So obviously, I've been following with avid interest Jim Henley's attempt to generate a libertarian theory of animal cruelty law, as well as Julian Sanchez's declaration that there isn't one.
Julian takes what I would say is the typical libertarian view, which is that only rights should be enshrined in law. I shouldn't try to steal someone else's husband, but I am legally forbidden from stealing their car, because they have a property right in the car, but not in the husband. That leaves a boundary question: are animals rights-having creatures?
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.
Should animals have that right? Obviously, both Julian (who is a vegetarian) and I, who will only eat animals that are not industrially farmed, have both decided that the suffering of animals matters, morally. But should it matter, legally? Creating new rights is a big deal.
Okay, I'll bite the bullet. As a first principle, you shouldn't be able to burn a sheep alive because it's fun1.
1 I mean, assuming you are a member of what I take to be the very small class of people who would find something like this fun.
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