Does Tom have an adequate ethical theory? He seems deeply suspicious of Hare’s students–Singer and myself in particular–because we eschew rights-theory. And yet it seems that most rights theorists find his strong account of animal rights unconvincing, too. This fact may explain why even many rights theorists do not draw from rights theories the practical conclusions Tom draws. On this issue, a great amount of water indeed has flowed under the dam. Tom needs to address it.

Tom’s work sets about the discussion of animals through regarding them as moral patients. Much contemporary work proceeds to discuss animals in terms of agency, however, finding in at least some animals the rudimentary elements of agency and linking rights talk to this fact. Is Tom amenable to this? Do we get the same set of rights whichever path we go down? And what of people who go down the path of agency but whose rights ascribed to animals are weaker than the ones Tom favors? Are they guilty of some sort of mistake?

(1) Hypothetical “lifeboat” problems are of course examples of moral relatives rather than moral absolutes.

(2) A principle of relative morality (which is really a corollary of absolute morality) is: “Minimize hurt” — but it is complicated by the question of whose hurt, which is something that does not come up in the case of absolute morality: “Don’t hurt needlessly.”

(3) It follows from the incommensurability of pain and pleasure that the relative principle is not “Minimize hurt and/or maximize pleasure.” Pleasure is a hedonistic mattert, not a moral one.

(4) I think “feels” covers the same territory as “subject of a life,” and rather more directly.

On the view of animals many of us were taught, there’s a vast and unbridgeable gulf between us. Various human capacities are invoked to explain the gulf; we can control our actions on the basis of reasons; animals can’t. We have free will and moral autonomy—or language, culture, or a soul—animals don’t. There’s the divide.

Tom’s work narrows the gap. One cannot read The Case for Animal Rights without having to decide what one thinks about his argument about the moral implications of our shared biology. The argument, that is, that a) since many normal adult mammals have mental states at least as sophisticated as humans who are severely neurally challenged then b) the burden of proof is on anyone who thinks that we may not exploit the one group and may exploit the other. Regan requires, at least, that one justify discriminatory practices toward animals. By emphasizing the cognitive diversity of the human species and the psychological sophistication of some nonhumans Regan’s achievement is to raise animals toward people, as it were, reducing the gap from the bottom up.

In OTH we have read essays that might provide fodder for an argument that the gap is also being reduced from the top down. Accumulating data from the neurosciences and experimental psychology seem to advance Regan’s strategy insofar as they suggest that we overestimate the original elevation of humans. We’re lower than we presume. For if a certain line of interpretation of the data is correct—a line that can be found in OTH postings—then Regan’s strategy to reveal the full depths of animal psychology finds an ally in the work of those who are exploring the depths of human psychology. What they seem to find, oversimply, is a quasi-neo-Freudian self, a self over which we lack much mastery.

What I have in mind is not the idea that some animals exercise control over their mental states in a way analogous to the way that severely cognitively impaired humans do but, rather, that some animals exercise control in exactly the same way as do ordinary humans. Consider what John Doris here calls the situationist literature: that normal humans exercise far less control over their beliefs and desires than they like to think. Or consider what Chris Suhler and Pat Churchland here call the nonconscious control hypothesis: that control of our attention functions much more via autonomic and automatic means than we usually imagine.

If recent developments in evolutionary psychology, experimental economics, and the brain sciences seem deflating, that sound of the air being let out of the balloon may be attributable to the fact that we started with an over-inflated sense of our capacities. If developments lead to a reduced assessment of our cognitive skills, then the same developments may make it even more difficult to deny that animals exercise control over their beliefs, desires, emotions, and plans in the same way we do–by largely nonconscious means.

Do the empirical results about humans strengthen Tom’s hand as he makes his case for animal rights? I’d be curious to know if other folks join me in thinking that they do.

When confronted with the unspeakably painful and degrading treatment most animals raised for food are forced to endure, many people rightly believe that this practice is wrong and that it is wrong for anyone to take part of it in any way (e.g. by eating meat). Utilitarians like Singer certainly think this, and Singer has argued extensively that his utilitarian theory implies that almost all normal adults living in affluent countries have a moral obligation to become, at the very least, vegetarians. His reasoning appears to be rather simple and straightforward: if we weigh the interests an average meat-eater has in continuing to eat meat against the interests animals have in living a life that is free from painful and degrading treatment, the best consequences will be achieved by not eating meat. According to him, the only real interest a meat-eater has in eating meat is that meat tastes good, and this is a trivial interest in comparison of the animals’ interests in avoiding painful and degrading treatment.

But a problem emerges for this deceptively simple argument. Is it not true that the modern meat industry is simply too big for any one person to have any effect on the number of animals raised and killed for food with their individual decisions? If so, then a person who becomes a vegetarian simply sacrifices her interests without thereby furthering the interests of any other animal. Perhaps Singer would respond to this by pointing out that there is some probability that an individual’s choice to become a vegetarian would prevent the painful and degrading treatment of at least some animals, and given the fact that the interests at stake for humans in eating meat are so trivial, safety would require us to refrain from eating any meat.

There is a flaw in the reasoning, however. Singer assumes that the only interests that are stake for the average meat-eater in eating meat is the trivial interest in eating tasty food. I want to suggest that eating meat can further the interests meat-eaters have in eating meat in such obviously important areas such as achievement and creating and maintaining deep personal relationships (among others). The first concept I need to introduce is the psychological concept of a person’s identity, or their self-concept: how a person thinks of herself. This concept is important to understanding a person’s well-being for how a person thinks of herself will be part of how she arrives at conceptions of her achievement and will determine in part which relations she thinks are worth pursuing and maintaining. Furthermore, a person’s eating history forms part of her self-concept. This should not be surprising, as eating is the third most time consuming activity we do, after sleep and work (Rozin, “The Integration of Biological, Social, Cultural, and Psychological Influences on Food Choice”, in Shepard and Raats, The Psychology of Food Choice). In Sobal et. al.’s useful terminology, each person has a Personal Food Trajectory that has been influenced by such things as their culture, society, government and other political systems, families, friends, colleagues, and so on. What we eat, how we eat, with whom we eat, and how much we eat form a core part of how we conceive of ourselves (Sobal et. al., “A Conceptual Model of the Food Choice Process over the Life Course”, in Shepard and Raats).

A person’s Personal Food Trajectory can influence what success is for a person: think of chefs trained to cook classic French dishes, or BBQ pitmasters who run their family’s business. Likewise, someone raised to be an adventurous eater might become a foodie who seeks out the most authentic and best food wherever they go. A home cook might turn the daily meal into a showcase for his talents, or an opportunity to demonstrate his love and care for his family. These passions are for more than good tasting food; they are, instead, for being a certain kind of person, and for achieving what that kind of person can achieve.

Perhaps the most important way that eating meat can influence the interests of a person comes from our interactions with others. Few people choose what to eat without pressure from others. This is especially obvious in a family setting, where the choice of food requires careful negotiating. A family who refuses to become vegetarian can pose a serious problem for a cook who desires to make this change. But there are other kinds of societal influences as well, and as Leon Rappoport notes, “those who violate the food conventions of their group or society do so at their own risk” (How We Eat). A person who lives among non-vegetarians can find his choice of becoming a vegetarian to be a cause of strife among his friends and family. In deciding to eat meat, then, it is possible such a person is interested in maintaining the relations that are of obvious importance to him.

Singer could try to argue that none of these concerns amount to much, that a chef could easily cook vegetarian food, that a foodie could seek only vegetarian fare, and that one could easily find vegetarian friends to replace your meat-loving ex-friends. In other words, Singer could try to show that there is, in fact, a harmony between self-interest and morality. But I am not as sanguine about this issue as this response presupposes. I suspect that for some people, refraining from eating meat will constitute a setback to their interests. Notice that the interests I mention are much more serious than mere gustatory pleasure—they are what most everyone agrees are the most important components of the good life. If refraining from eating meat has only a slight probability of preventing pain to animals, and will lead to such sacrifices for at least some meat eaters, it becomes a seriously open question whether Singer’s view will require that most everyone become a vegetarian. It is at this point that a meat-eater will start talking about bigger cages, about more humane treatment, in order to make the balance shift to his favor.

The advantage of Regan’s Right’s View is that he can acknowledge that the switch to a vegetarian diet may require a serious sacrifice on the part of some meat-eaters without thereby undermining his support for vegetarianism. His Principle of Respect requires that we treat animals with the respect they deserve, and it is certainly a failure to do this if you eat the dead corpse of an animal, even if your refusal to do so does not save any other animal’s life. What’s more, acknowledging the sacrifice required by meat-eaters in switching to a vegetarian lifestyle might have further practical benefits, for if those of us who argue for such a switch constantly minimize or negate the sacrifice we are asking others to make (by e.g. claiming their interests are so trivial) we run the risk of not only alienating our target audience, but also of causing them to think that, given our Personal Food Trajectory, we simply do not understand what is at stake for them. Regan can acknowledge the interests he is asking them to sacrifice, and still insist that the sacrifice must be made.

“Although many non-human animals are indeed subjects of lives — they are conscious, sentient and with lives that can go better and worse from their own point of view — that is insufficient (and perhaps not even necessary) for possessing basic moral rights or being someone for whom there is a serious obligation not to harm. To have such rights, an individual must be able to engage in sophisticated mental activities, like moral reasoning, scientific theory creation, aesthetic contemplation, religious worship, reflection on the nature and meaning of existence and so on. Since animals are not able to do that, they have no rights and there are no serious moral obligations toward them.”

This reasoning is subject to the glaringly oblivious objection that many human beings are not able to engage in such sophisticated mental activities: the very young, the very old, the severely mentally or emotionally challenged, and many more. So if this argument against animals succeeds, it also “justifies” eating, wearing and experimenting on weak and helpless human beings as well. Since that’d be morally wrong, the argument against animals (regrettably often called “The Argument from Marginal Cases”) fails.

Some respond to this objection by arguing that human beings normally are mentally sophisticated and so all human beings should be treated as if they were, while animals normally cannot be mentally sophisticated and so it’s permissible to treat them badly. But human beings normally have four limbs, are able to see, and are able to read, and human beings who do not have four limbs, are blind and are not able to read should not be treated as if they can. What this shows is that individuals should be treated on the basis of their own characteristics, not the characteristics of other members of groups they are members of. This is true for humans and for animals and it appears that since being a subject of a life is sufficient for human beings having basic moral rights, it is true for many animals as well.

There are many other responses to try to circumvent this “Argument from Marginal Cases.” Standing on the shoulders of a philosophical and moral giant, Tom Regan, I have argued in a number of places that they do not succeed. But I hope that Tom Regan will review what he thinks is the strongest response to this kind of argument, which is surely important since it is common in many people’s thinking about these issues.

Why is it important to remember human atrocities such as the Holocaust? Some rationales are forward-looking and consequentialist. We remember in the spirit of “never again”: to prevent atrocities’ recurrence. But there are also backward-looking, expressive reasons: we bear witness to show respect for the dead, to express our solidarity and grief, to affirm the moral value of both the lost and the saved.

Recent work by Jeffery Blustein, W. James Booth, James Dawes, James Hatley, and Avishai Margalit illuminates the nature and moral purpose of bearing witness for human victims of injustice. Those who bear witness become “living reminders of a past…,” serving as “sentinel[s] of memory” who urge others to remember, too. (Booth) Bearing witness is “an exercise of agency:” an act of communication directed to a contemporary or future audience. (Blustein) It is required when people have been “grievously injured or harmed” through acts of injustice, and when this is something “others may … not want disclosed.” (Blustein) The witness has a “moral purpose” of exposing evil that was deliberately concealed, and he “ascribes intrinsic value to his testimony, regardless of instrumental consequences,” as a way of expressing solidarity with victims of evil. (Margalit) Bearing witness “ … asserts the moral status of the victims, their coequal membership in the moral community,” by giving them a voice. (Blustein) Thus bringing atrocities to light is not merely a prelude to justice, as it is in judicial settings aimed at punishment. Rather, “doing justice *is*, in key parts of its practice, memory work.” (Booth; my emphasis) Keeping alive the memory of crimes, victims, and perpetrators is a constituent element of justice.

Tom shows that caring about animals is not exhausted by concern with welfare and humaneness; that rights, obligations, and justice are at the center of what has been profoundly wrong with humans’ treatment of animals. Past (like present) atrocities visited on animals did not only inflict terrible suffering, but violated animals’ fundamental rights to life, liberty, and bodily integrity. This moral dimension of the past brings with it memorial obligations of the same type as corresponding obligations to bear witness to human suffering in cases of massive injustice. Bearing witness to animal suffering is not primarily an act of compassion, nor is its importance exhausted by its beneficial consequences. It is something we owe to the animal dead as an affirmation of respect.

Bearing witness, however, carries moral risks, so that it matters greatly how one does so. We must choose our methods carefully, for some can undercut the aims of moral witness. Sometimes, it seems that only documentary film will do justice to a brutal injustice: will adequately capture the hideous truth of what happened and rouse us to activism. Yet this form of testimony does not find its way only to the compassionate, but also to others who will use it in pernicious ways and some who are simply voyeurs, so that the witness can unwillingly become “a pornographer of pain.” (Dawes) Given the aim of paying respect to victims, this is the last outcome a moral witness desires. For the dead to be displayed before the uncaring or sadistic compounds the original wrong done them, and bearing witness makes this possible. If displaying the abuse of animals compounds their degradation but advances the recruitment aims of activists, we face a moral dilemma.

I am uncertain of how Tom would approach it. Would he accept that we have memorial obligations to animals who did not and perhaps could not have an interest in being remembered and in having their moral status affirmed after their deaths? Would he accept that animals have interests in non-degrading lives and deaths, so that they can be wronged posthumously as humans can, in ways examined by Joel Feinberg and seemingly endorsed by Tom?

If he believes that we have memorial obligations to animals, how would Tom approach the witness’s dilemma? For him, no aggregated good consequences can justify a violation of individual rights. Thus if animals’ right to respect entails discretion in witnessing their unjust deaths, we may be severely limited in our use of images, at a substantial cost to enlisting animal defenders. Tom’s prohibition on overriding rights for the sake of maximizing future welfare seems too strong, from that perspective. Moreover, it seems potentially in conflict with the obligation to go beyond refusing to participate in unjust practices: the obligation to work for change in our culture’s treatment of animals. Tom argues that we must “help to educate those who presently support the animal industry to the implications of their support; to help to forge the opinion that this industry … violates the rights of farm animals; and to work … to effect the necessary changes….” Activists know that there are few ways more powerful to accomplish these aims than showing up-close documentaries about industry’s abuse of animals.

Perhaps the worse-off principle for resolving conflicts of rights can help. If showing graphic films of animals’ murders can help to prevent even one murder of another, then perhaps the right not to be brutally killed simply overrides the right of the animal dead not to have their degradation publicly displayed. The problem, though, is that we can never be sure that overriding a right in this way will prevent the unjust killing of any particular animal.

In any case, how to bear witness is a matter of moral judgment that those who would honor the animal dead must take on. That struggle for wise judgment is itself a labor of respect.

Thank you profoundly, Tom, for your lifetime of world-changing work and for all that you have taught me.