on Foie Gras.” The panel, introduced and moderated by David Wolfson, a Lecturer-in-Law at Columbia, took up the subject of a 2003 Israeli High Court of Justice decision holding that the force-feeding of geese or ducks involved in producing foie gras violates the Animal Welfare Law. Panelists included Retired Justice Tova Strasberg-Cohen and Justice Eliezer Rivlin of the Israeli Supreme Court as well as two attorneys, Jonathan Lovvorn and Mariann Sullivan, who have litigated challenges to cruel farming practices in the United States.

As the panel proceeded, I was struck by the salience of two positions that the Justices embraced. The first position was that nonhuman animals have personal rights against torture and harm that are entitled to weight, even when honoring those rights might have a negative impact on farmers and consumers. In expressing his affinity for this position, Justice Rivlin’s concurring opinion in the case eloquently stated that “As for myself, there is no doubt in my heart that wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear. Some of them nurture special feelings towards their friend-enemy: man. Not all think so; but no one denies that these creatures also feel the pain inflicted upon them through physical harm or a violent intrusion into their bodies.” Hearing these words from a high court judge is gratifying and far too rare, given their self-evident truth.

The second position was that the animal’s right must be balanced against the human being’s right to use the animal to meet human food-consumption needs. This position struck me as both morally unpersuasive and logically inconsistent with the first position. If in fact an animal has any right at all not to be subjected to pain, then it follows necessarily that a human being’s pleasure in consuming the animal’s flesh cannot be “balanced” against that right without rendering the right itself is virtually meaningless. People do not need to eat and drink animals or their eggs or their milk to survive or to thrive. The reason people nonetheless consume such products is that they enjoy consuming them, just as some people enjoy watching buildings explode. People have a “taste” for flesh (or for butter or eggs or whatever). Just imagine balancing a different non-absolute right in this way. Say you purchased the last copy of a book at the store, and I see that book, and I really want to read it. I cannot just take it out of your bag, because however much I want to read it, I do not need it to survive (I could, if someone threatened to kill me if I did not immediately provide that book, lawfully steal it and hand it over to the assailant).

When Mike raised an argument about the absurdity of balancing the right to live against the right to enjoy the flavor of the one holding the right to live, the response was quite disappointing. Justice Strasberg-Cohen said that she “respects” the right to the vegan lifestyle but that Mike must understand that many people eat meat, and we need to find a happy medium. How the endorsement of such a happy medium is consistent with placing any independent value on an animal’s right against torture and death was nowhere in evidence. Perhaps such exchanges demonstrate that the step-by-step approach I provisionally endorsed in a recent column is bound to fail. And yet, Justice Rivlin’s words are moving, and I am glad that there is some empathy for animals (however unrealized) rather than none.

Posted by Sherry Colb

23 comments:

Kenji said...

"People do not need to eat and drink animals or their eggs or their milk to survive or to thrive."

I can accept this statement only if you are defining "need" very broadly. Proper veganism presupposes a degree of education/intelligence (and quite frequently, income/wealth) with which many people are not sufficiently equipped.

Kenji said...

Oops. I meant to say

... if you are defining "need" very narrowly.

Sherry F. Colb said...

I actually disagree with Kenji's suggestion that the vegan lifestyle requires higher education or wealth, that it is somehow elitist. Production of meat uses up far more fuel and water than production of an equivalent amount of plant-based food. This is because farmed animals must be fed and watered before they are slaughtered. As a result of this extreme inefficiency in the use of animals for food, a vegan diet is less expensive rather than more expensive than one that uses animals. Kenji also implicitly suggests that it is more challenging to maintain a "proper" vegan diet than a proper omnivorous diet. Everyone has to think about what they eat if their diet is to satisfy their nutritional needs, of course. But this is not especially true for vegans and indeed, the temptation to satisfy one's natural desire for protein with animal flesh leads to serious health consequences. If one looks, for example, at poor people in this country, they suffer from a host of medical conditions that can be traced back to the animal fats that one avoids entirely as a vegan. In short, I do not have to define "need" narrowly to say that human beings do not need animal flesh or animal products. If one defines need more broadly, though, one could say that human beings need to wean themselves off such products, for the sake of their own health and for the environment. (One aside -- I find it interesting that when I tell people I am a vegan, the first reaction is often "do you do that for health reasons?" and only when I say no, that I do it for ethical reasons, do they ask "but aren't you afraid you are not getting enough protein?")

Kenji said...

I think you're mixing different issues. What's wrong with the typical American diet is not that people eat meat. It's more proper to blame the medical problems of many Americans on how much meat they consume. (Obviously, there are plenty of places in the world---say, Asia---where meat-eating has not resulted in the same endemic health problems of this country.)

I am a highly educated person, and I do a tremendous amount of research on my own to ensure that my diet is good and is as ethical as I can make it, and my diet has as little environmental impact as possible. Even then, I cannot claim that my diet is perfect. It would be delusional to think that many people would undertake the same kind of effort to regulate their diet.

So, as a public policy matter, I believe that it is far more effective to teach people to reduce meat consumption, than to switch to veganism. How do you expect to educate the masses on how to maintain a proper vegan diet?

Kenji said...

Maybe, another way to argue my point is this: When there is a certain cultural, social, etc., baseline norm, it is always safer to make small changes off that baseline. If we can start our civilization over as a vegan society, then, yes, I would agree that proper veganism would not presuppose a degree of education/intelligence that I claimed in my initial comment. However, like it or not, the omnivorous diet is our baseline, and our cultural, institutional, etc., knowledge is built around that diet. It would be extremely risky to take that huge jump to veganism, without the social infrastructure that goes with it.

For instance, think about a vegan religious group in India--say, the Jains. Over the course of centuries, the community has developed various practices, support systems, to accommodate their diet. These practices can even be in the form of old wives' tales, myths, etc. You need such practices to ensure that an unconventional diet is viable in the long run.

Matt said...

Sherry,
Whatever else may be said for your view (I tend to disagree with it pretty strongly, since I don't think there's a plausible sense of "rights" in which animals _could_ have them) it's quite obviously _not_ the case that what was said by the justice is "self-evidently true". If it were, most people would be hideous monsters, on par with nazi death camp guards or worse. But beyond that, it would take a very, very, strange sense of "self evident" for something denied by the vast majority of people to be such. Your position would be more plausible if it didn't involve claims such as this, since they indicate a strong feeling but not an argument at all.

Sherry F. Colb said...

Matt,

What aspect of the quotation from Justice Rivlin do you dispute? More generally, what aspect of it do you think the "vast majority" of people would dispute?

Ori H. said...

To defend the Israeli Justice that answered Professor Dorf’s question I will add that her call for toleration was not her main answer. Her first and better argued answer was that the law in Israel, which disallows cruelty to animals, expressly allows for the killing of animals for meat consumption. Those were the parameters in which the court worked and “balanced” the competing interests. This is not a philosophical but a legal answer, one that should be expected from a judge.

Reducing meat consumption to desire alone does not give the full picture. Meat consumption is tied into many cultural and sociological aspects (for example: ideas manhood, Thanksgiving dinner, mom’s meatloaf, American food, the “culture” of hunting) that go beyond just “wanting”. This is not a justification of meat eating; only an argument that it is a more complicated phenomenon.

I wonder whether animals have a real interest in staying alive. I am not sure this is true, certainly not for all animals. It is usualy true for human animals as well as some others. But it is not clear to me what interest a shrimp or a fish or even a chicken has in staying alive. I understand that some such animals have an interest in not experiencing pain, but that is beside the point and does not establish an interest in staying alive. If animals have no such interest in staying alive, and assuming that interests are the grounds of rights (see Raz MOF), then I do not see that all animals have a (moral) right not to be killed. They do have a moral and often legal right not to be subject to pain.

Paul said...

Kenji,
The reason it takes "a degree of education" is entirely because of the culture and habits people are brought up on. There is nothing inherently special about a vegan diet that makes it difficult to be properly and completely nourished. What is true, for almost all people, is that from their very beginning they are fed meat as if there was nothing special or wrong about it. Then in school we are taught all about the FDA and its "food pyramid" where in meat and dairy play a prominent role - there is simply no education concerning these - well - lies. All you are really indicating is that a lot of people eat meat because they don't know any better and, in fact, have been trained to do exactly that.

It would be no different if the mainstay of our diet was human flesh milk and everything in our society said that was "ok". We would then have people farms providing this meat and milk to us and it would take a "degree of education" to know that the necessity to eat humans was also a lie.

Matt,
People are "hideous monsters" and are very much like "Nazi death camp guards." Again, this is all a matter of a collective social agreement of willful ignorance. That this is so is evidenced clearly by many things we can point to from everyday living:

1. The meat and dairy industries routinely hide their cruelty and in fact spend a great deal of money on advertising to suggest that the animals are completely happy and well cared for. They invest in "mascots" of happy, smiling, frolicking animals and paint pictures for marketing showing idyllic farm environments. These are lies.

2. People, generally, when confronted with the cruelty of these actions more often than not, do not defend the practices, but rather deny that they are widespread and/or take up a machoism about being a meat eater and/or discuss completely immaterial "facts of nature." They rarely (though I have seen it occasionally) confront the reality of what puts the tasty flesh before them and declare "yes, I am a willing participant in animal torture because I desire the taste of the food I am about to consume."

As for everyone being a "Nazi death camp guard" there are sufficient social experiments where it was basically proven that most people will kill another human - even torture them - when instructed to do so by someone they see as an authority figure. The potential "monstrosity of man" is hardly surprising and the suggestion that such a thing must be true for the fact that animals feel emotions to be self-evident in light of the way we treat animals is likewise hardly surprising.

Paul said...

Also, for what it is worth, I do disagree, strongly, with Sherry's suggestion that piecemeal legislation/court rulings are good. I think absolutely equating the actions of - for instance - Michael Vic with those that eat hamburgers and also treating them the same under the law is the appropriate course - even if for now, that means legalizing the torture of dogs by allowing people like Vic to pit them in death matches.

The piecemeal approach is mostly all about perpetuating the lie. It allows us to hide our eyes in willful ignorance of most forms of animal torture by ensuring that some very base forms (such as dog fighting) are punished (and thus removed from the eyes of the public).

The best solution would be to ensure that every detail of what goes into feeding ourselves meat products is well understood by all. Forbid the advertising of the lies (this really should be illegal already under commercial fraud regulations) and teach in our schools both non-meat "food pyramids" and show from an early age exactly what happens to produce a tasty burger. In the long run (but, IMO, shorter run than our current animal rights strategies), I feel such education will win the day.

No Exit said...

I posted on something similar awhile ago and quoted this from wikipedia concerning Supreme Court Justice Douglas.

Trees have standing

In the landmark environmental law case, Sierra Club v. Morton, 405 U.S. 727 (1972), Justice Douglas famously, and most colorfully argued that "inanimate objects" should have standing to sue in court:

"Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases . . . .

"So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes - fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it."

According to The Thru-Hiker's Companion, a guide published by the Appalachian Trail Club, Douglas hiked the entire 2,000-mile trail from Georgia to Maine.

Sherry F. Colb said...

Interesting comments, Paul. I think Kenji meant to suggest that in our current climate of disinformation (about the food pyramid, for example) and misinformation, it is difficult for an uneducated person to know to to feed himself a nutritious diet. My point in response was to note that people in the U.S. seem to have a difficult time nourishing themselves healthfully, notwithstanding (and sometimes owing in part to) their consumption of meat. I didn't mean to say, Kenji, that one cannot be healthy if one eats meat, only that the "standard" American diet is unhealthy, and a departure from that diet in the direction of veganism is therefore likely to improve the nutritional picture. It is also the case that, as you see when you place a group of different kinds of food in front of a young (and uneducated) child, people naturally gravitate to a good mix of carbs, protein, and fats. On the question of incremental versus the all-or-nothing approach, my sense is that just as the current level of cruelty finds a way to justify itself, it is likely that a "dog-fighting is legal too" approach would tend simply to expand further and further the scope of people's willingness to blind themselves to the suffering that produces their food, entertainment, etc.
Ori, you are right that Justice Strasberg-Cohen referred to the law as the first reason why her opinion did not bar the killing of animals, and I should have noted that (although she seemed to believe her other point was as important, and it was that point I thought was worth highlighting). As to whether chickens and fish have an interest in continuing to live, I have two thoughts. First, as a practical matter, if a person plans to eat an animal, then the method by which that animal is killed will necessarily cause pain. Painless methods (such as euthanasia injection) necessarily taint the resulting "meat". Second, social animals like chickens act in ways that suggest a consciousness of the future (e.g., in experiments, they will delay gratification when they learn that doing so will get them greater rewards in a longer period of time). Looking forward to the future, to my mind, suggests an interest in living to see that future.

Matt said...

Sherry,

I think it is not only not self-evident that "wild creatures" (which ones?) have emotions such as joy and sorrow but that it's also false for most animals- their brians are just not developed enough to have such emotions. It's debatable whether certain wild creatures (some fish, lobsters, etc) even feel pain in anything like the sense that most animals do since their central nervous system doesn't come all together in the way that it seems pain requires. Finally, since nothing has a soul it can't possibly be self-evident that creatures other then humans have one. There are plausible (though I think not true) arguments as to why we should not, in most cases, kill animals. Utilitarianism is such a view, though one that cannot properly ground an idea of "rights", but what we see in this excert is a mish-mash of ideas that are not likely to be coherent.

Sobek said...

Paul said, "People are 'hideous monsters' and are very much like 'Nazi death camp guards.' Again, this is all a matter of a collective social agreement of willful ignorance."

That may be true in Manhattan in 2007, but not in, for example, rural Iowa in 1950. Or, for that matter, most of human history, before the industrial revolution. I don't see how the farmer, who raises the pigs and personally slaughters them for his family's own dinner table, can possibly be considered wilfully ignorant of what the process is all about.

Hillary Burgess said...

Kenji,

Proper eating/nutrition requires a degree of education that most of the American public does not have. Contrary to what you say, however, the overconsumption of meat is much more dangerous than the underconsumption of meat.

In American society today, most of our health problems can be linked to the over consumption of meat. The nutritional "value" of meat is protein to a lesser extent, but iron and vitamin B-12 to a greater extent.

For anemic (iron deficient) patients, Doctors will prescribe more green leafy vegetables, raisins, or molasses, not more meat.

For people who are vitamin B-12 deficient, Doctors will prescribe vitamin supplement or to eat vitamin-fortified foods (mostly grains), but again, not more meat.

For people who are protein deficient, well, first, I'm not sure of a good test for this one, but I'm a 23 year vegetarian, not a doctor. However, more protein is easy to get through grains, beans, and even fake meat products.

The bottom line is that there are less significant and fewer health problems associated with NOT eating meat than there are with eating meat. Thus, in an un-educated society, we should steer toward NOT eating meat, rather than eating it.

Hillary Burgess

Hillary Burgess said...

Kenji,

As for needing to be wealthy to eat a proper vegan diet, again, I have to disagree with you. Fruits, vegetables, grains, and beans are all cheaper pound for pound (and even calorie for calorie) than meat.

Meat is more expensive than plant food, even in our country where our government is subsidizing the growth of meat to the detriment of the environment at much higher levels than it subsidizes plant food.

Meat requires a degree of wealth (and even our poor our wealthy compared to the rest of the poor people in the world). For the poor, meat consumes the income of the poor to the detriment of other needs, all while increasing the need for increased medical concerns.

Ironically, the easiest solution to our current health care problems could be the strong recommendation from the FDA for vegan/vegetarian lifestyles.

Hillary Burgess said...

ori h. wondered if animals had any real interest in staying alive.

Humans and some other high-level animals are the only creatures to ever surrender to death or even bring it upon themselves (by committing suicide). To the best of our current knowledge, all other animals will struggle to live. Ironically, if your definition of "having a soul" is "will to live," humans are the most soul-less creatures known to man.

Please note: I make no argument as to whether souls exist or not, as I believe that is a discussion best left to philosophers and religious leaders. My comment merely points out the natural conclusion of defining soul as will to live.

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