Exclusion, the Doctrine of Double Effect, and Animal Deaths
by Sherry F. Colb
On FindLaw today, I have a column that explores the heated disagreements that people have had over the Fourth Amendment exclusionary rule, a rule that suppresses evidence obtained illegally through unreasonable searches and seizures. I propose in the column that the Doctrine of Double Effect ("DDE") helps account for the distinction that some draw between having a Fourth Amendment (which results in guilty criminals escaping justice because they are not discovered), on the one hand, and enforcing the Fourth Amendment by suppressing evidence (which results in guilty criminals escaping justice because there is insufficient evidence to convict), on the other. The distinction is between directly doing something permissible that has undesirable and unintended (though foreseeable) side effects, and doing something that directly brings about the undesired effects. Many view the latter as much worse than the former and accordingly either illegitimate or in need of a more robust justification.
I wish here to discuss the role of DDE in responding to a common argument that people opposed to veganism articulate. Just to give some context, the Sunday New York Times published an op/ed by philosopher Gary Steiner about what has been missing from much recent discussions around vegetarianism, so-called "conscientious omnivorism," and "humane" farming legislation (such as Prop. 2 in California): the very basic notion that animals' lives matter, that it is wrong to kill an animal in order to consume that animal, and that the wrongfulness of such killing does not rest exclusively on the excruciating pain, both physical and emotional, that we inflict on helpless, feeling beings when we purchase and support animal agriculture by consuming its products, including flesh, dairy, and eggs.
Unfortunately, Steiner does not explain why dairy and eggs are no better than flesh, whether one is concerned only about suffering or about death as well. To fill that gap, here is a relatively brief answer: (A) Cows give milk only because they are impregnated and give birth, and the baby calves to whom they give birth are taken from their mothers early and slaughtered as veal so that people can buy and consume the milk. Consumption of milk is thus morally no different from consumption of veal; (b) Cows, like human mothers, suffer terrible distress when their babies are taken away from them. Cows often cut themselves badly on the fences that surround them in their fruitless efforts to escape and reunite with their babies; they bellow and refuse to eat for days; (c) The hens who produce eggs come from "stock" that is not viewed as the most tasty for eating; as a result, the male chicks of such hens are considered garbage and are separated from the females at birth, at which point the males are promptly killed, typically by live and fully conscious dismemberment in a wood chipper or by being thrown into a garbage bag, which is then tied so that they slowly suffocate to death.
After Steiner's op/ed appeared, some common responses emerged. Among them was one that comes up often enough to merit mention here: the argument that living in the world and eating anything, including vegan foods, results (inadvertently) in animal deaths and that, therefore, if it is acceptable to live in the world and eat vegan foods, then it is also acceptable to consume (and thus to order the production of more) flesh and other farmed animal products.
On purely utilitarian grounds (under which one is minimizing suffering but perhaps indifferent to death), this argument is unconvincing. The production of flesh for our consumption requires much more plant cultivation (thus resulting in much more inadvertent animal death in the fields) than the production of plants (including grains, fruits, and vegetables) for our consumption would. It takes much more land to cultivate feed for farmed animals (whose numbers are far greater than our own) whom we eat than to cultivate our own food directly. Therefore, if one is attempting to minimize the suffering of animals who live in the fields and grass, animal agriculture is precisely the opposite of what one would want to do.
Quite apart from the sheer numbers of animals who suffer and die (in which might also be included the farmed animals themselves, who number over 50 billion a year even when we include only land animals), there is an important difference between inadvertently and unintentionally killing animals while cultivating a field and deliberately killing animals to eat those animals and the products that we take from them. The DDE helps explain this difference -- in the one case, we are growing plant food for us to eat, and any deaths that result are inadvertent and undesired; in the other, we are intentionally inflicting deaths on animals so we can consume them (along with their bodily fluids). The death of farmed animals is, accordingly, not an incidental side effect of animal farming; it is an intended outcome.
Despite the DDE difference, of course, one might conclude that it is nonetheless wrong to cause any animal deaths, even as an undesired side effect of living in the world. But if that is one's position (or, more likely, if that is the purported "reductio ad absurdum" argument that one has embraced to avoid moral responsibility for killing animals), then one might be committed to the proposition that killing people inadvertently by voting for a higher speed limit (65 mph as opposed to 55 mph, which results in a predictable rise in deaths on the highway) is morally no different from endorsing intentional homicide.
On FindLaw today, I have a column that explores the heated disagreements that people have had over the Fourth Amendment exclusionary rule, a rule that suppresses evidence obtained illegally through unreasonable searches and seizures. I propose in the column that the Doctrine of Double Effect ("DDE") helps account for the distinction that some draw between having a Fourth Amendment (which results in guilty criminals escaping justice because they are not discovered), on the one hand, and enforcing the Fourth Amendment by suppressing evidence (which results in guilty criminals escaping justice because there is insufficient evidence to convict), on the other. The distinction is between directly doing something permissible that has undesirable and unintended (though foreseeable) side effects, and doing something that directly brings about the undesired effects. Many view the latter as much worse than the former and accordingly either illegitimate or in need of a more robust justification.
I wish here to discuss the role of DDE in responding to a common argument that people opposed to veganism articulate. Just to give some context, the Sunday New York Times published an op/ed by philosopher Gary Steiner about what has been missing from much recent discussions around vegetarianism, so-called "conscientious omnivorism," and "humane" farming legislation (such as Prop. 2 in California): the very basic notion that animals' lives matter, that it is wrong to kill an animal in order to consume that animal, and that the wrongfulness of such killing does not rest exclusively on the excruciating pain, both physical and emotional, that we inflict on helpless, feeling beings when we purchase and support animal agriculture by consuming its products, including flesh, dairy, and eggs.
Unfortunately, Steiner does not explain why dairy and eggs are no better than flesh, whether one is concerned only about suffering or about death as well. To fill that gap, here is a relatively brief answer: (A) Cows give milk only because they are impregnated and give birth, and the baby calves to whom they give birth are taken from their mothers early and slaughtered as veal so that people can buy and consume the milk. Consumption of milk is thus morally no different from consumption of veal; (b) Cows, like human mothers, suffer terrible distress when their babies are taken away from them. Cows often cut themselves badly on the fences that surround them in their fruitless efforts to escape and reunite with their babies; they bellow and refuse to eat for days; (c) The hens who produce eggs come from "stock" that is not viewed as the most tasty for eating; as a result, the male chicks of such hens are considered garbage and are separated from the females at birth, at which point the males are promptly killed, typically by live and fully conscious dismemberment in a wood chipper or by being thrown into a garbage bag, which is then tied so that they slowly suffocate to death.
After Steiner's op/ed appeared, some common responses emerged. Among them was one that comes up often enough to merit mention here: the argument that living in the world and eating anything, including vegan foods, results (inadvertently) in animal deaths and that, therefore, if it is acceptable to live in the world and eat vegan foods, then it is also acceptable to consume (and thus to order the production of more) flesh and other farmed animal products.
On purely utilitarian grounds (under which one is minimizing suffering but perhaps indifferent to death), this argument is unconvincing. The production of flesh for our consumption requires much more plant cultivation (thus resulting in much more inadvertent animal death in the fields) than the production of plants (including grains, fruits, and vegetables) for our consumption would. It takes much more land to cultivate feed for farmed animals (whose numbers are far greater than our own) whom we eat than to cultivate our own food directly. Therefore, if one is attempting to minimize the suffering of animals who live in the fields and grass, animal agriculture is precisely the opposite of what one would want to do.
Quite apart from the sheer numbers of animals who suffer and die (in which might also be included the farmed animals themselves, who number over 50 billion a year even when we include only land animals), there is an important difference between inadvertently and unintentionally killing animals while cultivating a field and deliberately killing animals to eat those animals and the products that we take from them. The DDE helps explain this difference -- in the one case, we are growing plant food for us to eat, and any deaths that result are inadvertent and undesired; in the other, we are intentionally inflicting deaths on animals so we can consume them (along with their bodily fluids). The death of farmed animals is, accordingly, not an incidental side effect of animal farming; it is an intended outcome.
Despite the DDE difference, of course, one might conclude that it is nonetheless wrong to cause any animal deaths, even as an undesired side effect of living in the world. But if that is one's position (or, more likely, if that is the purported "reductio ad absurdum" argument that one has embraced to avoid moral responsibility for killing animals), then one might be committed to the proposition that killing people inadvertently by voting for a higher speed limit (65 mph as opposed to 55 mph, which results in a predictable rise in deaths on the highway) is morally no different from endorsing intentional homicide.