Ordinarily, I could carry no brief for David Frum, a savvy actor in movement politics who made himself the Grand Inquisitor against the paleoconservatives and other dissenters opposed to the Iraq War - and all of the victims of his purge have been vindicated by the tides of history - and lately an advocate of a reformed, moderate conservatism. I can espouse neither his foreign policy prescriptions, demonstrably disastrous as they have been, and cannot but be, nor his prescriptions for domestic reform, to the extent that they are contingent upon throwing the social conservatives to the wayside. However, in the matter of in re: Sunstein, I am compelled to side with Frum, and Millman, not so much because I embrace Sunstein's controversial policy proposal without reservations, but because I find the critiques of it at once muddled and overwrought, and the rhetoric deployed in defense of those attacking Sunstein histrionic and philosophically dishonest.
Hewing solely to those excerpts quoted by Lydia below, I am compelled to make inquiry:
- How is it that Sarah Palin, Rush Limbaugh, and Glenn Beck have become "the most powerful and feared and charismatic conservatives"? Would this be the Sarah Palin who at once argues that a lack of regulation was, and was not, the cause of the financial crisis, and who retails the bizarre idea that, if Federal Reserve policy was at the root of the bubble, the banksters are somehow exculpated by this fact (The Fed, and Congress, are uniquely responsible for creating the conditions in which bankers behaved badly, which is to say that they simply couldn't help themselves)? Would this be the Rush Limbaugh who stated that a school-bus beatdown meted out in suburban St. Louis transpired because, in Obama's America, blacks feel empowered to act on the belief that whites are born racists, when the incident related to the strange status hierarchies reflected in seating arrangements? Would this be the Glenn Beck who argues, in perfect innocence, that American government has been captured by a government-corporate oligarchy, but that it would be doubleplusungood progressivism to do anything effective to counter it?
Is it now forbidden to critique the failures and missteps of movement luminaries, merely because The Cause now seems so exigent, even when one has legitimate concerns that the flaws of the movement and its leading figures will prove deleterious to the movement in the medium-term and beyond, or have already proven so?
- Neo-Stalinism? Neo-Stalinism? I must have missed the terror famines, show trials, purges, mass executions, gulags, the climate of suspicion and surveillance in which children turned their parents over to torturers for petty party perks, the bloody repression of religion, and the command economy operated by intellectual incompetents after the liquidation of the Tsarist intelligentsia. My wife grew up in the Soviet Union, in the days of Perestroika and Glasnost, which nonetheless remained orders of magnitude more oppressive than anything contemplated in current policy, and yet failed to descend to the sheer depths of Stalinism in repression and barbarity. Perhaps the prefix 'neo' is intended to differentiate this contemporary Stalinism from the genuine, historical article, in which case it appears to mean nothing more precise, or menacing, than 'any policy proposed by someone to my left with which I happen to disagree' - which would render it the rightist analogue of the tiresome leftist accusation of 'fascism', which, alas, some segments of the right have lately attempted to resuscitate for their own purposes.
If conservatives were forbidden to employ private definitions of key terms in political thought, such as 'socialism', or 'Stalinism', and were thus compelled to deliberate over the merits and demerits of specific policies, articulating specific reasons pro and contra, we would be entertaining, in effect, a debate over the extent to which the United States, in a few areas such as banking regulation and health care, should become more like Germany or Switzerland, respectively. That is, we would be debating specific instances of the generic question of American Exceptionalism, endeavouring to determine whether, and to what extent, the unique characteristics of America exempt it from the general structural tendencies of Western modernity, in politics, economics, and so forth. That might be a disputation worth entertaining, and for a protracted engagement; but we will prove ourselves incapable of entertaining it openly and honestly so long as we veil this fundamental question beneath layers of mystifying incantations.
But the issue with Sunstein concerns the implications of his legal proposal for the enforcement of the interests of animals, you say? Very well, let us turn to that matter.
Noah Millman explicates the underlying issue:
If I understand correctly, Sunstein was arguing that there’s an asymmetry between laws that protect animals and laws that protect people. If I am negligent in my use of a chain saw, and cut off your arm, you can sue me for damages. If I use my chain saw to cut off the legs of local stray dogs, I’ve broken the law and can be arrested, tried and, if convicted, sent to prison – but nobody has standing to sue me, because the only damage that’s been done is to the dogs, and dogs don’t have standing. (If they weren’t strays, the owners would have standing.) Sunstein was arguing that this asymmetry makes enforcement of laws against animal cruelty relatively weak; normally, the civil law acts (among other things) to buttress the criminal law because in the civil law you’ve “privatized” the investigation and prosecution of the harm. Giving ordinary citizens the standing to sue on behalf of animals would, similarly, privatize the investigation and prosecution of harm to animals; instead of being hapless wards of the state, animals legitimate interests could be protected by any vigilant citizen.
What’s wrong with that? Nothing – if you think laws against animal cruelty should be zealously enforced. Sunstein wasn’t arguing that animals should have any interests or “rights” that aren’t already established legislatively; his whole argument is about how to get protection of such interests or “rights” enforced. It seems to me that if one wants to argue against this, one has to argue either:
(a) there is nothing wrong with cruelty to animals;
(b) cruelty to animals is indeed wrong, but is vital to our national economy and so should not be curtailed even though it is wrong;
© current laws against animal cruelty are overbroad and should be scaled back (and the only reason we haven’t done so is that they are so poorly enforced that nobody notices);
(d) current laws may not in themselves be overbroad, but will inevitably be interpreted in a broad manner by the courts, such that activities that would not now be prosecuted (e.g., hunting, medical research) and never intended to be prohibited legislatively would wind up being prohibited;
(e) protecting animals in this manner might indeed work, but the courts are too inefficient to handle the claims and we’d wind up clogging them with junk suits so that overall less justice was done rather than more.
I find it very hard to believe that anybody wants to seriously argue for (a), (b) or ©. Option (d) strikes me as a plausible objection, but is subject to legislative correction if the courts wind up overreaching – and, more to the point, hardly justifies apocalyptic rhetoric. Option (e) is an empirical claim that could be applied to any situation where someone has recourse to the courts, and I find it hard to believe that such a situation would be anything but temporary until a new equilibrium is established.
It should be observed at the outset that Millman has omitted an argument (f), which would hold that, irrespective of the interests of animals and the obligations of human towards them, enforcing those interests in this manner would set us at the beginning of a slippery slope, the bottom of which would witness a functional legal equivalence between animals and human beings, with the consequence that, as in any case involving the like treatment of disparate things, injustice would be wrought against the human beings. More on this anon. Nonetheless, what should be manifest is that, weak though Frum's circumstantial arguments unquestionably are, it is possible, if one lays aside the hysterics, and resolves to understand an opponent's argument as he himself would understand it, which is to say, charitably, and then presents it rationally, Sunstein's argument is not the transparent lunacy that the critics have portrayed it as being. This is not to state that it is impeccable in its logic, nor that its implementation would be as seamless and unproblematic as Sunstein appears to believe, nor yet that there may not be consequences, foreseeable and unforeseen alike, that ought to give us pause. However, if one believes that animals are more than mere meat machines, biological automata possessing no inherent dignity, no natures, which is to say, no teleologies of their own, save as they come into relation with human beings, then the question of how to ensure that these natures are respected inevitably arises. It is a subset of the broader question of the relationship of man to nature, to the rest of the created order, and how that relationship should be reflected in law and culture.
It is a waste of intellectual energy to consider Millman's option (a) as a valid reason for objecting to Sunstein's proposal; any person seriously maintaining that animal cruelty is either morally illicit or conceptually incoherent is engaged in the performative inconsistency of demanding that the teleologies and goods of human nature be respected and enforced at law - for surely he would not want his 'rights' violated - while claiming a right to regard the remainder of nature, animals included, as so much raw matter fit only for the imposition of human volition. Neither theologically nor philosophically can human nature be so thoroughly severed from its material constituents, isolated from the created world, and elevated above it as pure will. Either one believes in teleologies and natures, or one does not; one is not entitled to pick and choose for reasons of convenience.
Millman's option (b) is more interesting, in that it would essentially posit a lesser-of-two-evils scenario as obtaining as regards the abuse of animals. That, of course, begs the question of the definition of the abuses; and, indeed, if we confine our conception of animal abuse to things customarily regarded as such by the average American, we will probably end up thinking of Michael Vick's dogs - and it cannot seriously be maintained that American prosperity and order are in any way contingent upon such things. However, as Millman hints later on in his post, when he writes, "In the end, what’s unsettling is that anybody who’s done any reading on the subject knows that modern agribusiness results in really unconscionable enormities", there are unquestionably those who do, in point of fact, argue precisely that the American way of life is contingent, in certain respects, upon industrial scale cruelties inflicted upon animals. Without intending to relitigate this question at this time, it suffices to observe that whether Millman's option (b) is a compelling objection to Sunstein depends upon how one defines cruelty, specifically, whether one admits the cruelty of industrial livestock operations, and regards these operations as critical to the American way of life.
Option (c) would seem to be an absurd objection, prima facie, inasmuch as what animal cruelty statutes we do have on the books are so toothless that they impinge not a whit on the industrial scale cruelties of the food production system. Moreover, I can scarcely imagine anyone arguing that our laws, under which dogfighting and drowning kittens in a bag would be criminal acts, are overly broad, and that such acts are either morally neutral or morally licit, and should be permitted. They are obvious cruelties and deprave the minds of those who participate in and/or lend their approval to them - they are prohibited for good, sound reasons.
Option (d) is manifestly a more substantive objection, and allows us to perceive the oversight in Sunstein's reasoning. Sunstein's proposals would likely require enabling legislation, even if they would not necessitate any additional statutes clarifying the legal definition of cruelty; if Sunstein is less than explicit about this point, so much the worse for his consistency. Nevertheless, we already have standards of cruelty which apply in the most common cases of animal abuse; those standards are well-established and sufficiently clear to all parties; if it is a matter of someone being granted standing to sue on behalf of some abused dogs, then the suit would proceed in accordance with existing precedent on the matter. All this would accomplish is enabling third parties to rat out, and bring suit against, some bush-league Michael Vicks. The concern here is not, then, that lawsuits brought on behalf of abused dogs would result in the legal precedents on animal cruelty spiraling out of control, but that lawsuits reasoning by analogy to other fields of endeavour, such as research, or industrial animal "husbandry" would first clutter the courts, and eventually shift the precedents so that they cover all manner of activities that many people would like to perpetuate. And in that instance, the remedy would be positive legislation defining the obligations of human beings towards animals in those circumstances, thus circumscribing the bounds of permissible lawsuits. Hopefully, any such legal remedies would be accompanied by arguments explaining why things which, if done to a dog, would be criminal, would not be criminal if done to a cow. The flaw in Sunstein's reasoning is simply that he overlooks, for whatever reason, the role of the positive law in giving form to our convictions regarding the treatment of animals; at its core, his proposal is for a revision to the formal enforcement mechanisms employed in animal abuse cases, where the formal mechanism must presuppose some or other conception of the interests to be defended. Perhaps Sunstein should be more forthright if he believes that standards of animal cruelty already having legal force should be extended to cover livestock; in that case, his critics should be more forthright in explaining why such reasoning by analogy is so gravely mistaken.
Objection (e) is plausible, but like Millman, I don't imagine that the juridical disruptions would be enduring; the remedy for any legal system thus cluttered by junk suits would be identical to the remedy for (d), namely, determinations by the positive law that cruelty does, or does not, encompass specific things, thus defining the field of cruelty, and allowing all parties to adjust to the new reality.
Finally, as for objection (f), as with the two previous objections, the outcome is contingent upon the substantive conception of animal interests recognized at law; if the formal mechanisms, including 'standing to sue', operate within the constraints of a legal order in which, by whatever means, the rights of persons and the enforceable interests of animals are distinguished, then no slippery slopes will materialize. If those formal mechanisms operate within a legal order in which those matters are left ambiguous, then the slippery slope is possible; but the bare formality of 'standing to sue' does not, of itself, yield the slippery slope; it can so only in combination with both compliant courts and a political system incapable of imposing a legal remedy for excess, whether the excess is objectively so, or merely perceived as such because it traduces some economic interests. Myself, I'm incredulous that our society is on the cusp, not only of recognizing, say, industrial livestock production as grotesque cruelty, but of doing so in precisely the manner required to legally instantiate Peter Singer's ratpigdogboy philosophy. The argument that the enforcement mechanism, being modeled after that of child protective services, would yield that result is, in my estimation, eliding the distinction between the formal process and the substantive outcome. If animals, again, are not mere meat machines, then their interests - which is to say, our obligations towards them - will be vindicated by some means or other; the results of this vindication depend upon our conception of animals, and of man, and not upon how we go about enforcing them. If standing to sue is regarded as invidious and threatening, we could simply bypass the issue altogether, proscribing industrial livestock production - which is likely the underlying issue here, other than Singerism - and augmenting the enforcement budgets of the relevant agencies. Seen in that perspective, standing to sue is merely a question of efficiency in enforcement.