Nonidentity Redux and a Comment on Animal Equality

 by Michael C. Dorf

Over four years ago, I wrote an essay here previewing remarks that Prof Colb and I were planning to deliver at an animal rights conference at Bucknell University. They concerned our views about how to address an objection to veganism (and vegetarianism and even pescatarianism) that has much in common with what philosophers call the nonidentity problem. The objection says that eating the products of animals benefits those animals because the animals bred and raised for food would not exist but for the demand for their products. As I wrote in 2018, the objection only gets off the ground with respect to farmed animals who have lives worth living, but given the conditions of modern animal agriculture, few animals do lead lives worth living. I then laid out the rest of the response Prof Colb and I were developing on the largely counterfactual assumption that animals bred and raised for food do have lives worth living.

The gears of academia move slowly, so our fully developed view only finally appeared in print this week. You can read "If We Didn't Eat Them, They Wouldn't Exist": The Nonidentity Problem's Implications for Animals (Including Humans) in Volume 2 of the American Journal of Law and Equality. While you're there, you might also want to check out the terrific contributions (including a symposium on equality and criminal law) by Professors David Sklansky, Chris Slobogin, Adriaan Lanni, Christopher Lewis & Adaner Usmani, Brandon Garrett, Josh Bowers, Mike Seidman, Eric Posner & Cass Sunstein, Avi Soifer, Reuven Avi-Yonah, Joe Singer, Martha Minow, Michael Meltsner, Frank Michelman, Joey Fishkin & Willy Forbath, I. Glenn Cohen, and Ben Sachs. Prof Colb and I are humbled and honored to be included among such distinguished company.

We are also extremely grateful to the Journal's editors (Professors Randy Kennedy, Martha Minow, and Cass Sunstein, who also write an Introduction to the Volume) for including our paper in light of the fact that it doesn't really have anything to do with law (except very indirectly) and also doesn't have that much to do with equality. After reproducing our article's abstract as a teaser, I'll say a few words about animal rights and equality.

Here's the abstract:

The nonidentity problem raises the question whether an act that is necessary for a person’s existence can also harm that person. For example, according to the nonidentity logic, descendants of victims of historical injustices such as slavery and the Holocaust cannot complain about those injustices because the terrible events made their very existence possible. If a person has a life worth living, then past wrongs but for which she would not exist seemingly cannot have harmed her. This article offers novel solutions to the counterintuitive nonidentity reasoning by placing it in a fresh setting: claims about animal agriculture. Per the nonidentity logic, a slaughterhouse benefits the animals doomed to end there because slaughter is those animals’ raison d’être. This article responds to the nonidentity problem chiefly by positing an asymmetry between failing to create living beings and harming them, thus building on a moralized version of the endowment effect. Consideration of the nonidentity problem in the animal context reveals a common thread running through moral reasoning about human obligations toward our own as well as other species.

I am quite confident that the foregoing is way too terse to give readers a sense of the arguments we offer, many of which rely on extended hypothetical examples. Rather than elaborate further here, I'll express the hope that readers of the blog will follow the link and read the article. If you do so, you will see that we make no proposals for law reform and touch on the law only briefly and mostly as a means of illustrating how particular moral intuitions are sufficiently widely shared that they find expression in positive law.

What about equality? Most social justice movements operate under the dual banners of liberty and equality. For example, 19th-century abolitionists objected to enslavement of humans (a denial of the most basic liberty) and to the fact that the enslavement was predicated on an odious distinction among humans (race). To be sure, by our lights, even many of the leading (white) abolitionists were also racists, and so many of them opposed slavery without endorsing full racial equality. But the core of anti-slavery--as reflected in the Reconstruction Amendments' legal protections for both liberty and equality--is both libertarian and egalitarian.

The same is true for nearly every social justice movement. For example, the women's liberation movement had the adoption of the Equal Rights Amendment as a principal goal. So too, the LGBTQ rights movement sought the freedom to marry under the banner of marriage equality--a point that Justice Kennedy's discussion in Obergefell v. Hodges of synergy between liberty and equality nicely captures. (The Obergefell dissenters sniped at "synergy" as obscure rhetoric, but they were wrong.)

What about animals? Some animal rights activists advocate for animal equality. There's even an organization called Animal Equality that opposes cruel practices in animal agriculture. But equality arguments have at best an uncertain place in the overall animal rights movement. I'll consider four objections. I believe only the final one to be very substantial.

(1) Nonhuman animals lack the capacity to exercise some rights we believe humans should enjoy equally. Political rights, such as voting, are the most obvious example.

I don't think this objection very powerful. After all, some humans--such as minors--also lack the capacity to exercise political rights. Yet that fact does not deprive them of other rights, such as not to be enslaved or murdered for food. And despite the fact that competent adult humans have rights that minors and some other humans lack due to the latter groups' limited capacities, we are still comfortable saying that all humans are equal. By that, we mean something like all are equally entitled to have their interests and preferences considered, in light of their capacities. 

(2) A very closely related objection says that rights entail responsibilities but that nonhuman animals lack sufficient capacity to fulfill the latter and therefore lack the former. This objection is so insubstantial as barely to be worth mentioning except for the fact that it is widely repeated. The standard rejoinder parallels the rejoinder regarding political rights: animals can have the rights of what philosophers call moral patients in the same way that very young children and people with certain severe disabilities can.

(3) Here's an objection that Prof Colb and I considered at length in our book Beating Hearts: If animals are equal, our social safety net will be grossly inadequate. We do a spotty job of, e.g., providing health care for humans. Must we now provide Medicaid to deer, squirrels, and pigeons? 

Our answer in Beating Hearts was that members of other species are similarly situated to humans in other countries, to whom we owe duties of non-harm but not affirmative aid. It does not deny equal protection for Medicaid to exclude poor people living outside the U.S, even though we believe those people are equal in a basic sense. Of course, it would be inconsistent with their equality to enslave or otherwise inflict harm on them. Likewise animal equality is at least theoretically consistent with the denial of affirmative aid.

(4) The biggest obstacle to animal equality is (at least in my case and I suspect in that of most readers) moral intuition. Even many people who regularly eat meat are repulsed by slaughterhouse videos. They have empathy for cows, pigs, and chickens. But that doesn't mean that they really think the interests of cows, pigs, and chickens count equally with those of humans. In desperate times and triage situations, even many supporters of animal rights think it morally acceptable or even obligatory to prefer the wellbeing of humans over nonhuman animals. Prominently, the late Tom Regan wrote in The Case for Animal Rights that nonhuman animals have a lesser capacity to benefit from life than humans do, so that pushing the dog rather than the human off the lifeboat is permissible simply because the dog is a dog. (See, e.g., this 1985 exchange with Peter Singer).

Further, many people--including me--at least tacitly recognize a kind of hierarchy, with humans at the top, genius-animals like whales, dolphins, elephants, great apes, and perhaps parrots and some other birds next, then just about all mammals, then fish, etc. The point isn't that one should be able to gratuitously harm animals on the lower rungs to advance the interests of those on higher rungs, but that in circumstances of real conflict it's permissible (and perhaps even required) to prefer the "higher" animals, including humans.

Perhaps this intuition reflects mere speciesism. And maybe various of its factual assumptions are wrong. Octopuses are incredibly sophisticated. Fish know more than we assume. Even flies are impressive beings once you get to know them. So it's hardly obvious where every animal belongs in the chain of being or whether it even makes sense to construct one. Sense or not, however, most of us--including most of us who believe in animal rights--act as though we accept that in cases in which tradeoffs are truly unavoidable, all animals are not equal, or that at least some animals are more equal than others.

I am nonetheless hesitant to say that I reject animal equality. Pre-reflective intuitions and the views assumed by our actual practices are a good starting point for moral reasoning, but they are hardly the end of the matter. For now I am simply uncertain how far I would be prepared to go upon fully examining my intuitions and practices.

What I will say is that at this stage of the animal rights movement--at which we have made substantial inroads but still have an enormous amount of work to do--embracing animal equality is unnecessary and possibly inimical to effective advocacy. The best arguments for animal rights are economical, aiming to demonstrate that commitment to the minimal proposition that it is wrong to subject animals to unnecessary suffering entails veganism. Philosopher Mylan Engel's The Commonsense Case for Ethical Vegetarianism is a particularly perspicacious example. His argument works for veganism, not just vegetarianism, and Professor Engel is in fact a vegan (as well as a friend.)