Wednesday 23 December 2020

Mike O'Brien & alimony for squirrels

Mike O'Brien writes in 3 Quarks
Do rights exist? That strikes me as a nonsensical question.

But it isn't at all. Rights reliably exist if there is a protocol bound juristic process which results in their enforcement through an incentive compatible bond of law. They can be analyzed in a Hohfeldian manner and are likely to give rise to public signals which in turn promote correlated equilibria.  

Is there a moral state of affairs that is usefully analogised by “rights” discourse?

No. A legal or otherwise juristic state of affairs, not itself 'moral', may feature 'moral' clauses. However a purely 'moral' state of affairs does not feature 'rights'- i.e. does not give rise to Hohfeldian immunities- because morality is intensional and recursively categorical. It does not have any uncorrelated asymmetries.  In other words, the Moral Law applies irrespective of any individuating circumstance. It is pure 'Akreibia', without any 'Economia'- i.e. discretionary, or administrative, leeway. 

A 'moral state of affairs' features moral claims. But those claims may themselves be immoral. A parricide may plead for a merciful act of fellatio from the Judge on the grounds that now he is an orphan, his toothless old dad can no longer be intimidated into doing the needful. The claim here is that Morality requires a Father, or other authority figure, like a Judge, to suck off a psychopath. 

Such claims may delight some.

Now you’re talking. I’m not sure that there is, or that any objective state of moral affairs can be objectively shown to obtain, but at least rights talk seems to be an activity that morally interested, language-using beings can engage in with useful results.

Only if there is an actual protocol bound juristic process with an 'incentive compatible' enforcement mechanism. Otherwise, one might as well talk of how Newton's Laws apply to 'scientifically interested' people discussing not a physical orgy but an emotional one. 

We can talk about how people have rights, and what obligations those rights impose on how people are treated by others.

Just as we can talk about their superpowers or ability to turn into different animals 

We can talk about how animals have rights,

and why squirrels have Scottish accents while dogs talk Cockney.  

and what obligations those rights impose on how animals are treated.

as well as how much alimony a squirrel is owed if you accidentally married it while walking in the park and now want a quickie divorce so as to form a Civil Partnership with a terrier who sounds like Bob Hoskins. 

We can even talk about according rights to trees, mountains, and legally incorporated businesses, if we want to.

Indian Law certainly allows for that possibility.  

But the trees don’t know they have rights, nor do the mountains, nor do the animals.

Nor do small children or people in comas. Nevertheless, the Court can appoint a Guardian or other Agent for such people so that their rights may be enforced.  

And, given the dismal state of moral and civic education in many places, nor do many people.

Moral and civic education does not matter. The Law does.  

If they don’t think of themselves as having rights (or, furthermore, lack any clear concept of legal or moral right), and don’t experience any special treatment or status as rights-holders, what does it matter if some philosopher or judge believes them to have rights?

The philosopher does not matter unless he can convince an actual judge in a justiciable context.  

One argument in favour of maintaining a theory of rights, even when it makes no practical difference to putative rights-holders, is that the efficacy of rights discourse is bolstered by understanding and applying concepts of rights consistently, even in futile instances.

This argument also explains why it is useful to analyze how you came to accidentally marry a squirrel when what you really wanted to do was to form a Civil Partnership with your neighbor's dog.  

This is a practical argument for treating rights deontologically; the spell only works if we all pretend that magic is real.

But if the magic is real then you are married to a squirrel which is currently berating you in a Glaswegian accent.  

I’ve heard presentations by lawyers who are very effective advocates for animal rights, but are completely agnostic about whether concepts like rights accurately represent moral truths.

No concept represents a truth of any type- not even the concept of truth. But then it is also the case that a map is not a territory nor is the word 'dog' itself a 'dog' even if you say 'dog' in a Bob Hoskins accent and then bark vigorously.  

A perhaps non-obvious comparison to make here is to professional wrestling’s code of “kayfabe”, an unwavering performative commitment to fictional pretence that, though plainly false, creates real experiences and reactions for those who share in the lie.

Why not simply say the thing is staged- it is theater?  

The audience in this case isn’t duped by falsehoods, but rather is enriched by adopting a picture of the world which includes more than facts.

So, blathershites talking about animal rights are just 'virtue signaling' hypocrites- i.e ham actors or muscle bound professional wrestlers pretending they are Cannibals or KGB agents or villains of a yet more exotic stripe.  

The discourse of rights is also enriching, by providing new qualities and entities with which to populate our moral picture of the world. But there is a danger that it can crowd out other analogies and conceptual schemes which may be more apt and efficacious for improving some moral matter, and beyond that there is a danger that rights discourse can over-extend itself at the expense of its own coherence and credibility.

It is true that my constantly haranguing you about how much alimony you owe that squirrel you accidentally married in the park may 'enrich' you. It may cause you to question your sexuality or choice of profession. It is certainly likely to motivate you to find someone else to hang out with. But, to speak of 'coherence' or 'credibility' in this context is to gild the lily somewhat.  

Rights talk is, I think, a particular kind of language game.

It has no rules. It is not a game. It may be a type of bullying. It is generally a nuisance.  By contrast, legal proceedings featuring rights are not games and are not purely linguistic, though protocol bound utterances of an agonistic type may feature. 

It’s a transposition of “ought” statements into “is” statements, allowing people to talk matter-of-fact-ly about matters of value.

Magic and Mendacity have the same property. You are married to a squirrel, dude! That means your dick must be a lot smaller than mine coz my wife is a whale.  

It has a legalistic structure, whereby those entities with rights have standing to make claims, and to advocate their own interests against the competing interests of fellow rights-holders.

No 'legalistic structure' arises save where there is an incentive compatible enforcement mechanism. True, a Mafia Godfather, rather than a Judge, may dole out Justice. But that Justice, whichever way you slice it, is costly. It is a proper subject for Economics, not Philosophy or 'language games'.  

The fact that this language tracks legal concepts closely

is not a fact at all. Language can track animal noises pretty damn closely, but this does not mean my saying 'woof fucking woof' makes me a dog.  

means that it is tractable in systems of law, and a moral claim is easily translated into a legal claim.

Nonsense! To turn anything into a legal claim involves complicated issues of how it may be justiciable, which jurisdiction applies, what damage has been caused by a rights infringement and how an obligation holder may be compelled to make good that damage. 

(Insofar as most legal systems have existed in the shadow of religious moral codes, was it not always thus? Ponder that.)

If immorality is considered an offense against God, the Nation, the King, or the People, then there is a 'rights violation' when you jerk off in private. You can be punished for breaking the Law. 

Since the Law is costly to enforce, those paying for it find it convenient to give themselves Hohfeldian immunities from it. Thus your 'right to privacy' may defeat God, or the People's, right to punish you for playing with yourself in a disgusting, obscene, manner. 

This picture works for people who are able to advocate for themselves, and the granting of rights is presumed to have a kind of enabling effect on the rights-holders, allowing them to use their standing to pursue the full penumbra of their rights.

Nonsense! The greatest lawyer in the world does not want to be constantly defending himself in Court against alimony demands brought by me on behalf of various squirrels of my acquaintance.  

This idealized picture doesn’t work for all humans, though.

It does not work for any humans. Even the greatest lawyer in the world wants to be protected from nuisance law-suits. But this entails the non justiciability of moral claims save by contractual stipulation. Absent this condition, no judicial enforcement mechanism could be incentive compatible. 

Not everyone is competent to understand their rights, let alone defend them against other rights-holders with opposing interests.

Almost everybody isn't- which is why lawyers exist.  

But we can at least imagine that if they did understand their rights, they would defend them in certain ways, and so we accord them rights even if the practical exercise of those rights is derogated to others. This might be thought of as assisted personhood.

No it might not. 'Laches' still arises. If you sleep on your rights, you lose them. Nobody gonna assist your personhood if you be a lazy sod. 

But then there are cases where a human being has no ability whatsoever to exercise their personhood, and indeed we may question whether they are persons at all.

What matters here is whether someone has the motivation and means to act for them. But this is equally true of animals, plants, rocks, rivers etc.  

Such cases, like people who are comatose or severely cognitively disabled, are often brought up as objection to anti-speciesist arguments for according animals rights on the basis of their sentience.

Yet, humans, throughout their history, have given greater rights to some animals and inanimate objects than it did to people existing at that very same place and time. Sentience does not matter. It may, by a 'legal fiction' be bestowed on anything at all.  

If the basis of rights-having is some measure of conscious experience,

Then Magic and Mystagogy must be true, in some sense. Changing your consciousness gives you superpowers. That's how come I know which squirrels you accidentally married and how much alimony you must pay to each.  

rather than simply being human, then some humans are vulnerable to losing their rights when they fall below a certain functional threshold.

No. They are vulnerable to being unable to assert them, without assistance. 

The dilemma is between a consistently species-based distribution of rights that includes all humans but excludes all non-humans,

In which case I can eat your dog and have sex with your cat 

or a consistently capacities-based distribution that excludes some humans but includes some non-humans.

In which case, by destroying your capacities- or ensuring they never develop- I can bite chunks off you and eat them while fucking you in the ass. 

The truth is, there never has been any such dilemma. The Law is founded on 'Oikeiosis'- ties of belonging corresponding to uncorrelated asymmetries - and represents the 'bourgeois strategy' in the Hawk Dove game. 

I think this is a weak objection, and I’m baffled by the effort expended by animal rights advocates trying to find ways around it.

But, you are as stupid as shit.  

Comatose people don’t have (moral) rights

So anyone who roofies you is doing nothing immoral by fucking you to death 

because they can’t play the language games that turn rights concepts into behaviour.

No 'language game' has this property. Coercive enforcement of Judicial- or self-regarding- decisions has this effect. However, there may be non-coercive- purely 'reputational'- mechanisms which militate to the same end. Still, the optimal strategy is to punish those who shirk a duty of retaliation. Tit for Tat is eusocial. 

We continue to treat them as rights-holders because to do otherwise seems monstrous,

Fuck is wrong with a thing 'seeming monstrous'? Hulk seems monstrous. He was my favorite super-hero. Dragons are monstrous. But that's what kept kids, like Butters, glued to Game of Thrones despite the vast number of disgusting penises and testicles which filled the small screen for episode after episode. 

and because there is a shared interest among non-comatose people in preventing the repeal of anyone’s rights.

Actually, we are pretty selective about this. I will phone the police if I see a girl passed out on the street. Indeed, I actually did stand guard over one such girl till the cops arrived- but I show no similar concern for myself when attractive females stay over. If they choose to ride me hard and put me away wet, I hope no busybody will interfere. 

Both of these considerations are more compelling than preserving the conceptual coherence of “person” and “rights”, I suppose.

'Conceptual coherence' is only desirable where it adheres to the correct, Muth Rational, Structural Causal Model. But, that is an idiographic matter.  

This is fine. Coherence and consistency are

attainable ex poste for any deontology or system of imperative logic whatsoever. That's an implication of the Spilrajn Extension theorem or Yoneda lemma or the simple fact that such things have survival value on an Uncertain Fitness Landscape. 

unattainable in any idealized moral theory that tries to comprehend our moral intuitions, because our intuitions are often incoherent and inconsistent.

This does not matter at all. Decision theory has purchase provided there is enumerable recursivity or at some level of granularity, 'revealed preference' has a representation as a poset.

We are large. We contain multitudes.

Nonsense! We are small. But, with respect to aught Loveable or which showed Love to us, we contain Gas Chambers of Cosmic proportions.  

The living world, too, contains multitudes. Most of them can’t play the language games that have come to dominate the enforceable systems of moral belief called “law”.

Very true! Few microbes or potted plants can instruct a Solicitor to commence libel proceedings against squirrels who claim to be married to them. 

The distance between the idealized form of “rational person”, and the existing life forms subject to maltreatment , is too great for any concept of rights to bridge without snapping.

Nonsense! The Hohfeldian conception of Rights can apply to inanimate objects. 

It might be the case that self-representation, assisted or not, in a system of equal rights is the best practical option for protecting the welfare of human persons,

No. This can't be the case if agent heterogeneity and Knightian Uncertainty obtain.  

even if many of those persons lack some understanding of the kind of entity they are supposed to be and the kinds of rights they are able to exercise. It is plausible, or perhaps just tolerably inaccurate, because enough paradigmatic persons exist to ground the idealized type in reality, and from that core we may extend rights by a logic of relevant equality. Thus, groups which were once denied full rights eventually won equal status by winning recognition as equals in those relevant capacities. (Of course, the denial of status also denied many the opportunity to demonstrate those capacities.)

This is nonsense. Which group has won 'equal status'? Women? Nope- hasn't happened. Bleck peeps? Don't make me laugh. 

The extension of equal rights to all sexes made sense because there are no morally relevant differences between the sexes.

There are 'morally relevant' differences between women who give birth to itty babies and fat fucks like me. It is not the case that Legislation aimed at removing discriminatory practices themselves suffice to 'extend' equal rights. Incidentally, the ERA has not been ratified in the US for this very reason.

The extension of equal rights to all ethnic groups made sense because there are no morally relevant differences between ethnic groups.

There are morally relevant differences within those groups and these may subsist between groups as well. Once again, anti-discrimination laws are not the same thing as the provision of 'equal rights'.  

The extension of equal rights to animals would not make sense in this way.

Yet some animals, in some jurisdictions, have 'equal rights' in some respects. I am not allowed to keep a badger as a pet anymore than I'm allowed to own a tinker.  

But neither, I think, would the extension of different rights to animals, matching their morally relevant differences. The universal extension of human rights was morally compulsory as well as logically so, because of how people exercise rights to win and keep what is proper to them. Extending rights to animals doesn’t give them anything that they can use.

Yes it does. By prohibiting the killing or keeping in captivity of endangered species, as well as by securing their habitat by law, the same function is served as by laws relating to genocide or enslavement of a vulnerable group. 

The truth is, the Law is a service industry which has to pay for itself. Every jurisdiction which ever existed gave some justiciable rights to animals and plants and rivers and so forth while denying them to some class of humans. A flock of birds which flew to Britain may have certain rights which could be enforced by a Court such that they and their progeny flourish in their new domicile. A bunch of human being who entered the country illegally may be deported.

Rights are also important in their negative capacity, blocking others from treating rights-holders in certain ways. In this sense, granting animals rights does grant them protection against abuse, so long as the humans who recognise their rights respect them, and the humans charged with enforcing animals’ rights do so effectively. But here’s the rub: you could do the same thing for trees, or rocks, or paintings.

But this is exactly what happens the world over. Try wiping your arse of an oil painting in the National Portrait Gallery. You will go to jail. Things may or may not have rights just like people. Whether they can or can't speak is irrelevant.  

Rights are not proper to non-language-having forms of life, even if they are an intelligible way for us to structure our beliefs about how we should treat these life forms.

Only a cretin would think that how we treat 'life forms' depends on whether they have or don't have language. Itty babies don't have language. Nor do I when of strong drink taken. But good people will look after a baby, or a mate who has had too much to drink, just as they look after their puppy dog or pussy cat or horsie or moo-cow etc, etc.  

To use a pet aphorism, “If it’s stupid and it works, it isn’t stupid”. What’s the harm in shoe-horning animals into a person/rights conceptual scheme, if that’s what it takes to get actionable legal protection for their welfare?

The harm lies in creating rights which are not linked to an incentive compatible remedy under a vinculum juris. The effect is the same as telling people they have won the lottery and should go claim their prize from the local Mafia boss. If his henchmen beats the fuck out of you, it just means that he will pay you double if you just persist a little longer.  

In the short term, I’d say there is a risk of provoking undue resistance from people who assume that “rights” for animals will mean “equal rights”, and that chaos and absurdity would follow. But the value of using “rights” as a readily accepted currency in the infrastructures of law and politics probably outweighs that resistance.

No. When you take a word which has a legal meaning and give it a different meaning based on fantasy, then all you have done is work a public mischief. Currently, because I have ten pounds in my Bank Account, I have a right to write a check for ten pounds. Suppose you say to me 'Have you heard? You have the right to withdraw ten thousand pounds from your Bank if you have ten quid in there already'. Either I ignore you as a fool or I end up committing a fraud by issuing a check which is bound to bounce. 

In the long term, however, I worry that the expedient “kluge” of extending rights to animals will forestall an evolution in moral thinking.

This is true. Instead of saying 'Equal rights for Animals! More Cats in the Cabinet! More dogs in the Department of Defense' there should be 'evolution in moral thinking' such that activists can simply shit into their hands and fling their feces about.  

The antagonistic model of rationally self-interested persons with competing rights claims is already too narrow for human cases.

No it isn't.  

It has a seductive parsimony, but it achieves this by restricting its focus to cases where the moral subjects involved can hash out the details by themselves.

Fuck off! Moral subjects can get lawyers and go to Court and Judges can make determinations of Law and Juries can make determinations of fact.  

As we expand our scope of moral concern, we find ever more questions that are one-sided, rather than antagonistic between formal equals, and require restraint imposed from within by substantive principles, rather than from without by rights-bearing interests.

But this also happens if we narrow our scope of moral concern or just acquire some for the first time. The fact is 'concern' is not agonistic. Certain issues in Law & Economics may be, but this is not necessarily the case for Ethics and Morality which, more often than not, are concerned with gratuitous or unilateral actions. 

The more deeply rights discourse becomes embedded as the universal model for moral reasoning, the less able we are to address asymmetrical moral conflicts.

Which is why 'moral reasoning' has always been wholly independent of Law & Econ. This silly man is merely pointing at a worthless academic availability cascade which is adversely selective of stupid blathershites like himself.  

The granting of rights to trees, and fish, and rivers, gives these beings a new status but also a new vulnerability, as rights exist in a matrix of contestation.

No they don't. They exist in a matrix of protocol bound juristic processes such that contestation is minimized by stare decisis and Legislative Codification.  

Whether or not their rights will win them a better existence depends on the legal and political support made by rights-comprehending humans on their behalf, without their knowledge or behest. What matters is that people have standing to force other people to treat animals in a certain way, however these people may understand their obligation to do so.

No. All that matters is 'incentive compatible' mechanism design- if the thing falls within the purview of Law & Econ (i.e. opportunity cost obtains)- or else, moral suasion or Tardean mimetic effects- i.e. a runaway process of preference reconfiguration such that some activities or markets become 'repugnant'. 

Ultimately, the only check on our behaviour towards non-persons (and moral persons without effective legal protection) is our own conscience.

No. The only check on our behavior is the fitness landscape.  

This conscience functions better when fed with accurate representations of the world, rather than idealized legal fictions.

Nonsense! If 'accurate representations' are available, the conscience has no role. Why? That 'accurate representation' would include an account of the actions of a moral superior or else provide a template for superior moral calculation. Indeed, as the story of Moses and al Khidr in the Quran shows, seemingly unconscionable behavior may be militated for by omniscience. 

To see animals and other natural entities as they are, oblivious and vulnerable to the operation of our rationalized systems, is to recognize the need for a morality of inequality and asymmetry.

No it isn't. Seeing things as they are does not cause any sensible person to recognize the need for worthless bullshit.  

Given that these vulnerable beings cannot tell us what they are due,

but I can. There's a squirrel says you owe her a buttload of alimony.  

it behooves us to exercise a generous caution in avoiding harm. Dare we call it grace, or charity?

Dare we mince around a biker bar wearing an evening gown and a diamond tiara, telling all and sundry about our 'grace' and 'charity'?  

Animal rights advocates are correct in supposing that a lack of equal status for animals puts these beings in grave danger.

Though, it is a guy in an evening gown mincing about a biker bar who is in more immediate danger. 

Rectifying unjust inequalities of status

e.g. the size of the ferret one has thrust up one's rectum 

is one path to moral improvement,

Is it though? 

but not all inequalities are unjust.

nor are any equalities just solely for that reason. There is a 'second best theorem' type consideration here. 

Another path to becoming less morally monstrous is to address why we treat unequals so badly, and to articulate a coherent case for doing better.

But this path may lead us to become more, not less, morally monstrous if- like the author- we are as stupid as shit 

Maybe that case is as simple as “inflicting suffering is bad”.

That is not a case of any sort. It is a claim of a jejune type.  

Do we really need to subject this notion to a tortured metaphysical translation in order to make it compelling?

Of course we do. There's a squirrel suing us for alimony. Also, that ferret of an attorney it sent around is doing a number on our insides. With hindsight, it was a mistake to cram it up where the sun don't shine. 


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