Ritual Slaughtering Vs. Animal Welfare: A Utilitarian Example of (Moral) Conflict Management. [Very early draft. Please do not quote]

Transcription

1 Francesco Ferraro Università degli Studi di Milano (State University of Milan) Dipartimento Cesare Beccaria Ritual Slaughtering Vs. Animal Welfare: A Utilitarian Example of (Moral) Conflict Management [Very early draft. Please do not quote] 1. A factual conflict European legal systems as well as many others around the world recognize the need to minimize animal suffering both in livestock farming and in animal slaughtering, at least since directive 74/577/EEC (later replaced by directive 93/119/EC). Regarding slaughtering, this concern mainly calls for the pre-stunning of animals by appropriate techniques, in order to spare them all unnecessary suffering. This is meant as a "first step" in Europe's action to prevent all forms of cruelty to animals. The European Convention for the Protection of Animals for Slaughter restates the mandatory rule of pre-stunning and also explicitly forbids some traditional methods of stunning which are deemed to be inadequate or cruel (i.e. the use of the "puntilla", hammer, and pole-axe). The Convention also prescribes to choose only among the following stunning methods: mechanical instruments which administer a blow or penetrate at the level of the brain (i.e. captive bolt pistol); electro-narcosis; gas anaesthesia. However, such a concern for animal welfare finds explicit limitations in religious rituals. Directive 74/577/EEC did not affect national provisions related to "special methods of slaughter" required by religious rites; although successive conventions, directives, and regulations submitted also religious slaughtering to the general rule of sparing animals all unnecessary and avoidable pain, they still admit of religiously-grounded exceptions to pre-stunning. Such exceptions are usually normatively grounded in the general principle of religious freedom and the freedom to manifest one's religious beliefs in worship, teaching, practice and observance (as per art. 10 of the Charter of Fundamental Rights of the European Union). This is a genuine case of moral conflict: on the one hand, we find a very widespread moral concern for the minimization of the suffering of sentient beings; on the other hand, we find an equally widespread and legitimate concern for human freedom, more specifically for the freedom to express

2 one's religious beliefs and to shape one's own life in accordance with such beliefs. As is well known, both Jewish shechitah (ritual slaughtering) and Islamic halal slaughtering forbid the pre-stunning of animals. This leads to a factual conflict with legal prescriptions to the contrary. The conflict is a factual, not a principled, one, since neither religion disregards animal welfare and the minimization of animal sufferings: on the contrary, the methods of slaughtering prescribed by such rites are most likely originated in an authentic concern for humane slaughtering. The method of jugulation, for instance, to be performed in one single cut by skilled and trained professionals, was the less painful way of killing animals known in ancient times. The religious obligation to only slaughter healthy and physically intact animals also seems to derive from the preoccupation to avoid excessive and prolonged sufferings. However, the conflict between such prescriptions and minimization of animal suffering seems nowadays factually unavoidable. The most effective and widespread methods of pre-stunning permanently damage the animal's body and thereby conflict, for instance, with the Islamic prescription that the heart of the animal still be beating until its bleeding begins. It is true that some Jewish and Islamic authorities have consented to some methods of stunning which do not irreversibly damage the animal's body: in New Zealand and Australia the adoption of very sophisticated instruments for electro-narcosis, which leave the animal's brain intact and would permit swift regain of consciousness, has allowed those two countries to export their meat to Islamic countries. Moreover, a mostly Islamic nation such as Malaysia has permitted the use of nonpenetrating captive bolt pistols, which do not permanently damage the animal's encephalon. However, the most effective methods of stunning that is, those which cause the least sufferings and are most likely to work still stand prohibited by religious prescriptions. A conflict between animal welfare concerns and religious freedom, therefore, cannot but issue. The claim that ritual slaughtering causes no more pain to animals than post-stunning slaughtering seems unconvincing. The main sources of suffering for non-stunned animals are the restraint systems, the pain from the cutting of their throat, and the pain of bleeding. Although appropriate restraint systems can minimize distress (see Grandin and Regenstein, 1994), the pain from the cut and the bleeding seems unavoidable in non-stunned animals. Also the claim that jugulation would grant a quicker loss of consciousness than other methods is widely contested. Moreover, today's meat industry requires large slaughterhouses to minimize the amount of time spent per each animal to butcher, thereby making it very difficult to comply with the strict regulations that avoid causing unnecessary sufferings to ritually slaughtered animals (see Singer and Mason, 2006). A factual conflict, then, is unavoidable, unless we want to affirm the thesis that ritual slaughtering is not covered by the freedom to manifest religion or belief, in worship, teaching, practice and

3 observance (art. 10 ECHR). This would seem odd, as the way people eat and how they prepare their food is of paramount importance to them and actually expresses cultural, national, and religious identities much more strongly and evidently than many other aspects of human life. Religious practice obviously includes also regulations concerning nourishment. Moreover, the German constitutional court has already acknowledged halal slaughtering as falling under the protection given by the German Grundgesetz to freedom of religious expression (January 15, 2002; the Hebraic shechitah was already recognized as legitimate). Although the conflict is not a principled one from the start since also religious practitioners do not oppose to, nor disregard, the principle of minimizing animal suffering it has recently evolved in a principled ethical dilemma: should human religious freedom count more than animal welfare (or, more precisely, than minimization of animal sufferings)? Recent cases in the European Union (UK, Netherlands, Poland, and Denmark) show that the public opinion is actually split in two between those who think that religious freedom comes first and those who believe animal rights should have precedence. In Denmark, minister for agriculture and food Dan Jørgensen famously declared that animal rights come before religion Animal rights? It is very tempting to adopt, on this respect, a nozickian approach: after all, humans have moral rights which should never be trumped upon, among which we find the right to religious freedom. Legal systems should turn those rights into legal ones, by granting them the protection of the law. The concern for minimizing non-human suffering is clearly legitimate and, indeed, mandatory, as long as it does not lead to actions which violate human rights. This approach has been famously described as Kantianism for humans, utilitarianism for animals (Nozick, 1974, 39). However, such a stance is obviously irreconcilable with animalism, which does not admit of methods of slaughter unable to spare animals unnecessary sufferings, even on the grounds of the human right to freedom of religion. The Kantian-Nozickian approach falls under the definition of speciesism, that is, an attitude of bias or preference towards the interests of those belonging to our same species (Singer, 1995, 6). If we see rights or, at least, fundamental rights as trump cards (in a dworkinian fashion), and we only ascribe rights to humans, it is quite clear that a right to religious freedom will always have precedence over animal welfare. 1 (last access August 14, 2014).

4 Such speciesist outcomes stem from the Kantian concept of dignity: dignity issues from autonomy and from the moral law. The only beings capable of acting morally and, therefore, autonomously are human beings. The dignity issuing from being the only possible carriers of the moral law calls for respect for humanity (which also includes respect, on every individual's part, for his/her humanity: that is, respect for one's self). Respect manifests itself as the non-violation of certain deontological restraints, which Kant summarizes in the imperative of not treating other humans as mere means, but always also as ends in themselves. Although it is not always easy to fully comprehend the practical implications of such a maxim, we can say that respecting the dignity of other human beings also means to take into account their needs and interests, to refrain from acting towards them in ways which they would not approve of, and not to curb their freedom of choice. Under such a view, non-rational beings cannot be ascribed dignity and are not ends in themselves. Of course, this does not involve that we cannot build upon Kantian grounds to acknowledge also animal rights, or at least human obligations towards animals (as in Regan 1983 and Korsgaard 2004). The Kantian-Nozickian perspective does not seem very attractive with regard to the problem at issue, since it opposes at least prima facie growing concerns for minimizing animal sufferings. The conflict between animalist and religious freedom-related positions would simply be solved by claiming that animalist concerns are misplaced. If we reject this conclusion and its speciesist outcomes, we could assume that also non-human animals have moral rights and they should be entitled to certain protections against mistreatment and the infliction of unnecessary sufferings. This does not compel us to ascribe a right to life to them, which would absolutely forbid their slaughtering. We could simply recognize their right not to suffer pointlessly and contrast it with rights of religious freedom, which include the right to eat in compliance with religious prescriptions. However, this does not seem to me a very promising way of taking into account the animalist point of view. Rights are suitable for the protection of the interests of human beings, because humans can (at least potentially) claim them and build their plans of life and expectations also according to the rights they know they have. They can be seen as valid claims, that is, they morally authorize their holders to claim something as their due; this is why respect for persons... may simply be respect for their rights, so that there cannot be the one without the other; and what is called "human dignity" may simply be the recognizable capacity to assert claims. To respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims (Feinberg 1980a, 151. See also Feinberg 1980b). Rights are of no similar use to animals. Moreover, the strongly individualistic roots of rights language make it useful to express the needs and interests of beings who are, at the very least,

5 rational and, to a certain degree, autonomous. Beings who are incapable of rational consideration of their interests and, moreover, are factually dependent on other beings, can of course be ascribed rights, but they will probably be more effectively protected by speaking of duties and responsibilities of other beings towards them. This, of course, also applies to children and adults under medical care (Wolgast 1987). So, although animal rights talk has become more and more popular, I do not believe it suits the protection of animals' interests. It should be noted that the rejection of animal rights issues from the adoption of the so-called Interest Theory of rights, according to which the specific function of rights is that of benefiting their owners by promoting their interests (see, for instance, Kramer 1998). We could also adopt a Choice Theory of rights, according to which a right makes its holder a small-scale sovereign (Hart 1982, 183) by endowing her/him with a certain measure of control over the duties of other people, thereby protecting his/her freedom of choice (see also, for instance, Steiner 1994 and 1998). However, by adopting this view we would be really compelled to reject the ascription of rights to animals, as they do not possess the ability to exercise their freedom of choice to control the duties of others. This is also what makes moral and legal rights, on Kant's account, so difficult to apply to non-humans (see Korsgaard 2012). What said above does not imply that animals cannot be ascribed rights, since the ability to understand what a right is and what rights we have, as well as the ability to claim their enforcement, is no necessary condition for the possession of legal rights (see Lamont 1946, 83-85). This probably holds also for the use of rights in moral language. My point is that, just like for children and incapacitated adults, the ascription of rights is not always the best way to express our moral consideration of animals. Moreover, with respect to the case at issue, animal rights would still conflict with human rights to religious freedom and we would still be left with the problem of solving that conflict. 3. Utilitarian conflict management Another and more promising approach to the problem is, in my view, the utilitarian way, by which I mean the classical, hedonistic utilitarian ethical theory with its fundamental prescription of maximizing total pleasure and minimizing total pain. On this view, the characteristic which makes a being the appropriate object of moral consideration is not rationality, nor the mere belonging to the human race, but sentience (Singer 1995). Utilitarianism, then, is typically non-speciesist, since it allows the taking into account of every being capable of experiencing pain and pleasure (that is, of having interests).

6 In its best form, utilitarianism should not be thought of as an ethical theory prescribing the rejection of all other moral stances which conflict with the immediate minimization of pain (or maximization of pleasure). What utilitarianism urges us to do is simply to translate those moral questions involving the making of decisions for large communities into terms of pain and pleasure. All public policies, regulations, institutions, etc. should be tested according to the sufferings they help avoiding and the welfare they promise to bring. Although this seems to be a typically monistic approach to ethics (in the sense that it reduces all ethics to the pursuance of one single value: see, for instance, Broad 1979; 280; Brandt 1979, ), it is in truth compatible with ethical pluralism in modern societies, as it attempts to find a common language or lingua franca to make dialogue between different moral stances possible. The idea behind this is that everybody can relate to pleasurable and painful experiences and this makes them suitable as a solid common ground for ethical discussion. (Incidentally, according to some this is how Jeremy Bentham himself conceived of utilitarianism). Regarding the problem at issue, the importance to religious practitioners of their rites and beliefs would be taken into account into the global utility calculations, as it is very easy to translate it into terms of pains and pleasures. The impossibility to eat food which has been prepared in accordance with one's beliefs is, obviously, a source of major distress. Anyway, it should be noted that meat is no more regarded as a necessary part of human nutrition and its deprivation is no more considered as an indispensable part of a healthy diet (provided, of course, that other conditions for balanced nourishment are met). This does not involve that those requiring ritual slaughtering for their meat should convert to vegetarianism. Having to choose between a radical change in one's dietary habits and renouncing to abide to personal religious prescriptions would inevitably cause much suffering. One major source of such suffering would arguably be the feeling of disrespect on the part of public institutions forcing people to such a choice, as well as the feeling of being treated unequally with respect to people who hold different religious beliefs or none at all. On the animal side, we should note that animal sufferings related to slaughter without prestunning are only a minimal part of the whole of animal sufferings caused by industrial livestock farming. Moreover, large slaughterhouses which butcher for the meat market are generally less able to provide the conditions for the proper performance of ritual slaughtering, which would cause animals only slightly more prolonged and more intense sufferings than post-stunning slaughter. This makes ritual slaughtering the cause of a very small portion of the pain caused to animals by modern meat industry. Recently, in the UK there has been some concern about the possibility for consumers to know whether the meat they are buying comes from pre-stunned animals or not. 2 It looks like a 2 (last access August 14, 2014).

7 major incoherence worrying about the stunning prior to killing without bothering whether the animals were raised in conditions compatible with a decent life, i.e. in ways which avoid all unnecessary suffering. This is not the case of the vast majority of animals raised in industrial farming. Utilitarianism would probably only allow the consumption of meat from traditional free range farming (see Frey 1983, 32, ), although this would make meat consumption so expensive that most people would expel it almost completely from their diet. While livestock farming should be gradually abolished, this should not prevent us to address the conflict between animalist concerns and religious freedom in the meantime. Utilitarianism would prescribe progressive reduction of killings without pre-stunning, without, at the same time, curbing religious freedom and without instilling into religious practitioners the idea that they are being discriminated against. Such a result could be obtained, for instance, with taxation on meat coming from ritual slaughtered animals. Such taxation should be sufficient to reduce the number of such slaughters, without making the purchase of the meat actually impossible. Meanwhile, public discussion should be encouraged, in order to make public opinion and religious practitioners more and more aware of animal sufferings. This would also help making it less profitable to sell meat coming from ritual slaughter to the large public, often with no awareness on the customers' part (Singer 1995, 155). Of course and this is where utilitarianism's Enlightenment inheritance shows up current moral codes, including religion-based ones, should not be taken as an immutable matter of fact. The progressive and reforming aspect of utilitarianism will consist of trusting public discussion to help mutual comprehension between animalists and religious practitioners and to enhance sensibility and sympathy for the sufferings of non-humans, something which could lead to a change in eating habits both for religious practitioners and for all other people. References Brandt, R. (1979), A Theory of the Good and the Right, Oxford: Clarendon Press. Broad, C.D. (1979), Five Types of Ethical Theory, London: Routledge & Kegan Paul.

8 Feinberg, J. (1980a), The Nature and Value of Rights, J. Feinberg, Rights, Justice, and the Bounds of Liberty. Essays in Social Philosophy, Princeton University Press, Princeton (orig. in Journal of Value Inquiry, 4, 1970, pp ). - (1980b), Duties, Rights and Claims, in J. Feinberg, Rights, Justice, and the Bounds of Liberty. Essays in Social Philosophy, Princeton University Press, Princeton (orig. in American Philosophical Quarterly, 3(2), 1966, pp ). Frey, R. (1983), Rights, Killing, and Suffering. Moral Vegetarianism and Applied Ethics, Oxford: Basil Blackwell. Grandin, T., Regenstein, J. M. (1994), Religious Slaughter and Animal Welfare: A Discussion for Meat Scientists, Meat Focus International, March 1994, pp Korsgaard, C. (2004), Fellow Creatures: Kantian Ethics and Our Duties to Animals, in The Tanner Lectures on Human Values, G.B. Peterson (ed.), Vol. 25/26, Salt Lake City: University of Utah Press. Korsgaard, C. (2012), A Kantian Case for Animal Rights, in M. Michel, D. Kühne, J. Hänni (eds.), Animal Law. Developments and Perspectives in the 21 st Century/Tier und Recht. Entwicklungen un Perspektiven im 21. Jahrhundert, Zürich-St. Gallen: Dike. Kramer, M.H. (1998) Rights Without Trimmings, in M.H. Kramer, N.E. Simmonds, H. Steiner, A Debate Over Rights, Oxford: Oxford University Press. Lamont, W.D. (1946), Principles of Moral Judgment, Oxford: Clarendon Press. Nozick, R. (1974), Anarchy, State, and Utopia, New York: Basic Books. Regan, T. (1983), The Case for Animal Rights, London: Routledge & Kegan Paul.

9 Singer, P. (1995), Animal Liberation, Second Edition with a New Preface by the Author, London: Pimlico. Singer, P., Mason, J. (2006) The Way We Eat. Why Our Food Choices Matter, New York: Rodale. Steiner, H. (1994), An Essay on Rights, Oxford UK-Cambridge USA: Basil Blackwell. Steiner, H. (1998), Working Rights, in M.H. Kramer, N.E. Simmonds, H. Steiner, A Debate Over Rights, Oxford: Oxford University Press. Wolgast, E. (1987). Wrong Rights, in Hypatia, 2(1), pp