Monday, April 28, 2003

The past decade has seen the emergence of an increasingly vocal animal rights movement in this country. Although many of the specific goals of the movement have to do with promoting the humane treatment of animals, the underlying argument is that certain basic legal rights should be extended to animals as well. Should we recognize that animals have legal rights, or should we continue to regard animals as property, as resources to use as humans see fit? Just what rights, if any, should animals have? And how could these rights alter the relationship between humans and the rest of the animal kingdom?

Recorded on Monday, April 28, 2003

Peter Robinson: Today on Uncommon Knowledge, if your pet could talk to you, would it ask for a lawyer?

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today, the case for and against animal rights. Ever since at least Roman times, animals have been legally defined as property, resources for humans to use. Yet in the last decade, we've seen the emergence of an increasingly vocal animal rights movement. While many of the movements' specific goals have to do with promoting the humane treatment of animals, the movement also insists that animals must be granted their own rights. Just what kind of rights is the movement talking about and how would granting animals these rights alter the relationship between humans and the rest of the animal kingdom?

Joining us today, two guests. David Blatte is an attorney who specializes in animal rights law. Richard Epstein is a professor of law at the University of Chicago and a fellow at the Hoover Institution.

Title: Monkey Business

Peter Robinson: Dr. Jane Goodall, who has spent her life working with chimpanzees, "The attainment of legal rights for non-human animals will be another step toward establishing justice for all living beings on this planet." Is the chimp champ right or wrong? Dave?

David Blatte: I couldn't agree more with that statement.

Peter Robinson: Couldn't agree more? Richard?

Richard Epstein: Lots that you should do by way of protection, very little bit you should do by way of creating rights. I disagree with her.

Peter Robinson: All right. Richard, you've written that although the law has long regarded animals as property, I'm quoting you to yourself now, "the animal itself cannot be recognized as a holder of property rights valid against human beings." Why not?

Richard Epstein: Well in principle, you could do anything that you want to. But in terms of the tradition of our own legal system, we've always had a sharp separation between animals as objects and animals as subject because it was, in fact, the only way we as a species could advance. And to try and reverse the situation would create endless kinds of difficulties depending on the sorts of rights that you want to create. Clearly political rights are out of question because the cognitive capacities are simply not there in order to do it. If you create libertarian rights, freedom from various kinds of control and oppression, the entire system could easily fall apart if it turns out, for example, when pests enter your land you're not allowed to remove them in order to preserve your crops. So that the situation it seems to me at that level of generality is highly dangerous and what we ought to do is to think of particular situations where there are abuses or things that are very distasteful and try to have smaller levels of remedy. And the theme that I would stress is more protection, fewer rights and we'll do just fine.

Peter Robinson: The man sounds perfectly reasonable.

David Blatte: Okay. He's relying on history to say that animals shouldn't have rights now. If we rely on history, back in this country up to as little as 150 years ago, people didn't have rights. They were considered property under slavery. That was history. If you use the argument well history says that that's okay, there'd never be progress.

Peter Robinson: Okay, so what is emergent? What do we know now? What are we learning now that would cause us to confer rights on animals? What's changing?

David Blatte: Basically one way to look at history is there are different forms of oppression.

Peter Robinson: Right.

David Blatte: Back 5,000 years ago, the Jews were oppressed because of their religious views. In this country, Africans were taken here and made slaves based on color differences. One hundred years ago, women in this country could not vote. Those all changed. Now animals are viewed as objects, they're viewed as property and the next step is to no longer oppress animals but to give them the rights they deserve.

Peter Robinson: Let me ask David what rights he thinks animals should have.

Title: No Harm, No Fowl

Peter Robinson: What rights would you confer on animals? I give you the right to--give me your ideal situation.

David Blatte: Okay, the ideal situation is animals are no longer objects. They're no longer property. They have the right not to be harmed by humans. And that pretty much covers everything. That would include the right not to be killed--killed for food, killed for other reasons, the right not to be put...

Peter Robinson: So everybody becomes a vegetarian under your legal regime?

David Blatte: Well, again, animals have the right not to be killed. I mean, when we talk about humans and say humans have the right not to be killed, no one questions that.

Peter Robinson: I'm just wanting to see where the edges of your position are. So--okay so you're not--so raising cattle, what about poultry, chickens for eggs and that kind of thing.

David Blatte: No, no animals will be killed under that jurisprudence.

Peter Robinson: All right. And that is--I want to get to his distinction between conferring protection on the animals because it seems to me you could construe that as an extreme case of conferring protection on the animals or giving them rights. You insist that you're giving them rights.

David Blatte: Well, protections are forms of rights so the distinction kind of blurs. For example, in this country, you have the right to be free from searches and seizures. That's a protection but it's also considered a right.

Peter Robinson: Now that's an interesting point, you've got to grant right?

Richard Epstein: There's something to it but let me go back to the first point. If we're talking about progress, the situation with slaves and women, despised religious minorities, there was a long jurisprudence going back to Justinian, which we said all human beings are endowed with certain capacities and should, in principle, have equal rights. And when the situation of evolution took place of legal rights, it was never to say oh gee, now we're going to say that women are protected against being killed. They had full civil rights to vote, participate and all the rest of the stuff. You can't possibly do that with animals because of the differences. So that no matter how progressive and enlightened you are, you have to recognize fundamental differences in the sense that animals do not have the cognitive capacities to participate in deliberative government.

Peter Robinson: Even in stating what David says he wants to do--we'll get to the question--I mean, a certain sense that was unfair because I said if you could have your ideal world, we have to recognize, nobody gets his ideal world so we'll come to the political practicalities in a moment. But even in stating what David wants to do, which is eliminate large areas of activity that we engage in today, raise and so on, even that could be construed as simply extending protections, not granting the animal's rights.

Richard Epstein: Well, because essentially there are no rights of political participation to decide how governance is selected and so forth. And if we were talking about a situation of real parity, you couldn't stop short of political participation. So the question is if you recognize that animals are different from human beings even on his own account, then how important are the differences? And what I would say is essentially the issue is are we speciesists or are we not? And to many people that's a dirty word but I think that the basic human intuition that we have is that our own material success is so heavily dependent upon our ability to use both land and animals. That if we were to grant his version of the libertarian world with respect to animals, we could not maintain within a fraction of what we do today human wellbeing. Medical research would come to a halt in many important ways. The food supply in many ways would shrivel up. The level of production that you would have in Third World countries would lead to mass starvation. And if you ask me whether or not it's so terrible under these circumstances to raise cattle into relatively humane, as I would hope it to be, circumstances and then slaughter them in rather sensible ways without excessive brutality, I think in the end, people won't stand for that. I don't think there's any way that animals could participate in the debate. And so I think rather than having these somewhat utopian schemes, what we ought to do is to figure out where the system is most broken down and then fix it. And the reason I use the word protection not rights is that I don't believe you could talk about rights unless you have people who are capable of asserting, defending and articulating them among themselves. And only human beings can do that.

Peter Robinson: So the very notion of a right, implicit in the notion of the right is to some extent, the ability of the being, the entity on which the right is conferred, to stick up for itself.

Richard Epstein: That's right. And now in some cases, by the way, it doesn't always work. You have the guardianship problem with respect to mental defectives and all the rest of that. And I think the answer is here again, the speciesist stance is they will have parents who will be their protectors and they are part of the human beings and we are just frightened to death that if we start allowing differential, intellectual and physical capacities for human beings to be the way of stripping them of rights that we will come to be a brutal and crass society. And so we won't let that happen.

Peter Robinson: Okay. All right. So the scheme is utopian, or just unworkable?

David Blatte: No, there are a couple responses. First there's an implicit assumption and this goes more to philosophy than law, that humans are all that's important and that whatever we do for our survival is justified.

Peter Robinson: Next topic, on what basis can we or should we draw distinctions between human beings and the rest of the animal kingdom?

Title: The Great Chain of Being

Peter Robinson: Broadly speaking, we've got a couple of grounds for drawing a clear distinction between humans and all other forms of life. And I want to see both of your minds at work on these grounds. I have the feeling you might just reject them both but I'd like to see it. And the first is what you might term a natural law tradition, arises from the Judeo-Christian worldview. Genesis, you have, "And God said let us make man in our image, after our likeness. Let him have dominion over all the earth." Right there, explicitly based in a religious worldview is an absolute distinction between human beings and all other forms of life. Thomas Jefferson, "All men are endowed by their creator with certain unalienable rights." Men, Creator, it's a religious worldview and it's informed the legal tradition of the west from the beginning more or less. Yes?

Richard Epstein: Yes.

Peter Robinson: Yes?

David Blatte: No. There are actually great exceptions. If you look back historically to some of the great thinkers in the west, they believed animals had rights in and of themselves. We can go back to one of the great thinkers of ancient Greece, Pythagoras, you've heard of Pythagorean Theorem, most people have. He actually...

Peter Robinson: Although I confess that's about all I can get you on Pythagoras but...

David Blatte: He was an ethical vegetarian. He was very influential in his day and most of the ancient Greeks were vegetarians. If we move onto modern times, we have DaVinci and we also have Einstein who was an ethical vegetarian. So there's a strong tradition in the west of giving animals rights.

Peter Robinson: Well, but...

Richard Epstein: No, it's not giving them rights. That's simply deciding that I don't wish to eat them. To give them rights, you have to coerce other people to become vegetarians against their will. And there's absolutely no evidence that any legal tradition has ever taken that compulsory form as being rights protective. I mean, so it's a vast gulf and, you know, my son's a vegetarian.

Peter Robinson: Richard, let me ask you, so this notion of grounding rights in a religious worldview, which... Even Jefferson is a million miles away from being a very religious man. Nevertheless, he wrote the Declaration: we're endowed by our creator to--it's an explicitly religious point of view. Is that tenable today as a ground for a distinction between humans and everybody else?

Richard Epstein: I think, in effect, that the divine rights of theory has generally been exploaded even with respect to human beings. And the single hardest question that anybody faces is, you know, whose welfare goes into the grand social utility function? And I happen to think that we do want to engage in certain fairly active forms of animal protections because they suffer even though they don't have cognitive powers. The question is just how much of this do we want to do? And I guess the difference between us is that I'm willing to take into account dislocations to human beings and to rate them somewhat more highly on this scale. And to give you...

Peter Robinson: Why?

Richard Epstein: Well, let me just give you an illustration. You know...

Peter Robinson: We're throwing away the sort of the Judeo-Christian...

Richard Epstein: I'm not throwing it away for many people will find it very persuasive but philosophically I'm trying to figure out how you do this in a world in which no religion has a preferred place over any others.

Peter Robinson: Let me quote you to yourself. All right.

Richard Epstein: Okay.

Peter Robinson: So I'll set this up.

Richard Epstein: By God, you really are putting me on the spot.

Peter Robinson: I've got you as well. You're exposed now, Richard.

Richard Epstein: Naked to the world.

Peter Robinson: "The law has understood for a long time that animals have extensive powers of anticipation and rationalization." That's for you. "In many ways, the repertoire of emotions is quite broad, rivaling that of human beings," David's also pleased by that, "but the fact remains that they do not have the higher capacity for language and thought that characterizes human beings as a species." All right. Now the smartest chimp knows what a couple of hundred signs in sign language? And that's the Einstein of chimps.

Richard Epstein: Well, that's only under human coaching too.

Peter Robinson: And that's only--ah, good point. All right. So there is this absolute gulf between the species, right?

David Blatte: Well, I wouldn't characterize it as absolute but again, intelligence is irrelevant on deciding rights. And what's more relevant is whether these animals are sentient, whether they feel pain. For example, if you--I've heard this before, if you punch someone in the stomach, the fact that they're very intelligent doesn't mean anything. It's still going to hurt.

Peter Robinson: I still am trying to get my little layman's brain around the distinction between granting animals protections, which I can understand, I actually can understand that, and granting them rights. And I haven't heard you say anything--I don't think but I'm asking you to correct me, that you want to do for animals that cannot be accomplished by stiffening the protections we grant them. Stiffening and extending the protections we grant them. Why are you insistent on granting them rights? Why use that chunk of the legal vocabulary?

David Blatte: Well, I'm actually not quite up on the semantics. In fact, what you're proposing is an extension of protections. It's the right and again, you call it protection, I say it's the right not to be killed. I consider that a right...

Peter Robinson: Yeah but if you just talk about extending...

David Blatte: consider that a protection.

Peter Robinson: ...protections, half the conversation folds up and his opposition to you just blows away and the two of you can make common...

Richard Epstein: Well no, see my protection would be against inhumane treatment but I'm still going to use animals where necessary in medical research and I'm still going to use animals for food.

Peter Robinson: But your opposition to granting animals rights is absolute. You just wouldn't do it?

Richard Epstein: Yeah, I wouldn't do it with rights but with protections against all sorts of things.

Peter Robinson: And my point of view is if instead you say, all right, we're not going to grant them rights, let's talk instead about how far to grant them protections, you can make much more progress. I'm giving you a little advice here.

David Blatte: Well again, it's the semantical difference.

Peter Robinson: But crucial, a crucial one because it's...

David Blatte: When I argue that an animal shouldn't be killed for food, if I call that a protection, it's not more likely to be adopted.

Peter Robinson: Let me press Richard once again on this distinction between humans and animals.

Title: I Think, Therefore I am (Better Than You)

Peter Robinson: What David is saying is there's a kind of continuum of rights and there's no sharp break between human beings and primates. It continues. And you...

Richard Epstein: Well Steven does--Steven doesn't say that. He...

Peter Robinson: What David says. But you have, I think, given up a lot of ground by surrendering this notion that there is an absolute difference. You shift the ground to sentience and so now let me quote you Steven Wise. I get this from the Chicago Sun Times. Steven Wise said recently at your law school, I think, at Chicago, "There's something out of whack," his phrase, "something out of whack in a society that could cast aside a highly intelligent animal but take extraordinary measures to keep alive an anencephalic human baby, despite its lack of a brain." That is to say, there is a continuum and you don't have to push very hard to find cases where you'll end up with animals that are more sentient, more intelligent than human beings.

Richard Epstein: Well, look. I mean, I think the mistake in Steven's reasoning is you could take whatever you want to say about anencephalic...

Peter Robinson: I'm so relieved that you have trouble pronouncing it too.

Richard Epstein: Yeah, I do have the trouble but I mean my own view about it is...

Peter Robinson: I'm glad that's not the ground for rights.

Richard Epstein: I'm sure that parents have an absolute right to keep their child alive. The real battle is whether or not public funds should be devoted to what I regard as a futile cause. And I would certainly support the former and I would fiercely oppose the latter. In terms of the animal things, one of the things I think that's so important to understand is our system doesn't say by virtue of the fact that you own animals, you slaughter animals. Anybody who spends time teaching and protecting an animal of this sort will use ownership to the advantage of the animal as well as for himself. And indeed without ownership...

Peter Robinson: Hold on, hold on.

Richard Epstein: could--in the wild; you could never get chimpanzees to learn what they can in cages.

Peter Robinson: You are slip-sliding away though from a--I'm just trying to get this one nailed down. Your ground for preferring humans is that they are more intelligent as a species, more so and so forth. All right. Steven Wise makes his point but once you accept that ground, you start moving in the direction of Steven Wise and of Singer--is it Peter Singer at Princeton...

Richard Epstein: Yes, he's one.

Peter Robinson: ...very often you discover you can find humans who are dumber than animal and...

Richard Epstein: Absolutely.

Peter Robinson: So where is your distinction? What is your ground?

Richard Epstein: No, no, the point--the argument is slightly different.

Peter Robinson: Okay.

Richard Epstein: Is that when you're starting to talk about human beings, the reason why you don't want to get yourself involved with a continuum into the slippery-slope is that it's a recipe for mass murder. With respect to animals...

Peter Robinson: Precisely but how do you stop yourself from sliding down the slope?

Richard Epstein: I mean, from the chimpanzee, I'm not trying to stop it. Remember I was the one who wrote the passage which said that if you're trying to make categorical decisions based upon nature, you're making the problem too easy for yourself and that you have to understand that there are all of these relevant differences. What I was saying in effect, is to the extent that you deal with animals who are developed and trained by human beings with extraordinary capabilities, this system of private ownership ironically works to their advantage and to their protection. And that one of the things that the animal rights activists have to decide is whether or not these rights are so strong that you cannot keep animals in captivity. Because understand the irony of this. They want to say that they've achieved all these results. The only reason they've achieved these results is because they were captive. If they were in the wild, you wouldn't have a chance in hell of making all of this work.

Peter Robinson: Of teaching a chimpanzee. Okay.

Richard Epstein: And so you have to understand that, you know...

Peter Robinson: Let me go...

Richard Epstein: ...human ownership works to the benefit of animals in many critical situations.

David Blatte: Well let me respond to that...

Peter Robinson: Go ahead. Respond to that.

David Blatte: It's a kind of paternalistic view to say we're acting on the best interests of animals and I can give you hundreds, millions, even billions of examples where we're not acting in the best interest of animals. Let me shift it a little. There's an assumption here that humans need animals to perpetuate the species. And I would like to challenge that basic assumption. Richard started to say that we need animals for nutritional reasons to feed the world. But, in fact, the exact opposite is true. Raising of beef is grossly inefficient. It's also the second greatest pollutant after cars. So using animals for food, there's a strong argument that it works against our species.

Peter Robinson: Why do you know that and the free market doesn't? If there's an inefficiency in an economic sense, why hasn't the market discovered that?

David Blatte: Because people enjoy--they think they enjoy eating animals more and they're willing to pay for that.

Richard Epstein: They don't think, they know.

David Blatte: So here's the question then, if we're eating animals not for nutritional reasons, not for survival, only because we enjoy it and this is the fundamental question, do we have a right to take that animal, to kill it, just for our enjoyment?

Peter Robinson: All right. Last topic, a couple of specific proposals to improve the treatment of animals.

Title: Power to the PETA

Peter Robinson: Matthew Scully's book, Dominion. Proposal number one and let me see the way the two of you exercise your minds on these proposals. Outlaw crude or savage forms of hunting. I quote Matt Scully, "Baiting wild animals is still legal in many places and where illegal, seldom punished. Entire companies exist just to make and sell an array of ever more sophisticated lures and decoys. We can enact state and federal cruelty statues banning all forms of baiting." He also wants to ban hunting with bow and arrow, "broadhead arrow kills like a knife, torturing the creature with a slow death by hemorrhaging. If a man insists on hunting, let him at least hunt like a man." Any objection to any of that?

Richard Epstein: I mean, I don't know much about the particulars but certainly he seems to me to be talking about the right things. He's stressing cruelty rather than the inviolability of animal life.

Peter Robinson: And so from that point forward, you have no objection in principle...

Richard Epstein: I mean, in principle no, I'd want to see the particulars of the program. My view about it is I see a proposal from one side. I want to hear the other side before I make a final judgment but I'm not fighting hard.

David Blatte: Okay, that quote doesn't go nearly far enough.

Peter Robinson: Too modest.

David Blatte: The question is, why do we allow hunting at all? Let's take a deer or a bear, living out in the woods enjoying life presumably and a human gets some sort of pleasure out of taking that life. And I have difficulty understanding this, internalizing that.

Peter Robinson: Let me give you one more test case, all right, because there's a movement in this direction, this is actually happening politically, some would wish it would happen politically. Referring to the 1958 Humane Method of Slaughter Act, Matt Scully writes, "The law has recognized our duty to give farm animals a merciful death, the law must now recognize our duty to give them a merciful life." Matt then goes on to propose a humane farming act, which would explicitly; I'm quoting him, "recognize animals as sentient beings and not as mere commodities or merchandise. It would carry specific provisions as to the space afforded to each animal, following no more complicated a principle than that pigs and cows should be able to walk and turn around, fowl to move about and spread their wings and all creatures to know the feel of soil and grass and the warmth of the sun." Which sounds pretty modest but would revolutionize certain kinds of farming, the way we treat livestock. How does this sound to you?

Richard Epstein: It strikes me as being probably too costly in the end to be sustainable. I don't know exactly how far down this continuum one would want to go but one of the great achievements in human beings is the cost of an egg in real terms is five percent of what it was a hundred years ago. If you're going to make it ten times greater than it is today, the loss of availability of nutrition to human beings will create major public health problems and I don't think people will stand for that. I mean, I just don't think it will happen.

Peter Robinson: David, humane farming act?

David Blatte: Again, there shouldn't be any farming but we go back to a disagreement as to some premises here. We would be much better off in terms of world hunger if there were no animals being raised for food, if it was all grain. We'd have the nutritional needs met but there'd be more food. So I disagree with that assumption. We do know that raising beef is more inefficient than raising grain.

Richard Epstein: No, we don't know that. We know it costs more per unit but we don't know what the benefits are. Just let me just give you one example. You take something like cholesterol in high quantities, it could be very dangerous for you but in low commodities, it may provide you with things that grains don't have which allow you keep a certain level of emotional stability and reduce the level of violence. As you just changed from meat to grains, all of these, sort of sub-elements which are part of the meat diet which may have very important functions in terms of keeping human beings stable, that will change. And any radical shifts in diets across an entire population could have perhaps very disastrous consequences. We don't know for sure but...

Peter Robinson: We don't know, that's the point. We don't know.

Richard Epstein: And some of us don't want to take that chance.

David Blatte: Well, we do know how damaging meat is right now. We know...

Richard Epstein: But in excess.

David Blatte: It adds to heart disease and cholesterol, obesity. So we do know those factors.

Richard Epstein: No we don't. I mean, it's more complicated because what we know in effect, is until you get to periods of real prosperity, every additional calorie that one could acquire in a voluntary market increases the longevity and the general health of individuals. I mean, the agricultural common is to run through this stuff. It's striking as to how important the...

Peter Robinson: But you're describing a situation that only obtains in the Third World...

Richard Epstein: Oh, in the Third World, it turns out that there are many people whose caloric intake isn't much above that needed to maintain basal metabolism. And it may well be that they should eat more grain and less meat but it may be they should eat more fish. And as far as I'm concerned...

Peter Robinson: So it's complicated.

Richard Epstein: You deregulate the economic, the agricultural markets it will do more good than animal rights for poor people.

Peter Robinson: Gentlemen, this is television which means that it's time for the final question. We've been talking about principle. You've made it clear what you want. Richard has made clear his skepticism. Now let me ask you to predict, that is to say, to make a comment on what you think is actually going to happen politically. Five years from now, will farmers be required by law to give pigs, cows, chickens at least enough room to turn around in? Richard?

Richard Epstein: My guess is probably not although I think there will be some small movement in that direction.

Peter Robinson: David?

David Blatte: Five years is probably too soon although in other countries, it's already enacted. I think these changes are going to take a little longer than a five-year period but I think gradually over time, animals will be given more and more rights, more and more protections. And again...

Peter Robinson: So you see this then as the kind of cause to which you'd devote your whole life, your whole career?

David Blatte: Yes, me and hundreds of thousands of other people. Again, we see this as animals as a form of oppression just like other forms of oppression. And we see that the history of the world is liberation from this type of oppression. And it's gradual as it always is. It was with slavery. It was with women's rights. And over time, more and more people will agree and eventually enough people will agree that it will become enacted.

Peter Robinson: David and Richard, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thank you for joining us.