Eggs Should Be More Expensive
The market liberal case for animal rights.
I sometimes say that I used to be a libertarian, but I don’t know if that’s right. My personal brand of libertarianism was always a bit too obscure and too far to the left to gain the trust of my ostensible ideological peers. When I interned at the Cato Institute a few years ago, I wrote on my application that I think it’s part of the state’s role as a property protector “to levy Pigouvian taxes against activities [like carbon pollution and animal agriculture] that infringe on third parties’ interests but aren’t contestable in court.” When I was pressed on that in my interview — and later after I got the job — I thought I addressed everyone’s objections with considerable aplomb. But to my knowledge, I never managed to convince anybody. All the real libertarians probably tuned out when I suggested — wokely — that dairy is a form of sexual violence.
I think what’s definitive here to whether you consider me a libertarian is whether you count animal agriculture as “infring[ing] on third parties’ interests.” It is widely acknowledged, though not universally agreed upon, that there is a plausible market liberal case for carbon taxes based on property rights and restitution. But when you start talking about animals, even reasonable people’s critical faculties start to shut down. There might not be a single libertarian intellectual who’s widely identified as such, other than the great Michael Huemer, who takes our duties to animals seriously.
You’d think that a few self-respecting libertarians might consider this a betrayal of the movement’s great intellectual forebears. In his history of the modern American libertarian movement, the late David Boaz touts Jeremy Bentham and John Stuart Mill — two of the Anglo fathers of animal welfare — as luminaries of libertarian philosophy. But if Bentham and Mill were around today, they’d be about as welcome in the mainstream libertarian movement as Marx and Engels. In 2021, when the National Pork Producers Council filed a lawsuit against California’s sweeping animal welfare law, Proposition 12, Cato lawyer Ilya Shapiro filed a brief in support of the case which argued that “[p]reventing animal cruelty nationwide is not a legitimate state interest.”
I am inclined to agree with Jeff Sebo that Cato is betraying its intellectual tradition here: not just Bentham and Mill, but the much more radical view that “[t]he correct libertarian take [on Prop 12] is that gestation crates violate pigs’ right to liberty.”
It is admittedly odd to hear the argument put like this. Most libertarians believe that rights are predicated on a being’s rationality, and only human beings can be rational. Jan Narveson, Tibor Machan, and Loren Lomasky all offer some version of this argument and suggest that the relevant criterion for rights possession is, respectively, the ability to enter into contracts, fulfill moral obligations, and pursue meaningful goals. Murray Rothbard — characteristically uncurious and dismissive of the opposing view — thought it was sufficient to chide his critics and quip: “we will recognize the rights of animals whenever they petition for them.”
But these views are all seriously flawed, and for the standard reasons. If rights in libertarian theory arise out of one’s rational faculties, then libertarians must not believe that non-rational humans, like infants and the disabled, should be afforded legal rights. Yet, few libertarians are willing to bite such a bullet (the exception being Narveson, who we’ll deal with below). Even Rothbard, who supposed that parents should not be obligated to care for their children and advocated a legal right to passively “allow [children] to die” by not feeding them, insisted that babies possess an inherent right to self-ownership from the moment of birth and therefore ought not to be physically aggressed against.
Machan, Lomasky, and Rothbard attempt to salvage rights for non-rational humans by insisting that all humans belong to a “kind” which is rational in nature and therefore ought to be treated according to the same principles as the paradigmatic member of the kind. Machan even attempts to redefine consciousness so that all and only human consciousness is inherently “volitional” — even if the human in question does not have volition — and asserts that this is what justifies universal human rights.
Let us ignore the irony of such putative champions of individual liberty resorting to base collectivism to ground their philosophies. In what other context would we ever accept this sort of reasoning? If you’re a free subscriber to United States of Exception, then you are a member of the kind “subscribers to United States of Exception.” Taken as a whole, my subscribers have many positive qualities, one of which is that some of them give me money. If 98% of subscribers were paid subscribers, then according to the kinds argument, it would be incumbent on me to give all my free subscribers access to paid subscriber benefits. (Or, if just 2% were paid subscribers, I wouldn’t have an obligation to give paid subscriber benefits to anybody.) Since that’s obviously wrong and stupid, the kinds argument must be wrong and stupid as well.
In fact, as Nathan Nobis points out, you could gerrymander what “kinds” you consider someone to be part of in order to “prove” anything or its opposite, including that humans don’t have rights, but animals do:
[H]umans are of a kind with [objects that are of the kind ‘lacking moral capacities,’ and therefore lacking rights], e.g. the kind ‘thing on earth’ or ‘earthly specimen’ or an ‘object quite far from the sun.’ Since most members of these kinds lack the capacity for free moral judgments and humans are members of these kinds, this fact […] [implies] that humans do not have rights.
[S]ince animals and moral agents are both of a kind, e.g. the kind ‘sentient being’ — i.e. they share a property — animals are also of a kind that possesses moral capacities and, therefore, they have rights.
Narveson, to his credit, does not rely on the argument from kinds. His theory dictates that morality is reciprocal, and since non-rational humans can’t reciprocate, they must not have any inherent moral value and therefore do not have human rights. The reason we treat non-rational persons as if they had rights is that there are other rational people who care about them, and we members of the moral community would like to be treated as if we had rights if we ended up in a similar situation — for example, if we became seriously mentally disabled.
Narveson’s view — unlike Machan, Lomasky, and Rothbard’s — is at least internally consistent. But it subverts our intuitions about why harms to non-rational humans are supposed to be bad. Pace Narveson, the argument would have us conclude that there is nothing wrong with torturing a baby as long as we derive trivial pleasure out of torturing babies and there is no one around who cares about the baby being tortured. Narveson retorts that there is always going to be someone who cares about the baby, but that misses the larger point. Torturing babies is self-evidently wrong, unless you have a very good reason to do it like preventing the torture of even more babies. This is not because torturing babies might offend someone who is in possession of a rational character, but because it is wrong to torture babies. As it was posed by Bentham, “the question is not, Can they reason? nor, Can they talk? but, Can they suffer?”
All but the most extreme anthropocentric libertarians seem to accept (as if they know Bentham is right) that animals deserve at least some degree of moral consideration on the basis of their ability to suffer alone, even if they don’t deserve legal rights equal to rational or non-rational humans. Machan largely avoids the issue, but he admits that animals have hedonic experiences, “and this must give us pause when we consider using them for our legitimate purposes.” Nobis and David Graham conclude in a review of Machan’s book Putting Humans First:
While he does not seem to intend this, [Machan’s] position seems to morally condemn over 99% of the practices that cause animals to experience pain, suffering, and death.
Lomasky goes a step further, introducing a similar scheme to what Robert Nozick called “utilitarianism for animals, Kantianism for people.” According to Lomasky:
Because there are goods and evils for animals, a person of even modest moral attainment will be one who secures for them benefits when these are easily obtainable and avoids doing them harm except when avoidance is excessively costly. This is not very different from what morality dictates with respect to other human beings. The major difference is that some harms and, very occasionally, some denials of benefits to human beings are rights violations, while no such action done to an animal violates its rights.
Nozick was the closest among the 20th century libertarians to the conclusion that if non-rational humans have rights, then so must non-human animals. In Anarchy, State, and Utopia, he makes an explicit case for vegetarianism and suggests that “utilitarianism for animals, Kantianism for people” is insufficient because it fails to respect animals’ inherent moral worth. Specifically, it might justify slaughtering untold numbers of animals to support human utility monsters. As Josh Milburn argues (and will be recapitulating in a forthcoming book), Nozick’s philosophy lends itself to stringent rights protections for animals’ interests, “resembl[ing] the basic argument for veganism presented by Gary Francione and Anna Charlton.”
Even though few libertarians carry on Nozick’s tradition today — the only exception to my knowledge is natural law theorist Gary Chartier — it is not because there has been a convincing rebuttal to the argument from species overlap. Rather, most of the people who would have become Nozickian philosophers since the 1970s have been wooed into doing technical policy work instead. And the most identifiably libertarian political philosophers who have been trained over the past half century have mostly followed the lead of Rothbard and failed to seriously engage with the defenders of animal rights. But this does nothing to resolve the tension at the heart of their philosophy: Deontological libertarians should still support animal rights. Consequentialist libertarians should still support animal welfare. And the modern American libertarian movement still gets it all wrong.
I raise the issue now because it is now apparently a matter of national concern that a carton of eggs costs $4.95 — the highest average price ever recorded and nearly twice as much as it cost a year ago. Troublingly to even animal-exclusive libertarians, the “crisis” of high egg prices has led some rent-seeking lobbyists and politicians to decide that there is a need for government intervention in the egg market: Senator Jack Reed of Rhode Island declares himself “egg-sasperated” that regulators aren’t “polic[ing] the market and crack[ing] down on any price gouging by large egg producers.” Several Congressmen have proposed handing out more welfare payments to farmers to kill chickens en masse if they suspect some of them might be infected with the bird flu.1 Since 2022, taxpayers have spent more than $1.46 billion to kill over 100 million birds nationwide.
It is uncontroversial that a libertarian would oppose government-funded mass killing of chickens. But as we have seen above, the proper libertarian position goes much further, saying that intensive confinement and killing of chickens is itself wrong whether the government does it or not, because farming chickens violates their inherent right to liberty. The relevant question for a libertarian becomes: What do you do about it?
Murray Rothbard and Stephan Kinsella properly identify libertarianism as a theory of punishment. It does not state that rights violations should never happen, just that if they do happen, they ought to be proportionally recompensed.2 In some cases — for example, if you tripped off the rooftop of a tall building and you had the opportunity to grab onto someone’s balcony to avoid falling to your death — it would obviously be a good thing for you to violate the non-aggression principle. The role of law in a libertarian society would simply be to determine what proportional sum you ought to pay the property owner assuming the property owner presses charges against you. Thus, in practice — even if not in design — a libertarian system of punishment would function similar to a Pigouvian tax that prices in the externalities of potential rights violations.
In the case of factory farmed chickens, there are two ways to determine what constitutes a rights violation that ought to be recompensed. A deontological libertarian (most libertarians) would say that any harm done to a chicken after it is brought into existence ought to be restituted. If human babies possess a right to self-ownership from the moment of birth, then non-human animals must possess a right to self-ownership as well. Since parents aren’t allowed to harm a baby just because they caused the baby to be born, humans must not be allowed to harm a chicken just because they caused the chicken to exist by breeding it. In fact, unless you adopt the Rothbardian position that parents owe nothing to their children, human beings must also owe some positive obligations to the animals they rear. Any failure to fulfill either the positive or negative obligations owed to domesticated animals is a rights violation that demands restitution.
A consequentialist libertarian (if there is such a thing) would say that a rights violation is committed and punishment ought to be applied only if the lifetime net welfare of a farmed chicken is more bad than good — that is, if the chicken has a life not worth living. Otherwise, no harm has been committed and nothing is owed.
Prima facie, it seems very likely that most factory-farmed chickens have a life not worth living. Half of all chicks in the egg industry — all males — are systematically killed within hours or days after they’re hatched, usually by being gassed or shredded. Most hens are confined to intensive battery cages where they don’t have enough room to fully extend their wings, much less move around or engage in natural behaviors like roosting, foraging, nesting, and dustbathing. Around 85% of them suffer keel bone fractures, “regardless of whether the hens are kept in cages, or they are organic or barn or free-range hens.” If you’ve ever experienced a broken bone, you know it’s difficult to focus on anything other than the pain of the broken bone. But this is the modal experience of an egg-laying hen. And even when they don’t have a broken bone, they seem to go through something like constant annoyance and frustration at not being able to do the things they evolved to do.
It is possible, as Bob Fischer et al. suggest in a recent article, to express the value of animal suffering in monetary terms. It is not clear whether punishment for violating the rights of chickens under libertarian theory ought to take the form of a civil or criminal penalty, but it is nevertheless instructive to attempt to calculate what a proportional punishment ought to look like in dollar terms.
On consequentialist libertarianism, a moral Pigouvian tax on eggs would likely be between $14 and $2,965 per carton for caged eggs, with a point estimate of $895, and between $1 and $433 for cage-free eggs, with a point estimate of $116, based on an estimate of layer hen welfare by Vasco Grilo on the EA Forum. This estimate makes the following assumptions:
As found by the Welfare Footprint study on pain in layer hens, chickens in conventional cages experience an average of 6,721 hours of annoying pain, 4,054 hours of hurtful pain, 431 hours of disabling pain, and 0.05 hours of excruciating pain during their lives. Cage-free hens experience an average of 2,077 hours of annoying pain, 1,742 hours of hurtful pain, 154 hours of disabling pain, and 0.04 hours of excruciating pain.
Annoying pain is between 0.0145 and 0.1 times as intense as a fully healthy life, hurtful pain between 0.164 and 1, disabling pain between 5.04 and 10, and excruciating pain between 98.6 and 100,000, with the low-end estimates made by Laura Duffy of Rethink Priorities and the high-end estimates by Grilo.3
A chicken has a capacity for hedonic experience between 0.034 and 0.54 times as intense as a human being, which is the 95% confidence interval estimated by Fischer et al. based on a systematic review of animal capabilities and a composite of different neurophysiological and philosophical perspectives (the mean estimated value is 0.4).
The monetary value of a quality-adjusted human life year is between $50,000 and $150,000 per year, which is standard in the literature.
An egg-laying hen produces 400 eggs over the course of her lifetime.
On deontological libertarianism, a moral Pigouvian tax on eggs would likely be between $27 and $20,098 per carton for caged eggs, with a point estimate of $2,878, and between $22 and $18,211 for cage-free eggs, with a point estimate of $2,626. This estimate differs from the above estimate in the following three ways:
Rather than using the average estimates of time spent in different intensities of pain made by the Welfare Footprint study, it uses the study’s confidence intervals.
It adopts more conservative estimates of the intensity of pain, with Duffy’s lower bound informing the lower-bound scenario, the mean of the log-normal distribution of Duffy’s estimates informing the middle scenario, and Grilo’s estimates informing the upper-bound scenario.
It also accounts for the rights violations committed by killing male chicks and egg-laying hens prematurely. I estimate that these birds would have lived an average of 3 to 7 years in the wild with a net welfare of 0.1 times as good as full health — likely a conservative estimate, as chickens are relatively larger and have a longer life history than most other wild birds. For the lower-bound scenario, I adopt the Rothbardian view that humans owe no positive obligations to domesticated animals, while for the middle and upper-bound scenarios, I assume that humans have an obligation to ensure domesticated animals live at least 0.25 and 0.5 times as well as they would live in full health, respectively.
Even taking the low-end estimates, libertarianism taken to its logical conclusion implies not only that eggs should be more expensive, but that they should be so expensive that it would be uneconomical for anyone to attempt to produce them under anything resembling factory farm conditions. And this is assuming the proper libertarian position isn’t to treat serious rights violations against animals as a criminal matter, which is how we treat equivalent abuses against non-rational humans and dogs and cats. Just as Walter Block proposes Nuremberg trials for ex-government officials, more consistent variants of libertarianism might suggest jailing factory farmers.
Yet, the libertarian movement today is hardly amenable to animal rights or even modest improvements in animal welfare. Why so?
I suspect the answer is twofold, as I briefly alluded to above. First, the smart social liberals in the libertarian coalition who once might have opted to become atavistic philosophers have instead been drawn to outfits like Cato where they apply their intelligence to technical policy analysis rather than interrogating first principles. That libertarianism is now a political program rather than a philosophy makes for a much more conservative movement than ever existed before the late 1970s: Instead of a fearless scholar like Nozick, you get a pencil pusher like Ed Crane or David Boaz who’s ultimately beholden to donors’ interests. Instead of a tome like Anarchy, State, and Utopia, you get an endless stream of Wall Street Journal op-eds and white papers whose conclusions are decided long in advance of any research being done. Instead of any new groundbreaking work in moral and political philosophy, you get a few drab histories of the Founding Fathers and occasionally one of Hayek, Friedman, or Rand.
The second reason I suspect libertarians don’t take animals seriously is that the few libertarians who remain committed to interrogating first principles overwhelmingly lean to the right and consider animals a marginal left-wing cause célèbre. As Lew Rockwell, the longtime chairman of the Ludwig von Mises Institute and founder of the “paleo strategy,” puts it, a right-libertarian natural rights theorist sees animal rights activists as followers of “paganism” who deny the “Judeo-Christian tradition […] that God created the earth and all its creatures for mankind” and that “[t]hey are ours to eat, wear, use, and enjoy.” In fact, besides Huemer, virtually the only defenders of animal rights in libertarianism today reside at the nearly defunct Center for a Stateless Society, a self-described “left market anarchist think tank and media center” once regularly treated as a punching bag by its right-libertarian peers.
These are not good reasons for disregarding the interests of animals, however. Non-human animals matter for the same reasons non-rational humans do. They experience positively or negatively valenced experiences, and they have a welfare that can fare better or worse based on things that happen to them. Just as violators of human rights ought to be punished in proportion to the harm they inflict on other human beings, so ought violators of the rights of animals to be punished civilly or criminally according to the harm they cause to non-human animals. If the relevant externalities were accounted for, a carton of eggs would cost between several hundred and several thousand dollars more than it does now. For any libertarian who wants to take their principles seriously, it is necessary to take the issue of animal rights seriously as well.
One common method of depopulation, “ventilation shutdown,” includes sealing off the airflow to barns, pumping in heat, waiting a few hours until most of the birds suffocate to death, and wringing the necks of the few survivors and clearing out the carcasses.
As Walter Block has written specifically in reference to “animal torture” (emphasis added):
I can't for the life of me figure out a way to make animal torture a crime, compatible with the libertarian non aggression principle. The only thing I can think of is that a super PETA, or, rather, a libertarian PETA would heroically initiate violence against animal torturers, and then heroically subject themselves to just punishment.
According to Duffy: “I arrived at these intensity-to-DALY conversions by looking at the descriptions of and disability weights assigned to various conditions assessed by the Global Burden of Disease Study in 2019 and comparing these to the descriptions of each type of pain tracked by the Welfare Footprint Project.”
They call me a veganarcho-capitalist😏
I know at least two libertarians who take animal welfare and their moral worth seriously—me and another guy on Substack. We’re also both Christians, but I guess that still doesn’t qualify us as intellectuals, right?