Edmundson elegantly side-steps the most controversial front-lines of the animal rights debate by tackling the ever-recurring issues of the discourse from an economic perspective. Rather than approaching the debate by looking at whether animals „have“ rights, he examines whether they need them, thereby opening up promising perspectives.

It’s not hard to guess that the outcome of the animal rights debate might entail fundamental practical consequences, ranging from our diets to our political priorities. The widespread reticence in this regard allegedly is so weighty that the “Oxford Handbook of Animal Ethics” (!) deliberately avoids using the term “animal rights”. But the consequences of such a discussion should not foreclose an unbiased analysis of the need for rights accorded to animals.

Edmundson holds that rights are not, or should not be, absolute concepts. It’s important to note that every right is 1) subject to adjustments to existing rights of others, and is 2) contingent on a balance of existing interests, which is exemplified e.g. by the way the right to free speech is dealt with in practice. Believing otherwise would be hard to reconcile with current fundamental practice, and would require rights to be independent of (balances of) our interests, in which case it would be unclear why we should give assent to a scheme of rights.

What, then, does the special nature of a right consist in? And is such a special attribute pivotal to the judgment on the animals’ need for rights? Primarily – this is probably the quintessence of the debate –, the violation of a right requires a special justification. A special kind of moral wrong, as Edmundson puts it, has been done resulting in a violation of a right and not merely in its infringement. Practically, the actual value of having a right does not become tangible before carving out its contrasts: Only the enforced duty of others to respect the right in question renders its worthiness palpable – the „reaction-constraining“ function of rights. It can be argued that animals need rights since the “rights device” is the only means capable of expressing respect for animals through our actions in a meaningful and robust way.

That said, does having rights not presuppose the right holder’s autonomy in order to cede or waive such a right? On this basis, it is also demurred that animals are bereft of the ability to incur duties themselves. The ensuing lack of reciprocity prevents the emergence of a legal relationship.

Edmundson counters these objections: Autonomous assent is not a requirement for having rights since there are numerous inalienable rights that can neither be transferred, nor waived, e.g. the right not to be enslaved. Moreover, the argument from “marginal cases” or „species overlap“ plays an important role here: Since non-autonomous humans (such as infants or cognitively severely disabled individuals), despite their lack of possessing reciprocal duties, evidently possess legal rights, too, animals may not reasonably be excluded from possessing rights. This argument may well be the strongest existing moral attack on speciesism.

But (how) can animal rights empirically arise in a world where large economic profit is being made with innumerable animal lives and where speciesist attitudes have dominated people’s thinking for millennia? In any case: The philosophical-cum-legal discussion of animal rights is an important engine of progress, which conclusion is suggested by Steven Pinker’s argument in the following talk: Academic debates do trigger moral and political progress.

The concrete, practical implementation of animal rights is the necessary subject of further discussions. It is clear, however, that merely individual respect for animals does not suffice, because – unlike animal rights – it does not provide a fall-back function in cases where personal motivation to treat non-human animals well fails.

Regarding the animal issue, especially European states have promulgated their disgust about particular Asian countries’ practices of eating dog and cat meat, while the latter defended their customs by pointing at Europeans’ use of farm animals. The same applies to opposing views on seal products. These being just two examples, the issue is transferrable to other instances, such as different policies about endangered species, bush meat, animal experimentation, shipping, use of animals for entertainment etc. National policies on animal welfare, being contingent on cultural diversity and embedded in traditions, can easily be diametrically opposed. Our in-group or parochialism bias in favour of a specific tradition and thus specific species and practices generates negative effects. (Needless to say, the sharp human/non-human devide is based on a more general in-group bias too.) First, the potential zone for international agreement is significantly diminished. Second, heavily defended but poorly justified practices are employed for a misguided understanding of legal imperialism. Third, parochialism may give rise to a „race to the bottom“ (through competition in laxity), where the state with the lowest protection ends up setting the bar for other states’ level of protection – causing great overall harm.

Nevertheless, confrontation may also generate positive outcomes, namely relating to comparative potential. A states’ legislation should be open to criticism by other states, so as to make it more probable that its biases are exposed and eventually corrected. Inconsistency or hypocrisy seems to be an omnipresent phenomenon in animal protection laws. Often, the results of a rational analysis are obvious: E.g. there is no reasonable substantiation for the prevalent bipolar practices that accord extensive legal protection to some animals but almost completely deprive others of it, cf. the distinctions between “pets” and other animals, or the inconsistencies that arise in the context of the “farm animal” vs. “lab animal” distinction.

Similar to other political issues where significant divergence and tension exist, there may still be many areas where states can reach mutually beneficial agreements, possibly trading certain values – or, better still, there’s the potential for locating or increasingly creating genuine agreement of opinion through discussion. Various treaties concerning animals’ welfare have been signed and ratified on the international plane and thus represent an explicit indication of common ground. Examples are the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1963, the Convention on Biological Diversity 1992, the Protocol on Environmental Protection to the Antarctic Treaty 1991, the International Convention for the Regulation of Whaling 1946, the Convention for the Conservation of Antarctic Seals 1972, the Agreement on the International Humane Trapping Standard 1997, and the Terrestrial and Aquatic Animal Health Codes by the OIE. (As is apparent from the list, animal welfare is still thought of as very closely tied to environmental protection. Unfortunately, the ensuing focus on “species” may be detrimental to the well-being and rights of individual animals.) On a regional level, five conventions are of principal interest: the Council of Europe’s European Convention for the Protection of Animals Kept for Farming Purposes 1978, the European Convention for the Protection of Animals for Slaughter 1988, the European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes 1986, the European Convention for the Protection of Pet Animals 1987, and the European Convention for the Protection of Animals During International Transport 1968. The sphere of protection and the species subject to regulation, however, are fairly limited. The vast majority of animals remain legally invisible.

In the past years, multiple legal scholars have put effort into examining animal welfare obligations under customary international law (CIL). Very roughly, CIL refers to general practices by states over a significant period of time accompanied by a sense of legal obligation. The crux of CIL is that states may become obliged to adhere to a global practice if they do not expressly object to it. Vice versa, their tacit behavior may be interpreted as consent to a prevalent practice. Against this background, Catherine Sykes has analysed the existence of the principle of humane treatment under CIL. She argues that an ever-increasing number of states have adopted not only anti-cruelty laws to protect animals, but have in fact legislated on a policy of humane treatment of animals that goes much farther than the former. The principle of humane treatment is characterized by a certain level of generality, comprising the avoidance of unnecessary pain and suffering. In order for such a practice to develop into a norm of customary nature, it must meet some consistency in practice. This is where defying national laws giving preference to some species or practices only may be of negative relevance. Sykes concludes that the current level of hypocrisy as well as the lack of congruence of rules and actions which we approach animal welfare with is too corrosive to its credibility as a CIL norm. On the positive side, she believes that such a norm is currently under construction and hopes that an international and cross-cultural shared understanding of our common obligations to other animals will eventually prevail.

Judicial cognitive psychology

This field of inquiry belongs to “Behavioural Law and Economics”, representing a new form of forensic psychology. Groundwork for this research has been provided by Tversky and Kahneman, whose “Judgment under Uncertainty” in 1974 influences present researchers’ work in a wide range of disciplines. Applying the heuristics and biases program, Swiss legal scholar Mark Schweizer published his PhD thesis in 2005. Among other things, it contains an examination of important biases judges are prone to. Although the issue is of greater relevance in the common law system than in civil law countries due to differing scopes of judicial decisional power, research of kinds is of fundamental practical significance. (In civil law countries, the bias-analysis transfers to the legislator to a greater extent.)

Rational analysis is directed at calculable mistakes typical for the human beings (or brains) that judges are. The heuristics, or rules of thumb, that are drawn on for judicial decision-making serve the purpose of efficient reduction of complexity and act as guides to normatively accurate results. However, the problem is that these heuristics often come along with fallacies. Thus, the heuristics may represent aberrations from desirable rational decision-making. The issue about these fallacies is that they occur systematically. On the positive side, this makes the fallacies predictable and thus offers the possibility for correction.

The first part of Schweizer’s thesis is devoted to the examination of the emergence of Behavioural Law and Economics, its interplay and correlation with legal realism (the doctrine that legal decision-making is not exclusively determined by legal rules), as well as to the classic economic analysis of law and the normative framework of expected utility theory. In the second part, Schweizer analyses the effects of cognitive biases on judicial-decision making in criminal and civil law proceedings. For this purpose, he conducted a survey with 415 Swiss judges from seven different cantons. The biases whose effects are examined are ten in number. In what follows, these will be presented in a cursory way.

10 biases in court and law

First, anchoring bias occurs e.g. when first proposals to a settlement work like anchors for the final judgment and dominate its direction. Second, framing effect and loss aversion explain why parties to a dispute take less risk if „gains“ are at stake and more risk if it is about „losses“. Schweizer examines judges’ tendency to fall prey to framing effects by means of prospect theory. The third bias subject to investigation is the omission bias, i.e. our tendency to judge harmful or risky actions worse than harmful or risky omissions, even if the consequences are identical. It explains why one does rather not act than to act if consequences are uncertain – although not acting may be no better in terms of the expected consequences. Thereafter, probabilistic thinking in terms of Bayes‘ Theorem is treated and our probability incompetence exposed, especially relating to the consideration of evidence. The Amanda Knox case (not treated in Schweizer’s dissertation) may be a case in point: On LessWrong, it has been claimed that a rational/Bayesian hour on the internet can beat a whole year of probability incompetence in court. This is shocking, if indeed true. But if we take seriously the hypothesis that human judgment and decision-making is deeply and dangerously biased in many ways, we shouldn’t be surprised. Similarly fatal errors should be expected to be quite pervasive in all domains of individual and collective human action. It’s not easy to grasp the extent and significance of what this means, if indeed true. In any case, de-biasing interventions should likely be a societal priority. The fifth bias presented is confirmation bias. It posits that information confirming a hypothesis is likelier to be searched for (motivated cognition), acknowledged, more heavily weighted and remembered. Thus, we interpret information in a biased way. Moreover, ignorance of regression towards the mean is elucidated, where coincidental factors are erroneously used to explain incidents. Hindsight bias is the seventh bias under scrutiny. It reveals that most judges overestimate the predictability of an incident retrospectively. A possible fix could involve judging cases, i.e. harmful/criminal intentions and actions, without knowing about their actual outcomes, which partly result from unexpected and thus irrelevant chance events. Thereafter, judges’ tendency to wrongly assume and evaluate connections between independent and unrelated characteristics of a person is analysed, i.e. the halo effect. At the ninth position, contrast effect is presented: A strict law gains more acceptance than it would (and should) if the contrasting possibility of an even stricter law is mentioned, and vice versa. Finally, overconfidence bias explains why parties in court systematically overestimate their chance of success.

In his post about biases in judicial decision-making, Jesse Galef describes a further bias. Let’s call it hunger negativity/unreliability (which likely generalises to stress negativity/unreliability):

„On the surface all we need to do is experience the world and figure out what does and doesn’t work at achieving goals (the focus of instrumental rationality). That’s why we tend to respect expert opinion: they have a lot more experience on an issue and have considered/evaluated different approaches.

Let’s take the example of deciding whether or not to grant prisoners parole. If the goal is to reduce repeat offenses, we tend to trust a panel of expert judges who evaluate the case and use their subjective opinion. They’ll do a good job, or at least as good a job as anyone else, right? Well… that’s the problem: everyone does a pretty bad job. Quite frankly, even experts’ decision-making is influenced by factors that are unrelated to the matter at hand. Ed Yong calls attention to a fascinating study which finds that a prisoner’s chance of being granted parole is strongly influenced by when their case is heard in relation to the judges’ snack breaks: (…) the odds that prisoners will be successfully paroled start off fairly high [in the morning] at around 65% and quickly plummet to nothing over a few hours. After the judges have returned from their breaks, the odds abruptly climb back up to 65%, before resuming their downward slide. A prisoner’s fate could hinge upon the point in the day when their case is heard.“

Replacing meat-brain intuition with computer calculation?

One wonders: Why isn’t this big news? Are we too biased to see the potentially huge relevance of our being biased?

And don’t we have a legitimate claim to bias-less-ness in the law, concerning the judiciary as well as the legislature?

Maybe we should start trusting human intuition (including the one of experts) much less – and computers following Statistical Prediction Rules (SPRs) much more? Jesse Galef goes on to explain:

„Fortunately, we have science and statistics to help. We can objectively record evidential cues, look at the resulting target property, and find correlations. Over time, we can build an objective model, meat-brain limitations out of the way.

In “Epistemology and the Psychology of Human Judgment“, Bishop and Trout argued that we should use such SPRs far more often than we do. Not only are they faster, it turns out they’re more trustworthy: Using the same amount of information (or often less) a simple mathematical model consistently out-performs expert opinion.

They point out that when Grove and Meehl did a survey of 136 different studies comparing an SPR to the expert opinion, they found that “64 clearly favored the SPR, 64 showed approximately equivalent accuracy, and 8 clearly favored the clinician.” The target properties the studies were predicting varied from medical diagnoses to academic performance to – yup – parole violation and violence.

So based on some cues, an SPR would probably give a better prediction than the judges on whether a prisoner will break parole or commit a crime. And they’d do it very quickly – just by putting the numbers into an equation! So all we need to do is show the judges the SPRs and they’ll save time and do a better job, right? Well, not so much.“

It turns out that due to shockingly strong biases such as overconfidence, experts do worse than SPRs even when they are presented with the SPR results! They are unable to reliably judge when to go with their intuition over the SPR result – and when not.

The SPR finding generalizes to many areas. Luke Muelhauser describes them:

„A parole board considers the release of a prisoner: Will he be violent again? A hiring officer considers a job candidate: Will she be a valuable asset to the company? A young couple considers marriage: Will they have a happy marriage? (…)

• Howard and Dawes (1976) found they can reliably predict marital happiness with one of the simplest SPRs ever conceived, using only two cues: P = [rate of lovemaking] – [rate of fighting]. The reliability of this SPR was confirmed by Edwards & Edwards (1977) and by Thornton (1979).
• Unstructured interviews reliably degrade the decisions of gatekeepers (e.g. hiring and admissions officers, parole boards, etc.). Gatekeepers (and SPRs) make better decisions on the basis of dossiers alone than on the basis of dossiers and unstructured interviews. (Bloom and Brundage 1947, DeVaul et. al. 1957, Oskamp 1965, Milstein et. al. 1981; Hunter & Hunter 1984; Wiesner & Cronshaw 1988). If you’re hiring, you’re probably better off not doing interviews.
• Wittman (1941) constructed an SPR that predicted the success of electroshock therapy for patients more reliably than the medical or psychological staff.
• Carroll et. al. (1988) found an SPR that predicts criminal recidivism better than expert criminologists.
• An SPR constructed by Goldberg (1968) did a better job of diagnosing patients as neurotic or psychotic than did trained clinical psychologists.
• SPRs regularly predict academic performance better than admissions officers, whether for medical schools (DeVaul et. al. 1957), law schools (Swets, Dawes and Monahan 2000), or graduate school in psychology (Dawes 1971).
• SPRs predict loan and credit risk better than bank officers (Stillwell et. al. 1983).
• SPRs predict newborns at risk for Sudden Infant Death Syndrome better than human experts do (Lowry 1975; Carpenter et. al. 1977; Golding et. al. 1985).
• SPRs are better at predicting who is prone to violence than are forensic psychologists (Faust & Ziskin 1988).

Robyn Dawes (2002) drew out the normative implications of such studies:

If a well-validated SPR that is superior to professional judgment exists in a relevant decision making context, professionals should use it, totally absenting themselves from the prediction.

Sometimes, being rational is easy. When there exists a reliable statistical prediction rule for the problem you’re considering, you need not waste your brain power trying to make a careful judgment. Just take an outside view and use the damn SPR.“