"Bob," commenting over at Megan McArdle's new home, lays down a libertarian marker:
No matter how awful the things he did to his dogs might have been, the fact remains that they were HIS DOGS. Why should Vick lose 18 to 36 months of freedom because he mistreated that specific class of property, when the law would not punish him at all for mistreatment (or destruction) of other items of his property?
In other words, Bob (and his fellow libertarian purists) would argue that, while killing dogs might be disgusting and cruel and barbaric and even immoral, well, if they're your dogs, the state can't use its coercive power to prevent you from so doing. Julian Sanchez initially takes such a line as well, at least tentatively, but then takes it back, saying he needs to think about it some more.
Now, I can think of arguments in favor of laws against torturing puppies. Certainly if I came upon somebody torturing a puppy, I would be prepared to use force to stop such torture, at least if I could do so without exposing myself to undue danger. So if I feel justified in using coercive force on my own, well, the state can do it? Right?
One could argue, for example, that knowing that animals are being tortured by somebody else creates a sort of moral externality. That is, the knowledge creates disutility in those of us who have to watch such cruelty, or even know of its existence. Or you could argue that engaging in cruelty to animals cultivates certain cruel instincts and behaviors, and makes people more likely to engage in violence toward persons. (All those serial killer TV shows claim that torturing animals leads to being a serial killer, after all.)
The problems is that libertarians decisively reject such arguments in other contexts. For example, somebody might feel great distress in knowing that others are viewing pornography, or engaging in homosexual behavior, or even eating ice cream cones. But libertarians are pretty insistent that A's distress at B's private conduct doesn't count as grounds for state intervention, so long as B doesn't interfere with anybody else's rights. (And "anybody else's rights" are defined as the right not to be assaulted or have one's property taken or damaged, not the right not to be offended by gay sex.) Likewise, libertarians tend to be skeptical of the claim that something might lead you to do bad or illegal things justifies government intervention. Even if pornography (involving consenting adults, etc.) does increase the risk that one will engage rape, most libertarians would say it ought not be illegal.
To many libertarians, political theory is like geometry: there are certain first principles -- "the non-initiation-of-force" principle, for example -- and from those first principles all else follows. You can see that sort of structure in Bob's argument: animals are property. Property-owners can do what they want with their property. Q.E.D
I have to admit that, in my younger days, I found this sort of knife-edged categorical reasoning quite attractive. (Don't tell anybody, but I even went through an objectivist phase, although I am now fully recovered, and anybody who says differently is a mooching mystic.) In general, libertarianism doesn't tend to do well with intermediate cases: animals, children, the mentally retarded or insane. For example, suppose a mentally retarded or insane person won't refrain from wandering out into busy streets. Should the state coerce him in some way, or should it just let him be run over? Or what about children? Should twelve-year-olds be allowed to leave home? Enter into binding contracts? Consent to sex? And if they can't, well, are they their parents' property?
Megan argues for a non-binary conception of rights:
As with abortion, there's no inherently libertarian answer to that question. But Julian and some of Jim's commenters seem to be taking a fairly hard line: rights are binary (you have them or you don't); and animals, which don't have agency, cannot have rights.
I'd say that there are different classes of rights-holders; babies are persons, but they can't vote, and they do have the right to be supported by the state. (Of course, some libertarians would disagree with that latter, but I'm pretty firm that they do.) So it seems plausible to me that animals could have limited rights--a right not to suffer for our pleasure, say--even though none of them will ever master the lute.
I find myself being drawn to this sort of intermediate position for all the cases that I have mentioned: children, insane people, retarded people, animals, etc. The problem, from a libertarian perspective, is that it seems to lead to a lot of ad hoc judgments. and part of the whole fun of libertarianism is that you avoid judgments and instead have a clear rule for every case. Once you say "there are different classes of rights," you invite people to come along and say "well, what about this?"
And with animals you have the whole "give 'em an inch they will take a mile" problem with animal rightsers. They want meat-eating to be banned, and any concession will just fuel the demand for more concession. Consider commenter "Gordon Lightfoot, who sanctimoniously tells Megan that: "Until you stop eating animals and pretending to yourself that it's okay because they lived happy productive animal lives all the way up to the moment they were slaughtered to fill your belly, any argument you make on behalf of the animals that you feast upon will ring hollow." Michael Vick is an unappealing character, but I rather prefer him to Gordon.
I won't claim to have a libertarian "theory" to justify my somewhat-conflicted intuitions I suppose if I were feeling clever I could gin one up, but most "theories" like this are just elaborate rationalizations for one's intuitions anyway.
I think Megan has it mostly right, and maybe it's just a semantic difference, but I would put it somewhat differently than she does: instead of thinking of different classes of rights, I would argue for a sliding scale. The closer a being is to a fully-sapient human with all its faculties, the more rights it should have. A lobster, for example, is clearly alive but has almost no nervous system -- it's basically a big sea-living insect. So I don't have a problem with steaming it alive or plunging it into a pot of boiling water. Comparatively more intelligent creatures, like pigs and dogs, deserve more consideration, and I think that banning certain types of animal husbandry practices or dogfighting could be justified under this framework.
In the case of animals closer to us -- chimps and gorillas, for example, I think there might be an even stronger claim for rights, including perhaps a right not to be eaten, or even kept in zoos. Retarded and insane people are people too, and so have the right (for example) not to be beaten or raped or killed, but maybe some limited coercion is justified. Likewise children -- I would argue that children can be coerced in some moderate ways, but not abused or neglected. And I'm fine with having an arbitrary cutoff age at which children become adults --18 is fine. But I also think that a procedure for "emancipation" is a pretty good idea.
I don't know if that will satsify the terms of Jim's challenge, but at least it's first whack at it.
UPDATE: I forgot to mention the comment by Grumpy Realist, who suggests a rather interesting argument in favor of treating the animals well: "If we ever do run into aliens, our fittness to join the greater galaxy out there may be judged by what we have done to those weaker than us and in our power."
I know I mark myself as a geek, but this rather reminded me of the (new) Twilight Zone episode "A Small Talent For War." In it, an emissary from an alien race (which planted life on Earth) shows up at the UN and announces that we are set for destruction because of humanity's "small talent for war." He gives the Earthlings one day to fix the problem. Well, the diplomats scramble, and, highly-motivated, every single geopolitical issue on Earth is resolved. When the Alien returns, he's told that, for the first time, all the Earth is at peace. The Alien Emissary gets a good laugh at that -- it seems when he said we had a "small talent for war," he meant we weren't warlike enough, and deep down we really want peace. The aliens were breeding us to be warriors to fight for them, you see, and we just didn't make the grade. So Grumpy Realist, maybe the aliens will refuse to let us in to the Galactic Federation because we don't have enough dogfights, and we are too nice to our food animals.