Saturday, February 28, 2009

Wanton Waste and Going Above and Beyond Beyond Fair Chase: Part Two

I have decided to move this response to comments made in the original thread out to the main page (a) my response grew to a more substantial length than I intended and (b) because I'm likely to stir up some more trouble. ☺

In his thoughtful comments on the original thread, Tovar wrote:
“While I can sympathize with you pro-freedom arguments, Jim, I’m concerned by where they seem to lead.

“Are you arguing that humans should be legally permitted to shoot animals simply because they want to, without any other purpose being required and without any obligation to track a wounded animal or make use of its body? If so, would you have this legal permissiveness extend to the treatment of all game animals, including big game? Going back to your point about lights and rifles and coyotes above, would you argue for the legalization of all forms of hunting for which there is a cultural precedent?

“Personally, I don’t think we can leave everything to the dubious normative power of the so-called 'hunting community' any more than we can leave all choices regarding the treatment of companion animals to pet owners.

“At some point, when the behavior is sufficiently egregious, the law has to step in.”
Let me preface this by saying that I too find the example previously given of the hunters' not even bothering to pick up the hares morally abhorrent. I would not choose to hunt with those individuals, and if he/they were in my social circle of hunters I would engage in every method of subtle and not-so-subtle psychological persuasion to affect a change in that behavior—ridicule and social ostracism have worked well for me in the past. ☺

With that said, let me reiterate that the specific (and more narrow) point I am making is about “legal moralism”—the idea that we should legislate morality. I am very, very uncomfortable with legislating morality, and I fear that the legislation of morality is potentially more immoral than the behavior such legislation seeks to regulate.

An example may illustrate:

Years ago in Maine one of the owners of the camp where we were staying told us about a group of (non-resident) hunters who come to her camp every year from out of state specifically to hunt trophy deer.

When these hunters are successful and bag their big-racked bucks, they remove the head and cape and leave the rest of the carcass in the woods. In other words, they leave every ounce of edible meat to rot in the woods, but take their trophies home.

Should such behavior be made a criminal violation? While I find the leaving of the carcasses in the woods to be equally morally abhorrent as the example of leaving the hares in the woods, I do not think that necessarily we should make these hunters’ actions illegal. They have paid for their hunting licenses; they have obeyed the season laws, tagging regulations, etc. etc., and they are entitled to take what they have paid for after going through the mechanism of buying their hunting license.

You may disagree. I myself am uncomfortable with this conclusion. But now let’s alter the scenario:

These out-of-state hunters come to Maine. They kill big-racked bucks. But this time, they take all the meat but leave the heads and 14 point racks in the woods to rot. Now what do we think?

My guess is that many if not most hunters would now applaud them for their ethically enlightened “use of the resource” and for eating what they kill, even though they chose to leave the trophy heads in the woods to rot.

Why the inconsistency? Again, in both scenarios the hunters have paid for their hunting licenses; they have obeyed the season laws, tagging regulations, etc. etc., and they are entitled to take what they have paid for after going through the mechanism of buying their hunting license.

I am uncomfortable with using the LAW to enforce what is fundamentally a private ethical issue of conscience. One wag says that using the law to legislate morality is like using fireplace tongs to remove an eyelash. I agree that it is a waste to leave EITHER meat or trophy head in the woods, but neither hunter’s choice harms me in the end when all is said and done.

Eric avers, “I agree this type of dis-honoring the hunted animal should be illegal.” Well, when I go to the deer butcher and see 55 gallon drum after drum filled with spikehorns and scrawny 4- and 6-point deer heads, is this not also a type of dis-honoring the animal? Should not this disrespectful waste of deer heads be made illegal as well?

Well okay, then. I think we should have a law MANDATING the honoring of every deer killed in America by having the head mounted by a qualified taxidermist. That would be the One, True, Correct Way to Honor Deer.

In a very interesting article, philosopher Julia Driver discusses what she calls hyperactive ethics. “Those who do go about trying to impose their moral will on others too much are what I call morally hyperactive,” she writes.

The problem with hyperactive ethics as she sees it is a form of moral zealotry, a self-righteous type of moralism that sees the world in black and white terms and where the moral zealot is always right.
"The problem of moral zealotry is not even restricted to ethics. It can crop up in any evaluative context. Tolerance is expected of others' aesthetic views; or views about their research; or how they bake cakes. For example, even if you feel very strongly about lasagna and the proper way to cook it, you will probably restrain yourself from criticizing your neighbor's favorite lasagna recipe. However, the problem is more acute for ethics, because moral reasons are thought to have a special over-riding quality. Thus, whenever one believes something immoral is going on, the commitment to speak out, to be aggressive, to do something dramatic about it is much more urgent than if one is simply convinced that mixing scallions in with ricotta cheese is a culinary abomination."
Driver says we must resist the temptation to be aggressive and that we must do our best to cultivate tolerance even for beliefs or behaviors that we find morally abhorrent. Why should we do this? Because the harm done by legislating morality is potentially greater than the original immoral act itself.

Driver writes:
"How then can the liberal tolerate and protect immoral and illiberal behavior? The answer, I think, will have to do with the costs imposed by the interference itself. Racism, for example, is immoral and should be discouraged. However, the state arguably should not coercively restrict racist speech, because this represses free speech. So the liberal believes that the state should be restrained in coercively condemning racist speech, in a limited way--though it is perfectly permissible for the state to discourage hate speech (by paying for anti-racist programs in state schools, for example). This limited form of toleration does not undermine liberal values, because restrictions on speech would make things worse."
So I want everyone to be very clear here about what my argument actually is: I am emphatically NOT arguing that sluicing bunnies or deer in the woods and leaving them to rot is morally, ethically, or aesthetically okay. It is definitely not okay, just like racist speech is not okay. But that's different than saying there ought to be a law against racist speech.

I simply don’t think that we should always expect the law to do the work of persuasion that we ourselves should be engaged in. The law is a very blunt tool where something more like surgical precision is required.

Because otherwise we should all also be arguing for the mandatory taxidermy of deer heads and all other animals that are hunted as the One True Correct Sure-Fire Means of guaranteeing that hunters will always honor the animals they kill.

***
Driver, Julia. 1994. "Hyperactive Ethics." The Philosophical Quarterly 44 (174):9-25.

12 comments:

  1. Hi again, Jim –

    Thanks your thoughtful post. In a sense, it seems to me that you are saying, as I did, “I can sympathize with your arguments but I’m concerned by where they seem to lead.”

    Your examples illustrate a few of the potential dangers of legal moralism, showing how it could lead to someone saying: “I think we should have a law MANDATING the honoring of every deer killed in America by having the head mounted by a qualified taxidermist. That would be the One, True, Correct Way to Honor Deer.”

    I can see your concern. Personally, I would oppose such legislation and I would hope that the public and the legislature would nix it.

    On the other hand, consider a few examples that could result from your stance (as I understand it).

    I asked: “Are you arguing that humans should be legally permitted to shoot animals simply because they want to, without any other purpose being required and without any obligation to track a wounded animal or make use of its body? If so, would you have this legal permissiveness extend to the treatment of all game animals, including big game?”

    If your answer to both questions is yes, then it would be legal for a hunter to take an 800-yard shot at a deer or elk and never bother to hike to the spot and see if there was blood. It would be legal for a hunter to wound an animal and, by choice, never follow up with a second shot. It would be legal for a hunter to kill a deer and leave the entire carcass to rot (assuming that reporting the deer at a check-in station was not required). Multiply that last example by having half a dozen hunters, with three either-sex tags each, come upon a little herd of eighteen deer in a field: it’s legal for them to slaughter every last deer and leave them lying there.

    I asked: “Would you argue for the legalization of all forms of hunting for which there is a cultural precedent?”

    My point, of course, is that we already have game laws that legislate ethics. If your answer is, “Yes, we should repeal such laws,” then it would become legal for people to hunt deer with lights at night, to hunt them with deerhounds, to shoot them as they swim across a river, to drive them into corrals and shoot them there, perhaps even to catch them in traps and snares, etc. (I use deer as my primary examples because I am a deer hunter and because of their prominence as a game species in North America.)

    If you don’t think such laws should be repealed, on what grounds would you defend them? (The parallel I drew to companion animals suggests a similar question: On what grounds would you defend laws that prohibit the abuse, torture, or cruel neglect of house pets?)

    Personally, I would oppose the repeal of most current game (and domestic-animal protection) laws, just as I would oppose the establishment of your hypothetical mandated-taxidermy law (or a law that required me to feed my healthy 60-pound field Lab precisely 3 cups of Eukanuba kibbles per day).

    I think we need to find a balance, neither denying the need for ethics-based laws nor letting such laws get out of hand. Vermont’s proposed retrieval and utilization rule will, I hope, help us in the continued effort to find that balance.

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  2. A few observations:
    Based on my experience as a game warden, many if not most people think that the examples we are looking at are already illegal. They are very surprised when they hear that most are not.
    Thinking about the difference between harm and offensive - is it then OK if a practice is rare verses the same practice when it becomes common? This seems to be the core of the argument against the draft retreaval and utilization rule. Perhaps we need to know if the trend is toward more of this behavior and if so we should make a rule before the offensive behavior does harm by becoming more common.
    Unfortunately I know from personal experience there are people that will do what ever is not illegal and what ever they think they can get away with. All the talking in the world will not change them. Some even need to be arrested multiple times be for they get it!
    I agree many laws are a very blunt instrument. But they do clearly lay out the bottom line for tolerable behavior that even the least aware of our community understands.

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  3. Hi again Tovar,
    First things first. You should definitely get Eric to invite you to join this blog as a contributor! Eric, how about it?

    Next, my apologies for not having responded to each question you had asked earlier; I’ll try to give better responses here.

    Tovar wrote:

    “I asked: ‘Are you arguing that humans should be legally permitted to shoot animals simply because they want to, without any other purpose being required and without any obligation to track a wounded animal or make use of its body? If so, would you have this legal permissiveness extend to the treatment of all game animals, including big game?’

    “If your answer to both questions is yes, then it would be legal for a hunter to take an 800-yard shot at a deer or elk and never bother to hike to the spot and see if there was blood. It would be legal for a hunter to wound an animal and, by choice, never follow up with a second shot. It would be legal for a hunter to kill a deer and leave the entire carcass to rot (assuming that reporting the deer at a check-in station was not required). Multiply that last example by having half a dozen hunters, with three either-sex tags each, come upon a little herd of eighteen deer in a field: it’s legal for them to slaughter every last deer and leave them lying there.”


    I guess my answer is yes, but then I would instantly qualify my response by saying the 800-yard elk shooter has filled his tag at that point, and his hunt is now over. This is the same principle as charging a duck to your bag limit that has been shot over big water but then swims away, and under circumstances where to try a water retrieve by boat or with a dog would be too dangerous to attempt. (A close friend of mine nearly lost his life several years ago attempting such a “full utilization retrieve” in a canoe on big water. The canoe capsized three miles away near the opposite shore, and he was damn lucky to be able to swim that last seventy yards before collapsing on a doorstep of the people who called the ambulance.)

    So again, you shoot it, or you shoot AT it, then in essence you OWN it--meaning you own both the animal, and you own the responsibility for having shot at the animal. Ditto for the six hunters filling three tags each (not unlike a nuisance deer hunting situation in NY State): they fill their tags with those deer, and their hunt is now over.

    “I asked: ‘Would you argue for the legalization of all forms of hunting for which there is a cultural precedent?’

    “My point, of course, is that we already have game laws that legislate ethics. If your answer is, ‘Yes, we should repeal such laws,’ then it would become legal for people to hunt deer with lights at night, to hunt them with deerhounds, to shoot them as they swim across a river, to drive them into corrals and shoot them there, perhaps even to catch them in traps and snares, etc. (I use deer as my primary examples because I am a deer hunter and because of their prominence as a game species in North America.)."


    There are two things going on here: historically accepted forms of hunting should, all else being equal, enjoy continued acceptance. That includes hunting cougars with hounds in places where that practice has been abolished, and hunting deer with deerhounds (as is legal in Virginia and other areas of the south). Crossbows are not yet legal in NY, but they go back a thousand years. Crossbows have a better claim to legitimacy than do tree stands.

    One of the problems with discussions of hunting ethics in this country is that many hunters assume that the way hunting is practiced in THEIR neighborhood is the way it should be practiced in EVERY neighborhood. So what’s morally wrong with hunting deer with deerhounds--other than you, Tovar, don’t do it as a Vermont hunter?

    The response is that there is nothing morally wrong with the practice, at least not from a fair chase standpoint. (I’ll allow that there may be humane concerns about the stress to the deer, but I think we can safely bracket off those animal welfare concerns for the moment.)

    Why is hunting deer with lights at night morally wrong? The answer is, it isn’t morally wrong-- again, we use lights with coyotes, foxes, raccoons, and any number of other critters. If deer overpopulation and declining hunter numbers continue, then I can guarantee you we will see the relaxation of regulations prohibiting the use of lights at night with deer--not unlike the relaxation of regulations prohibiting electronic calls for use in hunting snow geese.

    Years ago, states like Pennsylvania went to bucks-only laws to manage deer populations; only to see deer populations rise naturally due to previously deforested lands growing back up into brush. By 1920 Pennsylvania needed to allow the shooting of does again, but alas! by then the damage was done, and the bulk of Pennsylvania hunters had absorbed the message that it was unethical or immoral to shoot does. Ultimately, if you allow for hunting's morality in the first place, the shooting of does is not a matter of hunting ethics.

    As far as deer in rivers, corrals, and what have you—I guess the same response holds as well. If there are enough deer and not enough hunters, we will see these various regulations reconsidered. Shooting/darting/snaring/trapping deer in corrals is already done for management purposes.

    “If you don’t think such laws should be repealed, on what grounds would you defend them? (The parallel I drew to companion animals suggests a similar question: On what grounds would you defend laws that prohibit the abuse, torture, or cruel neglect of house pets?)”

    I am trying not to make blanket statements about ALL such laws. Many laws serve practical purposes; some laws serve moral purposes. And we of course legislate morality: it is illegal to murder another human being just for the hell of it, i.e., just for fun. But I would venture the opinion that the existence of similarly clear-cut cases where legislating morality makes sense is not as numerous as we might think. We generally should take much more of a case-by-case approach to studying such matters, and again, legislation and regulation are awfully blunt tools for the job.

    As Denver law professor Ann Scales comments, "Law is second-rate philosophy backed up by the power of the state." I think we should be very wary of the coercive potential of the law in these cases.

    “Personally, I would oppose the repeal of most current game (and domestic-animal protection) laws, just as I would oppose the establishment of your hypothetical mandated-taxidermy law (or a law that required me to feed my healthy 60-pound field Lab precisely 3 cups of Eukanuba kibbles per day).

    “I think we need to find a balance, neither denying the need for ethics-based laws nor letting such laws get out of hand. Vermont’s proposed retrieval and utilization rule will, I hope, help us in the continued effort to find that balance.”


    Agreed. And in fact I think the Vermont law is a GOOD idea, we have such a law in New York. But we should be clear on what such laws provide, and wary of their limitations. The law will probably be fairly vague in its final written form, and while it will provide a way for law enforcement officers to charge someone with an offense, it is unlikely to change beliefs and attitudes about “honoring the game animal” and other such lofty ideals. I think if you really want to change peoples’ behaviors and beliefs, there are other ways of going about such business without depending on laws to do the dirty work for you.

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  4. Eric,
    I have one or two thoughts in response to your comment as well, in particular the following:

    "Thinking about the difference between harm and offensive - is it then OK if a practice is rare verses the same practice when it becomes common? This seems to be the core of the argument against the draft retreaval and utilization rule. Perhaps we need to know if the trend is toward more of this behavior and if so we should make a rule before the offensive behavior does harm by becoming more common."

    I'm not sure the question should be whether the practice is common or rare--there would be other ways to deal with the issue from a pure management perspective. Shorten the seasons, for one, alter the bag limit targets for another. This is what is done with setting waterfowl limits within each flyway council, and the biologists figure in a number of ducks killed by "wounding loss" each year to set those figures.

    With waterfowl, we KNOW some birds will never be retrieved. The law and regs are worded so as to allow for a hunter to exercise independent discretion--"make every attempt to retrieve the animal," etc. etc., to allow for hunters to make their own decisions.

    With big game, we seem more reluctant to cut the hunter some slack. We want to tell the hunter what to do. But there's a risk here as well:

    Psychologists who study influence and social persuasion speak of a phenomenon known as psychological reactance, where people are known to do the exact opposite of what they are told to do. Whether it's human nature to rebel, or what have you, isn't there a chance of exacerbating the waste phenomenon by issuing a regulation/law that says "Thou shalt not waste the game," and then have hunters react more vehemently to the regulation than they would have acted otherwise?

    At least it's a possibility. How big a problem is waste? I doubt that it is the most pressing concern that the state of Vermont has on its plate right now. At most I bet some frustrated game wardens simply want the authority to write someone up who is dumping or leaving carcasses in the woods.

    But if all the law does is force people to pick up their dead animal, carry it out of the woods to their car, and then take it home to throw into a garbage barrel (an exaggeration, no doubt, but maybe not by much), then what does the law accomplish? We are in effect saying, you cannot waste the animal out in the woods, but if you take it home, you can waste it in the privacy of your own domicile?

    not sure why that's a good outcome. I'm kind of playing devils' advocate here, to be sure, but again, I just don't see how such a law is going to be enforceable on a broad scale.

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  5. Jim,
    Where I feel the harm done is the dumping of fish and game in public places; such as fish left on the ice, game dumped in access areas. Hunters and fishers are the ones harmed in two ways. First in the erosion of support by the public who see these carcasses. The top reason non-hunters say hunting is OK is because the animals are eaten. when they clearly are not being eaten and we (and your frustrated wardens are forced to explain why it is not illegal...) 2nd will be if hunters don't stand up for responsible utilization of wildlife. Just as it is wrong not to say anything when we see waste (legal or otherwise), I think we do harm to our image if we don't draw the line in the sand on this issue and say failure to follow up a shot, failure to attempt to retrieve and dumping whole or field dressed animals and fish on lands of another is wrong and should be enforced.
    I appreciate your look at these issues from a philosophical view point, but on the ground we have some citizens that only understand the blunt hammer of the law. In this case I don't think we (hunters and fishers and trappers) can afford to let them have their way. Yes, we give up a bit of our flexibility to deal with certain situations in the field, but the pluses out weigh the negatives.
    The strategy incorporated in this rule is do as little as we can to fix the worst behavior, both in the field and in the minds of the citizens of VT.

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  6. Eric,
    philosophy aside, I agree with you about the benefits of having such a law or regulation. New York has a wanton waste law, and I'm glad they do.

    I would still argue, however, that the PRACTICAL benefits from a law (which in essence implies a prudential justification, not an ethical or moral justification) do not determine whether such law is a good idea or morally appropriate or just. Rockefeller-era drug laws come to mind. Very practical, very easy to administer rigidly mandated sentences, but very questionable and/or debatable on a moral level.

    jt

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  7. Jim,
    Looking at issues such as this thru multiple lens is a great way to clarify your thinking and challenge assumptions.
    The next one here in VT is a bill mandating hunter orange during deer rifle season. Is infringing on our aesthetic choice of what to wear while hunting worth saving a few lives and the bad press that flows from it?

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  8. easy one there, I'm all for hunter orange. The One, True Ethical Issue: hunt safely. and it doesn't really infringe, one can slip a blaze vest over just about any treasured piece of camouflage one wants to wear.

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  9. Hey again guys -

    From the preceding back-and-forth, it seems as though we all end up coming to similar conclusions. First, that the proposed Vermont retrieval and utilization rule is a good idea. Second, that no law will change people's beliefs and values; more subtle, powerful forces are needed for that task.

    As Eric said, the various lenses and discussions are certainly helpful in clarifying our thinking and challenging our assumptions.

    Incidentally, I wasn't arguing that hunting with lights, for example, is morally wrong in itself. I was just using it and other examples to further the exploration of whether we think certain laws (existing or proposed) are good ideas. I don't know the history of all the laws I mentioned (e.g. shooting deer while they're swimming) but I suspect that many of them have a moral or "fair chase" component and are not based solely on reducing the number of deer killed by hunters.

    As you point out, Jim, we certainly make exceptions to these laws when necessary (e.g. for pest control on farms, for biological field work, for sharpshooters where needed, etc). The question is, barring necessity, what rules do we want to have on the books and in the toolbox available to Eric's fellow wardens?

    I'm with you on blaze orange, too.

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  10. P.S. Regardless of the history of all those laws, I think the current public perception is that they include a moral or "fair chase" element. And, yes, here in Vermont, when it comes to dogs illegally running deer, it seems to me that animal welfare issues are part of that perception, especially when the snow gets deep and the weather cold and the deer have precious little energy to spare.

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