Libertarians, Conservatives Part On Animal Cruelty Laws

By STEPHEN BAINBRIDGE

Monday, Sep. 10, 2007

American conservatism is an exceptional movement with few global parallels. As the late National Review Senior Editor Frank Meyer famously argued, American conservatism fuses Edmund Burke and John Stuart Mill to combine tradition, moral virtue and ordered liberty with classical liberalism's libertarianism.

Hence, for example, Meyer believed it consistent to oppose state control of the economy and limited government, as well as a belief in an objective moral order that properly finds expression in morals legislation.

Every once in a while, however, a political issue arises that tests the delicate balance between conservatism and libertarianism. Oddly enough, the latest spat was triggered by Atlanta Falcons quarterback Michael Vick's guilty plea in his now infamous dogfighting case.

The center-right blogosphere has been ablaze in recent days, as a number of prominent libertarian bloggers have criticized animal cruelty laws. Alex Tabbarok of MarginalRevolution.com quipped:

"After attending dogfights it's rumored that on some nights Michael Vick would continue his bloody activities by dining on cow's flesh. No word yet on whether prosecutors will be seeking additional prison time."

Julian Sanchez of the Eponymous blog tentatively suggested that "animal cruelty laws are less a function of high principle than of the fact that we like both burgers and cute doggies," although he later withdrew that claim for further consideration.

All of which prompted Ted Frank of OverLawyered.com to ask: "I'm happy to have dog fighting outlawed. I'd prefer not to outlaw foie gras. Do I have any argument for the distinction besides my personal preference?"

As someone who has been known to slip bits of pâté de foie gras to his dogs when his wife wasn't looking, this strikes too close to home to be ignored.

Libertarian purists likely would tell us that animals are property and that Mill's harm principle precludes the government from interfering with property rights except to protect humans from harm.

Even if we accept that limitation, however, a case could still be made for banning dogfighting and other blood sports. There are documented cases of trained fighting dogs attacking people.

There are also infringements on property rights. Fighting dog trainers are known to routinely kidnap pets for use as sparring partners for the dogs, for example. Indeed, there have been instances in dog parks near my home in Los Angeles where fighting dogs attacked and even killed other dogs hiking with their owners.

Finally, because dogfighting is becoming part of gang culture in some areas, there may also be a case for banning it as a prophylactic against other forms of gang-generated harms. None of these considerations applies to the alleged animal cruelty involved in foie gras production.

Let's assume, however, that dogfighting injures only animals. Here is where the fusionist (and, for that matter, the Tory traditionalist) parts company with the libertarian purists. Russell Kirk taught that "conservatives value property for its own sake, of course; but they value it even more because without it all men and women are at the mercy of an omnipotent government."

At the same time, however, conservatives do not make a fetish of property rights. After all, as Kirk also taught, "At heart, political problems are moral and religious problems."

Being skeptical of individual reason, deferential to tradition and convinced of the need for an enduring moral order in society, the conservative is doubtful that the Constitution enshrines Mill's harm principle any more than it enacts "Mr. Herbert Spencer's Social Statics."

Instead of blanket rules, we seek to comprehend the divine intent, groping toward it through history, myth, fable, custom and tradition. In particular, we look to the customs and traditions of society, believing that the species is wise even if the individual is foolish.

This perspective allows us to distinguish between dogfighting and foie gras. Although dogfighting has a long history, so does opposition to it. England prohibited it and other blood sports as early as 1835. There is a longstanding consensus in the Anglo-American tradition that blood sports are cruel and ought to be banned.

The debate over foie gras is newer and far less well settled. Hence, at this point in time, I think one can make a case for morals legislation banning blood sports while exempting foie gras production from animal cruelty laws. Whether our evolving understanding of the moral order will eventually justify a banning production of the latter, only time can tell.

This article originally appeared on Examiner.com, the web site of The Examiner Newspapers.


Stephen Bainbridge is the William D. Warren Professor of Law at UCLA, where he currently teaches Business Associations, Unincorporated Business Associations, and Advanced Corporation Law. Professor Bainbridge's blog ProfessorBainbridge.com® is one of the most widely read political and legal weblogs on the Internet

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More