The virtues of virtues in the law? Being humane to animals
I’m posting here as a guest on the invitation of Professor Nussbaum. I am sympathetic towards her work, but have also been a persistent –and I hope constructive- critic of it. I teach at a Jesuit liberal arts college, and have just returned from teaching four years in the United Arab Emirates, at American University of Sharjah -- a highly successful and ambitious university accredited by Middle States and hosting students from over seventy countries. So do not assume I understand much of the law. My emphasis has always been on forming undergraduates, which is where my passion lies.
I see that you are debating Christine Korsgaard’s theory of obligations to animals. It should really be called a theory of obligation to animals, and not to other animals, because it is a theory of obligation to animal, as opposed to rational, nature. If the expression weren’t odd, it might be best to refer to her theory of obligation to animality. Doing so would make it easier to see one of Professor Nussbaum’s criticisms, that Korsgaard’s theory is still indirect: what merits respect in animals is that they have stuff that we have when we respect ourselves, that stuff “animality”. It’s not like they themselves make claims on us in the ways they are different than us. So much for the moral attitude everyday people call “respect” –- that attitude that attends to others because of their differences.
What I want to do here is to lay out a few controversial ways of going about the problem of the moral status of animals. These will be underargued and incomplete, but that is all well and fine for starting a debate.
1. For the time being, let me do something that may feel uncomfortable to you. Let’s set aside law, and look at morality. Let’s also set aside Kantianism, Utilitarianism, and other isms, and look at morality as it functions in our lives. There’s nothing normative in doing so: we’re just being descriptive. But maybe beginning so will help shake free some ideas.
What makes a respectful person? A respectful person is someone who sees what matters and lets it be, even supports it, and especially when it does not appeal to her, or -- in cases of heated respect -- strongly differs from or even offends her. Respect hinges on two concepts here: a concept of what matters, and a concept of part tolerating, part supportive behavior especially in the face of disagreement and differences of taste, temperament, values or behavior. A third concept waits in the wings: violence. Respect is opposed to violence against what matters, and about the only thing that makes respect give up respecting differences is when they get violent. So you might say, respect is an attitude centered on difference, giving up the value of difference only when it gets violent.
Is respect the heart of morality? Many would disagree. Nussbaum, for one, appears to think compassion is the heart of morality. I, however, am interested in describing ordinary beliefs. I believe that while we think respect is necessary for morality, we do not believe it is the most essential moral attitude. Rather, being humane is. In fact, respect is just a part of being humane, being a mensch, having “humanity” (easier to follow in the French), and so on. You can see this if you think of moral judgment: it’s bad if someone can’t respect others, because it means he’s not being a fellow human. It’s like you look at this guy and think, “This guy doesn’t get it: humans have all sorts of ways of living, and he can’t take it when they’re harmless. He’s checked out on brotherhood.”
What makes a humane person? More than anything, what makes a person humane is that she puts herself in the shoes of others. She uses empathy to get what’s at stake for them, and she is sympathetic to it, within bounds of course, bounds given by a whole lot of other moral attitudes (justice, self-respect, respect, etc.). Humanity gets the whole thing going, though, in that it makes the lives of others matter to us, puts sisterhood or brotherhood or fellowship on the table, and disposes us to want the good for the other, all things considered.
I could detail more everyday moral attitudes. But these two will suffice for now. In alluding to them, I am adopting a method Philippa Foot used, and which was made clear to me by Lauren Tillinghast. When facing massive unclarity in areas of moral theory, ratchet down the abstraction from the ethereal big terms like “status”, “right”, “obligation” –- terms that get stretched to mean whatever the theorist takes them to mean- and return to local contexts, humdrum and tangible moral terms, such as those given to us by the virtues. At least they mean something!
2. Set aside the description of virtues for a moment –let it marinate on the back-burner- and consider an apparently unrelated fact, mentioned by Alex Kolod at 9:13 AM on November 9th: to interact with a fellow living being is unlike interacting with chairs or rocks. It lives. We get that, and we teach our children about that when they don’t. The number one question someone concerned with the problem of animals has to answer is what to make of the fact we make a fundamental space in our lives between living and non-living things.
Again, this is description. We might find on reflection that we ought not to make such a distinction, but I hope you will sense that a lot hangs on it. Any theory that wants to do away with the distinction has a tough road to climb: what would human life look like if we did not take the distinction between living and non-living things to be morally salient?
One of the weird things about a Kantian account of morals is that it does not take this distinction as elementary to moral life. One of the interesting things about Nussbaum’s account of wonder is that it does. Of course, as with the idea of a Black president seen from fifty years ago, or the idea of a one state solution in Palestine-Israel now, it is often better to side with weird ideas. Still, it is hard to see why we should take one of the most basic lessons we teach our children, a lesson that does not appear to have any negatives attached, as somehow not elementary to morality.
Simply attending to what we teach our kids –and here I side with Nussbaum- we notice something missing from Korsgaard’s account: it matters to the creature’s behavior when we get in its way. It’s not like it matters first to us or to something about us. Your kid wants to jump about the sidewalk merrily squashing ants. Ants don’t care. They just react. If anything seems like a machine in the way Descartes envisaged animals, an ant does. Still, ants behave panicked or madly when you threaten them with their lives. It matters to them in the sense of mattering to their behavior when you attack. And this is the problem, kid: how would you like that if someone did that to you? You’re going about your way, and Bigfoot has his day. Isn’t it odd that all it takes is the fact that things matter to their behavior to make fellowship have a place to hang its hat?
3. Now put 1 and 2 together. To ordinary morality, life matters. And respect tracks what matters, especially when it’s different. To ordinary morality, fellowship is key, and fellowship easily stretches to life. Here, then, is a descriptive challenge to Korsgaard and Nussbaum both: why should we give up on what we already take to be moral on reflection, namely, that life deserves respect especially when its different and that we live on Earth with fellow living beings? Or if we should not, why not?
Nussbaum, in light of these questions, actually seems to give a defense of this part of ordinary morality. That’s very Aristotelian of her. Korsgaard, by contrast, revolutionizes ordinary morality because of her view of the source of normativity: morality isn’t about respect or fellowship –those hinge on difference. Morality is about protecting (not respecting: note the point about difference) rationality and the conditions of rationality.
I don’t have the space to go into neo-Kantianism here. But I want to make a couple of points in case they spark debate. The source of norms may very well be that there is a kind of being who takes reasons to matter. That, however, should not be conflated with the objects of norms, which do not depend on being rational in any sense. Moreover –and here I am thinking more of Scanlon than of Korsgaard- it is questionable to assume that the only kinds of being to whom I have to justify my behavior are rational beings. Thanks to fellowship, I can speak on behalf of a being that is arational and present its interests as reasons against my actions. And once I do, once I hear what would be its reasons if it could think and speak, it is downright irrational of me not to justify myself accordingly. Of course, there is a whole Kantian architectonic to throw at these two objections, but they are a good place to begin the debate.
4. I’d like to end this post with a very uninformed question about law. The debate on this blog so far -– the debate about animals -- appears to center on questions of right. I want to know whether law must be conceived as protection of right. I suspect not. Don’t we have laws for things we take to be good? Or helpful? Or efficient? Or healthy? That is, can’t we make laws based on other concerns than right?
The reason I ask is that if we can, it seems in principle worth exploring not only whether it is a violation of an animal’s right when we raise it in sordid conditions, denaturing it in all sorts of truly perverse ways that make Abu Guarib seem tame. Raising animals that way might also be a really bad way to go, because it is disrespectful or inhumane or otherwise just plain nasty and low for a human being. And these kinds of considerations might just as well find their way into democratic law, even justified on reflection by an “overlapping consensus”. After all, I can think of no major ideology according to which it is truly human to treat life with utter disrespect when it would be relatively easy not to.
[N.B. One of the commentators on the post about Korsgaard suggested that protecting animals might lead to starvation. Please! We waste so many usable calories by feeding animals instead of using grains for humans. The ecology of trophic levels teaches this –for each trophic level you jump to get your food, there is a loss of energy, an inefficiency in putting the sun’s energy into your body.]