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Political Animals: A Rawlsian Theory of Animal Rights Introduction: Animal Ethics or Animal Rights? Not until philosopher Peter Singer wrote his groundbreaking book Animal Liberation, in 1975, did academic philosophy begin to take the subject of animal ethics seriously. This is not to say that philosophers before Singer had not considered the ethical status of the animal. They had. Rather, their considerations were seldom carried through to their logical conclusions. Most notably, the eighteenth-century English utilitarian Jeremy Bentham wondered whether, some day, animals might “acquire those rights which never could have been witholden from them but by the hand of tyranny.”1 Yet, elsewhere, Bentham questioned the very existence of natural or moral rights, calling them “nonsense upon stilts.”2 Given the longstanding absence of a vegetarian ethic from Christianity3 and what Walter Kaufmann describes4 as modern philosophy’s obeisance to Christianity, it is not surprising that western philosophy has been relatively silent on animal issues. Peter Singer, in the twentieth century, brought an entire ethical system to bear on the question of what, if anything, we owe to the animals. Singer, like Bentham before him, is a utilitarian, which is to say, one who judges the rightness or wrongness of an action by its utility—whether it produces positive or negative consequences for all involved. In Animal Liberation, Singer argues for the (at the time) radical proposition that 1

Quoted in Peter Singer, Animal Liberation (New York: HarperCollins, 1975), 7. Emphasis mine. 2 Ibid., 8. 3 This is obviously not the case with, for example, Hinduism or Buddhism. 4 The Portable Nietzsche, Trans. and Ed. Walter Kaufmann (New York: Penguin, 1954), 17. 1


humans’ and non-human animals’ interests ought to be given “equal consideration.”5 By this, Singer does not mean that humans and non-human animals should be treated equally, only that interests (human or otherwise) are interests and they must be weighed against one another. In some cases, for example if a family is starving to death in the woods and there is a wolf that can be killed for food, Singer says, human interests will outweigh those of the non-human animal. But in many cases, such as factory farming or using animals for entertainment, the interests of the non-human animal will outweigh those of the human. Utilitarianism was, and still is, the dominant ethical system that informs the animal rights movement. But there are others, such as philosopher Tom Regan, who rightly argue that utilitarianism does not provide a strong enough foundation for animal ethics. In his book The Case for Animal Rights, Regan rejects utilitarianism’s tendency to see both humans and non-human animals as “mere receptacles of what has positive value or negative value.”6 In other words, Regan says, by considering only aggregate positives and negatives, the utilitarian is not respecting what he (Regan) believes to be the uniqueness7 and inviolability of each individual, whether human or non-human. The stronger ethical position, Regan argues, is a rights-based one. Having rights means imposing on others certain (negative and, perhaps, positive) duties, which they (other people) cannot violate, no matter the consequences. Regan’s objection to Singer is that he (Singer) grounds the ethical treatment of animals not in inviolable rights they possess but

5

Singer (1975), 7-8. See also Peter Singer, Practical Ethics: Second Edition (Cambridge: Cambridge University Press, 1993), 21-26, 57-62. 6 Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983), 205. See also 206-211. 7 Regan prefers to speak of “irreplaceability.” See 208-211. 2


in a kind of utility calculus, which sometimes requires non-human animals to suffer (at the hands of humans) and other times does not. Our treatment of an animal in a given situation depends solely on the outcome of our calculation. Singer says, Why is it surprising that I have little to say about the nature of rights? It would only be surprising to one who assumes that my case for animal liberation is based upon rights and, in particular, upon the idea of extending rights to animals. But this is not my position at all…I think that the only right I ever attribute to animals is the “right” to equal consideration of interests…8 In response to Singer, Regan’s theory of animal rights is Kantian in the sense that it regards animals not as means to an end (i.e. “the best aggregate consequences”9) but as possessing “inherent value.” Inherent value, Regan says, “is…a categorical concept. One either has it, or one does not. There are no in-betweens.”10 And if one does have it, one cannot “justly be treated as a mere receptacle.”11 Ascribing to certain non-human animals rights, as Regan does, means not just treating them well when our conscience dictates but, in practical terms, making available to them certain governmental protections. As one animal-rights theorist (ART) puts it, [I]f…animals are to be considered the subject of morality [Singer’s argument] rather than justice [Regan’s argument], they fall victim to the influential liberal principle of moral pluralism. This principle…makes animal welfare a matter for individual voluntary preferences rather than a set of compulsory obligations.12 Therefore, animal rights, according to Regan and many other ARTs, is as much an ethical theory as it is a political one. For this reason, ARTs have looked as much to Kant and

8

Quoted in Regan 219. Ibid., 249. 10 Ibid., 240-241. 11 Ibid., 249-250. 12 Robert Garner, “Animal rights, political theory and the liberal tradition,” in Contemporary Politics 8.1 (2002), 7. 9

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Mill as they have to Locke13 and Rousseau.14 Efforts have even been made, in recent years, to adapt the political liberalism of John Rawls, to accommodate the rights of animals. However, among ARTs, there has been considerable disagreement about the possibility of a Rawlsian theory of animal rights. Many15 claim that the contractarianism Rawls sets forth in both A Theory of Justice and Justice as Fairness privileges human beings to the exclusion of non-human animals. Rawls says himself that his theory of justice leaves “out of account how we are to conduct ourselves toward animals and the rest of nature.”16 And yet, ARTs have seized upon Rawls’s apparent uncertainty/equivocation, later on in Theory, when it comes to the treatment of nonhuman animals.17 In particular, one ART, philosopher Mark Rowlands, makes the controversial claim that not only can Rawls’s “original position” include non-human animals but it 13

Gary Francione, a law professor at Rutgers, discusses Locke’s theories of property in the context of animal rights. I would also include here Robert Nozick. See Anarchy, State, and Utopia (Philadelphia: Basic Books, 1974), 35-47. 14 Julian H. Franklin, Animal Rights and Moral Philosophy (New York: Columbia University Press, 2005); Raymond Giraud, “Rousseau and Voltaire: The Enlightenment and Animal Rights,” in Beyond the Species 1.1 (1985). 15 Hallie Liberto argues that there is room in Rawls’s theory of justice for the inclusion of animals, but Rawls’s theory, she says, does not entail rights for non-human animals. Hallie Liberto, “Species Membership and the Veil of Ignorance,” forthcoming in Utilitas:

http://www.colorado.edu/philosophy/center/rome/papers/Hallie_Liberto_Animals_and_th e_Veil_of_Ignorance_paper_for_RoME.pdf. David Svolba denies that Rawlsian contractarianism must or can accommodate non-human animals. David Svolba, “Is There a Rawlsian Argument for Animal Rights?” in Ethical Theory and Moral Practice 19.4 (2016), 973-984. Lastly, Lilly-Marlene Russow claims that Rawls’s theory of justice can extend neither to non-human animals nor to certain “marginal” humans, i.e. young children, “mental defectives”…etc. Lilly-Marlene Russow, “Animals in the Original Position,” in Between the Species 8.4 (1992), 224-229. 16 John Rawls, A Theory of Justice: Original Edition (Cambridge: Harvard University Press, 1971), 17. 17 Ibid., 504: “Our conduct toward animals is not regulated by [the principles of justice], or so it is generally believed [emphasis mine].” 4


must include them. Rowlands, and many others who have “adapted” Rawls’s theory of justice, have received much criticism, both from inside and outside of animal-rights circles, for advancing such arguments. In what follows, I intend both to build upon Rowlands’s analysis of Rawls and to criticize his understanding of Rawlsian rationality. Alongside Rowlands, I will offer my own reading of Rawls, which argues for representing the interests of most non-human animals (NHAs) behind the “veil of ignorance.” Rowlands will argue that human beings behind the veil, while “rational” in his sense of the word, cannot know that they will be rational on the other side of the veil. Thus, in the original position, he argues, representatives must account for the interests of NHAs, most of which he believes are not rational.18 I, on the other hand, aim to show that the kind of rationality Rawls requires of representatives in the original position does not preclude most NHAs. Rawlsian rationality is not as expansive as Rowlands thinks it is. Rawls seems at times even to recommend a rationality that is free of human limitations such as envy or spite.19 Taken together, then, my and Rowlands’s readings of Rawls should be seen as two parallel arguments arriving at the same conclusion. I conclude with my own argument because I believe it to be the stronger of the two.

Rawlsian Liberalism Although an original contribution to political philosophy, Rawls’s theory of justice has its roots in Kant and in the social-contract tradition of Hobbes, Locke, and 18

Mark Rowlands “Contractarianism and Animal Rights,” in Journal of Applied Philosophy 14.3 (1997), 236. 19 John Rawls, Justice as Fairness (Cambridge: Harvard University Press, 2001), 87. See also Rawls (1971), 121, 144, 530-541. 5


Rousseau. In the opening pages of Theory, Rawls locates Kant’s “ethical works beginning with The Foundations of the Metaphysics of Morals”20 in this larger contractarian tradition. Why does Rawls align himself with contractarians? For him, social-contract theories are a vast improvement over Aristotelian perfectionism and what Rawls considers the inhumane pleasure-and-pain calculations of utilitarianism. In addition, there is the problem I raised in the introduction, about whether utilitarianism, broadly conceived, can ever arrive at a robust theory of rights. Rawls has his doubts, and so do I. The goal of any social-contract theory of justice is to ground human rights in a hypothetical21 agreement or ‘contract’ between the members of a given polity. An arrangement like this, Rawls thinks, respects the freedom and inviolability of each person and thus ought to be the basis for a theory of justice. As he says, “[T]he principle of utility is incompatible with the conception of social cooperation among equals for mutual advantage.”22 The problem for contractarians such as Rawls is what about those who cannot participate in the contract? Children? The mentally disabled? The ill and infirm? Socalled “marginal cases.” One of the strengths of utilitarianism is that interests count as interests no matter where they are coming from. Many, for this reason, argue that contractarianism does not cast its net wide enough. It seems, at least on the surface, to exclude any who are incapable of reasoning through a hypothetical contract with other

20

Rawls (1971), 11. Rawls (2001), 16-17. For a discussion of whether the social contract of Locke and Hobbes is to be understood as historical or—in a Rawlsian sense—as a “heuristic” or “thought experiment,” see Daniel Eggers, “Does Status Matter? The Contradictions in Locke’s Account of the State of Nature,” in Archiv für Geschichte der Philosophie 95.1 (2013), 87-105. 22 Rawls (1971), 14. 21

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rational people. Locke tries to ameliorate this by allowing for what he calls “tacit consent”—that is, if one refuses to leave, or enjoys the fruits of, a given jurisdiction, one has in effect consented to its laws—but Rawls has reservations about whether rights and duties can in fact follow from such consent.23 His original contribution to contract theory is his theory of rights, what he calls “justice as fairness.” Justice as fairness can be seen as an attempt to remedy what is illiberal in Locke’s theory of consent. The most salient feature of justice as fairness, especially for ARTs, is the “original position.” According to Rawls, the principles that will govern a just society must be chosen from the original position and behind a “veil of ignorance.” Both the original position and the veil are heuristic devices, thought experiments to guide public reason.24 Behind the veil, one is shielded from knowing certain contingent features about oneself: age, sex, race, class, conception of the good…etc. If representatives select principles without knowing this information, using only their “reasonableness” and “rationality,” Rawls is convinced that these representatives in the original position will come to agree on what he calls the “two principles of justice.” These two principles are then used to determine society’s “basic structure.”25 However, as I suggested in the introduction, Rawls’s theory of justice does not aspire to be a complete moral theory.26 Following Kant, Rawlsian liberalism aims, insofar as it is possible, to bracket questions of the good

23

Rawls (1971), 112-113. For the difference between Locke’s “tacit consent” and Rawls’s “hypothetical consent,” see Cynthia A. Stark, “Hypothetical Consent and Justification,” in The Journal of Philosophy 97.6 (2000), 313-334. 24 By “public reason,” Rawls means simply a mode of inquiry that “everyone accepts,” and that everyone knows “everyone else accepts” (2001), 8. For Rawls, this is not just “valid argument[s] from given premises,” but the “premises and conclusions” must be “acceptable on due reflection to all parties.” Ibid., 27. 25 Ibid., 8-9. 26 Rawls (1971), 17, 512. 7


and, instead, to prioritize the right. In other words, in a pluralistic society in which various religions and cultures are represented, society should aspire to remain neutral on questions of ultimate importance. Social institutions should neither censure nor endorse religious speech, for example.27 Rawls’s political liberalism seems to offer more to marginal cases than does Locke’s tacit consent, because representatives in Rawls’s original position do not know (in theory) whether they themselves are marginal cases; and so society can expect that the representatives will reason, without prejudice, on behalf of the marginal. Asking citizens to reason behind a veil of ignorance represents “equality between human beings as moral persons, as creatures having a conception of their good.”28 But does Rawls’s theory of justice offer any rights protections to perhaps the most marginal, to non-human animals (NHAs)? Rawls himself does not think so. However, to answer this question fully, we need to understand more about these representatives in the original position and whom they represent. Rawls tells us that the representatives are “moral persons.” By moral persons, he means individuals who are capable of a “conception of their good” and a “sense of justice.”29 I will argue later that these two characteristics of moral personality are analogous to Rawls’s notions of rationality and reasonableness, and that justice as 27

If government institutions do either of these, Rawls says, they must offer a “public justification” for it—that is, representatives in the original position must use pubic reason in order to arrive at an “overlapping consensus.” For example, when it comes to banning women from wearing the niqab in driver’s license photos, one could imagine both private justifications, which would not be accepted from the point of view of the original position (“I think Muslims are dangerous people”), and public justifications, which have a better chance of being accepted (“For security reasons, the government requires that your face be visible on official documents”). 28 Rawls (1971), 19. 29 Ibid., 505. 8


fairness requires that we privilege the former. For now, it is important to notice that moral persons are both the representatives in the original position and those being represented. Rawls says, “We use the characterization of the persons in the original position to single out the kind of beings to whom the principles chosen apply.”30 So if this is true, where does this leave our marginal human cases, the children and the mentally handicapped? As far as the children go, Rawls claims, with no further explanation, that “moral personality is…a potentiality that is ordinarily realized in due course.”31 Eventually, Rawls seems to suggest, children will grow into moral persons, capable of a conception of their good and a sense justice, but he never states why, in the here and now, children are recipients of rights—unless, of course, they (children) possess the necessary characteristics of moral personality and can reason behind the veil. Many of Rawls’s critics32—and even a few of his supporters33—argue that he is, at best, inconsistent on the issue of marginal humans. I will make the case later that, despite his many equivocations, Rawls should be taken at his word, that moral personality is not a “stringent” demand. In fact, I am going to argue that it is so “un-stringent” that we must also conclude that NHAs are capable of at least the kind of rationality Rawls requires. But what about those marginal humans (say, for example, the severely autistic) who, Rawls says, will never develop into moral persons? He clearly wants to include

30

Ibid. Ibid. 32 Even though he wants to salvage Rawls’s political liberalism in order to extend rights to animals, Mark Rowlands (1997) makes a similar argument. See also Regan (1983) and Garner (2002). 33 See Samantha Brennan and Robert Noggle, “Rawls’s Neglected Childhood: Reflections on the Original Position, Stability, and the Child’s Sense of Justice,” in The Idea of a Political Liberalism Eds. Davion & Wolf (New York: Rowman & Littlefield, 2000), 46-72. 31

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them as recipients of rights, because they are humans, but how can he justify this if they are lacking either a conception of their good or a sense of justice? With children, we can easily look to the future, when they will possess moral personality. But not so with this second category of marginal humans. Rawls’s answer here dodges the issue. First, he claims that moral personality is a sufficient condition for “being entitled equal justice.” Whether it is also a necessary condition Rawls elects not to answer.34 Perhaps sensing that he has defined moral personality too narrowly, he tries to reassure us: When someone lacks the requisite potentiality [of moral personality] either from birth or accident, this is regarded as a defect or deprivation. There is no race or recognized group of human beings that lacks this attribute. Only scattered individuals are without this capacity, or its realization to the minimum degree, and the failure to realize it is the consequence of unjust and impoverished social circumstances, or fortuitous contingencies.35 The beginning of the quote, that a human being’s lack of moral personality is to be seen as a “defect or deprivation,” suggests that Rawls is making an argument here that Peter Singer expressly calls out in his book Practical Ethics.36 The argument goes that, even though a human being may lack a certain feature37 necessary to be owed justice, because “normal” humans possess this feature, we ought to treat the person lacking the feature as if she possessed it. Singer is rightly critical: The suggestion is…that we treat individuals not in accordance with their actual qualities, but in accordance with the qualities normal for their species. In the previous chapter, when discussing the impact of possible differences in IQ between members of different ethnic groups, I made the obvious point that whatever the difference between the average scores for different groups, some members of the group with the lower average score will do better than some members of the group with the higher average score, and so we ought to treat 34

Rawls (1971), 505-506. Ibid., 506. 36 Singer (1993), 75-76. 37 See Rawls (1971), 507-512. 35

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people as individuals and not according to the average score for their ethnic group…If we accept this we cannot consistently accept the suggestion that when dealing with severely intellectually disabled humans we should grant them the status or rights normal for their species…We cannot insist that beings be treated as individuals in one case, and as members of a group in [another].38 So how do we rescue Rawls from a theory of justice that appears not to protect children and the mentally handicapped? The Rawlsian might argue, as Russow39 does, that we do not have direct duties to the marginal human but only indirect duties. But this, one author says, “runs counter…to some of our most deeply held moral convictions.”40 The marginal human would be owed just treatment not because of her own inviolable rights but because another human being (a moral person), who is perhaps her parent, has an interest in her being protected. As Regan mentioned in the introduction, this hardly treats the marginal human as an end in herself, but instead treats her as a means to the moral person’s end—and, recall, that justice as fairness is supposed to have been an antidote to precisely this kind of utilitarian thinking. At this point, the Rawlsian might remind us again of the moral incompleteness of Rawls’s theory of justice and, in his defense, invoke the notion of “natural duties,” arguing that, despite being outside the scope of the principles of justice for institutions, marginal humans nevertheless fall under what Rawls calls “the natural duty of justice,” which, like all natural duties, “[has] no necessary connection with institutions or social practices.”41 These natural duties function sometimes, though not always, like Locke’s natural rights. For instance, Rawls claims that we have both positive and negative duties

38

Singer (1993), 75-76. See note 15. 40 Tom Huffman, “Animals, Mental Defectives, and the Social Contract,” in Between the Species 9.1 (1993), 21. 41 See Rawls (1971), 114. 39

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to others and that negative duties, such as the duty not to cause unnecessary suffering, “have more weight than positive ones.”42 These duties have a basis in morality,43 Rawls says, and so they must exist independently of the liberal principles of justice which govern institutions.44 However, like the principles of justice for institutions, these natural duties will also be universally acknowledged in the original position.45 In this sense, then, natural duties are “natural” in the same way Locke’s rights are natural. Natural implies that the rights and duties are “unconditional,” that is, they are not just independent of the rights and duties granted by institutions, but they are also “lexically prior.”46 Rawls uses the term “natural” in a way that is unique to his theory of justice. It is this second (speciesist) use of natural that allows him, later on in Theory, to distinguish between marginal humans and non-human animals (NHAs). Despite his claim that natural duties do not depend upon “consent…in order to apply,” Rawls still holds, curiously, that natural duties “obtain” only between equal moral persons.47 But why? If neither express nor tacit consent is necessary for an individual to be owed “natural” justice, why, then, is moral personality? Presumably Rawls requires that representatives in the original position be moral persons because their moral personality, consisting of both a conception of their good and a sense of justice, allows them to choose between competing principles of justice, and to agree or consent to live by them. The “sense of 42

Ibid. Ibid., 115. 44 Rawls distinguishes between principles of justice for institutions and principles of natural duty for individuals. See Rawls (1971), 54. 45 Ibid., 115-116. 46 This is, of course, at odds with what Rawls (1971) says on 110, that the principles of institutions are chosen first, then the principles of individuals (those of natural duty) next. However, it is not clear to me how Rawls arrives at this conclusion, given what he says on 114-117. 47 Ibid., 115. 43

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justice” component of moral personality, Rawls says, “is an effective desire to apply and to act from the principles of justice.”48 Rawls also calls this reasonableness.49 Reasonable people are those who agree to cooperate with others in their selecting of principles. But if agreement or consent (“reasonableness,” in other words) is not necessary for natural justice, it is not clear why moral personality (that is, both rationality and reasonableness) is. Because, again, moral personality—as it is strictly defined—seems to exclude the marginal human, who cannot cooperate with others. This is an issue we will return to in the last section of the paper. Rawls’s second use of the term “natural” tries to justify why indeed there is a natural duty of justice to the marginal human, even though most marginal humans do not qualify, for Rawls, as moral persons. The reasoning here, as I said, is entirely speciesist. Rawls says, “[N]atural duties are owed not only to definite individuals…but to persons generally. This feature in particular suggests the propriety of the adjective ‘natural.’”50 Here, again, Rawls makes the same argument he previously made and that Singer roundly rejects. Marginal humans are owed natural justice, Rawls suggests, not as definite individuals but because, generally speaking, humans are moral persons, and moral persons are owed natural justice. We have a natural duty of justice, then, to marginal humans because of their species membership.51 NHAs, however, are not so lucky. Of them, Rawls says the following: Certainly it is wrong to be cruel to animals…The capacity for feelings of pleasure and pain and for the forms of life of which animals are capable clearly imposes 48

Ibid., 567. Rawls (2001), 7, 18. 50 Rawls (1971), 115. Emphasis mine. 51 Rawls (2001) rejects that moral personality has anything to do with species. But this is not borne out in his treatment of marginal humans. See 24. 49

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duties of compassion and humanity in their case. I shall not attempt to explain these considered beliefs. They [the beliefs or the animals?] are outside the scope of the theory of justice, and it does not seem possible to extend the contract doctrine so as to include them in a natural way.52 If we interpret Rawls here as charitably as possible, we can understand him as saying that humans do not have any natural duties to NHAs. But this does not mean that we do not have any duties to them, only that we cannot treat them generally, as Rawls does marginal humans. Instead, we have to see NHAs as definite individuals, which means some will be owed “duties of compassion and humanity,” and others will not. What exactly determines which NHAs are deserving of these duties? Rawls gives us only a clue: “feelings of pleasure and pain” and certain “forms of life” impose on us duties. However, these duties owed to some NHAs, Rawls is clear, are not duties of justice but are something else entirely.

Rowlands: ‘Thickening’ the Veil of Ignorance Animal rights theorists (ARTs) like Mark Rowlands are, I think, correct to criticize Rawls for his speciesism. Rawls’s speciesism has led many ARTs, including political theorist Robert Garner, to abandon liberalism altogether, as not having the tools necessary to improve animal welfare. He says, “It is understandable why attempts have been made to utilize Rawls on behalf of animals…It is time, though, to look elsewhere for a theory that can provide the elevated moral status for animals that many… scholars…seek.”53 While it is true, as I said, that Rawls requires some NHAs be treated with “compassion” and “humanity,” it is equally true that these natural duties we owe to 52

Rawls (1971), 512. Emphasis mine. Robert Garner, “Rawls, Animals and Justice: New Literature, Same Response,” in Res Publica 18.2 (2012), 159-172. 53

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some NHAs, as individuals, are not duties of justice. On Rawls’s account, we have what Ruth Abbey calls “moral duties”54 to NHAs, even direct moral duties, but not political duties. If we take Rawls at face value, NHAs, even as individuals, do not have rights, which are protected by the institutions that representatives are reasoning about in the original position. Thus one may be praised or blamed for his treatment of cows, but no one is going to jail for slaughtering a veal calf. Treatment of animals, Garner concludes, “is regarded as a conception of the good for Rawls,” and insofar as it is, Rawlsian liberalism must remain neutral about it.55 Rowlands, however, thinks that a proper understanding of Rawls entails that all NHAs are in fact subjects of justice and, therefore, possess rights. Rowlands’s approach, as we will see, is different from the one I will be taking in the last section of the paper. Rowlands argues for what has been called a ‘thicker’ veil of ignorance. Recall that behind the veil, Rawls’s representatives do not know their age, sex, race, class, conception of the good…etc. The purpose of this, Rawls tells us, is to “nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage.”56 Rowlands wants to ask of Rawls, why it is that the representatives know their species? Isn’t species just another one of these “contingencies” that might prejudice the decisions of the representatives? Rowlands thinks so. Therefore, if Rawls’s veil of ignorance is truly meant to separate an individual from her various conceptions of the good, in order to better select the principles of a just society, a ‘thicker’ veil is needed; and this thicker veil, Rowlands claims, is not

54

Quoted in Garner (2012), 162. Ibid., 163. See also Rawls (2001), 153, note 27. 56 Rawls (1971), 136. 55

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something to be added onto Rawls, but is something that follows logically from Rawls’s theory of justice itself. So while the representatives in the original position, behind the veil, must be moral persons,57 it does not follow, Rowlands says, that the recipients must also be moral persons.58 The recipients can be, and ought to be, all NHAs, too. According to Rowlands, Rawls makes two “mutually reinforcing”59 arguments for his two principles of justice.60 One he (Rowlands) calls the “intuitive equality argument (IEA),” the other the “social contract” argument (SCA). The SCA is simply the original position as described earlier—a heuristic device (along with the veil of ignorance) by which one brackets any contingent information about oneself. The IEA runs as follows: If a property P is undeserved, then it is morally arbitrary and one is not morally entitled to it. If one is not morally entitled to P, then one is also not morally entitled to whatever benefits stem from the possession of P. However, rationality seems to be an undeserved property if any property is. A person plays no role in deciding whether or not she is going to be rational; she either is or she is not…Therefore, according to the terms of the [IEA], it is a morally arbitrary property, and one is not entitled to its possession. Therefore, also, one is not morally entitled to whatever benefits accrue from its possession. Therefore, to restrict the beneficiaries of the protection afforded by the contract to rational agents would be to contravene the [IEA].61 Rowlands is certainly correct here that rationality as Rawls conceives it is morally arbitrary, in the sense that one does not choose to be rational. Yet, for reasons I will develop in the last section of the paper, Rowlands is wrong to bracket rationality in the original position. He overlooks the fact that, for Rawls, rationality is only one half of

57

I am going to argue in the last section of the paper that full moral personality, in the sense of having both rationality and reasonableness, is not in fact necessary for the representatives in the original position. 58 Rowlands (1997), 236. 59 Ibid., 240. 60 See Rawls (1971), 302. 61 Rowlands (1997), 242. 16


what it means to be a moral person. Because Rowlands fails62 to see moral personality as consisting of both rationality and reasonableness, which are two very different concepts, he dismisses one major objection to the IEA. On the one hand, he describes rationality, as Rawls does, as a “range property,”63 as minimal and not particularly “stringent,” in order to satisfy the conditions of the IEA. But in his response to criticism of the IEA, rationality grows to include both features of moral personality.64 Given this “more expansive,” unRawlsian version of rationality, it is no longer obvious that rationality could be dismissed as “morally arbitrary.” The second feature of moral personality is a sense of justice, and one does seem to “play a role in deciding” whether one has a sense of justice. A sense of justice, Rawls says, is a “mental capacity” or “intellectual power,” but it also must be cultivated by “the study of principles” and “self-examination.”65 Robert Garner offers a different criticism66 of Rowlands. Garner’s major objection to Rowlands is that the two “mutually reinforcing” arguments he attributes to Rawls—the IEA and the SCA—are, in fact, not mutually reinforcing at all. If one is concerned about animal welfare, Garner argues, one must dispense with the SCA altogether. He wants to get rid of the SCA, that is, Rawls’s original position and the veil of ignorance, because, to the extent that it is conceived even as a hypothetical “contractual” agreement in which representatives reason about and decide on principles, non-human animals (NHAs) certainly cannot participate. Now, Rowlands does highlight 62

Rowlands seems to collapse both “features” of moral personality—i.e. having a conception of one’s own good and having a sense of justice—into rationality. See Rowlands, 243-244. 63 Ibid., 242. 64 Ibid., 243-244. 65 Rawls (1971), 48-49. See also Rawls’s description of ‘reflective equilibrium’ in (2001), 29-31. 66 Garner (2012), 166-169. 17


what seem to be two different notions of “contract” operating in Rawls. One Rowlands calls Hobbesian, the other Kantian. The Hobbesian understanding of contract, Rowlands says, grounds morality and justice solely in the hypothetical agreement itself. In other words, the Hobbesian contract “sees the contract as constitutive of moral right and wrong.”67 Kantian contractarianism, however, aspires to a “minimal conception of moral objectivity that is independent of the contract and the agreements reached by the [representatives].”68 Rowlands and Garner both agree that Rawls’s contractarianism is more Kantian than it is Hobbesian.69 But, for Garner, this creates a problem. He says, “[T]he problem with accepting that there are moral principles we value independently of what is decided by the participants [or representatives] in the contractual situation is that it reduces the importance of the contract device.”70 According to Garner, then, unless there is something at stake in the contract, something that depends upon the contract (the Hobbesian view), there is no reason to be a contractarian at all. The closer one is to being the ‘Kantian contractarian’ Rowlands speaks of, the closer one is to abandoning contractarianism and, along with it, the SCA. This is why Garner says, The question to ask…is what is the value-added of persevering with a contractarian approach for those interested in the protection of animals? And if the answer, as it must be, is that it adds very little, then there is a compelling case for saying that we would be better off invoking the intuitive equality argument [IEA] as a free-standing principle from which justice claims of animals and marginal humans can be derived independently of the contract.71

67

Mark Rowlands, Animal Rights: Moral Theory and Practice (New York: Palgrave Macmillan, 2009), 125. 68 Ibid., 126. 69 Garner (2012), 169. 70 Ibid. 71 Ibid. 18


In defense of Rowlands, Garner’s criticism here is a criticism of Rawls. Garner admits early on that Rawls is a Kantian contractarian; the IEA, as Rowlands describes it, is also Kantian in the sense that it aspires to a “moral objectivity” not unlike the categorical imperative. Therefore, later on, when Garner concludes that accepting the IEA means throwing out the contract device, “the most distinctive element of Rawls’s thought,”72 he must be referring to the contract in Hobbesian terms, which is at odds with his overall assessment of Rawls as a Kantian. Nevertheless, Garner’s disagreement here is with Rawls, it seems, and with the fact that he (Rawls) decides, rightly or wrongly, to include Kant in the social contract tradition. Rawls is the one, in the end, who says “[t]he original position may be viewed…as a procedural interpretation of Kant’s…categorical imperative.”73 What is also worth mentioning is that Garner assumes Rowlands is correct that Rawls makes two arguments for his principles of justice: the IEA (more Kantian) and the SCA (more Hobbesian). Rowlands describes these arguments as “converging,”74 but the distinction itself, in his essay, is tenuous. Rowlands and Garner both clearly prefer the IEA because it allows a certain conception of the good (which they both hold) to shape the original position. In my estimation, though, the IEA and SCA are not “mutually reinforcing” arguments but are, in fact, two different ways of saying the same thing. Hardly an argument at all, the SCA is a kind of metaphor or heuristic representation of the IEA. Notice that the very same things ruled “morally arbitrary” by the IEA are then hidden from the representatives in the original position. Garner’s desire to do away with

72

Ibid. Rawls (1971), 256. 74 Rowlands (1997), 242. 73

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the SCA in favor of the IEA reveals a misunderstanding of the SCA as both Hobbesian and separable from the IEA. In the last section of the paper, I hope to demonstrate, among other things, that Rawls’s Kantianism does indeed introduce certain problems for his liberal theory of justice, namely by smuggling in various conceptions of the good. However, it is the ways in which Rawls is different from Kant that allow the interests of non-human animals (NHAs) to be included in the original position. Understanding why NHAs are owed rights requires understanding the important distinction Rawls makes between reasonableness and rationality.

Minimal Rationality (or Sentience) in the Original Position The approach Rowlands took in the previous section was to bracket rationality in the original position. In other words, the IEA as he described it showed that rationality was one of these “undeserved properties”; therefore, in the original position, rationality was not something the representatives could assume they would possess on the other side of the veil. They might, for instance, be a marginal human or a cow. Indeed, Rowlands spends as much time as he does on the premises and conclusion of the IEA because, right at the outset, he wants to “thicken” the veil to exclude rationality. However, Rowlands’s misunderstanding of Rawls’s rationality mirrors Rawls’s own “equivocations”75 in Theory and Justice. In what follows, I want to argue, along with Rowlands, that the

75

Edward Walter, “Rationality: Minimal and Maximal,” in Reason Papers 4 (1978), 19-32. 20


interests of most NHAs76 must be represented in the original position. Where Rowlands and I disagree is why the interests of NHAs must be represented. Rowlands believes that Rawlsian rationality is unique to humans, but, because it is morally arbitrary (according to the IEA), it cannot be considered in the original position. I, on the other hand, am going to argue that the kind of rationality Rawls expects representatives to model in the original position is not at all stringent and is what the philosophical literature refers to as “minimal rationality.” It is, therefore, close, if not identical, to sentience, which most NHAs possess. Surely many will object that Rawls requires much more of representatives than I have named above. To begin, I want to echo Rowlands77 in saying that there is a difference, and frequently a big difference, between what Rawls says of his theory of justice and what his theory actually entails. I also want to say at the outset that I am not arguing that NHAs themselves can occupy the original position. This is silly. Only human beings can act as representatives behind the veil; however, who and what those representatives will represent is the subject of my argument in this last section. In response to another of his critics, Rowlands claims that “plants” and “inanimate objects” cannot be represented in the original position, cannot be “accorded rights,” because “[t]he contractarian position…makes sentience the cut-off point for moral considerability.”78 This principle, however, is one Rowlands introduces into the original position from without via the IEA. I, too, will be arguing that sentience ought to be the cutoff for rights,

76

I say “most” rather than “all” because, as we will see, Rawls’s concept of rationality requires that a line be drawn between NHAs that are sentient and those that are not. 77 Rowlands (1997), 244. 78 Ibid., 245. 21


but my reason for saying so is that the rationality demanded by the SCA itself is minimal rationality or sentience. Before I proceed to argue that Rawls’s representatives require only minimal rationality, some explanation of minimal rationality is necessary. For this, I will be relying on Edward Walter’s paper.79 In it, he outlines the features of minimal rationality: 1. 2. 3. 4. 5.

It distinguishes objects in the phenomenal field. It compares and contrasts objects. It perceives relationships between and among objects. It recalls observed relationships. It classifies objects and relationships.80

The further down the list we go the more complex the mental processes become. We can expect—without having to consult zoological resources—that the last two features will necessarily exclude, say, certain insects, arachnids, and other species. Many animal-rights theorists (ARTs) will, of course, have a problem with this; however, for the time being, we have to limit ourselves to what Rawls’s theory allows for. Being the most complex, the last feature, classifying objects and relationships, will serve as a kind of benchmark, against which to measure the demands of Rawlsian rationality.

The Reasonable I made the claim earlier that the two characteristics of moral personality, for Rawls, a conception of one’s good and a sense of justice, correspond to what he means by rationality and reasonableness. This is by no means obvious. Rowlands, in his analysis, collapses both features into rationality. He never mentions reasonableness. Rawls, however, does spend a great deal of time trying to differentiate the two. Reasonable 79 80

See note 74. Walter (1978), 20. 22


persons, he says, “are ready to propose, or to acknowledge when proposed by others, the principles needed to specify what can be seen by all as fair terms of cooperation.”81 Reasonableness ensures that, once decisions are made behind the veil, those decisions can be explained and/or defended to the other hypothetical representatives, once the veil is lifted. All of the representatives, in theory, agree to these “terms of cooperation,” and all agree themselves to cooperate. The sense of justice, as Rawls describes it, is nearly identical: “it is the capacity to understand, to apply, and to act from (and not merely in accordance with) the principles…that specify the fair terms of social cooperation.”82 If there is a difference here at all, it is that reasonableness emphasizes proposing and acknowledging certain principles, whereas a sense of justice emphasizes acting from those same principles.83 Nevertheless, reasonableness (and a sense of justice) is what constitutes individuals as “free and equal.”84 Reasonableness is only one characteristic of moral personality, and it is a characteristic pretty much all NHAs are incapable of. So why, then, does this not eliminate NHAs from consideration? Rawls devotes an entire chapter of Theory to the sense of justice and, by extension, to reasonableness.85 However, despite this, I am going to argue that determining who gets represented in the original position should not depend

81

Rawls (2001), 6-7. Ibid., 18-19. 83 Rawls does explicitly equate rationality with a conception of one’s good and reasonableness with a sense of justice. See John Rawls, Political Liberalism: Expanded Edition (New York: Columbia University Press, 2005), 81. 84 Rawls (2001), 6-7. 85 Political scientist Shaun Young argues that Rawls’s reasonableness overshadows rationality, such that it is “impossible to act rationally without acting reasonably” (313). This is a position with which Rowlands would, I think, agree. See Shaun Young, “The (Un)Reasonableness of Rawlsian Rationality,” in South African Journal of Philosophy 24.4 (2005), 308-320. 82

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upon a capacity for reasonableness. If Rawls is committed to a theory of justice that aims to be as neutral as possible with respect to conceptions of the good, the role reasonableness plays in his theory must be minimized or eliminated. Indeed, Young argues that reasonableness, in Rawls’s theory, has a “coercive power”86 over rationality. He says, [I]nherent in Rawls’s notion of a purely political liberalism is the expectation that the majority of citizens will faithfully act in a ‘reasonable’ manner. Only by fulfilling such an expectation is it possible to secure the conditions that will enable the establishment and preservation of a just and stable liberal polity. Satisfying such a caveat necessarily requires that individuals be able to differentiate between reasonable and unreasonable demands and somehow guarantee that decisions related to questions of political justice…are justified by reference to only those demands that all “reasonable” individuals can “reasonably” be expected to support voluntarily.87 The problem Young is pointing to is that, in requiring representatives to have a sense of justice, to know the difference between reasonable and unreasonable, before entering the original position, Rawls’s theory does not adequately explain how it is that the principles of justice originate. If one has to be reasonable as a condition of entering the original position, isn’t Rawls stacking the deck? Of course the original position will yield just principles if one has to have a sense of justice to begin with. Rawls says himself, “[T]he aim of justice as fairness is to derive all duties and obligations from other conditions.”88 We cannot rely on our “sense” of justice to derive justice; otherwise we have gone in a circle.

86

Young, 314. Ibid., 312. 88 Rawls (1971), 128. 87

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Anticipating this objection, Rawls defends himself by saying that “any conception of justice will have to rely on intuition to some degree.”89 Our intuitions about justice will have to be tested by our entering the original position, and then, if need be, our judgments or intuitions will have to be “duly pruned and adjusted.”90 For Rawls, this is reflective equilibrium, the process by which our intuitive judgments about justice are revised and honed until arriving at Rawls’s two principles. In other words, Rowlands says, our intuitions and the original position exist in a kind of dialectic, one shaping and improving the other.91 But there is still a problem here. Because, if our intuitions and the original position are in fact dialectical, how can a reflective equilibrium ever be reached? Better yet, how can a reflective equilibrium ever not be reached? In order for our judgments (intuitive and “considered”) to improve, as Rawls wants them to, they would have to be subject to the original position as he conceives it, but Rawls is clear that there is no guarantee that the constraints placed on the original position by, say, rural pioneers in the 1800s will be the same as the constraints he describes.92 The bigger problem Rawls has, I think, is defending the idea that reasonableness does not presuppose certain conceptions of the good. Because Rawls hopes to stay neutral on questions of morality,93 a conception of reasonableness that also sneaks conceptions of the good into the original position would be antithetical to a liberal theory of justice. Rawls tells us that reasonableness sets the “fair terms” of cooperation. So can fairness exist without the good? Rawls believes it can. He wants, like Aristotle and Kant before

89

Ibid., 41. Ibid., 20. 91 Rowlands (1997), 241. 92 Rawls (1971), 21. 93 Ibid., 30, 396. 90

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him, to distinguish between two uses of “good.”94 One kind of good carries moral connotations, e.g. Bob is a good person. It is this good that a liberal theory of justice wants to avoid. The second kind of good is determined by what is for [one] the most rational long-term plan of life…This plan is designed to permit the harmonious satisfaction of [one’s] interests.95 [T]here is nothing…morally correct about the point of view from which things are judged to be good or bad. One may say of a man that he is a good spy, or a good assassin, without approving of his skills. Applying the definition to this case, we would be interpreted as saying that the individual referred to has the attributes that it is rational to want in a spy, or assassin, given what spies and assassins are expected to do.96 Is the fairness that reasonableness prescribes more like the former good or the latter? Rawls obviously wants to uphold the latter.97 But is this tenable? Reasonableness ensures the fair terms of cooperation among representatives in the original position. What determines whether these terms are fair? Principles. Rawls believes we as representatives have to rank or “assign weight” to the principles that govern our cooperation, and this ranking involves still more principles: [I]f they [the representatives] wish to establish agreed standards for adjudicating their claims on one another, they will need principles for assigning weights. They cannot assume that their intuitive judgments of priority will in general be the same…Thus I suppose that in the original position the [representatives] try to reach some agreement as to how the principles of justice are to be balanced.98 Rawls goes on to mention a different ordering scheme, a “serial or lexical” ordering of principles, which requires representatives to “satisfy the first principle in the ordering

94

See 433-439. Ibid., 92-93. 96 Ibid., 403. 97 Rawls speaks of fairness as “rightness.” See (1971), 17 and (2001), 186. 98 Rawls (1971), 42. 95

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before…mov[ing] on to the second…and so on.”99 But can principles really be ranked without imposing a certain conception of the good (in the sense of morality)? Rawls intends to draw a parallel here between the ranking of principles and the ranking of what he calls “primary goods.” Primary goods are preferences, like, for example, the preference for vegetables over meat. Rawls says that a representative is thought to have a coherent set of preferences between the options open to him. He ranks these options according to how well they further his purposes; he follows the plan which will satisfy more of his desires rather than less, and which has the greater chance of being successfully executed.100 Notice that the ranking of primary goods does not require principles at all. Rawls speaks of a “plan,” which he later calls a “rational plan of life,”101 but this plan is connected solely to desire. My preference for broccoli over steak needs no more justification than that it tastes better to me and is more plentiful. My preference may, of course, be informed by a principle, say, that I do not eat meat or that I am looking to cut calories, but it need not be. Thus it is hard to see how Rawls could allow for the same kind of “rational desire” in selecting and ranking principles. Selecting and ranking principles, in order to determine the fair terms of cooperation among representatives, requires the addition of principles and thus a conception of the good. This is why philosopher Bindu Puri says, “[T]he sense in which Rawls speaks of being reasonable” is “a virtue/moral power of persons.”102

99

Ibid., 43. Ibid., 143. 101 Rawls (2001), 58. Rawls (1971), 142. 102 Bindu Puri, “Finding Reasons for being Reasonable: Interrogating Rawls,” in Sophia 54 (2015), 124. See also Rawls (2001), 7: “Common sense views the reasonable…as a moral idea involving moral sensibility.” 100

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Profile for Stephen Cicirelli

Political Animals: A Rawlsian Theory of Animal Rights  

A paper in which I argue that Rawls's theory of justice ought to be extended to include non-human animals.

Political Animals: A Rawlsian Theory of Animal Rights  

A paper in which I argue that Rawls's theory of justice ought to be extended to include non-human animals.

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