Jim Henley asked for a libertarian justification for animal cruelty laws here. Other libs have chimed in here and here.

As it happens, I was recently reading an article by Stephen R. L. Clark called “Animals, Ecosystems, and the Liberal Ethic” (The Monist, Vol. 70:1, Jan. 1987) where he tries to articulate a rationale for protecting animals (and ecosystems) that arises out of liberal/libertarian ethic.

We’ve already seen that Clark is something of an anarcho-conservative, and here he takes the tack of showing that a concern for libertarian style rights is by no means incompatible with concern for animal rights.

What Clark suggests is, in essence, that we can’t assume that the differences between humans and animals are so great that the former always have a full complement of rights while the latter have none:

First, it is implausible to claim that the only evil done in imprisoning, tormenting and killing even a rational agent is that we thereby interfere with her moral choices: much of the evil is simply that we do what she does not want done. That evil is also done if our victim is non-rational, not morally autonomous. What difference does it really make whether or not she has or could have a principled objection to our behaviour? If she has no will in the matter I do not violate her will, but I clearly violate her wishes.

Secondly, what ground have we got to make so radical a distinction between wishes and the will, between the desires and projects of a nonhuman or sub-normal human and the principled will of a rational agent? Why should it be supposed that I make my claims upon the world as a carefully moral being, in some way that a non-rational being could not manage? “A cat who is being hurt will struggle, scratch and try to bite. Why is not this a claiming of its rights?” (Sprigge 1984 p. 442). Why isn’t a blackbird claiming his rights when he proclaims his territorial possession? What is lacking in too much discussion of these questions is any serious attention to what ‘animals’ are like, and what evidence there is for the vast difference in nature that humanists like [H.J.] McCloskey must conceive. It is quite inadequate to appeal to current English linguistic usage, as if that settled the question. If it is wrong (not merely imprudent) to batter human infants this may be partly because it seems likely to interfere with their future projects, but it is chiefly wrong because they do not like it, nor would they like its further consequences if they knew of them. The same wrong is done in battering baboons: who could imagine that baboons don’t mind?

It follows, if the abstract argument for natural human rights must be extended to allow similar rights to other agents (even if not strictly ‘moral’ agents), that our property rights in non-human animals must often be suspect. A right that licenses the violation of a right is no right at all, and ‘self-owning’ is a category more widely extended than we had thought. A being ‘owns itself if its behaviour is the product of its own desires and beliefs, if it can locate itself within the physical and social world, and alter its behaviour to take account of other creature’s lives and policies (see Clark 1981). This, I take it, is [Tom] Regan’s concept of what it is to be ‘the subject of a life’, not merely living (1983 p. 243). Such self-owners are, in the relevant sense, equals, and a just, liberal society cannot allow them to be owned by others, even if it allows them to be employed on terms not strictly of their own making.

The libertarian argument is that “self-owners” have the right not to be arbitrarily subjected to the will of another. Clark’s contention is that “self-owner” covers a wider range of creatures than just human beings. This is essentially a version of the so-called argument from marginal cases: it’s very difficult to specify a set of criteria for whatever morally important category you like (self-owner, person, rational agent, etc.) that includes all and only human beings. Either it will be drawn so narrowly as to exclude some classes of humans, or it will be drawn so widely that at least some non-human animals count.

What’s noteworthy is that a lot of libertarians seem to want to maintain the traditional status of human beings as sole rights-bearers without the metaphysics to back it up. An Aristotelian worldview that insisted on big bright distinctions between natural kinds might be able to provide support for this view, as might some religious views. But a world of evolutionary development where living things exist along a continuum without sharp breaks seems to sit more comfortably with the idea of a continuum of moral rights.

Clark’s distinction between animals being “owned” and being “employed on terms not strictly of their own making” injects some fuzziness into thinking about what might actually be entailed by all this. Is there a sense in which animals could be said to “consent” to at least some of the relationships that have evolved between them and human beings? Could domestication be understood as somehow analogous to the entering into of a partnership? Wherever we draw that line, though, some forms of wanton cruelty would seem to be easily ruled out. Also, I might add, would things like factory farming: an arrangement which is extremely difficult to see any animal “consenting” to in however attenuated a sense we can come up with.