On the Argument from Marginal Cases

One of the earlier comments referred to libertarian positions on animal rights, so I thought this would be a good time to expand upon the subject.

From my point of view David Graham gets closer to the truth than most in his article, even if I disagree with the idea of animal rights broadly understood. Arguments from species typical behaviors cannot possibly work in the context of an ideology which has a long history of protecting the rights of the atypical against a tyrannical majority, and the argument from marginal cases does hold some special punch because it's one of the few arguments out there which take species neutrality seriously. But I think David also too easily dismisses Tibor Machan's practical reasoning: we wouldn't be talking about animal rights as a separate topic unless there was something different about the moral status of people and animals.

From my own utilitarian-contractarian background the problem is that natural rights theory fails to fully elucidate why rights exist, or to pay attention to the structure of rights as a useful, man-made system or a purposeful mechanism. When it does so, it overlooks the complexities, tradeoffs, practicalities and the haziness that go along with even the best systems of rights, and so leads to hard and fast decisions in limiting cases where none should really exist. Contractarians and utilitarians avoid this because of the explanatory power of their consequentialism, even if the more explanatory theory comes with a stiff price in simplicity and the power to actually settle concrete questions.

Before we can ask whether the nonaggression principle should also apply to animals, we have to know why it exists in the first place. The view I currently deem the most reasonable is that nonaggression is mutually beneficial in certain conditions, so it's rational to impose it provided the preconditions hold.

Historically the delegitimization of violence has been a slow process guided by social dynamics and economic pressures. At the broadest level it can be described as a combination of social competition, selection and innovation leading to the limitation of arbitrary aggression in favour of more economically productive forms of societal organization. At the root, coercion is a means of getting what you want, either regardless of the cost to others, or downright at the cost of others. In an environment with sentient, strategic, purposeful actors it spawns defensive aggression, and the end result of the two opposed externalities consists of needless dissipation of resources and an inefficient incentive structure in expectation. Limiting such dissipation and erecting incentives to continually negotiate for mutual benefit can be a significant economic gain, which provides both the incentive to reciprocally limit aggression and the means of actually financing the enforcement of the choice. Information and incentive constraints usually make this the easiest to attain in small groups of closely related people or tightly knit communities, which is why insider-outsider phenomena and the like exist, but later game dynamics in large crowds (e.g. the evolution of the propensity to retaliate at cost, and the arisal of territoriality) and downright innovations in social organization (e.g. the state, which at first internalizes much of the cost of aggression as the lowered personal welfare of the sovereign) can make the idea more broadly applicable. We then (thankfully) happen to live in a society where just the latter has taken place; for the most part we follow noninitiation of aggression, the rule of law and rational principles of government, and are immensely better off for it.

The main point is that rights only exist because they are both mutually beneficial and practically enforceable. As such, they are highly contingent on people's reactions and their capability of erecting commonly understood rules, adaptive individual propensities, mutualistic institutions, shared cultural norms and self-propagating ideologies having to do with law and morality. Dissipation only comes about with strategic actors capable of thinking ahead and reacting rationally, bargaining for limited aggression is rational only when the benefit is mutual, the concept of rights only makes sense when they can be enforced at reasonable cost (i.e. mostly self-enforced by a moral agent, constrained by self-discipline, and motivated by the deterrent effects of organized, strategic retaliation), and it makes absolutely no sense to talk about rights unless there is someone there to strategically bargain with you (i.e. there is always a social component to rights). This contingency also means that rights aren't quite as self-evident or set in stone as natural rights advocates would like to think; the rights to life, liberty and property do have a strong game theoretical reasoning behind them, but there are also circumstances where they might not be the best mechanism available. The reasoning is also based in efficiency concerns, which do not uniquely fix the distributional side of the equation; if two allocations of rights lead to equally efficient incentives and outcomes, the sharing of the gains is always somewhat indeterminate and more than one morally justified outcome/equilibrium of rights is possible.

Animal rights and the objections to them are a typical example where the underlying preconditions of rights do not hold, and where the concept of natural rights an sich easily leads to confusion. When Tibor Machan talks about the moral faculty of animals, what he's essentially saying is that animals don't participate in the moral game and so shouldn't share in its proceeds. They do not reciprocate our moral commitments, and the extent to which their violence towards us can be circumscribed by rational deterrence is highly limited. Hence, they are not within the realm of reciprocal, man-made morality.

This is not to say that they couldn't in principle be: apes, dolphins, many typical pets and so on can be taught and can even exhibit certain features of autonomous morality, so to the extent that this is the case, reciprocity holds. Once you domesticate an animal, you'll probably have certain responsibilities towards it, and if your pet dolphin responds strategically, to a degree concrete rights will accrue to it. But in practice this degree of strategic behavior and potential for mutual bargaining is extremely low. Thus, I doubt that the reasoning behind the right to life can be extended to any animal we're currently aware of.

As for marginal people, there the reasoning is markedly different, and at the base strategic. A sleeping or insane person isn't acting morally right then, that is true. But we do know that everybody will go to sleep at one time or another, and that anybody could go insane in the future. Thus if we rid sleeping or insane persons of their rights, people will expect that limitation of rights to apply to them in the future, and will prepare for the eventuality. This will already lead to dissipation of resources at the present time. Thus, in the most efficient scheme of morality, sleeping and insane people will have to have rights as well.

This is also where the species line acquires some relevance: the argument does not apply to animal rights because people do not expect to turn from moral agents into rightless animals over night. This line of reasoning is also interesting in that it shows a proper system of rights to exhibit some hysteresis: once you've displayed some characteristics which entitle you to certain rights, you will already be able to act strategically in the expectation of losing your rights, this would lead to societal losses if you indeed expect such a loss, and so you will have to be granted rights into the future even if you cease to display the entitling characteristics.

Then on the other hand such sticky rights cannot be unlimited. If you cease to be a full moral agent, for example by going insane, deterrence will no longer hold and you cannot be trusted to keep your end of the moral bargain. Thus, in this case we end up with the morals of care and/or paternalism. For example, suppose you've gone mad, stopped understanding why it is wrong to kill other people and started doing just that. Then it wouldn't make sense to punish you because that wouldn't lead to deterrence and you would presumably waste resources now to prepare for the punishment later. But it would still make sense and be right to engage in self-defence against you, to realize your property to cover the damages, and also to isolate you permanently from others even if there's no mens rea involved; this would probably be the least of two evils.

On the contrary, children have never been moral agents so they cannot acquire rights by the above mechanism. That is why paternalism probably holds to a degree with respect to them; actually what are called children's rights are mostly their parents rights against other people, with the kids basically having the status of property. This is for example why abortion is justified: an expecting mother can kill her child/property if giving birth would somehow be opposed to her own welfare.

However, there are once again caveats. Nowadays parents do have a choice as to having children, so with that choice comes increased responsibility. This is mainly a population control and resource allocation issue, and leads to responsibilities of the parents towards surrounding people in contraception, upbringing, education and financial support of their kids. Secondly, children are by their nature domesticated, so once you give birth and the physical tie between you and the child ceases to be, at least the basic duties of care and humane treatment apply. Third, kids grow up really fast, and start acquiring their own, independent rights. Those rights of course apply equally against the parents, and independently of any duty of care because the reasoning is once again different. And fourth, treatment—particularly bad treatment—early on in life is known to have significant effects on people's moral tendencies and abilities as adults, so naturally part of the moral pact between adults which allows all of us reproductive freedom is that we have to avoid mistreating our kids, so that they can be expected to behave once grown up.

Finally, I'll also have to refer to Peter Singer's views. Sometimes fundamental reasoning of the above kind does lead to the conclusion that some rights we hold evident really aren't. For example, it isn't a given that people have the right to life solely because they're human. On the contrary I would argue that one basic duty of care flowing from your choice of having kids or acquiring domesticated pets is to euthanize either under certain conditions, like severe enough disability early on.

The above is naturally just a hurried sketch, but I hope it still suffices to illustrate some of the main themes in my view of ethics: morality should be analyzed primarily in strategic, economic, rational and bargaining terms (the fundamental reason why animal rights are limited), similar looking rights can be several (e.g. rights to life of infant and parent), different looking rights can be differing implementations of the same underlying principle (e.g. rights to liberty and property), the most efficient system of rules often consists of convoluted layers of claims, counterclaims and exceptions (e.g. the situated rights and duties of husband and wife, particularly across time, differing marital arrangements and unanticipated events), the moral choice is between systems and reasoned bargains as a whole, not individual rules (e.g. incentive arguments tie choice with responsibility), often the choices are somewhat indeterminate (e.g. an inferior rule combined with innovative preparation to its consequences can be as good as the a priori better one) and because of the complexity involved, in the end the best morality comes about via trial and error, choice, rational thought, competition and other free market mechanisms, not a priori analysis or centralized legislative fiat (e.g. how the balance between the right to be left alone by your neighbours and the right to live as you choose on your own property even if that implies some externalities on your neighbours has been arrived at).