Why my libertarian theories of rights are going to the dogs
We should be outraged that no one is outraged over this bloodshed. What does it take?

Apparently, if the Michael Vick case is any indication, you have to be a dog to get anyone to care. If you want jail time, kill a dog.

But black folks? Nobody seems to care that they are being killed every day. (Emphasis added.)

So argues Annette John-Hall in a front page editorial in today's Inquirer. FWIW, I care, and I resent this persistent meme among Inquirer columnists that people who live outside of Philadelphia don't care. I've been arguing in favor of jail time for murderers in more blog posts than I can possibly count. The problem is that when shooters are caught, they often go free. There is a stubborn belief among city officials and others that it is tragic for them to go to jail -- a view reflected by Ms. John-Hall herself when she expressed umbrage over felony murder charges brought against family members involved in a criminal shootout. (I'm not sure the race of the victim matters much; a particularly egregious black-on-white murder case wasn't considered Inquirer-newsworthy, although the City Paper's Brian Hickey argued that had the races been reversed it would have been national news.)

So now the argument is that dogs matter more than people. That's worth addressing. There's no denying that dogs -- especially pit bulls -- receive a disproportionate share of media attention. (Of course, if vicious people received a small fraction of the attention vicious dogs receive, there'd be nothing else in the newspapers, and people would either become so desensitized they'd cease to care, or else stop reading the accounts altogether.)

Anyway, back to the view that "if the Michael Vick case is any indication, you have to be a dog to get anyone to care. If you want jail time, kill a dog."

For starters, he didn't just kill a dog. Nor did he just engage in dogfighting. What has so many people (including me) upset is that according to the witnesses, he tortured losing dogs to death. The heinous details have generated many emotional remarks like these from The Football Expert.com:

We hope the judge gives him the entire sentence and fine allowed under the sentencing guidelines. If financing the dog-fighting ring weren't bad enough, he killed these dogs in the least humane way possible. There should be no room for such cruel actions in our "civilized" society nor should we be lenient with unscrupulous individuals performing cruel and cold-blooded acts. This was not a mistake. Premeditated murder is the correct term. Trying to hang a dog and if it fails, chasing it down and eventually drowning man's best friend in cold blood, unmercifully ignoring its heartbreaking look on its innocent face, in a 5-gallon bucket of water to death, certainly seems like something out of a horror movie, not real life. Why should the judge show any leniency to a man that could not do the same for his victims?
OK, premeditated murder this is not. It's horrific, but murder is the killing of a human being. However, what happened was appalling. I didn't like reading about the gratuitously sadistic electrocution of a losing female dog, either. (It made me sick.)

The most infuriating and illogical aspect of this case is the way it has caused a backlash against pit bulls! Through this appalling lapse in logic (whether I like it or not) Michael Vick's dog torture is somehow "helping to perpetuate the stereotype that brands all pit bulls as dangerous."

It's a classic case of blame the victim.

And the fact that he'll receive a year in jail is being spun as "you have to be a dog to get anyone to care."

Sorry, but I think that had Michael Vick hanged human combatants because they lost, then drowned the ones who were still gasping for breath, had he electrocuted a woman who could no longer fight another woman, it wouldn't be hard to get people to care. Yes, and I think that even our decadent and insensitive society would not blame the "culture of mortal kombat" or the combatants themselves. [See my post on "dog violence."]

What I do not mean to suggest by any of this that cruelty to animals should be treated the same way as cruelty to humans. This is reflected by the fact that Vick will only receive a sentence of a year to eighteen months. I think what he did was depraved and cruel, and went well beyond dogfighting.

While few people would ever defend dogfighting, Mike Mosedale in the Minneapolis City Pages poses a few philosophical questions:

Dogfighting has no defenders outside its own insular confines. The inherent cruelty of pitting animal against animal is hard to ignore. As sociologist Evans points out, dogmen rationalize their participation by claiming that the animals are expressing their nature in combat, that they enjoy the fight. Of course, all those instincts are the product of selective breeding and training.

Still, the vehemence of society's collective condemnation of dogfighting does raise larger questions about the exploitation of animals by humans. There is a huge spectrum of animal suffering in modern society. Dogfighting, despite its popularity within various subcultures, represents a tiny sliver of that suffering. Which raises the question: Why the vehement outrage and nearly universal condemnation of the practice? Does it serve as some sort of moral inoculation against our collective culpability for the brutalization of other animals? Consider the confinement facilities where pigs--smarter animals than dogs and, by that crude measure, more deserving of our sympathy--are raised for slaughter without ever seeing the light of day, without contact, without affection of any sort. Is the behavior of the corporate pig farmer inherently morally superior to that of a professional dogman with a well-tended yard?

And what of cockfighting?
And what of chickens? Under Minnesota law, cockfighting is, legally, the equivalent of dogfighting. It is true that the life of a Thai fighting cock usually ends brutally and painfully. But, as Burkhard Bilger points out in his excellent essay, "Enter the Chicken," the fighting cock's life is hardly as awful as that of the commercially produced broiler chicken: "The average broiler chicken lives for six weeks, wing to wing with tens of thousands of others. These gamecocks, by contrast, typically lived for two to three years. And they lived like pashas...if the birds went a little stir crazy, the trainers might even bring around some nice, plump pullets [young hens] to calm them down."

Back in his office, Streff keeps photographic souvenirs of nature outings. He grew up on a dairy farm in central Minnesota. While vehemently opposed to dogfighting, Streff--like most Minnesotans--regards hunting as an acceptable form of recreation. To Will Grigsby, who fought and raised pits for nearly half his life, hunting seems like the real atrocity. "To me, going out and shooting an innocent animal in the woods, well, that's just not right," Grigsby says. Of course, that's just one dogman's perspective.

These are some of the many contradictions, and again none of this is said in defense of Michael Vick, or dogfighting. But if two dogs that are straining to go at it, wagging their tails in anticipation of fighting, are allowed to fight, the men who release them to fight are considered so morally reprehensible as to be beyond the pale. Yet if these same two men take these same dogs and release them to pursue and tear apart a wild animal that is fleeing for its life, in many jurisdictions that's considered hunting, and society's only concern would be whether they had paid the appropriate fee for a license and whether the fleeing animals were "in season."

Once again, society's rules are an emotional -- not logical -- process.

One of the reasons I call myself a small "l" libertarian is that I have problems with absolutism and dogma, and Glenn Reynolds recently touched on this when he asked whether there is a libertarian theory of animal rights. Glenn links Megan McArdle, with whose view I agree wholeheartedly:

....it seems plausible to me that animals could have limited rights--a right not to suffer for our pleasure, say--even though none of them will ever master the lute.

Should animals have that right? Obviously, both Julian (who is a vegetarian) and I, who will only eat animals that are not industrially farmed, have both decided that the suffering of animals matters, morally. But should it matter, legally? Creating new rights is a big deal.

Okay, I'll bite the bullet. As a first principle, you shouldn't be able to burn a sheep alive because it's fun.

Agreed. But Julian Sanchez sees it differently:
I will note of existing animal cruelty laws that most contain specific exemptions for agriculture and various other industries, in ways that seem hard to justify. At any rate, I'm having trouble coming up with some coherent view on which "Tender meat is tasty" counts as a justification for the appalling way we treat veal calves but "I like watching violent bloodsports" is no excuse for how Michael Vick treated dogs. If abuse with no better rationale than mild enjoyment is "gratuitous," then factory farming is gratuitously cruel. (Lest it sound like I'm on a high horse here, I should note that, by my own lights, I really ought to either be a vegan or at least consume only dairy of known, humane provenance.) Our inconsistency here suggests that animal cruelty laws are less a function of high principle than of the fact that we like both burgers and cute doggies.
I understand the point about inconsistency, but I have a few problems with the analysis, because I think a certain amount of this inconsistency is reasonable, and based on the common sense recognition that the dog is in fact man's best friend. We value dogs in ways that we do not value mice, raccoons, or squirrels.

Dogs are property, but they are an emotional sort of property to which we become uniquely attached, because no two are the same and we bond with them. As I said in my discussion of Coco:

A dog is personal. And it's property. But it's different than ordinary property, because there is a personal bond, an emotional investment between a dog and his owner that cannot be measured in economic value. Because of this emotional component, a dog may be the most valuable property that a person can have. I can't speak for other dog owners, but if my house was on fire, my very first thought would be to save Coco! I think many dog owners would feel the same way. That is the real test of value.

So, people who care about property rights ought to care very about this special form of property which, to the people who have it, is the most valuable property of all.

The idea of the government entering into my relationship with my dog is thus more than an ordinary violation of property rights. It's highly personal.

But that does not give me a right to mistreat my dog. Dogs being a higher level of property, living property which carries with it the recognition that they are man's best friend and have cast their lot with us, there is a corresponding duty to take care of them even though there is no such duty in the case of a valuable car or article of clothing.

Beyond that, there is the issue of consciousness, which is manifested in the form of a brain.

In an earlier post I began with Bill Quick -- a libertarian who said, "I could advance some libertarian ideas against animal cruelty." My reply was that I could too, although I'm not particularly concerned about whether my view is libertarian or not:

This is the third time I've read about a pit bull (or a close relative thereof) being violated like this, and if "libertarianism" really means letting that son of a bitch do that to the poor dog, then I guess it means I'm not a "real" libertarian. (So what? Will the world weep over my "treason"?) Libertarianism can be criticized for a lot of things, but I just don't see "libertarianism" in allowing this to be done to some poor dog.

It's a little easier to analyze this case because the animal let the humans know it was in pain. In general, though, there's no way to know, as animals cannot complain. Nor can they consent. There is no such thing as a consenting animal, and unless the animal cries, there is no such thing as a complaining animal. While I disagree -- vehemently -- with the animal rights philosophy that animals are like people, I nonetheless consider them more than ordinary inanimate chattel. Thus, while I would support the right of a person to neglect his car until it conked out (say, to buy an old clunker and run it into the ground), treating a horse that way would be unconscionable, and I support making it illegal. Indeed, the first laws against animal cruelty were passed to prevent the routine working to death of harnessed horses in factories once they had outlived their usefulness. Laws prohibiting cruelty to animals may quite properly define cruelty as including having sex with them for the animals cannot consent to sex. This is no more inconsistent with libertarianism than supporting laws prohibiting sex with minors.

Likewise, just as one cannot enforce a contract entered into by a child, there'd be no way to enter into a contract with an animal. Consent would be meaningless; suppose a valuable racehorse was "told" that it might sign a contract by imprinting a piece of paper with its hoof. If it did so, no court would consider that a valid contract because a horse cannot enter into a contract.

What I cannot understand is why common sense doesn't enter into this. Just as an embryo is not a human, a jellyfish is not a dog. My libertarianism is grounded in the recognition that human beings are entitled to individual freedom and dignity, and the right to be left alone. Crime punishable by the state consists of an invasion of this freedom, whether by force or fraud. Even dogmatic Libertarians would recognize that anyone who messes with my dog messes with me, and that the state has the right to punish someone who enters my yard and kills Coco, because they have destroyed my personal property. But if someone inflicts pain on her, I suffer more than I would in the case of ordinary property vandalism, because of the nature of the special relationship with my very personal property. I would hope that many Libertarians would recognize that this additional element of gratuitous cruelty should punishable in a way that simply killing the dog would not be.

Where I think I part company with libertarians is over the question of whether cruelty to Coco would an independent crime against society above and apart from my property considerations, or even special "emotional property" considerations. I think a good argument can be made that because animals can think (albeit at a lower level), that they are entitled to some consideration. Not full animal rights, but a simple recognition that sentient beings have the right not to have gratuitous cruelty inflicted on them. That you can't just take a dog and nail it to a board or roast it alive simply because no one owns it, or you own it yourself. To not punish this because of some view of individual rights, in my view, carries individual rights theory too far. It has to be recognized that people who torture animals are at least as much of a threat to be protected against as people who steal or commit fraud on Ebay. No, it is not as serious to burn a dog alive as to burn a child alive. But common sense and human conscience suggest to me that someone who tortures a dog has harmed society and is a direct threat to humanity.

If there is such a thing as enlightened self-interest, it requires that such people be punished for what they have done -- even if only to an animal.

MORE: Julian Sanchez addresses some of the concerns raised by Megan McArdle and adds,

A libertarian case for animal cruelty laws will only work if it centers on the problem of the harm to the animals themselves.
Again, the reason I'm a small "l" libertarian is that while I like to keep government to a minimum, I don't consider myself bound by philosophical doctrines written by other people.

Hence, I don't worry much over whether my support for the war in Iraq constitutes libertarian heresy. This always makes it interesting to play the "what am I" game, as long as there's no rule that I have to care. (But if I'm not a Libertarian, not a Liberal, not a Conservative, not a Centrist, then what is to become of me?)

MORE: Overlawyered's Ted Frank asks some thoughtful questions:

If one accepts limits on the libertarian principle for animal cruelty, does that not imply that a democratic society can rationally choose to bar production of foie gras? I'm happy to have dogfighting outlawed. I'd prefer not to outlaw foie gras. Do I have any argument for the distinction besides my personal preference? Is it just the intelligence difference between dogs and geese? If so, why do we allow bacon?
I know it will sound irrational, but pigs are not man's best friend. Nor are geese.

It's a cruel fact of nature, but some animals are more equal.

posted by Eric on 08.24.07 at 10:55 AM










Comments

"Just as an embryo is not a human, a jellyfish is not a dog."

Hmmm. Only trouble with this...odd...analogy is, a jellyfish will never become a dog, and a (human) embryo will.

Actually, that's not even the worst part about this analogy, I'm sorry to have to say. The really offensive part of it is the notion that we should be more exercised about the pain, suffering, and--yes--death we inflict on dumb animals than that which we inflict on a million or more unborn children every year.

David Hecht   ·  August 24, 2007 11:44 AM

had he electrocuted a woman

Well, that's different from "human combatants." You knew you had to say "woman" (and, later, "child") to make this work, because women and dogs (and hypothetical children) are of equally high moral-sympathetic / "emotional property" status.

Legally, if Vick had been electrocuting guys in his posse for losing to him at Madden, he'd be in more trouble than he is, but people wouldn't be so worked up out about it.

That worked-up-ness, often called "common sense," is a terrible basis for theories of rights (a continuum of bad ideas ranging from snob zoning to sodomy laws to segregation to Auschwitz arise from such feelings), and there's no legitimately libertarian law to be derived from them.

Human perversity is boundless. From now until doomsday, some people are going to torture their dogs. Shun those people. They're assholes. It requires no theory, no law, no "rights."

Or stop claiming to be libertarian. No one is. There's at least one thing that each of us wants illegal for no philosophical reason, and the satisfaction of those perversities makes government boundless. Prioritizing one's own perversities via convolutions of pseudo-philosophy and calling it "libertarian" is just ugly.

It's refreshing that you can't bring yourself to do it.

Anarchist Because Of This   ·  August 24, 2007 12:20 PM

Good point. Abortion is more cruel than dogfighting and ironically we allow the former. I addressed in a previous post:

http://www.classicalvalues.com/archives/2007/08/victimized_by_d.html

However, I do not believe that a fertilized egg rises to the level of a fetus, and I do not think the use of RU-486 constitutes cruelty.

Eric Scheie   ·  August 24, 2007 12:23 PM
unmercifully ignoring its heartbreaking look on its innocent face
going out and shooting an innocent animal in the woods, well, that's just not right

All animals, creatures of instinct lacking free will, are innocent. Something this discussion (generally speaking - not just specific to this thread) needs is more reason and less appeals to emotion.

I do not believe animals have rights any more than other forms of property. However I am not opposed to laws or codes of conduct regulating how humans treat animals. The regulations exist not for the benefit of the animals, but for the benefit of society.

Often it is not the 'what' but the 'why' that matters. If farmer brown can kill Old Bessie cause she's gone dry and has lost economic utility why shouldn't he be able to restore her economic viability by pimping her out to zoophiles?

Well, because there is a significant difference between consuming dairy products and screwing a cow.

So yes, I'd prefer that Farmer Brown kill Bessie, and try to do so as humanely as possible. In this instance it is intent that matters most. Sometimes things don't go as planned and the animal may suffer, that is unfortunate, but like most accidents without intent or overt reckless behavior it should not be considered a crime. Make it a pattern and we might have a problem.

ThomasD   ·  August 24, 2007 1:31 PM

Anarchist, I said "woman" because that was the human equivalent of the female dog he electrocuted, not to score any emotional points.

Again, these things are matters of degrees. Torturing animals is not as bad as torturing people. But many libertarians think that torturing animals should not be illegal because they aren't people. They forget that there is harm done.

Eric Scheie   ·  August 24, 2007 4:19 PM

I have no problem eating pigs (don't tell my Rabbi - LOL). I have done my time on the killing floor. I had a summer job at a meat packing company. On my breaks I would often go to the front to the line (it was so long that by the time the killing floor guys break was well over mine was starting).

It is my opinion that no one above a certain age (16 would be good) should eat meat without first visiting a packing plant.

If you can't hack the killing you shouldn't be eating the meat.

M. Simon   ·  August 24, 2007 9:14 PM


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