Libertarian versus Conservative Theories of Law

This is an issue on which I've written before, but Ted Frank poses it in a way that strikes particularly close to home:

Paging Professor Volokh, Ronald Bailey, and other libertarian bloggers: On what principled grounds can one distinguish between a ban on foie gras and a ban on dogfighting? If one accepts limits on the libertarian principle for animal cruelty, does that not imply that a democratic society can rationally choose to bar production of foie gras? I'm happy to have dogfighting outlawed. I'd prefer not to outlaw foie gras. Do I have any argument for the distinction besides my personal preference? Is it just the intelligence difference between dogs and geese? If so, why do we allow bacon? (Or does Deuteronomy have that last question right?)

Update: I'm late to the discussion apparently. Jim Henley, Julian Sanchez (who takes the hard-line view), and Megan McArdle (and Part 2); McArdle points to vegetarian libertarian Robert Nozick's take.

Update from Alex Tabarrok: "After attending dogfights it's rumored that on some nights Michael Vick would continue his bloody activities by dining on cow's flesh. No word yet on whether prosecutors will be seeking additional prison time."

As someone who has been known to slip bits of pâté de foie gras to his dogs when my good wife isn't looking, this strikes too close to home to be ignored.

Posted on Monday, August 27 2007 | Permalink

And if you’d had to answer the same question in 1834?

Posted by Julian Sanchez  on  08/27  at  03:01 PM

"As someone who has been known to slip bits of pâté de foie gras to his dogs when my good wife isn’t looking, this strikes too close to home to be ignored”

Ah, I have been doing the same for 40 years and for many dogs.  On one occasion, I had to kill my dog (I refuse to use the “put to sleep” euphenism. She was very sick and paralized.  It was time.) Before the trip to the vet, I opened a can of foie-gras, not a small one.  She enjoyed it.

Which should give you an idea of where I stand in the dogs vs. geese debate.

Posted by  on  08/27  at  04:14 PM

Isn’t there a difference between a ban on foie gras production and a ban on foie gras consumption? The former is comparable to a ban on dogfighting; the latter is more like a ban on buying dogfighting videos.

Posted by Jesse Walker  on  08/27  at  05:56 PM

But the function of human reason within a moral tradition is not a critical one [...] Instead of blanket rules, we seek to comprehend the divine intent [...]”

This is why, despite a lot of agreement in terms of outcomes, I simply cannot call myself conservative. Scratch the surface, and you find at least two of three things: appeal to a god, appeal to social order, or appeal to an ick factor, all backed by the belief that the rational mind is not to be trusted.

Posted by  on  08/27  at  06:24 PM

I agree with Freddy Hill about the “put to sleep” euphemism. I had something of a debate with a vet about this after an elderly cat had a massive stroke. “Will she wake up again?”

Posted by triticale  on  08/27  at  06:55 PM

Full disclosure:  I am a dog lover, but I am indifferent to the taste of foie gras. 

I think the dog fighting/foie gras comparison is improper if you are going to talk about traditional societal feelings about the two.  I think most people are not even aware of foie gras as an issue because by a wide margin they have never heard of it, never tasted it, or don’t even know how it is made.  I think a good analogy would be comparing traditional American attitudes toward how we decide our college football national champion, (a well-known issue), versus how the American Squash national champion is determined (is there an American national squash champion?).

Posted by  on  08/28  at  08:04 AM

This whole comparison is based on the assumption that the feeding of geese to produce foie gras is cruel. That’s usually the conclusion made by people who hear about the process, not those who see it.  Geese have a different throat structure from humans. Those who have observed farms where the geese are raised (often free-range) say that the geese run up to be fed. The tube doesn’t hurt them.
If you want a better comparison, talk about the way chickens are raised for the major fast-food chains (and home comsumption)- cooped up with no space to move, beaks cut off so they won’t peck each other to death, never seeing daylight). I won’t eat them anymore, but it’s still different from watching dogs fight to the death for entertainment.  The difference, I think, is in our reactions to the motivations of the people doing the killing. Those who kill our food may do it for profit, but it benefits society by providing nourishment.  Those who enjoy watching animals kill each other seem to us to be possessed of cruder emotions, and we may fear them.
Also, no one wants to think of their own dog being tortured and killed.

Posted by  on  08/28  at  08:22 AM

It must be great to be able to run the same four paragraphs on every conceivable issue, and then append a short one addressed to the specific topic that says: well, because—so there.

PB REPLIES: It’s called having a methodology.

Posted by  on  08/28  at  09:37 AM

That’s one thing you might call it.  There are others.

Posted by  on  08/28  at  02:15 PM

I have to agree with CJC.  That’s the most unconvincing argument I’ve heard in quite some time.  On the other hand, it is simultaneously the best critique of Burkean philosophy I’ve ever heard.  And as satire!  Well done!

PB REPLIES: Okay, you guys win.

Posted by M.D. Fatwa  on  08/28  at  05:49 PM
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