The latest issue of the Journal for Applied Philosophy contains an excellent article by Ebert and Machan on what’s known as ‘the predation problem’. To summarise; the predation problem is supposed to demonstrate, via reductio ad absurdum, that animals cannot have rights because, if they did, moral agents would be required to defend animals against other animals. One early example of the argument is David G. Ritchie’s 1894 response to Henry Salt:

in our exercise of our power and in our guardianship of the rights of animals, must we not protect the weak among them against the strong? Must we not put to death blackbirds and thrushes because they feed on worms, or (if capital punishment offends our humanitarianism) starve them slowly by permanent captivity and vegetarian diet? What becomes of the “return to nature” if we must prevent the cat’s nocturnal wanderings, lest she should wickedly slay a mouse? Are we not to vindicate the rights of the persecuted prey of the stronger? or is our declaration of the rights of every creeping thing to remain a mere hypocritical formula to gratify pug-loving sentimentalists…(Ritchie 1894, 109–110)

More recently, the reductio has been deployed in a similar fashion by Carl Cohen (Regan and Cohen 2001, 30–31). By and large the response from those arguing for animal rights has been to accept the above reductio. As a result animal rights theorists have shied away from moving from the premise that suffering is bad for non-human animals to the conclusion that they are owed positive duties of aid. Instead, most have adopted an account of positive duties toward humans and negative duties towards other animals (the ‘let be’ approach) (cf. Simmons 2009 for an example). This ‘let be’ approach unfortunately suffers from pretty hefty flaws, not least because it’s often presented in ways inconsistent with many of the premises that the animal rights argument relies upon (such as that there’s no special moral significance to being a member of the human species).

In their recent paper, Ebert and Machan argue that the predation problem leads to the conclusion that we should either reject the concept of animal rights or adopt a ‘libertarian-ish’ theory of animal rights (more on this later). Ebert and Machan are right to contend that the predation problem has not been adequately dealt with in the literature (I’ve had a paper under review on the very subject for a lamentably long time ). They concentrate on work by (and inspired by) Tom Regan. Ebert and Machan correctly identify the flaws in Regan’s claim that; because animals are not moral agents, their harming of other animals is not unjust and therefore doesn’t obligate a moral agent to intervene. As Dale Jameison has pointed out (Jamieson 1990), a rock falling on a moral agent doesn’t constitute an injustice, but that doesn’t imply that someone placed to save that moral agent has no duty to aid if they can. In the case of predation, it’s not injustice that might obligate, but the prima facie duty to prevent harm where we can do so without incurring serious burdens. The problem as I see it is not that this leads to a reductio ad absurdum requiring man to police nature, but rather the connection with the wider theoretical issue of other-defence in cases of innocent attackers. Ebert and Machan also treat the issue as one of innocent threat, something I’ll discuss below.

Predatory animals, not being moral agents, cannot be considered responsible for harms caused to others (just the falling rock is not responsible for crushing the person beneath it). Rather, predators should be considered innocent attackers in a manner to the mind-controlled gun-man or knife-wielding mental patient.. For an animal rights theorist to maintain a consistent position, Ebert and Machan argue that their account will have to have to allow for, or require, the rights of innocent attackers to be violated. So far, I’m in agreement with Ebert and Machan: predatory animals should be considered innocent attackers, just as violent severely cognitively impaired humans, or violent human children should be considered innocent attackers. What innocent victims are permitted to do in their own defence against innocent threats is a difficult problem. Even more problematic is the question of what third-parties are permitted to do in defence of innocent victims under threat from innocent attackers.

Ebert and Machan’s solution is to push for choice-protecting rights for moral agents and interest-protecting rights for moral patients (those lacking moral agency, but worthy of moral consideration for their own sakes), and to suggest that the former include positive duties of aid whilst the latter do not. This is their ‘libertarian-ish’ position – it amounts to a non-speciesist ‘let be’ approach. Despite the attractiveness of their position, this is where Ebert and Machan and I part company, particularly because I’m unprepared to accept that positive duties to children and other human moral patients are of the special associative kind and not because children are valuable for their own sakes.

Instead, I have argued (in my as-yet unpublished paper) that, in cases of innocent threat to innocent victim there are morally relevant factors that can help determine how we should act. These include: whether it clear that the innocent threat initiated the attack and whether the innocent attacker is likely to go on to attack other innocents in the future. Where moral patients are in conflict and where either both parties are innocent attackers or where the attacker is unlikely to seek to harm other innocents in the future, the principle that harming is worse than allowing harm to occur can provide moral agents with a ceteris paribus reason not to intervene. Of course, this still leaves room for special associative duties of aid to moral patients, but it does not rely upon in the way that Ebert and Machan’s position does.

Does this require man to police nature? In my paper I argue that the duty to aid a particular moral patient does not translate either into a duty placed upon a particular moral agent, or into a general duty to bring about a particular situation where no such aggression occurs. This means that we are not required to go off into the wilderness and seek out cases where prey animals are being threatened, but rather that, if we encounter such a case, and are in a position to aid, we should do so (assuming that aiding will not be overly burdensome). Thus, my argument entails that cat-owners are obligated to release the birds that their cats bring home, and that we may be required to shoot lions in defence of the zebras.

Cue angry howls from conservationists!