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Tuesday, June 05, 2007
Cock and Bull
Last Friday’s New York Times had a ridiculous little piece about the demise of cockfighting in Louisiana. It’s a reasonable enough subject for news analysis: Until new prohibitory legislation goes into effect, Louisiana, to its shame, remains the last state in the nation to permit this barbaric practice. But what makes the Times article so offensive is that it’s a travel piece, complete with tips about which motels to stay in and where to eat on your way to the fight. The gist of the article is to offer the reader advice about how to attend one of these ghastly events before the ban becomes effective. Talk about slumming it.
Cockfighting, in any event, is something I’ve been thinking about lately. In the criminal law theory seminar I taught this past semester, we talked a lot about Joel Feinberg’s influential analysis of the moral limits of criminal law. Building on Mill’s Harm Principle, Feinberg identifies four possible bases for making conduct subject to criminal penalties: (1) An act can be harmful to others in the sense that it causes a significant injury or setback to a person’s interests (this is the most common basis for criminalization – it’s the reason it’s a crime to commit murder, rape, arson, theft, and the like). (2) An act can be harmful to self (e.g., drug use, cigarette smoking, financial risk-taking) -- this category of paternalistic legislation is more controversial. (3) An act can be offensive to others, meaning: that it causes universally disliked mental states such as unpleasant sensory experiences, disgust, revulsion, shock, shame, embarrassment, anxiety, and so on; that it violates another’s rights; and, typically, that it cannot easily be avoided by the one who would be disgusted or revolted. Feinberg offers a catalogue of offensive vomit-and-feces-eating, corpse-smashing, swastika-wearing, and racist-banner-carrying behaviors which he says might justify criminal sanctions provided that the penalties are relatively light. (4) Finally, an act can constitute harmless wrongdoing -- that is, it can be morally wrong without violating anyone’s rights or causing any harm or offense (traditional examples are prostitution, adultery, and non-coercive incest). Although Feinberg approves of penalties for at least some acts that fall into the first three categories, he concludes that, in a liberal society, conduct that falls into the final category should not generally be subject to criminal penalties.
One of the questions I raised with my students is how exactly bans on cockfighting and other forms of animal cruelty fit into Feinberg’s framework. Well, the issue is undoubtedly too complex even to begin to do it justice in this forum, but I will nevertheless venture a couple of preliminary thoughts.
One possibility is that cockfighting constitutes offense to others. It certainly does cause disgust, revulsion, and the like. The problem is that such fights are typically held in private clubs and can easily be avoided by those who would find them offensive (much as it’s easy to avoid pornography, professional wrestling, and the Jerry Springer show). A second possibility is that cockfighting constitutes harmless wrongdoing. But if that is so, then, as noted, criminal penalties would be highly suspect (though it should be noted that Feinberg does at one point seem open to the possibility of criminalizing “free floating evils” of the sort that might occur in a hypothetical consensual gladiatorial contest – a case with obvious parallels to cockfighting). A final possibility is that cockfighting and other forms of animal cruelty involve harm to others. Roosters are surely harmed, but the question is whether non-human animals should count as “others” within the protected class.
Feinberg, so far as I know, never addressed this issue, but my guess is that he would want to limit “harm to others” to harm done to other human beings. Moreover, it’s a little hard to see how the harm principle could support prohibitions on cockfighting and bearbaiting while allowing the regular killing of roosters and other animals that goes on in countless slaughterhouses across the country every day.
In short, I confess to some puzzlement about this issue, and would be interested in hearing what others have to say. I certainly share the intuition that practices like cockfighting should have no place in a civilized society, but I am unsure how, under Mill and Feinberg’s liberal Harm Principle, a ban on such practices can be justified.
Posted by Stuart Green on June 5, 2007 at 08:51 AM in Criminal Law | Permalink
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Comments
I suggest that Feinberg's fourth category fails to distinguish two other reasons for identifying an act or omission as a crime:
1. An act or omission may be harmless when done by one person, but may be destructive or costly to society if done by many people. I suggest that non-coercive incest and animal abuse may fall into this category. The criminalization of the former has narrowed as science has identified the potential genetic harm with more specificity. Setting aside the dignitary rights of animals (with which I agree), it is too easy for publicly acceptable abuse of animals to evolve into abuse of people. It may not be inevitable - I've seen no empirical evidence suggesting that bullfighting in Spain or Latin America has evolved into a "life is cheap" attitude towards human beings - but I suggest that the risk of this evolution is established.
2. An act or omission may cause contingent or indirect harm to others. Adultery damages important trust relationships but directly causes pain to another person when revealed. Prostitution causes harm, inter alia, through transmission of STDs (contingent), support of criminal organizations (contingent and indirect), and the broken window effect (indirect). Criminalization becomes less justified if the contingency is brought under control (e.g., prostitutes are subject to periodic medical examinations) or if the indirect harm is blocked (e.g., prostitution is restricted to inside isolated monitored facilities).
This may all be rationalization, of course. What a wonderful discussion.
Posted by: Edward M. McClure | Jun 6, 2007 3:41:41 PM
Forgive me, but new readers of this blog might be interested in a copy of my bibliography for "animal ethics, rights and law," an early draft of which is found here: http://www.shabkar.org/vegetarianism/index.htm You can e-mail me at patrickseamus"at"(use symbol)hotmail.com for a later draft.
Posted by: Patrick S. O'Donnell | Jun 6, 2007 12:26:50 PM
Stuart,
Although I've been a vegetarian (along with my wife) for close to three decades now (our adult children are too, now by choice), I don't expect my specific (spiritual, ethical and economic) reasons for being so to be shared by everyone else. I do believe, however, that it's possible to work for something close if not identical to what Leslie and Sunstein term "Animal Rights without Controversy" (see "Animal Rights without Controversy," Law and Contemporary Problems, Forthcoming. Available at SSRN: http://ssrn.com/abstract=890666) in which case the harm caused to animals in cockfights is not comparable to the harm caused by eating them for dinner (especially if done in the manner suggested by Roger Scruton in a debate with Peter Singer and found in "A Carnivore's Credo," Harper's Magazine, May 2006), but rather comparable to *how they are treated up until the time they reach your dinner table*:
"Every day of every year, people engage in practices that ensure extraordinary suffering for animals. We believe that if those practices were highly visible, they would change, because many people already believe that they are morally unacceptable. [....] A great deal of progress could be made, not by challenging existing moral judgments, but by ensuring that they are actually respected. [....] In short, consumers should be informed of the treatment of animals used for food, so that they can make knowledgeable choices about what food to buy. Disclosure of animal treatment would have the virtue of making markets work better; it would also have the advantage of ensuring more and better in the way of democratic discussion about the treatment of animals." (Leslie and Sunstein)
Their proposal is not necessarily a panacea (which one ever is?). But I think it's worth a try and others are free to come up with alternatives as imaginative and practical as theirs.
It certainly is arguable as to whether or not your are a "natural omnivore" and it is the case for most people that their "legitimate biological needs" can be met with a vegetarian diet. Some people cannot, without undue hardship, etc., meet their physiological needs with a vegetarian diet, for example, the Inuit, but the exceptional cases are just that.
I do find the qualifying nature of your final sentence refreshing and encouraging
Posted by: Patrick S. O'Donnell | Jun 6, 2007 12:18:26 PM
Thanks to all who contributed their thoughtful comments. Certainly, the malleability of the concepts of harm and offense, as illustrated in these comments, does suggest that consensus on these issues will be hard to reach. Still, when new penal legislation is being considered, it's important to ask exactly what harms are being prevented and what interests are meant to be protected. In the case of cockfighting and other forms of animal cruelty, my intuition is that our first and foremost concern ought to be with the pain and indignity that the animals themselves suffer, rather than with any deleterious effects of such conduct on humans. Being an omnivore,however, I think I need to be able to explain why the harm caused to animals by putting them in cockfights is unacceptable while the harm caused to them by eating them for dinner is not. I suppose it has something to do with a weighing of my legitimate biological needs as a natural omnivore against those of the animals who are raised for the purpose of being slaughtered. But I'm hardly confident that this point is not highly speculative.
Posted by: Stuart Green | Jun 6, 2007 11:35:33 AM
No academic discussion of cockfighting can possibly be complete without a nod to Clifford Geertz's "Deep Play: Notes on a Balinese Cockfight", in which he offers a "thick description" of one such event he witnessed (which was held, he reports, to raise money for a new school):
Now, a few special occasions aside, cockfights are illegal in Bali under the Republic (as, for not altogether unrelated reasons, they were under the Dutch), largely as a result of the pretensions to puritanism radical nationalism tends to bring with it. The elite, which is not itself so very puritan, worries about the poor, ignorant peasant gambling all his money away, about what foreigners will think, about the waste of time better devoted to building up the country. It sees cockfighting as "primitive," "backward," "unprogressive," and generally unbecoming an ambitious nation. And, as with those other embarrassments -opium smoking, begging, or uncovered breasts-it seeks, rather unsystematically, to put a stop to it.
Posted by: eric | Jun 5, 2007 9:38:33 PM
Anyone who says that adultery causes neither harm nor offense to others must have neither a spouse nor children.
Posted by: Patrick | Jun 5, 2007 5:49:46 PM
If I say violence, I mean it in its simplest form. The state is the monopoly on violence. I don't think this is really something we need to draw out and argue over.
So you suggest that a harm to dignity is how we know we have violated some other right or duty. So if our morals tell us that we have violated their dignity, then we must have violated some other right or duty with regard to them, and this violation constitutes a harm, then the law is justified to prevent that harm?
If I missed something, please let me know.
Posted by: Colin | Jun 5, 2007 4:47:48 PM
Colin,
Perhaps you equate all instances of state coercion with violence, I do not, and in any case one could justify the necessary coercion as part of the larger justification of political and legal obligation or state legtitimacy in general (for there is no way to solve coordination problems on this scale without the state): be it through the sophisticated utilitarianism of Robert E. Goodin, a natural duty argument a la Christopher Heath Wellman or Jeremy Waldron, a fairness principle courtesy of George Klosko....
Briefly and crudely, and from a legal perspective: I don't think it's a question of an affront to dignity per se or in the first instance, but that dignity is what morally grounds our recognition of the specific harms in question, be it cruelty or the infliction of needless suffering, failure to fulfil a duty of care, respect of rights, etc. It helps unite them (e.g., so as to determine their nature and scope: we ascertain the nature and scope of our prima facie moral duties and/or obligations) conceptually, ethically, and legally.
Posted by: Patrick S. O'Donnell | Jun 5, 2007 4:12:05 PM
to mr. o'donnell: I did not mean to suggest that my dismissal of the dignity argument was a dismissal of the case that an advocate for the animals might make. I argue that use of state violence to protect dignity (absolutely when speaking of the dignity of the defendant, likely when speaking of the accuser or the chickens) is not compatible with the harm principle. If it were merely enough that an alleged affront to dignity occur to bring about legal action, then an argument could have been made that, at the time, state sponsored religious persecution during the 30 years war was morally acceptable under the harm principle. To suggest "Oh, but we wouldn't do that. We're liberal and good people, and we can tell the difference between the tyranny of popular ideas and the innate rights of humans," is to make a mockery of the strictness of the harm principle. I am not intending to advocate the harm principle as sole arbiter of judicial or moral rightness. I just don't think we can easily wrap ourselves up in the banner of Mill while we go after cock-fighting.
to mr markel: I apologize if I am unfamiliar with much of kant. I am a rash young man and newly capped. Bad idea or not, Mill certainly and Feinberg to a lesser extent require of us a high burden of proof. I do not look favorably on prostitution, and I look much less favorably on animal cruelty. I also look very unfavorably on smoking and alcoholism even within the confines of the home, but, lacking evidence of harm to others, I can not rationally support government violence to prevent either under the harm principle.
I have not given enough attention to the shotgun approach of mr. feinberg. I'm not a fan of it because I think it has pretty much no restrictions. You can put just about anything under the Offensive to Others category. Cockfighting revolts me. So does fox news. Being of firmer stuff than chocolate mousse, I get over it.
Let me emphasize again that I am not discounting that we might be harming the chickens by intentionally bringing about their suffering. The harm principle is predicated on a right of self-protection, so there is the problem that the chickens do not seem exactly to be legal members of our community. They are obviously not citizens, though there may be some intermediate stage of belonging which provides them standing. Indeed, I would not be entirely adverse to an interpretation of self protection allowing defense of all parts of our ecosystem. To return to kant, perhaps such protection is a moral imperative. Some P.E.T.A. supporter is reading this and nodding her head vigorously in approval. This discussion certainly leads down interesting pathways.
Posted by: Colin | Jun 5, 2007 3:23:56 PM
Colin--
I don't think I was saying (or I did not intend to say) that there are non-trivial claims that are not harm based. I meant that most non-trivial claims _do_ make harm arguments with some varying level of plausibility. So I meant exactly to make an argument for the rejection of Harm vs. not-Harm as a valid criterion of itself, in the absence of a mechanism for the balancing of harms (something that the Harm principle does not speak to). Now it may be, as you say, that it is inherent in the Harm principle to make these sorts of distinctions, but I find that they often collapse, in difficult cases, into a kind of ipse dixit-ism. Steve Smith makes these points better than I have in an essay called 'The Hollowness of the Harm Principle.'
Posted by: md | Jun 5, 2007 2:54:49 PM
Thanks Dan.
"With the Kantian view of dignity described above, one faces the puzzle of whether very young children and/or severely disabled persons possess human dignity and the protection it would afford. In other words, to predicate dignity upon rational autonomy seems insufficient because we might reasonably insist that dignity attaches even to those humans whose capacity for rational thought has either not developed or been extinguished."
This is precisely what Allen Wood has argued (in his brilliant book, Kant's Ethical Thought, 1999) and why Regan finds it necessary to articulate the notion of "moral patients" (i.e., by way of addressing this shortcoming in Kant's conception).
Posted by: Patrick S. O'Donnell | Jun 5, 2007 1:18:25 PM
Colin, I'm having trouble understanding whether you think we disagree. As a descriptive matter, dignity concerns seem to override autonomy as a basis for legislation against prostitution across the nation. As a normative matter, I take it you disagree with bans on prostitution then. FWIW, I wasn't arguing that dignity promotion was a sufficient basis for criminal legislation. I was simply trying to offer a reason why some people might think cock-fighting is a bad activity that is worthy of criminal sanction.
Posted by: Dan Markel | Jun 5, 2007 1:10:01 PM
"the dignity argument applied to animals holds just as little water as it does to humans."
You might read Regan first before making such an assertion, or, consider the argument of Martha Nussbaum in Frontiers of Justice: Disablity, Nationality, Species Membership (2006). And the Kerala High Court in India would certainly disagree with your proposition:
"In conclusion, we hold that circus animals...are housed in cramped cages, subjected to fear, hunger, pain, not to mention the undignified way of life they have to live, with no respite and the impugned notification has been issued in conformity with the...values of human life, philosophy of the Constitution.... Though not homosapiens, they are also beings entitled to dignified existence and humane treatment sans cruelty and torture.... Therefore, it is not only our fundamental duty to show compassion to our animal friends, but also to recognise and protect ther rights.... If humans are entitled to fundamental rights, why not animals?" (From the first page of Nussbaum's chapter, 'Beyond "Compassion and Humanity:" Justice for Nonhuman Animals,' p. 325)
Posted by: Patrick S. O'Donnell | Jun 5, 2007 1:07:50 PM
Patrick, you're correct to espy a relationship historically between autonomy and dignity. I don't want to hijack Stuart's post, but I am interested in the distinction between autonomy and dignity, and what it might say for criminal legislation as much as for punishment. Here's what I wrote in a long footnote about the issue in my Harv CRCL piece on the death penalty.
Some thinkers embrace the (Kantian) view that human dignity is coextensive with a respect for autonomous personhood, which is itself interlaced with the human capacity for rationality. See, e.g., JEFFRIE G. MURPHY, Cruel and Unusual Punishments, in
RETRIBUTION, JUSTICE AND THERAPY: ESSAYS IN THE PHILOSOPHY OF LAW 223, 227 (1979) (characterizing
the Kantian view of dignity as a value "we respect when we address ourselves to [persons] in terms of their unique characters
and acts (i.e., what those characters and acts deserve)") (emphasis in original); Robert A. Pugsley, A Retributivist ArgumentAgainst Capital Punishment, 9 HOFSTRA L. REV. 1501, 1510 (1981) (citing IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 55- 113). Analytically, one can distinguish autonomy from rationality. What's
interesting is whether one can distinguish dignity from rational autonomy. The foregoing description of dignity as requiring
respect for rational autonomy seems to work fine in the context of punishment, but it poses a problem more generally because
it seems too narrow. With the Kantian view of dignity described above, one faces the puzzle of whether very young children and/or severely disabled persons possess human dignity and the protection it would afford. In other words, to predicate dignity upon rational autonomy seems insufficient because we might reasonably insist that dignity attaches even to those humans whose capacity for rational thought has either not developed or been extinguished. Cf. Timothy W. v. Rochester,
N.H., Sch. Dist., 875 F.2d 954 (1st Cir. 1989) (addressing educational obligations to a young person who is multiply handicapped and profoundly mentally retarded, someone who suffers from complex developmental disabilities, spastic quadriplegia, cerebral palsy, seizure disorder and cortical blindness). That person enjoys and possesses human dignity even
though she or he is bereft of the capacity for rational thought or "the sense of justice" that John Rawls relied upon in describing the fount of human obligations of justice. See John Rawls, The Sense of Justice, 72 PHIL. REV. 281, 284 (1963) ("What qualifies a person as holding an original position so that in one's dealings with him one is required to conduct oneself in accordance with principles that could be acknowledged by everyone from an initial position of equality? The answer to
this question ... is that it is necessary and sufficient that he be capable, to a certain minimum degree, of a sense of justice.").
In any event, tethering dignity to rational autonomy is not (normatively) problematic in the context of punishment because
retributive punishment could never permissibly be imposed on someone lacking that "sense of justice." To punish someone
who could not understand that he was being punished for something he did violates the retributivist criterion that offenders be
competent throughout the confrontational encounter with the state.
Posted by: Dan Markel | Jun 5, 2007 12:55:45 PM
I think that we still find ourselves lacking a "harm" argument. Mr. Markel, you mention dignity, but the principles of harm seem grounded in the belief that dignity is not a sufficient moral cause for legal action. The dignity of the _____ (insert prostitute, drug addict, BDSM adept) is specifically _not_ a good enough reason to outlaw it. md offers that there may be nontrivial claims which are not harm based, but the very nature of harm is that it asserts that those claims are in fact trivial, even if the allegedly harmed disagree. There may be an argument for the rejection of Harm, but let us not subvert it. The only plausible explanation I can see would be where we accept the rights of and duties to animals as binding on our moral compass, though this is incredibly messy. Having not read Mr. Regan's book, and being a softy for my cat, I remain optimistically skeptical. Still, the dignity argument applied to animals holds just as little water as it does to humans.
Posted by: Colin | Jun 5, 2007 12:50:41 PM
Incidentally (if I'm not mistaken), for Kant at least, autonomy and dignity (Würde) are part and parcel of each other, inextricably and invariably intertwined. And of course he denies dignity to nonhuman animals. I suspect that, historically, the notion of autonomy grew out of the idea of dignity...(in any case, I would prefer to see the former as parasitic on the latter).
Posted by: Patrick S. O'Donnell | Jun 5, 2007 12:41:32 PM
FWIW: Tom Regan writes, "Feinberg limits his remarks to human beings, but there is no reason why what he says should be less true if we add our duties to animals or their rights against us. The principle negative duty we have in their case is not to treat them disrespectfully, and the correlative negative right they have against us is not to be treated in ways that ingore their equal inherent value. But just as our negative duty not to interfere in the lives of others does not consist merely in the minding of our own business, so our duty regarding the respectful treatment of animals involves more than our taking care to treat them with respect. Since they have a valid claim to respectful treatment, we have a prima facie duty to assist them when others treat them in ways that violate their rights." [note: animals are like moral patients (human animals) in a number of relevant ways sufficient to accord them inherent value like that possessed by moral patients (this of course presumes we can, after Kant, postulate inherent value in the case of moral agents) similarly, they have rights in the manner that 'moral patients' have rights...] Please see his book, The Case for Animal Rights (Berkeley, CA: University of California Press, 1983).
Posted by: Patrick S. O'Donnell | Jun 5, 2007 12:12:27 PM
Thanks for this very interesting post. The difficulty, as I see it, is that while Feinberg's hierarchy of harms represents perhaps the most sophisticated elaboration of Mill's harm principle, in the end we have what Bernard Harcourt has called 'the collapse of the harm principle,' in which non-trivial harms are asserted all of the time and the problem is one of balancing, not the identification of something as 'harmful.' Part of the difficulty is how to understand (and limit) the question of causation. And I agree with Prof. Markel that 'human dignity' is a plastic ideal, though one that has some very deep roots (deeper, even if less powerful today, than autonomy and the notion of 'harm') that might be useful on the question of balancing.
Posted by: md | Jun 5, 2007 11:37:07 AM
Stuart, welcome to Prawfs (belatedly). A question and a comment.
You write: something is "offensive to others" when it "violates another’s rights; and, typically, that it cannot easily be avoided by the one who would be disgusted or revolted." Examples adduced by Feinberg apparently include vomit-and-feces-eating, corpse-smashing, swastika-wearing, and racist-banner-carrying behaviors. It's been too long since I've read Feinberg closely so I'm having trouble understanding which rights these behaviors violate. I can see how these give offense, and thus I can see why we might ban the public coercive exposure of these matters that give offense, but the rooster-fighting, as you note, could be done in private. So what rights are violated?
To answer your question, I wonder if the principle operating as a restriction on such rooster-fighting is that it is dignity-denying. (Meir Dan-Cohen has written about the criminal law's role in promoting dignity (as opposed to autonomy), but I think at times appeal to dignity can be obscure to others, especially Americans (and sometimes myself, though I have appealed to it before too).)
Perhaps because it is an obscure rationale, criminal legislation predicated on dignity concerns should be a last resort as a rhetorical strategy in America. Precisely because we tend to valorize autonomy over dignity, your question -- How do we explain why we can slaughter chickens but not watch them fight? -- seems so plausible. In any event, I think the idea is that even animal slaughter for food (or medical testing) should be done in the most humane way possible because to act as if these animals have no interests of their own (even if they are subordinate to ours) is to diminish our own sense of dignity, about what kind of people we want to be. When we fall short of that goal, we commit a needless wrong. But in the end, our interest in human well-being trumps. (Obviously some vegetarians disagree...and there is increasingly strong reason to think that they might be right!).
Posted by: Dan Markel | Jun 5, 2007 9:26:10 AM
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