Wednesday, April 27, 2016

Animals, Altruism, and the Act/Omission Distinction

by Michael Dorf

A little less than two weeks ago, Cornell Law School hosted a "book celebration" for Professor Colb and me, in recognition of the publication of our book Beating Hearts: Abortion and Animal Rights. I have used scare quotes to reflect the fact that, as one of the speakers explained, in the academy scholars celebrate a book by engaging--and in some ways disagreeing--with the claims made in the book. That was certainly the case here. Each of the panelists, including moderator Brad Wendel, mixed (overly generous) praise for our book with substantive challenges. We are very grateful for that engagement by Prof. Wendel and by the two main commentators: philosopher Mylan Engel and law professor Deborah Tuerkheimer. Readers interested in the panel can watch it below or by clicking this link.

The format of the event had Professors Wendel, Engel, and Tuerkheimer speaking first, followed by responses from Prof. Colb and me. (There was also audience Q&A but it did not make it into the YouTube video.) Because we did not know in advance what the speakers would say, our responses were in the nature of counterpunching, and because the presentations by the speakers were so rich, our responses were necessarily incomplete. Accordingly, here I want to expand a little bit on one line of inquiry opened up by Prof. Engel. It chiefly concerns the act/omission distinction.

Prof. Engel read our defense of an abortion right, even with respect to sentient fetuses, as resting on the proposition that a woman who has an abortion is best characterized as engaged in an omission--a failure to gestate--rather than an act--affirmatively killing. I don't think that's quite what we say because, among other things, we say that abortions of sentient fetuses are presumptively immoral, absent a good reason for the abortion, whereas we wouldn't say that a failure to rescue is presumptively immoral. We also think that abortion differs from almost all circumstances in which one can either cause harm, prevent aid, or do nothing as a bystander, because a woman must either provide affirmative aid or harm her fetus/baby. There is no option of being a bystander. (Yes, I know that's too terse to explain the argument fully. You can read the book for more details!).

Nevertheless, Prof. Engel is correct in observing that in various places in the book we do rely on the act/omission distinction. For example, in explaining why we think there is an obligation to refrain from deliberately harming animals (absent a very good reason for doing so), we say that this obligation of non-harm does not entail affirmative duties to animals that are comparable to our affirmative duties to humans. E.g., the collective decision to subsidize health insurance for poor humans in our country does not entail an obligation to provide health care to wild animals in our country, just as it does not entail an obligation to provide health care to people in other countries. We distinguish between the things we do to others and the things we do for others. In drawing that distinction, we draw on our legal tradition and conventional morality.

Prof. Engel pushed back on this conventional view using an example proposed by Peter Singer that is a variant of a longstanding critique of the act/omission distinction. Suppose you see a person drowning. You could easily rescue her at no risk to yourself but it would mildly inconvenience you. Wouldn't we say that you should rescue her? The common intuition is that yes, you should, and that someone who fails to do so because he prioritizes avoiding a ten-minute delay in getting to work or avoiding having to change his clothes is not merely failing to engage in a laudable supererogatory act, but is an immoral monster. Thus, the argument goes, there is something more generally wrong with the act/omission distinction.

In my remarks in response during the book celebration I responded that if the act/omission distinction is generally wrong, then just about everybody who lives in a developed country is a moral monster. As between spending a couple hundred dollars on a smartphone and sending that money to a developing country to buy mosquito nets, clearly the latter would do more good. And without the act/omission distinction, there is no difference between failing to prevent human deaths from malaria and murdering people. Perhaps the act/omission distinction is just a rationalization, but if so, it is a rationalization without which we cannot even begin to pretend that we ever do the right thing.

Having said that, I should add that I am not fully comfortable with the proposition that the person who fails to rescue the drowning woman has only failed to engage in a supererogatory act. Partly that is because of the immediacy of the situation. The woman can be saved now by you, and if you fail to act, no one else will happen by in time to effect the rescue. But this immediacy is probably illusory. In theory other people could provide those mosquito nets, but  right now each marginal dollar that you spend on something for yourself other than subsistence could do a lot more good rescuing people in the developing world.

One possible way out is to point to the evidence that much aid from nations, individuals, and NGOs in the developed world to the developing world is wasted or worse, counterproductive. But this argument points to reforms in the way aid is given by countries or to studies in effective altruism, not to selfishness. Only an a priori radical libertarian would think that there is never any way to do anything helpful for others. If simply throwing money at problems is unhelpful, it does not follow that spending on one's own consumption of luxury goods will magically maximize the wellbeing of others.

Moreover, I share Professor Engel's sense that some acts for others are more than mere charity. I do not want to say that societies that provide public education and health care for people who cannot otherwise afford education and health care in the private market are acting above and beyond the call of duty. I share the sense that we have affirmative duties to others.

We might be able to justify the idea that we owe affirmative duties (like education and health care) to our fellow citizens as agent-relative duties. In the same way that I owe special duties to my children that I don't owe to my neighbor's children, so living in a community--whether a village, a state, or a nation--may impose affirmative duties to the other inhabitants of that community. To be sure, this calls for some difficult line drawing. For example, are undocumented immigrants within the relevant community? And why isn't the relevant community the community of all humans on Earth?

I don't have a comprehensive answer to this set of puzzles, but, to return to one of the ways in which the issue arises in our book, I don't think it's controversial to say that we can owe special duties of aid to humans that we don't owe to animals. Put differently, taking the interests of animals seriously with respect to our negative duties does not swamp us with affirmative duties to animals that crowd out the possibility of greater aid to humans.


Joe said...

I understand the line but at times at least it is a matter of degree. It is also a matter of we being humans, not angels. In the future, in some world-wide unity Star Trek universe, do think we might look like moral monsters to some for letting so many suffer world-wide while we have so much plenty here. In fact, letting so many HERE suffer. Something basic as old age insurance, e.g., wasn't a thing THAT long ago.

egarber said...

Watching the video.

BTW, his introduction - that you dig into both sides in search of truth, vs being overly polemical - also describes your blog posts and style, imo. On many occasions, I have sent something from DoL to a friend, saying, "the prof has an opinion here, but please read this to get a good and fair overview of the subject."

Please don't stop doing that. :)

egarber said...

Two things:

1. First off, nobody better ever tell me constitutional lawyers don't take risks. Correcting your wife first thing out of the gate? Yikes :)

2. Prof Colb talked about fetal alcohol syndrome, concluding that no harm is inflicted in say, the first trimester, because essentially nothing yet exists (I think I have that right). Seems sound.

But what if a 3rd party were to take some action that harmed a pre-sentient fetus? For example, suppose some fume in the air is innocuous to people generally, while being very harmful to fetal development. Does that change the direct harm equation? I mean, if nobody exists when the woman drinks early in a pregnancy, that's still the baseline when something is instigated by a third-party, right?

I realize the woman's rights are implicated in some way here, I guess. But does the fetal state itself take on any kind of different categorization in this scenario?

Michael C. Dorf said...

1) I agree with Joe

2) Eric: Thanks! We try to practice the principle of interpretive charity -- addressing the best arguments for the positions we don't hold, rather than simply taking pot-shots.

3) Eric, as to your question in the second comment: My view about the case you posit is very similar to my view about a case in which, say, someone releases poison into a well. It's a bad act that is clearly punishable. Whether it will have harmful consequences depends on facts that haven't happened yet at the time the bad act occurs and may never happen.

Hank Morgan said...

Interesting topics. I agree that the act/omission distinction may mean that we have no affirmative obligation to help wild animals, but why wouldn't we want to move policy at the margins toward being more protective of wild animals, especially in cases where doing so might even be cost-positive (such as ceasing efforts to protect the habitat of certain predators that likely impose a negative animal-welfare cost in the wild). Are you familiar with the argument that we should engage in more nature policing? See here:

Michael C. Dorf said...

Hank: Good point. I should be clear first, that nothing I or we say is meant to say that we SHOULDN'T do things for wild animals, and second, that many of the steps we might take that could be characterized as doing things FOR wild animals are essentially mitigating other things we are doing TO them (especially habitat destruction). I am familiar with the sort of argument made by Cowen makes. I think the act/omission distinction makes it separate from our argument. So does the fact that obligate carnivores don't have moral duties. And I think that there is a worry that our interference will often have unintended consequences. But I'm not at pains to show that Cowen's argument is wrong. To me it's mostly a matter of priorities.