Last week, the New York Court of Appeals dismissed a lawsuit that sought to free Happy the elephant from life as a caged attraction at the Bronx Zoo. The court’s reasoning is flawed and offensive in several ways. Michael Dorf examines some of those flaws in his recent column on the subject. I will here focus on a particular argument that anyone who supports the most basic rights for sentient nonhuman animals will have heard more than once from those who oppose such rights—rights not to be kidnapped, held against their will, tortured, or murdered. The argument goes like this: humans are capable of fulfilling moral responsibilities and therefore have rights; nonhuman animals are incapable of fulfilling moral responsibilities and therefore lack rights.
What’s Wrong with that Argument?
The above argument is wrong for at least three reasons. First, as Judge Wilson’s dissent points out, plenty of humans either cannot or do not fulfill their moral obligations, and yet such people do have rights. A one-year-old baby is entitled to be free of violence, and no one thinks that the baby’s failure to fulfill responsibilities (or even to be able to do so) undermines her entitlement. If the baby’s father beats his daughter or sexually assaults her, he is a criminal whom we would seek to punish for the violation of his child’s rights. Other humans are also incapable of fulfilling responsibilities, and the notion that they are therefore entitled to no right against violence is a reprehensible idea that only the most callous among us would accept.
Judge Wilson’s dissent also identifies a second flaw in the above argument, namely, that many animals have in fact assumed responsibilities where no human was interested in doing so. Dogs have risked their own lives to run into burning houses to rescue humans or to fight attacking wild animals who threaten the lives of the dogs’ human family. So the factual premise for the “moral rights only come with moral responsibilities” is as wrong as the assumption that we would apply this principle to anyone in the human community.
There is a third way in which the above argument is flawed. It has to do with the underlying moral theory behind testing someone’s capacity for moral responsibility: reciprocity. The reason that anyone might think that the capacity to bear moral responsibilities is relevant to rights is that if you cannot respect my rights, then maybe I have no obligation to respect yours. The reciprocity idea is an important aspect of social contract theory, which holds us to obligations to our fellow citizens with the promise that they will hold similar obligations toward us.
In one sense, reciprocity is a sensible moral principle. It isn’t fair for us to demand something of others but not give of ourselves too. If I hire you to tune my piano and you do the tuning, you are entitled to payment. And if you know that I cannot afford to pay you what you charge for the service, you are entitled to choose not to tune my piano. Most human relationships rest on some level of reciprocity.
So What’s Wrong with Reciprocity?
So why have I listed the reciprocity idea as a flaw rather than a sensible way to distinguish between rights-holders and non-rights-holders? The answer has to do with the act/omission distinction. If we want to demand an affirmative act from someone, then reciprocity is important. You do not need to work for free, and I do not need to pay taxes if no one else does. But our obligations are not exclusively about acts. Some are about duties of non-harm, in which we have an obligation not to commit violence against others. Some of the others against whom we must not commit violence are in no way capable of bearing moral responsibilities. Return again to the one-year-old—she might flail her arms about and have no capacity to control herself, but other than in self-defense, you may not hit her, drown her, burn her, or otherwise commit violence against her. We must refrain from acts of violence against anyone who would suffer from such violence.
We extend this moral consideration to the baby because violence is wrong, except in a small number of circumstances, and it is wrong regardless of what our victim might be capable of doing to us or for us. We may not choose to attack a one-year-old and justify our actions by noting that babies are incapable of reciprocating our refraining from violence or reciprocating our violence itself.
To suggest otherwise is to embrace a principle of might makes right. It is not a moral principle at all but simply a choice to exploit those who are weaker than we are. If you propose to kill X, and X cannot possibly kill you (and therefore also cannot choose to refrain from killing you, any more than I can choose to refrain from levitating), the reciprocity principle of the majority, if taken to its logical conclusion, authorizes the killing. Anyone who is not in a position to harm you (and therefore to refrain from doing so) is somehow fair game. On the (inaccurate) assumption that humans have rights only if they can make moral choices, do we really want to say that keeping an elephant in a cage and inflicting psychological and physical deprivation upon her is acceptable? Do we want to say that we can pollute the earth at will so long as those who will choke on the resulting pollution will do so long after we are gone? To live in this way is to be Oliver Wendel Holmes’s bad man, the person who acts morally only to the extent that rewards and punishments shape that behavior.
Though there is much more to criticize in the majority’s opinion, the most morally bankrupt idea there is the notion that violence is acceptable when we carry it out against the most vulnerable sentient beings among us. And right now, the most vulnerable among us are nonhuman animals, including those who cannot repay our minimal respect expressed in our not kidnapping, torturing, incarcerating, and murdering them.
The Morality of the Bully
When it comes to duties not to harm others, the morality of reciprocity is the morality of the bully. If you lack the capacity to hurt me—and therefore also the ability to condition not hurting me on how I treat you—then I can hurt you with impunity. Only if you are in a position to make my nonviolence pay off do I acquire a responsibility for nonviolence. Ordinarily, we do not regard moral obligations as simply a naked manifestation of self-interest. But a reciprocity norm in the context of nonviolence is purely a matter of self-interest, selfishness, and the pursuit of one’s own preferences.
To make this reprehensible argument to reject Happy’s petition to leave the imprisonment in which she has lived for almost all of her life, the court invokes, among other things, the slippery slope. The court worries that such a decision might affect the human prerogative, among other things, to hold billions of baby chicks of seven weeks old in close captivity, clip them upside down by their feet, fully conscious, slice their throats, dip them—not all dead yet—into scalding water to remove their feathers—and then send them to grocery stores so people can dine on the chicks’ ruined corpses and become graveyards for innocent baby birds.
Baby chicks—who still sound like babies because that is what they are at the time of slaughter—surely cannot condition their nonviolence upon ours. They, like Happy the elephant, are at our mercy, and we show them none. By invoking the reciprocity principle to protect the Bronx Zoo’s false imprisonment of Happy as a money-making exhibit, the New York Court of Appeals ensures that New York law will continue to permit the extreme cruelty, brutality, and violence that baby birds (and other farmed prisoners) experience so consumers can eat their flesh instead of the plentiful plant-based food available everywhere. Such reasoning makes me feel ashamed of being a New Yorker.