Wednesday, November 25, 2009

Exclusion, the Doctrine of Double Effect, and Animal Deaths

by Sherry F. Colb

On FindLaw today, I have a column that explores the heated disagreements that people have had over the Fourth Amendment exclusionary rule, a rule that suppresses evidence obtained illegally through unreasonable searches and seizures.  I propose in the column that the Doctrine of Double Effect ("DDE") helps account for the distinction that some draw between having a Fourth Amendment (which results in guilty criminals escaping justice because they are not discovered), on the one hand, and enforcing the Fourth Amendment by suppressing evidence (which results in guilty criminals escaping justice because there is insufficient evidence to convict), on the other.  The distinction is between directly doing something permissible that has undesirable and unintended (though foreseeable) side effects, and doing something that directly brings about the undesired effects.  Many view the latter as much worse than the former and accordingly either illegitimate or in need of a more robust justification.

I wish here to discuss the role of DDE in responding to a common argument that people opposed to veganism articulate.  Just to give some context, the Sunday New York Times published an op/ed by philosopher Gary Steiner about what has been missing from much recent discussions around vegetarianism, so-called "conscientious omnivorism," and "humane" farming legislation (such as Prop. 2 in California):  the very basic notion that animals' lives matter, that it is wrong to kill an animal in order to consume that animal, and that the wrongfulness of such killing does not rest exclusively on the excruciating pain, both physical and emotional, that we inflict on helpless, feeling beings when we purchase and support animal agriculture by consuming its products, including flesh, dairy, and eggs.

Unfortunately, Steiner does not explain why dairy and eggs are no better than flesh, whether one is concerned only about suffering or about death as well.  To fill that gap, here is a relatively brief answer:  (A) Cows give milk only because they are impregnated and give birth, and the baby calves to whom they give birth are taken from their mothers early and slaughtered as veal so that people can buy and consume the milk.  Consumption of milk is thus morally no different from consumption of veal; (b) Cows, like human mothers, suffer terrible distress when their babies are taken away from them.  Cows often cut themselves badly on the fences that surround them in their fruitless efforts to escape and reunite with their babies; they bellow and refuse to eat for days; (c) The hens who produce eggs come from "stock" that is not viewed as the most tasty for eating; as a result, the male chicks of such hens are considered garbage and are separated from the females at birth, at which point the males are promptly killed, typically by live and fully conscious dismemberment in a wood chipper or by being thrown into a garbage bag, which is then tied so that they slowly suffocate to death.

After Steiner's op/ed appeared, some common responses emerged.  Among them was one that comes up often enough to merit mention here:  the argument that living in the world and eating anything, including vegan foods, results (inadvertently) in animal deaths and that, therefore, if it is acceptable to live in the world and eat vegan foods, then it is also acceptable to consume (and thus to order the production of more) flesh and other farmed animal products.

On purely utilitarian grounds (under which one is minimizing suffering but perhaps indifferent to death), this argument is unconvincing.  The production of flesh for our consumption requires much more plant cultivation (thus resulting in much more inadvertent animal death in the fields) than the production of plants (including grains, fruits, and vegetables) for our consumption would.  It takes much more land to cultivate feed for farmed animals (whose numbers are far greater than our own) whom we eat than to cultivate our own food directly.  Therefore, if one is attempting to minimize the suffering of animals who live in the fields and grass, animal agriculture is precisely the opposite of what one would want to do.

Quite apart from the sheer numbers of animals who suffer and die (in which might also be included the farmed animals themselves, who number over 50 billion a year even when we include only land animals), there is an important difference between inadvertently and unintentionally killing animals while cultivating a field and deliberately killing animals to eat those animals and the products that we take from them.  The DDE helps explain this difference -- in the one case, we are growing plant food for us to eat, and any deaths that result are inadvertent and undesired; in the other, we are intentionally inflicting deaths on animals so we can consume them (along with their bodily fluids).  The death of farmed animals is, accordingly, not an incidental side effect of animal farming; it is an intended outcome.

Despite the DDE difference, of course, one might conclude that it is nonetheless wrong to cause any animal deaths, even as an undesired side effect of living in the world.  But if that is one's position (or, more likely, if that is the purported "reductio ad absurdum" argument that one has embraced to avoid moral responsibility for killing animals), then one might be committed to the proposition that killing people inadvertently by voting for a higher speed limit (65 mph as opposed to 55 mph, which results in a predictable rise in deaths on the highway) is morally no different from endorsing intentional homicide.

20 comments:

AF said...

Professor Kolb,

Can you point us to your favorite argument as to why the life of, say, a clam "matters" in a way that the life of, say, a redwood tree, does not?

This is not meant as a rhetorical question. Though I can't think of such an argument myself, I am sincerely interested to know your view on this.

Sherry F. Colb said...

Hello AF. The clam question is an interesting one. It is possible that clams are not sentient, and there are those in the vegan community who would eat a clam, and I would understand that decision as principled. But there is no serious doubt that animals who have a brain and a central nervous system are sentient, and most of the animals whose bodies and products we consume fall into this category (including mammals, birds, and fishes). I prefer to err on the side of not consuming animals that might be sentient, particularly given the bycatch problem (whereby shockingly large numbers of plainly sentient creatures, including sea mammals and fishes, are caught and killed in the process of clam fishing). In the frame of the DDE, the collateral harm involved in clam fishing is disproportionate to the benefit, even if clams are not sentient.

AF said...

But if the reason it is wrong to kill animals is because they are sentient, why is that the "wrongfulness of [killing animals for food] does not rest exclusively on the excruciating pain, both physical and emotional" that is caused?

I understand your view that killing, no matter how humane, necessarily causes suffering. That makes sense. But that's different from saying that the the wrongfulness in killing animals derives from something other than the degree of suffering that is caused.

If the wrongfulness of killing animals is based on suffering that, to me, implies that it is a matter of degree. It must be true that different types of animals suffer to different degrees and different modes of production cause different degrees of suffering. It doesn't seem right to approach the issue by deciding whether a particular animal is "sentient" or not and then holding that killing them in any manner is either morally abhorrent or perfectly justified, depending on whether they are or are not "sentient." Rather, the question would seem to be how much suffering is caused by what you are eating and whether it is justified.

Of course, there is a practical need for bright-line rules, because one usually lacks information about how any particular organism was killed, and because it is too difficult to make an all-things-considered moral determination before every meal. And even theoretically, the moral calculus is likely to be of fairly general applicability, because killing an animal creates some irreducible minimum of suffering and the factors in favor of eating something -- pleasure, nutrition etc. -- are fairly constant.

Nevertheless, the question of whether to eat animals and what animals to eat does strike me as less categorical than you suggest.

Sherry F. Colb said...

Hi again AF. I have a few thoughts. I am -- as you suggest -- very concerned about the suffering that we inflict on the animals whom we consume. It is all unnecessary suffering and accordingly unjustified. Killing another being, however, is never a harmless act. What qualifies the other being for moral consideration is his or her capacity to feel pain and pleasure, but once a being is entitled to moral consideration, such consideration goes beyond a right not to be subjected to pain in the process of being killed. Murder is an independent harm because people and animals have an interest in survival as long as they are alive. We sometimes override that interest (for example, in self-defense killing), but we do not deem another person's life a mere resource for us to use to benefit ourselves. Another person's life has value to him or to her, regardless of whether or not we find him or her valuable to us. The same is true for animals who have experiences of pain and pleasure (and, to be more complete, relationships with one another, which characterize all of the species farmed for consumption). They value not only their pursuit of pleasure and their avoidance of pain but also their continuing survival (for which they fight desperately). This does not eliminate difficult questions (and there are, of course, difficult questions even when killing humans is involved -- e.g., capital punishment, war), but using another morally valuable being as a thing whose entire value is exhausted by whatever use we can make of him or her, in the way we do to animals now and in the way we once did to human slaves, is categorically wrong. Have a happy and humane thanksgiving!

Sam Rickless said...

Dear Sherry,

Thank you for your very interesting post. I haven't read your Findlaw column yet, but I'm looking forward to doing so. Meanwhile, here are a few thoughts about your post.

The DDE does say (roughly) that intending harm is worse than merely foreseeing harm without intending it. But doing something while merely foreseeing that harm will come is not always permissible. Foot gives a good example in her "The problem of abortion and the doctrine of double effect". She imagines a case in which you can save five only by producing a gas; unfortunately production of the gas causes lethal fumes to be pumped into the room of one innocent healthy person whom for some reason we are unable to move. The death of the one is here merely foreseen but not intended, and yet production of the gas is *impermissible*. The reason is that production of the gas violates the other crucial deontological constraint (besides the DDE), namely the doctrine of doing and allowing (DDA), which says that doing harm is worse than merely allowing harm to occur.

Now the fact that causing harm without intending it is sometimes impermissible (because of the DDA) bears on your response to the reply to the argument for veganism. You say:

"There is an important difference between inadvertently and unintentionally killing animals while cultivating a field and deliberately killing animals to eat those animals and the products that we take from them. The DDE helps explain this difference."

I agree that the difference to which you point exists, and that it makes a moral difference too. However, the difference does not necessarily translate into a difference between permissibility and impermissibility. Indeed, as you argue, killing animals (which is a doing of harm) is impermissible, even if the death of the animals is merely foreseen. The problem for you, then, is that your own principles appear to commit you to the impermissibility of veganism (which, so the reply goes, commits you to the killing of animals without intending their deaths) as much as they commit you to the impermissibility of carnivorism.

You anticipate this objection, but I'm not finding myself in agreement with the way you deal with it. You say that such an objection might commit one "to the proposition that killing people inadvertently by voting for a higher speed limit...is morally no different from endorsing intentional homicide". The problem here is that voting for a higher speed limit does not kill people. First, voting does not cause anyone's death. Second, even if voting for a higher speed limit in some sense contributes to a higher mortality rate on the roads, this is only because it makes it possible for people to make choices that result in fatal accidents. Third, the accidents that occur do not involve the intentional causation of harm. By contrast, so the reply to the argument for veganism goes, killing animals while planting or harvesting soybeans amounts to doing harm, directly.

Now I don't think you've necessarily lost the battle here. One thing you can say is that the way in which planting and harvesting soybeans brings about the death of animals is by making it more difficult for them to find food or shelter. So cultivating soybeans does not actually amount to the *killing* of animals. But I don't know enough about the facts here. For example, this sort of response would not be available to you if it turned out that the use of combine harvesters actually kills animals (for example, by running them over).

One response to this would be to support small-scale farming which uses small machines that don't move very fast, so as to enable animals to escape being crushed by them. But I am now getting far afield... I hope you find these remarks useful.

Sam

Sam Rickless said...

I really enjoyed reading your Findlaw column. I hadn't really thought of casting the disagreement between liberals and conservatives on SCOTUS as a matter of applying the DDE to different aspects of 4A implementation. I take it that your idea is that liberals focus on the fact that establishing an ER leads to the foreseen but unintended release of guilty offenders, whereas conservatives focus on the fact that actually releasing an offender whom one knows to be guilty on the basis of tainted evidence is an action that leads to intended and not merely foreseen harm. [Perhaps this is not your view. There are suggestions in your column that the injustice that conservatives think the ER perpetrates is not the performance of an action with the intention of bringing about harm, whether as a means or as an end. But they are undeveloped.] If this is your view (and, as I say, perhaps it isn't), then I'm not sure I buy the thesis. Excluding evidence obtained in contravention of 4A does not amount to doing something with the intention of bringing about harm, whether as a means or as an end. In excluding the evidence, one is following a rule in order to protect the values that 4A protects (liberty, privacy, property), quite clearly foreseeing the harm that exclusion may cause. But the harm itself is not intended; it is merely foreseen.

To me, it makes more sense to suppose that the split on SCOTUS is better explained by the divide between rule-consequentialists and act-consequentialists. Rule-consequentialists and act-consequentialists both agree that the consequences of having and implementing ER are better overall than the consequences of not doing so. But rule-consequentialists insist that the rule be followed even when following it in a particular instance is highly likely to lead to a serious injustice, while act-consequentialists insist that exceptions be made to the rule in this sort of case.

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