Letters
Animals and the Law
Shawn Klein's article "The Problem of Animal Rights" (Navigator, June 2004) approaches that problem from the standpoint of Objectivism. Under the circumstances, I thought it unfortunate that Klein did not consider two of my works that also bring Objectivism to bear on the topic of animal rights: my book Putting Humans First: Why We Are Nature's Favorite (Rowman & Littlefield, 2004) and my paper "Do Animals Have Rights?" which appeared in the Public Affairs Quarterly in 1991 and has been reprinted in numerous readers on ethics. In any case, as a contribution to Objectivist debate on this topic, I thought I would let Navigator's readers see how my book (in chapter one) addresses the crucial issue of marginal humans, which Klein's article discusses at length.
"[Peter] Singer has also argued that because some humans—such as retarded or
senile individuals—have lower capacities than animals, it would seem that the unimpaired animal may have more rights than the impaired human inasmuch as the former has greater mental capacity and can, thus, experience pleasure or satisfaction to a greater extent than can seriously impaired human beings.
"By such claims, however, Singer sets a bear trap not only for his fellow humans but also for his own theorizing. One cannot make general claims based on special cases; one cannot even know what constitutes a special case until one first knows what constitutes a normal and typical case.
"The argument for human rights rests primarily not on the particular level of intelligence or mental capacity of individual human agents but rather on their particular type of consciousness, namely, what Ayn Rand has called 'volitional consciousness'; it is this form of consciousness that
makes us moral agents. Only a human being completely stripped of conscious faculty—for example, an irremediably brain-dead accident victim—might be said to lack moral agency altogether. And in these cases, we do face difficult questions, such as whether to pull the plug (especially if a faint hope of recovery remains). But what can inspection of this brain-dead patient tell us about the alternatives facing a normally functioning person and how he should conduct himself? Nothing.
"The principle holds true not only in moral philosophy but in every field of learning. To convey information about something, one starts by considering the thing as it exists normally, not abnormally. Suppose someone wants to learn about the Hungarian dance the czardas. It would be
folly to begin by describing all the bad ways one can dance the czardas. One has no way of seeing how a botched pattern from the dance deviates from a proper pattern unless one first understands what is the proper pattern.
"To investigate human beings and their lives, one focuses on the normal, healthy cases, not the special or exceptional ones. A Martian would learn little about human beings beyond the strictly biological if he were instructed only about fetuses, infants, and the mentally ill. Nor can earthlings discover much about how to live their lives by contemplating such cases. We do need to deal with the borderline cases. But we can do so only by applying and adapting the knowledge we acquire from the normal case. We can't start with the exception and infer the rule."
— Tibor R. Machan
The author is the R. C. Hoiles Professor of Business Ethics & Free Enterprise in the Argyros School of Business and Economics at Chapman University in Orange, California.
Shawn Klein responds:
I want to thank Tibor Machan for bringing his work to the attention of Navigator's readers and myself. I am sure Machan's book would have been helpful to me had it been available while I was working on the Summer Seminar talk on which my article was based.
Machan does, in the quoted selection at least, discharge the objection from Singer and company too quickly. The point of the marginal-humans argument, I take it, is not to say we should reason from these special cases to a general rule or theory, but that these special cases undermine what we took to be the general rule or theory. This manner of arguing is comparable to arguing that a scientific hypothesis is in need of revision or rejection because of certain observations that the hypothesis doesn't appear to handle or predict. Singer and Regan are arguing that our general theory of rights cannot handle the special cases of marginal humans in a non-arbitrary way and is therefore in need of revision. I hope my article shows why such a revision is not necessary.
Humans and Morality
While not a believer in animal rights, I have a logical problem with Shawn Klein's answer to the "marginal humans" problem as set forth in his article "The Problem of Animal Rights" (Navigator, June 2004). To rebut the case for animal rights offered by Singer and Regan, Klein argues that rights are based on a capacity to reason, which animals obviously lack. He then identifies the "marginal humans" problem as the key difficulty in mounting this rebuttal, and he tries to strengthen his argument by pointing out that marginal humans have the "potential" to be rational beings, citing the possibility that advances in medical science someday may be able to correct whatever malfunctioned in the biology of these individuals.
Unfortunately, Klein did not take his thinking to the next step. Not only may modern science discover "cures" for comatose and mentally retarded individuals, modern science may in the future create a rational and conceptual capacity in machines and animals. In other words, technology is poised on a frontier that may have the capacity to extinguish any distinguishing characteristic of humanity. What then of our philosophical underpinnings?
I am no student of philosophy, but I would find the argument more compelling if it were based on "what is" rather than "what if." Law tends to create rights for individuals in selected groups, and it could be argued that most of mankind has the capacity to reason; thus for the sake of efficiency and administration, rights should be extended to the class. But even that avoids the real issue, which is that most of us would find abhorrent the idea of eliminating certain protections for marginal humans based solely on the absence of an ability to reason. Perhaps those protections should derive from morality and ethics rather than "rights." Or perhaps more convincing is Klein's reasoning without the crutch of modern science—that mankind has value because of its capacity to reason and marginal humans also possess that value because of their birthright potential to develop into rational beings.
— Barbara Bennett
Shawn Klein responds:
Barbara Bennett criticizes my argument that those with severely damaged rational capacities can be seen as potential traders because of possible medical advances and therefore deserving of some level of rights-protection. First, she worries that science and technology might extend rational capacities to non-humans as well. Second, she thinks my argument is based too much on a "what if" instead of a "what is." In answer to the first worry, if science does develop conceptual capacities in machines or animals and these capacities were such that these 'rational' machines or animals could potentially trade and interact with us, then I would say there would be good reason to extend rights-protections to such creations. Much as we would, I would hope, extend protection to intelligent extra-terrestrial life. I do not see a logical or moral problem with this.
While there is a "what if" element to my argument, I think the fact of medical advances in the last one hundred years makes the "what if" of medical correctives to mental retardation and the permanently comatose quite realistic. This is unlike a proposal that science would give conceptual capacities to animals, or even machines. The human brain--even one that is damaged--must, as a human brain, have the structures to some degree to support conceptual capacities. The animal brain likely does not. In one case, we are fixing a damaged capacity; in the other, we are creating a new kind of being altogether.
Quattrone and Capitalism
I found Roger Donway's article "The Case for Frank Quattrone" outstanding (Navigator, July/August 2004). I had followed the Quattrone trial only in a cursory way and was never able to tell, from the articles I read in the Wall Street Journal, what exactly he was supposed to have done wrong. Now I know. He did nothing wrong. Donway's piece is one of the best investigative articles on finance and alleged crime that I, in my thirty years of reading the Wall Street Journal and fifteen years of writing for it, have read.
The Quattrone case seems worse than the case of Michael Milken over a decade ago. Milken went to prison for some relatively small cheating of clients; but his real crime, as everyone knew at the time, was introducing junk bonds and thus shaking up the cozy world of finance and earning a pretty penny in the process. It's because of the Milken case, more than anything else, that I will never be willing to support his prosecutor, Rudy Giuliani, for any major office. Incidentally, on a commuter bus from Manhattan to New Jersey just before Passover in 1998, I told some fellow passengers of my views on Giuliani and the Milken case, and some animated discussion, with about ten people commenting or listening, ensued. Interestingly, when I made clear what Milken had done and how he was treated, a number of the people on the bus were sympathetic.
While on a roll, I read Donway's "In Defense of Cowboy Capitalism" also, and liked it almost as much. I particularly liked his attack on the idea of equality of opportunity. Many of our allies on freedom advocate "equality of opportunity" as a throwaway line without thinking through the consequences. Then the logic of their position often leads them to advocate further government funding of schools, either directly or through vouchers.
Why the "almost" in the previous paragraph? Because of two sentences. Donway states, "Libertarian authors typically defend producers on the sweeping grounds that all non-coercive activity should be unregulated: prostitution, pornography, peddling drugs--and producing software. What this defense misses is Ayn Rand's insight that productive achievement is man's noblest activity."
I'm not sure the first sentence is true factually. Most of the defenses that many libertarian economists have done of businessmen have been of the kind of businessmen in the kinds of businesses that Donway and I favor—cars, computer chips, clothing, etc. But beyond that, I think it's important to defend the rights of prostitutes, pornographers, and drug sellers. They are engaged in completely legitimate businesses and people in those businesses are prosecuted much more than people in the more-legal businesses.
Moreover, people in those businesses are engaged primarily in "productive achievement," that is, producing things that others value. I would even venture to say that most of the readers of this letter have sampled from at least one of the three illegal products Donway singles out. Moreover, the person who bears the risk of going to jail to sell marijuana to a patient who badly needs it in order to put up with chemotherapy is engaging in a heroic act.
— David R. Henderson
Research Fellow, Hoover Institution
Author, The Joy of Freedom: An Economist's Odyssey
Roger Donway responds:
I thank David Henderson for his kind words and thoughtful remarks. Alas, "Letters" columns are places to thrash out differences and so I must turn to the areas where Henderson and I disagree.
(1) To be sure, there are libertarians who stand up for major capitalists, as Cato's Bob Levy did in the Microsoft antitrust case and the tobacco litigation. But I sense that many pro-capitalists prefer defending a hapless homeowner who has run afoul of the Wetlands Act rather than a multi-billionaire software producer.
(2) I wrote that "vice, vulgarity, and vapidity are ubiquitous in our culture, and many people make handsome fortunes from them." Henderson protests that such businesses are "legitimate." But what does that mean? I do not believe that they should be condoned, though I do believe they should be permitted. Virtue is what freedom is for; vice is what freedom tolerates.
(3) I take Henderson's instance of medical marijuana to represent a third argument. If a law bans an activity that is demonstrably virtuous (pro-life), it needs to be fought with philosophical challenges, political challenges, legal challenges, open civil disobedience, and, yes, also with black-market activity. And when such black marketers are prosecuted, then, of course, their legal difficulties do become part of the wider challenge to the law.
Obstruction of Justice
I can agree with the facts as presented in Roger Donway's article "The Case for Frank Quattrone" (Navigator, July-August 2004). But as a French-speaking Belgian lawyer, specializing in EEC law not in U.S. common law (and certainly not in U.S. securities law), I want to stress the following points, which in my view are more important than the ones Donway made.
1. Obstruction of justice is a typical common-law offense. It does not exist in the Belgian, French, or German legal systems. Of course, it is forbidden to make a corpse disappear, but not to destroy evidence, even if you are guilty—certainly, if you are guilty. You do not have to cooperate with the criminal system. If you have to, that is an Inquisition-style criminal system. Contempt of court is also a common-law offense, because common-law systems are made by judges in favor of judges.
2. In other words, the problem is not the Frank Quattrone case or the Frank Quattrone jury; it is the legal system. If you give unfair power to courts, either to the judge on the bench or to the jury, they are going to misuse it, not always but sometimes, whether because the defendant is rich, or black, or poor, or whatever.
3. The U.S. legal system is a mess, with many silly rules; in Europe, arbitrary decisions occur less often. That is not to say that I think the basic rules of the European welfare states are just. On the contrary. It is just that in those parts of Europe not under the common law there are better formulated rules for dealing with technical legal issues. That explains why John Grisham makes a fortune with novels about silly legal problems that would not arise in a truly liberal (in the European sense) legal system. Of course, what is fundamenta, are the legal system's basic values. Unfortunately, I do not think that the level of freedom in the U.S. is better than the level of freedom in, for instance, Belgium.
Next time you write on a legal subject, please have it checked by a lawyer not too narrowly committed to the perfection of the common-law systems
P.S. When an article in Navigator is not very good, I am always disappointed .
— Philippe Hermkens
Roger Donway responds:
I confess that, in "The Case for Frank Quattrone," I was looking at an extremely narrow question: Did the evidence presented suggest that Quattrone was guilty of the offense charged? I concluded that it did not.
That said, I thank Philippe Hermkens for his insight into the Continental system of law, and I would love to publish a debate as to whether that system or the common-law system is more favorable to liberty.