The Mere Fact Of Dissent About Animal Cruelty

I find it strange when, in political arguments, people want to stop at the fact that people hold a certain opinion to justify something when the thing in question can only really be justified by advancing the reasons for that opinion. I noticed this phenomenon first in discussions of embryonic stem cell research and related technologies. Opponents would argue that this research should be banned because some people have moral qualms about it. This argument sets aside any probing of what the rationale for those qualms is, much less whether that rationale is a good one. The mere fact of dissent becomes a reason to ban the thing the dissenters dislike.

This phenomenon comes up again in this Stephen Bainbridge column. Bainbridge seeks to defend our current inconsistent animal protection laws against the arguments of libertarian anti-vegetarians who say that if we allow torturing geese to produce foie gras, then we should allow dog fighting*. After rambling for a while the fact that (but not precisely how) conservatism can blend the ideals of limited government interference and of government as an expression of collective morality, Bainbridge concludes:

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.

In other words, there are lots of people who dissent from dog fighting, so the fact of their dissent is sufficient cause for banning it. On the other hand, the number of foie gras dissenters is small enough (and they are peripheral enough to the core of our culture due to their unusual beliefs and habits) that the basis for banning foie gras is weak. Bainbridge's reasoning here is like the person who, when asked who they think the next President of the USA should be, will say nothing more than "whoever a majority of voters in states controlling a majority of the electoral votes prefer." Certainly that is correct as far as it goes, but it's unhelpful to anyone (including the answerer him- or herself) making a decision about whether their vote in one of those states should be cast in favor of Hillary Clinton or Mitt Romney. Indeed, if such deference to what others think consistently trumped attempts to examine the basis of those beliefs (a direction in which Bainbridge seems to be heading when he tells us "the species is wise even if the individual is foolish"), we would be buried in Emperor's New Clothes fallacies**.

The simplest interpretation here is that Bainbridge just doesn't have room to get into why we dislike dogfighting but don't mind foie gras. His larger point is that conservatism is superior to libertarianism because it allows morality-based legislation***, and so perhaps it's enough for him to make conservatism appealing to readers by illustrating a case in which we would like the implications of conservatism better than libertarianism, because conservatism leaves the door open to making our preferences (which are implicitly assumed to be justified) law.

Another interpretation is that Bainbridge sees the development of ethics and culture ss something arational and uncontrollable. We just do happen to come to believe certain things, which may be inconsistent with each other in some way. All we can do in making laws is look at what moral commitments the culture in question has actually acquired. This is a sociologically odd position, because whatever irrationality or hidden forces may be at work in shaping a culture, it seems obvious that people do in fact believe that they have good reasons for what they believe and how they act, and they spend a great deal of effort making reasoned appeals to each other (such as Bainbridge's own column) and responding to others' reasoned appeals. And if our ethics are not rationally based, then the justification for basing law on them seems quite weak.

At best -- and I realize this is a very speculative extrapolation from his brief comments, so take it as my own exploration of the issues raised by the column more than an exegesis of the column itself -- Bainbridge might be taken to be arguing for a regulated wall between the political and ethical spheres. You can have an ethical argument about a given use of animals, with the full panoply of reason-giving and critique. But only the conclusions -- "dog fighting is wrong," or "foie gras production is acceptable" -- can be passed through the filter into the political realm. The political realm, for its part, can't examine or critique the reasoning exercised in the ethical realm. It can only respond to the conclusions that ethical debate produces, acting to implement and protect them. (And the barrier may be reciprocal, so that debates over whether a given practice is right or wrong should not be influenced by considering whether that judgment would or should lead to laws against it.)

There's something to this conception, in that the law can't possibly be based directly on what's right, but rather on what some collectivity of people have decided is right. And a lawmaker casting a vote on the floor of the legislature may be justified in basing his or her vote solely on the fact of his or her constituents' views, rather than on whether their reasoning for their views is persuasive. But applying this separation of law and reasoning to everyone also imposes an excessive separation in public debate. As soon as Bainbridge asks the legal question -- should X be banned -- he is made unable to cross the barrier into reasoning about whether people should oppose dog fighting or foie gras, but instead can only refer to whether people do currently oppose it. Raising the inconsistency in our animal cruelty laws should open the door for reconsidering the moral beliefs that underly those laws.

Stopping one's argument at the mere fact of dissent is not universal in conservatism (or liberalism, where this style of argument can also sometimes be found) -- just look at any conservative argument for laws against homosexuality or abortion. So insofar as Bainbridge relies on this type of argument in his attempt to distinguish libertarianism and conservatism (in general or in the dog fighting versus foie gras case), he has left something out.

*For the sake of disclosure -- though my argument in this post isn't really about the substantive question of what animal cruelty laws we should have -- I would ban both dog fighting and foie gras production.

**Here I am using a well-worn proverb from Anglo-American culture to warn against trusting the consensus and traditions of that culture.

***I find the libertarian idea that we shouldn't legislate morality to be vacuous unless you define morality in some narrow way that saps the principle of its appeal and may even render it question-begging. Any law has a moral basis -- even "don't harm others, and don't coerce them except to prevent them from harming others," libertarians' supposed substitute for morality as a basis for law, is itself a moral principle. I agree with the conclusions that the left uses opposition to legislating morality to arrive at. But "the government should not endorse religion" and "homosexuality should be allowed" are inescapably moral claims.