Tuesday, March 23, 2010

Animal Rights, Violent Interventions and Affirmative Obligations

Posted By Sherry F. Colb

Monday of last week, I had the honor of hosting Professor Gary L. Francione here at Cornell Law School, where he gave a lunch workshop to my colleagues and then lectured to the students in my Animal Rights seminar.  Both the workshop and the classroom lecture were fascinating and engaging, and they each exposed the audiences to important ideas and arguments that might have previously been unfamiliar. 

In this post, to shed light on some of the issues that arose in the faculty workshop,  I want to focus on some of the questions that my colleagues posed to Professor Francione.

Are We Really All Michael Vick?

About three years ago, when many people were expressing outrage about Michael Vick’s cruelty to dogs, Professor Francione published an editorial entitled “We’re All Michael Vick.”  In it, he argued that what offended so many people about Michael Vick’s behavior toward dogs is morally no different from what most of us do every day:  inflict terrible pain and death on animals for purposes of our own amusement.  Michael Vick enjoyed watching dogs fight, and others enjoy chewing on the flesh and reproductive products of nonhuman animals.

The only salient differences, Professor Francione argued, are the species of the tortured and killed animals (dogs versus pigs, cows, chickens, etc.) and the fact that Michael Vick committed his acts directly while the rest of us, in consuming animal products, pay others to do so.  As I recently suggested in a letter to the editor of the International Herald Tribune here, dogs are not morally distinguishable from the animals whose flesh and products we consume.  And as our law reflects, paying someone else to inflict harm does not reduce one’s responsibility for the harm inflicted. 

The article about Michael Vick gave many readers the opportunity to think about what Professor Francione calls the “moral schizophrenia” of our ethical norms with respect to nonhuman animals.  In some contexts, we are outraged by animal cruelty inflicted to serve transparently frivolous objectives; in other contexts, we find such cruelty unremarkable and engage in it ourselves.

One of my colleagues questioned the analogy between Michael Vick and the rest of us and suggested that such an analogy is like equating a deliberate murder, on the one hand, and a car accident in which the driver accidentally runs over and kills someone, on the other.  This colleague added that the grandmother who buys and prepares a turkey for Thanksgiving could not possibly be comparable to Michael Vick, could she?

Professor Francione responded to the question by emphasizing that in both sorts of cases, someone is inflicting pain and death for a trivial purpose, whether that purpose is entertainment by watching a dog fight or entertainment by chewing on flesh.  This emphasis is important.  Because time was short at the workshop, however, I want to elaborate a bit here.

The question posed by my colleague really divides, I think, into two different questions:  First, isn’t consuming meat analogous to an accidental homicide, while conducting dog fights is more like an intentional homicide?  Second, isn’t it counterintuitive to compare Michael Vick, whose dog-fighting operation repulsed so many of us and led to a criminal conviction, to the friendly grandmother who cooks a turkey for the holidays?

Murder and Manslaughter?

To the first question, I would point out that when we consume animal products, we inflict harm and death on chickens, pigs, cows, and other animals that is no more accidental than the harm and death that Michael Vick inflicted on dogs.  While vehicular manslaughter represents an accident (resulting from negligent driving that created an unreasonable risk of death to others on the road), the creation (and accordingly the consumption) of animal products inherently inflicts great suffering and death on sentient beings.  Everyone who consumes animal products, including the flesh of turkeys, thus intentionally and knowingly participates in making nonhuman animals suffer and die.  People who drive negligently, by contrast, do not intentionally or knowingly hurt anyone.

Some readers might respond, “But wait!  The grandmother does not enjoy the fact that a turkey was hurt and slaughtered, but Michael Vick does enjoy the fact that dogs were harmed.”  This distinction is flawed for two reasons. 

First, Michael Vick might well argue that he never enjoyed the dogs’ suffering and death; he enjoyed the competition and drama of the fights.  Though the suffering and death involved was inevitable and known, in other words, Vick could plausibly say that he found both regrettable, just as the grandmother might find the turkey’s pain and slaughter regrettable as well. 

In both cases, the objective of the activity is the pursuit of an unnecessary pleasure, and in both cases, the infliction of harm and death are inherent in the activity and understood by the participants.

Even if one insists, moreover, that Michael Vick was truly being sadistic toward the dogs killed in fighting, while the grandmother is not being sadistic toward the turkey killed for Thanksgiving, this distinction is far less important than that which differentiates murder from involuntary manslaughter.

In both dog-fighting and turkey consumption, there is intentional infliction of suffering and death on animals (either directly or by paying someone else to inflict the harm).  The difference between sadistic killing and killing for a pleasurable product is accordingly like the difference between someone who kills another human in a terrifying and painful way because he likes watching people suffer and die and someone else who kills another human in a terrifying and painful way because that is the only way to steal the victim’s property.  The harm inflicted is equal in both cases, and each is supported by indefensible reasons.

Second, there is a real distinction in play, but it is not a difference between the respective moral status of what Michael Vick and the grandmother each do.  It is instead the difference between the people, Michael Vick and the grandmother, a distinction that reflects how the sorts of people whose violence includes only what is socially permissible differ from the sorts of people whose violence breaches socially accepted boundaries. 

Committing violence against a turkey in order to consume the turkey’s flesh is, in today’s world, considered acceptable, whereas committing violence against dogs in the U.S. in order to enjoy the spectacle of a dog fight is, outside of some subcultures, not considered acceptable.  A person who commits unsanctioned violence is likely to be socially and characterologically deviant in ways that extend beyond the particular violence, whereas a person who commits only sanctioned violence is not.

Consider an analogy from the period of our country’s history during which human slavery was legally protected and accepted.  At that time, a person who was otherwise normal and even kind might have participated in the violence of chattel slavery.  To put the point more directly, a kindly grandmother – of the sort who would today slaughter and prepare the body of a turkey for family members on Thanksgiving – would also, if sufficiently wealthy, buy a slave and later sell that slave’s children to a different owner.  She would use violence (or the threat of violence) to prevent the escape of her human property, though she – like those who today buy “free range” turkeys – might perhaps use no more violence than “necessary” to accomplish her purposes.

There is nothing about the 1785 slave-holding grandmother, in other words, that would allow us to identify her as a sociopath or a generally evil person, in the way that there would likely be something identifiably wrong with anyone we found engaged in holding and selling humans as slaves today, when such behavior is universally condemned as a human rights violation.

Stated differently, part of why the grandmother who cooks a turkey for Thanksgiving is not like Michael Vick is that the surrounding society accepts and applauds the grandmother’s conduct while it frowns upon and condemns Michael Vick’s.  Nothing about these social practices, however, provide a morally tenable distinction between her behavior and his; it simply marks him and not her as someone prepared to violate society’s norms. 

As Professor Francione suggests, the line we draw between the two sorts of conduct, respectively, is an arbitrary one.  What the grandmother does is no better than what Michael Vick did, even though the grandmother is generally – perhaps – a kinder person than Michael Vick is, when society has not expressly approved and embraced a particular type of unkindness.  If we consider the level of violence inflicted on the animal involved, the intentional and knowing nature of that violence, and the alleged justification that is offered for it, the two acts cannot be meaningfully distinguished from each other.  People need neither animal products nor dog-fighting entertainment to live a healthy and happy life.  They consume one or the other or both because they feel like it.

Must We Then Kill A Person to Save A Tiger and Treat The Tiger for His Cancer?


A second and then a third colleague were interested in pursuing a different line of discussion with Professor Francione.  If animal and human lives are equally inherently valuable, they both asked, do we not then owe it to wild animals to protect them from human predators, with violence, if necessary?  And do we not also owe it to wild animals to provide them with health care and other benefits that we feel obligated to extend to our fellow humans?

Why Violence Is Objectionable, Even to a Non-Pacifist


To illustrate their question about violence, a series of hypothetical examples emerged in which a tiger was threatening a human (and the question was whether it would be justifiable to kill the tiger) or the human was threatening the sleeping tiger (and the question was whether it would be equally justifiable to kill the human).  Professor Francione responded to the violent hypothetical examples as the proponent of non-violence and pacifism that he is.  He said that killing – even to protect life – is generally not justified, but it may be excused.  As a person who is not a pacifist but who does believe in animal rights (including those of both human and nonhuman animals), I want to make a related but somewhat different argument here.

I believe that killing a tiger to prevent the tiger from killing a human is justifiable, in the same way that I believe that killing a deranged or spasmodic but innocent human assailant who poses a threat of killing another human is justified.  If someone threatens your life, you are justified in responding with deadly force.  Similarly, if someone threatens another human, you are also justified in so responding.  By contrast, I do not think it is generally justifiable to shoot at people who are in the process of killing animals.  Does this distinction demonstrate that I think humans have greater inherent value than nonhumans?  Does it commit me to the proposition that consuming animal products is acceptable?  It does not.

The reason that it is not justifiable in most circumstances to kill a person to prevent the death of a tiger is that society has not generally accepted the notion that killing a tiger is murder.  As a socially accepted activity (or at least an activity whose true violence is not yet salient for the overwhelming majority of people), hunting or otherwise inflicting death on defenseless animals is, in most instances, committed by the same sorts of people who are otherwise nonviolent people (when society has not invited them to engage in sanctioned violence). 

To kill such people is not justified and, moreover, would prove counterproductive for anyone who supports animal rights, because it would (unfairly) lead people to identify a peaceful movement whose goal is to protect animals from unjustifiable violence with unlawful violence.  In a context in which the killing of animals for trivial purposes is ubiquitous and celebrated, one can easily save many, many animals’ lives without committing any violence, by adopting homeless animals and providing sanctuary to farmed animals who are no longer a source of profit to their owners (like the cows left to die in piles, unable to get to food or water).

For similar reasons, John Brown and other violent abolitionists are not universally embraced as having acted justifiably.  Brown and others committed murder to free slaves in a context in which slavery was normatively embraced by much of society.  The people killed were, accordingly, likely to be people no different from other people in their inclination to kindness and respect toward others who occupied the widely-accepted circle of moral concern.  Killing such people – slave-holding families – is not justifiable and may have generated sympathy for slave-holders rather than impressing anyone with the justice of the abolitionist cause.

By contrast, if a person today kidnapped and held another human as a chattel slave, it would be an uncontroversial exercise of justifiable deadly force to kill the kidnapper if necessary to rescue the victim.  As mentioned above (in connection with Michael Vick and the grandmother), the sort of person who would keep a slave today is likely to be evil in the way that the sort of person who would have kept a slave in the South in the eighteenth or nineteenth century might not have been. 

This difference, however, between the slave-holder of 1785 and the slave-holder of today does not mean that chattel slavery in the eighteenth and nineteenth centuries was in any way justifiable.  Slavery then was not, in other words, morally superior to slavery now, even though slave-holders then would have been quite distinct in their character from slaveholders now.

To provide an example from a different context, many people in the anti-abortion movement opposed and condemned the murder of abortion provider Dr. George Tiller, perpetrated to stop him from performing abortions.  Pro-life opponents of the murder of Dr. Tiller condemned his actions, notwithstanding the fact that they believed that what Dr. Tiller did was morally no different from the killing of a born child. 

In a societal context in which an objectionable form of violence (whether toward sentient beings or toward embryos and pre-sentient fetuses) is not only permissible and lawful but broadly accepted as normal, the use of deadly force to intervene is morally distinct from the use of such force to stop criminally prohibited misconduct.  Within peaceful branches of historical justice movements (including the abolitionist movement that opposed human chattel slavery and the civil rights movement), this distinction was well understood and did not detract from the underlying equality claims at issue.

Why Health Care For Wild Animals Isn’t Required

In a related but conceptually distinct variant on the question about using violence to protect humans from nonhuman animals and vice versa, a colleague posed the query why, if nonhuman and human animal lives are equally valuable, do we have affirmative obligations to the latter but not to the former.  That is, if one is not a libertarian, then one holds the view that we are under an obligation to take affirmative care of other people – by providing health care or food, for example.  If one holds this view and also believes in animal rights, does that not commit one to the position that we have an obligation to provide health care and food to all of the nonhuman animals who live in the wild and might be suffering?

It is useful, first, to note that accepting the premise that we have affirmative moral obligations to act to alleviate other humans’ suffering does not entail an equation between the direct infliction of suffering, on the one hand, and a failure to alleviate suffering, on the other.  For example, I might take the view that we have a moral obligation to provide health care benefits in the United States.  Nonetheless, I (and most people, I suspect) would distinguish between failing to pass a universal health care bill, on the one hand, and voting to expose some group of people to tuberculosis to learn about the progress of the disease, on the other. 

Our obligations, then, begin with refraining from inflicting harm on others.  For this reason, if one of the doctors involved in a human tuberculosis exposure experiment simultaneously helped cure other humans of the disease, we would still classify such a doctor as doing something horrible, while the person who neither inflicted T.B. nor intervened in curing it would not earn a similar condemnation.

The priority of the rule against inflicting unnecessary harm and violence over the rule requiring affirmative assistance becomes important in assessing whether we owe health care coverage to tigers in the wild.  Because the obligation to offer affirmative assistance is not as great as the obligation to avoid inflicting direct harm, we can decide how and to whom we choose to extend affirmative assistance. 

Even if we were to pass universal healthcare in the U.S., for example, such a law would not provide care to people in other countries, just as volunteering in a soup kitchen in Ithaca does not help poor people in Tallahassee.  In neither example, however, have we assigned greater inherent value to Americans or Ithacans than we assign to people who live in other countries or cities. 

With respect to affirmative assistance, we understand that each of us belongs to many groupings – family, social network, employment, neighborhood, town, city, nation, etc. – and we understandably provide affirmative assistance to those we view as “closest” to us.  When people give to charity, in other words, they are not obligated to treat everyone in the world the same but may instead place a priority on those to whom one feels in closest relation (whether because of family relation, religious community, proximity or similarity of circumstances). 

Family represents an especially salient example of this phenomenon, because not only social norms but the law itself imposes affirmative obligations on us to take care of those belonging to our own families.  No one, of course, would suggest that such obligations reflect a judgment about family members having superior inherent value than strangers.

Just as people in the U.S. do not feel obligated to ensure that every human in the world has healthcare (but might nonetheless believe strongly that citizens of the U.S. should pay to provide healthcare to everyone living in this country), it is perfectly coherent to suggest that wild animals live outside of our community and are therefore not morally entitled to our medical interventions.  The fact that we may refrain from giving health care to wild animals does not, however, mean that we may go out and kill such animals because we enjoy doing so or because we like the taste of their flesh, anymore than our decision not to subsidize health care in other countries entails the notion that we may use people in those countries for medical experiments or as chattel slaves.

A parallel dilemma – concerning the difference between preferring humans and using animals as resources – arises in the “lifeboat” and triage hypothetical examples that often confront those of us who contend that using animals as sources of flesh and skin in the presence of alternatives is unjustifiable.  If you were in a lifeboat with a man and a dog, and you had to throw one of them overboard to avoid having the lifeboat sink, which one would you choose? 

Most people would choose to throw the dog overboard, and opponents of animal rights argue that this preference, if legitimate, somehow means that people may legitimately use and kill nonhuman animals as resources for humans.

The problem with this “lifeboat” argument is that, as with affirmative obligations, we all recognize that in triage situations, we prefer those whom we perceive as “closer” to us or as belonging to some community that we personally value more than other communities.  Most parents, for example, would choose to throw a stranger’s child overboard rather than to throw their own child overboard.  This does not amount to an assertion by the parent that the stranger’s child is not inherently valuable or that the stranger’s child may now be owned as a slave or killed in a non-triage situation.  It simply means that we permit ourselves to prefer those closest to us when we confront an emergency and must make a choice.  When we exit triage, however, we are not entitled to translate our preference into a hierarchy through which we may inflict pain, slavery, or death or those whom we do not prefer, in order to satisfy our appetites.

Very few people on this earth must consume the products of nonhuman animals to live a healthy life.  There is no need, in other words, to eat the flesh of cows, cow cheese, yogurt, butter or milk, the flesh of pigs, sheep, goats, the cheese of sheep or goats, chickens, chicken eggs, turkeys, ducks, geese, fishes, or any other nonhuman animal.  Indeed, plant-based diets are healthier and dramatically reduce the odds of heart disease, diabetes, and cancer.  They are also delicious and satisfying, which I can say as someone who has occupied both worlds. 

Furthermore and ironically, the commonly invoked hypothetical triage argument has it exactly backwards.  The production of animal flesh and products through animal breeding and farming uses up enormous amounts of water, grains and other sources of plant-based food that could be going to hungry humans around the world.  If we truly prefer the humans in the lifeboat, we ought to stop bringing farmed animals into existence (by demanding their breeding and subsequent destruction).  Eating animal products means directing much of the planet’s limited food and water to farmed animals and thereby leaving an insufficient amount of food for the rest of the planet’s human inhabitants.

Animal agriculture is destroying the planet, by being the main contributor to global warming and by generating pollutants (through, among other things, excrement runoff) that poisons our water.  None of the consumption behavior that pays for animal agriculture – and which inflicts horrible suffering and death on sentient nonhuman animals – serves the interests of humans around the globe.

In short, an ethic that says “cause no unnecessary suffering to animals but prefer humans in triage and affirmative obligation contexts” necessarily means that we stop breeding animals for consumption, that we stop consuming the flesh and products of those who now exist, and that we understand that what makes Michael Vick’s actions objectionable applies beyond dog-fighting to the consumption of the animal products in which most people -- including those who condemned Michael Vick's behavior -- engage.