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CONTRACTARIANISM AND THE MORAL STANDING OF NON-HUMAN ANIMALS AND NON-RATIONAL HUMANS

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Laszlo Matiscsak

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ABSTRACT

Contractarianism is not a moral theory that is usually thought of in connection with non-

rational creatures. It is almost commonplace that the whole idea behind the establishment

of moral rules through a social contract is that such rules will then protect the contractors

themselves. Because the framers of the contract are considered to be rational agents, a

contractarian theory simply cannot generate moral principles that would apply to non-

rational agents. It has been argued by some however, that this widely accepted view is false

and that contractarianism, if properly understood offers moral protection to non-rational

individuals. In this article, after considering both sides of this debate, I shall argue that

contractarianism has strong resources to justify normative claims regarding our duties

towards non-rational agents such as non-human animals and non-rational humans. The

paper focuses on one particular version of contractarianism developed by John Rawls. I will

claim that there are certain inconsistencies in Rawls’ theory which need to be corrected.

Once this is done, the contractarian position on the moral protection of animals and

humans with severe mental disabilities will change significantly. However, I will argue that

under a social contract, contractors would still distinguish between animals and humans in

situations where there is a serious clash of interests. Such a distinction is a psychological

necessity which explains why rational agents might come to the conclusion that their duties

towards non-rational humans are greater than their duties towards animals.

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Contents

INTRODUCTION 1

THE RAWLSIAN SCOPE OF JUSTICE: Framers and recipients of Justice 4

THICKENING THE VEIL: RAWLS REINTERPRETED 16

FROM THEORY TO PRACTICE 30

NON-RATIONAL HUMANS RE-VISITED 47

CONCLUSION 53

BIBLIOGRAPHY 55

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INTRODUCTION

As far as justice is concerned, the apparatus of contractarian moral theory is usually thought

to disregard non-rational agents. The reason for this is that for many the contractarian

approach is pictured as a system of rules to govern the interaction of rational individuals

within society. Since it is rational agents who are to decide what system of rules to choose,

it is only rational agents who will be protected under such rules. There seems no reason why

moral principles, generated by a social contract, would call for moral duties towards non-

rational agents by assigning direct moral rights to them.

Animals are probably the most obvious ‘losers’ of contractarian justice since many, if not all,

cannot be regarded as rational agents. Perhaps more controversially, if contractarianism

only applies to rational agents, at least for the sake of consistency, some non-rational

humans also have to be rejected as direct beneficiaries of the principles of justice. In what

follows, I will investigate the extent to which contractarianism is able to lend support to

non-rational agents. The approach I shall focus on is probably the most influential version of

contractarianism, defended by John Rawls.

It should be noted that Rawls is primarily interested in political philosophy, and his

application of contractarianism is used to regulate the basic institutions of a just society.

Rawls is aware of the fact that what he is offering is a limited theory of justice and not a

more general theory of moral rights and suggests that if his account of justice is sound

among persons it might be possible to start thinking about a broader theory. (Rawls 1971:

448-9)

However, as I will argue, it is the very structure of Rawls’ moral theory which precludes any

attempt to mark out its frontiers and forces one to follow its rules and justification process

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consistently. The consistent application of the Rawlsian arguments however, does not allow

one to call it quits when it comes to cases which the theory was not designed to cover. And

the question of non-rational agents and their relation to justice is certainly such a case. My

purpose in this paper is not to presuppose the need for, or the existence of any duties we

owe to non-rational agents but rather to consider whether contractarianism would entail

such duties. Differentiating between non-human animals and non-rational humans will be

important in the discussion as although I will argue that contractarianism offers moral

protection to both groups, the extent of such protection is not equal.

The article consists of four parts. In the first part, my aim is to identify the characteristics of

the parties in the “original position” (OP) which creates possible problems for Rawls. First,

the participants of the OP must have certain qualities which enable them to come up with

principles of justice. That is to say, they are rational persons in the possession of two

features, that is, the capacity for a conception of the good and the capacity for a sense of

justice. For Rawls such “moral persons” are not just the founders but also the only recipients

of the established principles. This picture of course leaves both humans with mental

disabilities and non-human animals outside of the scope of justice. Such a move has been

highly criticised by numerous thinkers, some of which are also advocates of the

contractarian approach to normative ethics. I will also ask why the parties’ ignorance of

particular facts about themselves (e.g. social status, ethnicity, their conception of the good)

is essential for the establishment of the principles of justice, yet others such as rationality

and species membership are taken for granted.

Perhaps the best solution to include non-moral persons as recipients of the principles of

justice is to thicken the “veil of ignorance” in the OP. After all, if the parties of the OP are

deprived of certain “morally irrelevant” information about themselves and each other it is

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reasonable to ask why information such as rationality and species membership cannot (or

should not) be bracketed off as well. In the second part of the paper, I would like to consider

such a possibility. I would mainly rely on arguments developed by Mark Rowlands who

claims that properly interpreted, Rawls’ contractarian theory has all the resources to argue

for the moral standing of animals within the realm of justice.

The third part of the paper my attention turns from theory to practice when I will consider

whether Rowlands is successful in his reinterpretation of contractarianism which would

accord equal moral rights to non-rational agents such as animals. More precisely, I will be

focusing on the possible implications for vegetarianism and the treatment of animals of the

Original Position. Rowlands is right to argue that when meat eating is practiced at the

unnecessary expense of animals, this goes against the right entailment of contractarianism.

However, the argument for exceptional cases, when meat eating is morally acceptable

suggests that Rowlands implicitly endorses certain, previously rejected features of Rawls’

theory. Such features are explained by the circumstances of justice which determines who

the real beneficiaries of Justice are. It is true that in Rowlands version of contractarianism

non-rational agents are also protected by the principles of justice, but it is also true that

rational agents are in a favourable position as the very framers of the social contract. From

this it follows that Rowlands’ enterprise successfully offers moral protection to animals, yet

fails to accord equal moral status to them.

In the last part of the essay I would like to focus on non-rational humans as I believe that

rational contractors of Rawls’ original position would grant moral protection to them that is

stronger than it is in the case of animals. The reason why the rights of non-moral humans

override the rights of non-human animals is, I will argue, a psychological necessity which is

(rightly) not covered by the veil of ignorance.

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THE RAWLSIAN SCOPE OF JUSTICE: FRAMERS AND RECIPIENTS OF JUSTICE

Liberal justice provides a base which lays down basic rules about how people should be

treated by one another and by the state. In Rawls case such duties are enforceable because

they formulate moral responsibilities and protect the moral rights of individuals.

In order to get a full picture about the Rawlsian enterprise to develop a normative (liberal)

moral theory, first it might be useful to distinguish between Rawls’ own contractarian

approach and the classic or Hobbesian social contract theory. Apart from the view that

people are by nature equals, the two forms of social contract theories are rather different,

in many ways opposites. In the Hobbesian picture individuals are not viewed as having any

inherent moral rights, instead morality and moral obligations are grounded in agreement.

There is nothing inherently wrong about the ends, pursued by individuals, or the means by

which such ends are pursued, even if harm to other individuals is involved in the process.

People come to cooperate with each other simply because they realise that cooperation is

mutually advantageous. A moral code that the Hobbesian view draws up is a kind of artificial

morality that is generated by rational choice.

‘While there is nothing inherently wrong in harming you, I would be better off by refraining

from doing so if every other person refrains from harming me.’ (Kymlicka 1991: 189)

Of course, one only has to fear individuals who are really capable of causing harm. After all,

if the ultimate reason of joining the contract is that it makes the pursuit of one’s own goals

safer, there is no point in contracting with individuals that are not strong enough to impose

any threat. For Hobbes therefore, being equal means having equal power, the necessary

condition through which the conceptions of moral rights and duties become

comprehensible. From this follows that where personal differences in power are sufficiently

great, there are ‘no grounds within the theory to prefer justice to exploitation’ (Kymlicka

1991: 191)

On the contrary, the Rawlsian contract theory uses the idea of social contract not to explain

the artificial nature of morality but to express the inherent moral standing of persons

through which certain moral obligations can be developed. For Rawls people matter equally

from the moral point of view, not because of the harms they can cause and the benefits

they can provide to each other, but because they are ‘ends in themselves’, from what

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follows that no individual should be used as a mere means of the ends of others. On the

social level the idea that people have a ‘natural duty of justice’ towards one another springs

from this Kantian notion. The problem is not that contractors are driven by self interest as

such an assumption about the parties would still result in establishing a just society if, and

only if the negotiation takes place from a standpoint of impartiality (i.e. a position of

equality) which Rawls calls the ‘original position’. (Kymlicka 1991: 191)

The principles of justice is the outcome of a hypothetical contract among individuals

“situated behind the veil of ignorance”, where the parties have no information about

certain facts such as their class or status in society, their talent or abilities or their gender

and the generation to which they belong. In fact, the persons in the original position do not

know their aims in life or their own conception of the good.1 (Rawls 1972: 136-7)

In such circumstances, Rawls argues, any rational agents would choose certain principles of

justice.2 By ascribing to the parties the principles of justice in the original position, Rawls is

establishing his “thin conception” of the good which enables the contractors to choose the

principles they do.

There is a fair amount of controversy around Rawls’ thin conception of the good which I

would like to address, in order to draw up a somewhat clearer picture of his contractarian

approach. Many critics suggested that Rawls, by establishing the thin conception of the

good, gets into the uncertain grounds of metaphysics and trying to formulate a priori moral

principles. This critique, I believe, is somewhat misguided.

For Rawls the best method to search for moral principles is through our considered moral

convictions. Such moral convictions or “considered judgements” are however, not implicit in

our capacities for moral reasoning. The objective moral principles by which our moral

judgements are guided are not universal principles in the Kantian sense as they are not

immune to revision.

1 This is a fair choosing situation, hence the Rawlsian slogan “justice as fairness”.

2Namely the parties would agree on two principles: The first principle prescribes everyone’s equal right to

basic liberties while the second ensures equality of opportunity and the greatest benefit for the least

advantaged. (Rawls 1972: 302-3)

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This is how Rawls himself puts it:

One may think of moral philosophy at first as the attempt to describe our moral capacity; or, in the present case, one may regard a theory of justice as describing our sense of justice...one might say that justice as fairness is the hypothesis that the principles which would be chosen in the original position are identical with those that match our considered judgements and so these principles describe our sense of justice. But this interpretation is clearly oversimplified (...) From the standpoint of moral theory, the best account of a person’s sense of justice is not the one which fits his judgements prior to his examining any conception of justice, but rather the one which matches his judgements in reflective equilibrium. (Rawls 1971: 41/43)

Such approach to moral thinking excludes both views which would consider moral

judgements as illusory (e.g. the Hobbesian) and also arguments for moral principles that are

based on metaphysical explanations (including naturalism) as these are “too slender a basis”

to develop a self-supporting moral theory. (Rawls 1971: 44)

The procedure through which the principles of justice are chosen “works within reflective

equilibrium” (Freeman 2007: 38)

It allows the moral convictions held by the parties to adjust to one another so the process

may result in a coherent system of convictions, that is, a unified and complete conception of

justice.

It seems that Rawls’ model of procedural justice with the establishment of the “original

position” and “reflective equilibrium” offers an alternative approach to moral thinking that

is less rigid than other ideas such as moral scepticism or natural rights views. As long as the

correct procedure is followed (i.e. in the original position), the outcome (i.e. the principles

of justice) will be correct. However, because of the justification method (i.e. reflective

equilibrium) the outcome is not a static one since it relies on a historical understanding of

justice. Rawls is right to argue that critics who claim that his theory does not recognise the

inherent moral worth of persons are mistaken. It is true that the theory is not derived from

such a recognition because the idea of ‘rights’ and ‘justice’ are precisely the conceptions

that call for interpretation. It is one’s own sense of justice (whatever the source or the roots

of such a conception might be) through which the individual arrives at the principles of

justice. The principles are therefore not independent from our sense of justice in a pure

metaphysical sense.

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The situation is analogous of that of benevolence: without the principles of right and justice, the aims of benevolence and the requirements of respect are both undefined; they presuppose these principles already independently derived. (Rawls 1971: 513)

There are many thinkers who argue against the Rawlsian approach when thinking about

justice. There are also different reasons why these people might disagree with the Rawlsian

model. However, there are also numerous thinkers who have a strong affinity towards

Rawls’ theory of justice, yet argue that Rawls’ picture is incomplete and flawed (at least in

some places). For my present purposes in what follows it is this latter group of people who I

will focus on.

To see the force of such arguments I would like to revisit Rawls’s hypothetical negotiation

procedure.

As it was briefly mentioned earlier, in order to achieve impartiality, in the original position

under the veil of ignorance the parties are deprived of the knowledge of certain facts about

themselves. It is also important that facts that are not known by the parties while they are

negotiating about justice are facts that are –according to Rawls- morally arbitrary and

therefore irrelevant to their decisions.

Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. (Rawls 1971: 11)

Despite strong criticism by some of Rawls’ contemporaries3 the veil of ignorance does not

entail a metaphysical theory of the person but it is rather an intuitive test of fairness.

In the A Theory of Justice Rawls is quite clear about the heuristic use of the concept:

3 Such arguments were mainly put forward by communitarian critics from whom perhaps the most influential

is the claim that Rawls, by trying to totally disengage the self from the world, creates an ‘unencumbered self’.

“Where the self is unencumbered and essentially dispossessed, no person is left for self- reflection to reflect

upon.” (Sandel 2003: 155)

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Some may object that the exclusion of nearly all particular information makes it difficult to grasp what is meant by the original position. Thus, it may be helpful to observe that one or more persons can at any time enter the original position, or perhaps, better, simulate the deliberations of this hypothetical situation, simply by reasoning in accordance with the appropriate restrictions. (Rawls 1971: 119)

Or as Rowlands explains:

Just as we might try to ensure a fair division of cake by making sure that the person who cuts it does not know what piece he will get, so too we ensure a just distribution of rights by making sure that those who might be able to influence the selection process in their favour, due to their better position, are unable to do so. (Rowlands 1997: 239)

Now, an ethical theory can be criticised for being inconsistent and some argue that the

circumstances of Rawls’ original position is not an exception to that charge. In order to

outline the possible problem for Rawls it is useful to have a look at not the facts that the

parties in the original position do not know but facts they actually do know about

themselves. Such facts are vital when one thinks about moral relevance for if facts that are

covered by the veil of ignorance are morally irrelevant, facts that are not ‘bracketed off’

must be morally relevant or at least in some sense different from a moral point of view.

Because Rawls whole theory is concerned with “human cooperation” and “human society”,

being human is certainly a fact that the veil does not cover.

The parties of the original position are also aware of a particular feature, that is they know

that they are rational persons.

A rational person is thought to have a coherent set of preferences between the options open to him. He ranks those 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. (Rawls 1971: 124)

The negotiation in the original position (which aims to result in the establishment of a just

society) therefore takes place among rational human beings and whatever information is

withheld from the parties, being human and being rational is not among them.

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There is an additional feature of the original position which perhaps follows from the above

facts ‘known by the parties’, yet I would like to look at in a slightly separate line to

emphasise the conclusion which it entails. Rawls says that the parties also know that they

are similar in physical and mental strength. According to Rawls this is one of the vital

conditions “under which human cooperation is both possible and necessary.”(Rawls 1971:

109)

With this view Rawls endorses important aspects of the classical social contract tradition

which I briefly explained and contrasted with his own approach at the beginning of the

chapter. The following lines of Rawls about the circumstances of justice4, emphasising

certain characteristics of the parties in the original position indeed has a strong Hobbesian

flavour:

(...) their capacities are comparable in that no one among them can dominate the rest. They are vulnerable to attack, and all are subjects to having their plans blocked by the united force of others. (Rawls 1971: 110)

Does this mean then that for Rawls cooperation is not possible between parties with

different physical and mental powers? No, it does not. The reason Rawls (in the original

position) excludes motivations which would make such cooperation possible (e.g.

benevolent motivations) is because he believes that “these motivations are uneven and

partial and thus would not support determinate political principles.” (Nussbaum 2006: 158)

It seems that the sphere of justice is restricted to human beings who are rational and have

similar physical and mental capacities. Who loses out then? The circumstances of justice

tells us that the framers and the recipients of the principles of justice have to be the same

individuals and the original position reveals particular features about the parties (i.e. species

membership and rationality). Because “the duty of justice is owed to those who could

4 Rawls “draws heavily on David Hume’s view about the “Circumstances of Justice” to flesh out elements that

are less explicit in classical contractarian thinkers, although Hume is not a social contract thinker.” (Nussbaum 2007: 12) Note that there is more to the circumstances of justice than the rough equality of physical and mental power. Further background conditions that make systems of social cooperation possible and necessary are: moderate scarcity of resources within a society that is comprised by moderately selfish individuals. These additional features of society will be important in a later part of the paper where the question human psychology and its possible implications to justice will be discussed.

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participate in the contractual situation of the original position and act on it”5 at least two

groups are not included in the scope of justice: Non-human animals and non-rational

humans.

And now the apparent inconsistency. According to Rawls if a property is undeserved it is

because it is morally arbitrary and one is not morally entitled to any benefits that stem from

a morally arbitrary property. Now, if the property of belonging to a certain race, class or

gender is a morally arbitrary property why would the theory treat the property of being

human any differently? Of course, the similar argument applies to the property of

rationality. Again, in what sense is rationality so special or deserved that it is capable of

escaping the charge of moral arbitrariness? (Rowlands 1997: 242)

It is obvious that both species membership and rationality are properties over which

individuals have no control. This criticism definitely puts the finger on a pressing problem for

Rawls and raises questions about the legitimate application of the Principles of Justice. The

idea of morally undeserved properties plays a crucial role in the establishment of the

original position, that is the procedure which marks off the borders of the realm of justice.

An argument therefore which would state that Rawls’ project is concerned with political

justice (that is cooperation between rational members of a human society) so “we should

not expect justice as fairness, or any account of justice, to cover all cases of right and

wrong”6, is not satisfactory. Otherwise, it might also be possible to allow the parties in the

original position to possess other information about themselves with the claim ready in

hand: ‘-This theory only covers cases of right and wrong among rational adult men.’

Rawls does not deny that what he is offering is a limited theory of justice and not a more

general theory of moral rights. He repeatedly tries to “put aside” how non-rational

individuals fit into his theory and “assume(s) that the account of equality will not be

materially affected” by the question. (Rawls 1971: 446)

But as critics point out, the theory is greatly affected by (at least) the above explained

inconsistency in the original position. The question of the relation between justice and

rationality therefore cannot be put aside. Moreover, even if the rationality criterion can be

defended somehow without sliding into inconsistency, one would have to face further

5A Theory of Justice p. 301

6 Political Liberalism p. 21

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problems as such a move would not only exclude animals from the scope of justice but also

young children for instance. Of course, one might be ready to accept this. However, Rawls is

quite reluctant to come to such a conclusion. As we saw, for Rawls, rationality and the

capacity for a sense of justice is crucial to qualify for moral personhood.

Now, from what has been discussed so far about Rawls’ ideas on justice it might be assumed

that according to the theory moral personality is a necessary condition for being entitled to

equal justice. But surprisingly, Rawls claims that being a moral person is only a sufficient

condition of falling into the scope of the principles of justice:

“Whether moral personality is also a necessary condition I shall leave aside.” (Rawls 1971:

442-3)

Brian Barry argues (and I agree) that Rawls hesitation to claim that to be a moral person is

necessary when we think about the recipients of the principles of justice7 might be

explained by his reluctance to exclude “human beings who are lacking in moral personality

either because they have not yet developed it or because they have temporarily lost it.”

(Barry 1989: 211)

By defending the case of such non-moral persons Rawls argues that since it is potentiality

rather than actuality that counts, “a being that has this capacity, whether or not it is yet

developed, is to receive the full protection of the principles of justice.” (Rawls 1972: 445)

Unfortunately however, it is not explained how potentiality and actuality can be seen as

logically the same if “full personhood is recognised as a key determinant of differential

treatment because at any one point in time those with the constituent characteristics can

be harmed in much more damaging ways than those without.” It would therefore be

reasonable to expect that if children and animals have a similar degree of personhood, a

similar moral entitlement should be granted to them. (Garner 2003: 8)

Perhaps the explanation to support the claim that the duty of justice might be owed to

temporarily non-rational persons is the argument already familiar from the conditions of the

original position, that is “the choice of principles should not be influenced by arbitrary

contingencies.”(Rawls 1971: 446)

7“While I have not maintained that the capacity for a sense of justice is necessary in order to be owed the

duties of justice, it does seem that we are not required to give strict justice anyway to creatures lacking this capacity.” (Rawls 1971: 448)

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But once again, one might find it difficult to give much force of the argument which allows

parties (who otherwise should be excluded) into the original position by making reference

to “fortuitous circumstances”. (Barry 1989: 212)

It seems like rationality sometimes can be seen as an arbitrary contingency in a situation

(i.e. the original position) where it was told to be an indispensable condition for

participation, and that entitlement to justice is applied inclusively to the framers of justice.

But then, as Barry asks: “If a day old infant can be represented in the original position, why

not a monkey or a dog?” (Barry 1989: 212)

Considering that the veil of ignorance is supposed to “ensure that no one is advantaged or

disadvantaged in the choice of principles by the outcome of natural chance”8 makes one

think about possible reasons why some qualities are not considered to be in the hands of

‘natural chance’.

It has been argued that in the original position the protection of marginal humans would be

defended through self- interested reasons since everybody with ‘full-personhood’ might

become marginal in the future or has relatives who they want others to be treated justly.9

(Carruthers 1992: 115-16)

But this brings us back to the problem that if the parties in the original position were asked

to (rationally) agree on a society they would like to live in and if species membership was

covered by the veil of ignorance, would they risk the possibility to end up a pig in a factory

farm waiting to be slaughtered or a bear in a zoo, living in a tiny cage? It is unlikely.

It is interesting how Rawls tries to deal with the animal question. He is rather explicit about

the exclusion of animals from the scope of justice10 but does not rule out the possibility of a

(future) broader theory of justice as fairness, where the relationship between humans and

animals might be revised to fit into this larger theory. First however, he says, we need to

gain a much greater understanding about our place in nature in order to be able to “identify

and systematize the truths decisive for these questions”. Rawls hands over this task to

8A Theory of Justice p.11

9 That certain psychological characteristics of the human species (e.g. attachments and empathy towards other

humans) might be morally significant (although not explicitly argued) for Rawls, is a question which I will

expound on in the last part of the paper.

10 “They [i.e. 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.” (Rawls 1971: 448)

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metaphysics. Rawls also says that although his own theory is limited in the above sense,

only if his account of justice is sound among persons would it be possible to start thinking

about a broader theory. (Rawls 1971: 448-9)

But as we saw, it is not easy to accept even Rawls’ limited theory without the suspicion that

by the very attempt of marking out the limits might make him run into inconsistent

application of essential constraints.

If animals are not considered to be included in the scope of justice, can they be thought of

or considered in moral terms at all?

This is what Rawls says:

But it does not follow that there are no requirements at all in regard to them, or in our relations with the natural order. Certainly it is wrong to be cruel to animals and the destruction of a whole species can be a great evil. The capacity for feelings of pleasure and pain and for the forms of life of which animals are capable clearly impose duties of compassion and humanity in their case. I shall not attempt to explain these considered beliefs. (Rawls 1971: 448)

It is worth having a closer look at the above passage. It is clear that despite the denied

status of animals within the scope of justice, Rawls thinks that humans do have some moral

duties to them, although such duties are not derived from the consideration of justice. The

remark about sentience implies that treating animals humanely and compassionately is

required on traditionally utilitarian grounds. Further, mentioning the “forms of life of which

animals are capable” might suggest that Rawls acknowledges the sociability of animals

which gives them ethical significance. However, the theoretical status of such remarks about

duties towards animals remains unexplained. “If not generated by the social contract how

are the duties humans owe to animals grounded?” (Abbey 2007: 6)

Also it might be suggestive that Rawls calls compassion and humanity towards animals

“considered beliefs” which is a familiar expression from his account of (the earlier

discussed) reflective equilibrium where the chosen principles of justice need to be brought

into balance with existing considered judgements about justice. (Abbey 2007: 6)11

11 I will return to the possible role of reflective equilibrium later in the paper when I will discuss the attempt to

reinterpret Rawls’ theory of justice so it does include animals as recipients of the principles of justice. At present let me just make one observation. Critics who think that the idea of reflective equilibrium entails important consequences regarding the moral duties we owe to animals can strongly disagree with the role that reflective equilibrium as a justification process plays in the theory. Some argues that if one properly follows the procedures of Rawls idea, there can be no basis to exclude animals from the sphere of justice.(see

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Unfortunately, with the above clues Rawls does not give us sufficient information about the

possible role or in fact any significance of these considered beliefs (i.e. our moral duties

towards animals) with regard to his liberal theory.

Finally, I it is worth considering the practical, political aspects of Rawls theory which urges us

to respect the plurality of conceptions people might hold about the good life.

That is to say, in a just society, apart from being bound by the constraint of impartiality

imposed by the Original Position, individuals should be able to follow their own conception

of the good.

As individuals or groups of individuals in a pluralistic society may have different values,

views or conceptions of the good, the state is no longer in a position to engage in moral

discussion with its members simply because it has no legitimate basis to do so. This is

because people in pluralistic societies disagree on many things (e.g. religion, way of life) but

also share certain interests (e.g. or the need for basic liberties). The contract (explained by

the original position) defines or helps us to formulate what is just- for us. In the Rawlsian

picture however, what is just for all rational human beings does not express any moral

duties towards non-rational agents such as animals or non-rational humans. Rawls himself is

explicit about such a consequence as long as animals are concerned. However, his attempt

to render them some moral significance has no theoretical basis and becomes just another

“reasonable”, “comprehensive” conception of the good12. In other words, humanity and

compassion towards animals becomes simply a moral preference which can be easily

overruled by the principle which calls for the respect for plurality. As for marginal humans

Rawls’ brief arguments regarding the issue are unclear, or at least incomplete. The difficulty

Rawls has to face is not that according to his theory animals are not regarded to be owed

justice as such an objection would suggest that there is already a sufficient reason in hand

to claim equal moral status to animals. The problem is rather that, as I tried to outline, a

for instance Rowlands, M. (1997) Contractarianism and animal rights. Journal of Applied Philosophy. 14 (3), pp. 235-247.) Others claim that the reason of the establishment of reflective equilibrium is to try to justify “pre-existing values” and “ideological baggage” that cannot be justified by the social contract argument alone, and it is these very pre-existing values which allow Rawls to justify the inferior moral status of animals. (Garner 2003:10) 12 For more detailed discussion about the special domain of the political see Rawls, J. (1989) ‘The domain of

the political and overlapping consensus’ (p. 173). In D. Matravers and J. Pike eds. (2003) Debates in Contemporary Political Philosophy: An anthology. London: Routledge

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clear explanation is needed how (at least some) marginal humans can be considered within

the scope of justice if at the same time animals are not. Moreover, even a reinterpreted

theory which would deprive all non-rational agents of the principles of justice would still

face questions about the privileged treatment of a particular quality (i.e. rationality) in the

original position. Perhaps, had Rawls been consistent when establishing the thin conception

of the good he should have included non-rational agents as beneficiaries of the principles of

justice. If this is true, through a re-constructed, or rather, a properly interpreted

contractarian approach (i.e. by eliminating the supposed inconsistencies from the Rawlsian

theory) we might end up with quite different normative moral duties rational humans owe

to non-rational agents such as animals. This is the claim I will consider in the next part of

the paper.

19

THICKENING THE VEIL: RAWLS REINTERPRETED

As it was pointed out in the previous chapter, Rawls does not deny that what he is offering

is a limited theory of justice and not a more general theory of moral rights. The theory is

limited because it only covers cases of right and wrong among agents with certain

characteristics, that is, Rawls draws up normative moral principles generated by a social

contract between rational human agents. It seems that in the Rawlsian framework

rationality and being human (i.e. belonging to a certain species) are both crucial criteria, not

just in the establishment of the principles of justice but also to become beneficiaries of such

principles. For Rawls there is also an additional condition “under which human cooperation

is both possible and necessary.”13 Such a condition is described by the ‘circumstances of

justice’ which describes the originators of the principles of justice as equal in physical and

mental strength, that is, “no one among them can dominate the rest.”14 As I suggested, with

this additional condition Rawls endorses an important feature of the otherwise rather

different approach to contractarianism, namely the classic (or Hobbesian) social contract

tradition.

Keeping the above constraints in mind it is not surprising that it is widely supposed that

moral rights generated by a contractarian theory almost certainly cannot comprehensibly be

applied to agents who do not fulfil such conditions. Animals are obvious examples. Even if

one sees possibility for controversy around the fulfilment of the rationality criteria with

regard to some animals, this would not weaken the argument of the contractarian who

would demand not just any, but all the conditions to be satisfied in order to be the claimant

13

A Theory of Justice p.109

14 Ibid p.110

20

of moral rights, generated by the principles of justice. Non-rational humans such as young

children or people with mental disabilities also do not seem to be included within the scope

of justice. Although in the case of the former Rawls argues that it is potentiality rather than

actuality that counts, agents who only temporarily lack moral personality15 should also be

protected by the principles of justice. However, as I argued earlier, Rawls fails to develop a

convincing argument (or at least to be more explicit about the reason) why this should be

the case. But even if one accepts Rawls’ conclusions regarding cases such as young children

and other temporarily non-moral persons, in a Rawlsian liberal state the treatment of the

permanently mentally disabled would simply be considered in terms of moral preference

and not of justice. Although, Rawls only claims that moral personhood is a sufficient

condition to be included within the sphere of justice, and his reader is told that the question

of whether or not it is also a necessary condition is to be put aside16, he is quite explicit

about the exclusion of creatures that are not moral agents from the sphere of justice.

“While I have not maintained that the capacity for a sense of justice is necessary in order to be owed the duties of justice, it does seem that we are not required to give strict justice anyway to creatures lacking this capacity.” (Rawls 1971: 448)

It is not at all clear how Rawls came to the above conclusion. Even though he is not claiming

that being a moral person is a necessary condition, he is definitely claiming that it “seems to

be” a necessary condition. The difference between the former and the latter claim however,

calls for explanation. To make matters more confusing, Rawls then continues by baldly

15

That is, rationality and the capacity for a sense of justice.

16 A Theory of Justice p.442

21

stating that it is “certainly wrong to be cruel to animals” and that we do have “duties of

compassion and humanity in their case.”17

Taking everything into account, it would not be unreasonable to claim that the strongest

sense in which one can interpret Rawls’ pointer about “duties of compassion and humanity”

that are imposed on moral persons towards non-rational agents (such as animals and the

severely mentally handicapped) is to grant indirect moral status to them.

In the Rawlsian framework, persons within the sphere of justice enjoy direct moral status

(i.e. possess direct moral rights) because the existence of rights they possess to a certain

“commodity, freedom or treatment” does not depend on the existence of rights possessed

by any other person/s distinct from them. On the contrary however, if an agent R is said to

be in possession of a certain right only because of the existence of rights possessed by

another agent P, then agent R is in possession of an indirect right. (Rowlands 1998: 119)

To put the two different senses in which an individual can be in possession of a certain right

into context, a Rawlsian might claim that a child has a right not to be harmed (e.g. physically

punished for misbehaviour) by his teacher, not because the harm would be the violation of

the child’s parents right that requires that the teacher does not harm the child, but rather

because the child himself has a right not to be harmed.18 In this case, the child is a claimant

of a direct right, that is, not to be harmed by anyone. But if animals cannot possess rights in

this sense, it can be argued that, for instance, my neighbour has a moral duty not to shoot

my cat when finding it in his garden, not because the cat has a right not to be harmed, but

because I have a right that my cat not be harmed by anyone as the suffering or death of my

17

Ibid p.448

18 In fact, as I noted, for Rawls this is the sense in which young children possess direct rights, regardless of their

level of rationality since it is potentiality rather than actuality that counts in order to be protected by the

principles of justice.

22

cat would upset me. In this sense, it can be said that my cat is in possession of an indirect

right not to be harmed.19

There is also another sense, perhaps most often associated with Kant, in which an individual

might come to be a bearer of indirect rights. According to such a view “cruelty and

callousness to non-humans is wrong not in itself, but because it tends to make the

perpetrators cruel and callous and this can then go on to infect their dealings with other

human beings.” What makes the harm to my cat wrong, in this sense, “is the tendency for it

to lead to character traits which will extend to the person’s interactions with humans and

therefore to violations of their direct rights.” (Rowlands 1998: 119)

The difference here is that the violation of my cat’s indirect right is not directly derived from

the violation of another’s direct right. Nevertheless, in both cases, the possession of an

indirect right of an agent is dependent on the possession of a direct right of a distinct

individual. (Rowlands 1998: 120)

Talking about rights of non-moral agents in either of the above senses certainly sits well

with Rawls’ moral theory. According to thinkers, such as Tom Regan or Peter Carruthers,

who wrote extensively on the subject of animal ethics, contractarianism cannot be

19

Of course, such a view would not render rights to all non-moral agents such as animals or the mentally

handicapped, but only to some of them. Where there is no way through which indirect rights of non-rational

agents could spring from the direct rights of moral agents (e.g. emotional attachment) even indirect rights

cannot be materialized. Again, following this line of thought, it cannot be said to be morally wrong for my

neighbour to kill or injure a stray dog or cat (or in fact a non-rational human) in his garden if the act does not

infringe a moral agent’s direct rights.

Note that the above point about this particular version of indirect rights view by ‘not covering all the cases’ is

not to suggest that all the cases should be covered. Rather, at present I am simply trying to draw up possible

alternatives regarding the moral status of agents who are not directly protected by the Rawlsian principles of

justice. As it was discussed, Rawls’ arguments are unclear, non-explicit and at times in tension with each other

on this matter, so the possible entailments of his theory is important when one is considering whether or not

his liberal justice has anything to offer to non-moral individuals.

23

understood in a way that it may grant direct moral rights to animals or indeed any non-

rational agents.

Carruthers writes:

No version of contractualism will accord moral standing to animals. There may, nevertheless, be indirect duties towards animals, owed out of respect for the legitimate concern for animal lovers. But the protection thus extended to animals is unlikely to be very great. Nor can this approach explain the common-sense intuition that unmotivated cruelty to an animal is directly wrong. Contractualists also face the challenge of extending direct moral rights to those human beings who are not rational agents. (Carruthers 1992: 121)

However, the fact that Rawls sees animal sociability and sentience as important factors

when considering their moral standing suggests that the reason they ought to be treated

humanely and passionately is not simply the annunciation of their indirect rights. Rather,

the moral status of animals is directly applied to them by recognizing vital features in

reference to their (both individual and social) existence.

As we saw, the Rawlsian enterprise can be seriously questioned when Rawls, on the one

hand, excludes animals from the realm of justice, on the other however, tries to warrant

them some kind of moral protection on compassionate grounds. But when one takes Rawls’

principle of moral pluralism into account, the “realm of morality”, into which Rawls tries to

place animals, becomes so wide that one can no longer talk about “moral duties” but rather,

simply “moral preferences”.

It is difficult to see how one could grasp the degree of moral protection of animals in Rawls’

liberal, pluralistic society.

In other words, to give an example, you may choose to cook lobsters by throwing them alive into pans of boiling water but my moral sensibilities are such that I am not prepared to do this. The state, in addition, is not encouraged to intervene in order to impose my morality on you. Rawls might, of course, object the above example on the grounds that it is not a compassionate thing to do, but if we prohibit it on such grounds what becomes of the principle of moral pluralism? (Garner 2003:17)

24

If people have to accept and respect all comprehensive conceptions of the good that others

might hold and which fall outside of the realm of justice then Rawls attempt to give animals

some kind of moral status does not have any force in his contractarian theory. Again, if

animals (and at least some non-rational humans) are outside of the scope of justice, it seems

that no moral duties can be required towards them. The only way to ascribe moral rights to

animals in a comprehensible sense is to include them within the scope of justice.

Now, it has been argued that if the Rawlsian approach to “justice as fairness” is consistently

followed it entails the conclusion of such inclusiveness. For Rawls, the idea of morally

arbitrary properties (covered by the veil of ignorance) is crucial in the Original Position,

therefore it is not clear how particular features of the parties such as species membership

and rationality can be seen as morally deserved properties.

Some critics claim that such inconsistent application of essential constraints makes Rawls

theory flawed. The way Rawls try to deal with the above problem is to claim that he only

offers a limited theory of justice which only concerns with interaction among persons (i.e.

rational humans) and, although does not out-rule the possibility of a broader moral theory

that might be able to deal with the relationship between humans and animals, he is certainly

not prepared to take up such an ambitious project. As I suggested earlier however,

considering the very nature of his own theory it is highly questionable how it would allow for

Rawls to ignore the charge of inconsistency by simply referring to the limits (or narrow

sense) of his theory.

In pursuit of Rawlsian normative ethical resources regarding non-rational humans and non-

human animals, I now would like to entertain the possibility to extend Rawls’ theory of

justice by eliminating apparent inconsistencies that were discussed in the previous chapter.

25

For this, I now shall consider the idea, put forward by Mark Rowlands. Rowlands argues that

it is possible to develop a general theory of morality by following the Rawlsian line of

thought. In fact, according to Rowlands, Rawls’ idea is not only compatible with possession

of moral rights by non-human animals and by non-rational humans, but “properly

understood, provides (perhaps) the most satisfactory theoretical basis for the attribution of”

such rights. (Rowlands 1998: 3)

For Rowlands, contractarianism that is based on the original position cannot accept the (1)

inclusion of rationality and species membership behind the veil of ignorance, and (2) the

circumstances of justice as a condition “under which human cooperation is both possible and

necessary.”(Rawls 1971: 109)

In other words, providing the parties with the knowledge of their species membership and

rationality is an error made by Rawls; an inconsistent implementation of carefully developed

rules and constraints in the theory. As for the circumstances of justice, which calls for similar

physical and mental strength among the parties, it is an “unexpurgated and unnecessary

element of Hobbesianism”. (Rowlands 1998: 153)

In both cases, argues Rowlands, Rawls fails to appreciate the necessary entailments of his

own theory.

To show the force of Rowlands’ argument it is worth, once again, to revisit the Original

Position.

(…) no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. (Rawls 1971: 11)

26

To put oneself in the original position one has to imagine not knowing “his place in society”,

“social status”, “class position”, “intelligence”, “conception of the good” and so on. As I

pointed out in the previous chapter, this does not mean that individuals have to become

without having these attributes in order to start the negotiation process, but rather they

simply imagine themselves without having the attributes (that they actually have). This is to

ensure that the process of reasoning about justice is carried out in accordance with certain

restrictions.

“The concept of the original position is, thus, heuristic through and through.”

(Rowlands 1997: 240)

However, the justification for the principles of justice is supported by more than just the

above social contract argument.

To justify a certain description20 of the OP (i.e. the description that would be chosen through

rational deliberation) it is important for Rawls that the principles of justice are yielded from

our existing considered judgements about justice. In a liberal society it is widely accepted

that while it is fair for individuals to come by a greater share of society’s resources than

others but only as long as everybody has the same opportunity to earn as much resources as

they deserve. In other words, “inequalities of income and prestige etc. are assumed to be

justified if and only if there was fair competition in the awarding of the offices and positions

that yield those benefits.” (Rowlands 1997: 241)

20

Note that Rawls admits that there are many descriptions of the original position that are compatible with

the goal of creating a fair decision-procedure, but argues that his theory better fits our considered intuitions

concerning justice. (Rowlands 1997: 240)

“We may conjecture that for each traditional conception of justice there is an interpretation of the initial situation in which its principles are the preferred solution.” (Rawls 1971: 105)

27

Such a “considered judgement” about liberal equality (which is motivated by the intuition

that it is unfair to be advantaged or disadvantaged simply by social circumstances in which

individuals find themselves21) however is not sufficient alone to yield the right principles of

justice.

As it was touched upon in the first chapter, the procedure through which the principles of

justice are chosen works within reflective equilibrium.

Many critics argued (e.g. Kymlicka 1990: 66-68; Garner 2003: 10) that the original position is

designed in such a way that it produces results consistent with Rawls’ pre-existing values,

and that the notion of reflective equilibrium works as an instrument to justify a certain value

system. If this is true, then Rawls own description of the original position is wholly

determined by our intuition about equality.

Such possible understanding however is something that Rawls anticipates and strongly

denies:

(...) one may regard a theory of justice as describing our sense of justice...one might say that justice as fairness is the hypothesis that the principles which would be chosen in the original position are identical with those that match our considered judgements and so these principles describe our sense of justice. But this interpretation is clearly oversimplified (...) From the standpoint of moral theory, the best account of a person’s sense of justice is not the one which fits his judgements prior to his examining any conception of justice, but rather the one which matches his judgements in reflective equilibrium. (Rawls 1971: 41/43)

In reflective equilibrium our considered convictions are only “provisional fixed points” and

not at all immune to revision. (Rawls 1971: 18)

If our considered convictions were not subject to revision or modification this would be the

case of not reflective, but “unreflective equilibrium”. To see this, recall the commonplace

21

Or in more general terms –as discussed in the previous chapter- if a property is undeserved it is because it is

morally arbitrary and one is not morally entitled to any benefits that stem from a morally arbitrary property.

28

conviction held by individuals in liberal, capitalist societies about equality of opportunity

with regards to the acquisition of ‘social goods’. That is, as long as there is a fair competition

where “individuals are not disadvantaged or privileged by arbitrary and undeserved

differences in their social circumstances”, some people are morally entitled to fill higher

positions or accumulate resources ad-libitum. (Rowlands 1997: 241)

Now, for Rawls, the argument for fair equality of opportunity springs from a strong intuition

about just distribution, however, it is not sufficiently reflective. This is because there is

another source of inequality that the argument ignores:

The “intuitive equality argument”22 calls for fair equality of opportunity by maintaining that a

morally arbitrary property is undeserved and one is not morally entitled to any benefits that

stem from such a property. This is fine but only as long as social inequalities are concerned.

But what about inequalities in natural talents such as intelligence, physical strength etc.?

Surely, these are also arbitrary properties and therefore undeserved. In this case however,

the consistent application of the intuitive equality argument should take such properties into

account and treat them accordingly.

No one deserves to be born handicapped, or with an IQ of 70, any more that they deserve to be born into a certain class, sex, or race. Therefore, distributive shares should not be influenced by these factors either. (Rowlands 1998: 141)

22

The intuitive equality argument, outlined by Rowlands (1997: 237):

P1: If and individual I has done nothing to merit possession of a property P, then I is not moral entitled to P. P2: If I is not morally entitled to P, then I is not morally entitled to whatever benefits accrue from the possession of P. P3: For any individual I, there is a set S of properties, {P1, P2, ... Pn} that I possesses without having done anything to merit such possession. . C. Therefore, for any individual I, there is a set S of properties such that I is not morally entitled to the benefits which accrue from possession of S.

29

Once this is recognised by reflecting on our intuitive judgements it becomes clear that

people who fill in higher positions under the principle of fair equality of opportunity are not

necessarily morally entitled to a greater share of society’s resources. This is the process

through which Rawls’ difference principle23 is yielded, overriding intuitive but unreflective

judgements about liberal equality. (Rowlands 1997: 241)

The difference principle is therefore not the part of Rawls’ “pre-existing values” or

“ideological baggage” but rather the entailment of the consistent application of the intuitive

equality argument.

Rowlands claims that Rawls himself relies on unreflective intuitions24 when considering the

moral status of animals and therefore fails to realise the entailments of his own theory.

Looking at some of the passages from the A Theory of Justice, it is not hard to grasp what

Rowlands has in mind about Rawls’ ‘uncertain comments’ on the issue25:

“Our conduct towards animals is not regulated by these principles, or so it is generally believed” (Rawls 1971: 441)

“Presumably this excludes animals; they have some protection certainly, but their status is not that of human beings.” (Rawls 1971: 442)

“While I have not maintained that the capacity for a sense of justice is necessary in order to be owed the duties of justice, it does seem that we are not required to give strict justice anyway to creatures lacking this capacity.” (Rawls 1971: 448)

It is difficult to see how Rawls could free himself from the charge of inconsistent application

of the intuitive equality argument which meant to determine which properties are to be

23

“Under the difference principle, people only have a claim to a greater share of resources if they can show that it benefits those who have lesser shares.” (Rowlands 1997: 241)

24“ Intuitions embodied in common sense, but not duly ‘pruned and adjusted’ by the sort of deliberations

required to produce a mature conception of justice, or the sort associated with the genuine attempt to reach reflective equilibrium.” (Rowlands 1998: 154)

25 [Italics mine]

30

excluded behind the veil of ignorance. “And, by that argument, rationality and species

membership- and for that matter, moral personality- should be excluded on the grounds

that they are unmerited.” (Rowlands: 1998: 154)

Rowlands is right to claim that Rawls never provides an explanation why the properties of

rationality and species membership are not required further reflection (i.e. not even

considered to be a restricted knowledge) in the deliberation for justice.

Rowlands suspects that the Rawls’ failure to provide such an argument can be found in an

“unnecessary” endorsement of one particular aspect of the classical social contract tradition,

that is, the circumstances of justice.

However, says Rowlands, there is a problem with this Hobbesian feature in Rawls’ theory.

The circumstances of justice tells us that the parties of the contract have similar physical and

mental capacities. But, as we have seen, the original position is simply a heuristic device to

ensure that the reasoning process is carried out in accordance with certain restrictions and

not the assembly of unencumbered selves trying to come to agreement under the conditions

of ignorance. The original position is not a negotiation procedure in the literal sense for the

presence of others will not influence the choice of the individual. Following the Rawlsian

notion the original position does not necessarily require more than one person.26

Any individual in the Rawlsian contractual situation is assumed to be ideally rational and also in possession of all pertinent general knowledge about human beings, their needs, desires, and so on. Such an individual would make an ideally rational choice for everyone. The presence of other contractors was, always, just a contingent feature of the contractual situation. (Rowlands 1998: 156)

26

“Thus, it may be helpful to observe that one or more persons can at any time enter this position [i.e. the

original position], or perhaps better, simulate the deliberations of this hypothetical situation simply by

reasoning in accordance with the appropriate restrictions.” (Rawls 1971: 119)

31

Now, if the above understanding is true, then it is comprehensible to talk about Rawls’

contractual situation with only one individual in it. In that case of course, the equality of

power condition does not make much sense. Another alternative is to provide a convincing

argument as to why the circumstances of justice is a necessary condition in the

establishment of the scope of justice. Rawls never puts forward an argument of this sort so

whatever his reasons are to insist upon the necessity of the circumstances of justice, one

might just hope that such reasons are implicitly embedded in his theory. I will come back to

this question later in the paper as I believe that Rawls might have sufficient reasons to

uphold his claim about the circumstances of justice. At this point, however, I would like to

summarise Rowlands’ conclusions regarding the moral standing of animals and non-rational

humans. After carefully scrutinising Rawls theory and identifying the inconsistencies in it,

Rowlands concludes that the very nature of the theory requires consistent implementation

of its rules and restrictions. To put the Rawlsian theory of justice to rights, for the sake of

consistency, the rationality and species membership condition must be bracketed in the

original position. If the parties do not know whether or not they will be rational human

beings when the veil of ignorance is lifted, they will formulate principles that take all

possibilities into account. As for the circumstances of justice, Rowlands sees this as an

unnecessary element in Rawls’ theory which resembles the orthodox understanding of

contractarianism27. (Rowlands 1998: 129)

Of course, that the contractors in the original position are rational agents (and for that

matter roughly equal in power) is not the subject of a debate here, as obviously only rational

agents are capable of establishing a system of moral rules. Rowlands point is rather to argue

that, the “fact that the framers of the contract have to be regarded as rational and of 27

I.e. the Hobbesian or classical understanding (rather than the Kantian) as explained in the first chapter.

32

roughly equal power does not entail that the recipients of the protection of the contract

have to share these properties.” (Rowlands 1998: 128)

To justify certain principles within the theory, the idea of reflective equilibrium is crucial. In

order to reach the state of reflective equilibrium Rawls relies on two interconnected

arguments. The intuitive equality argument determines which description of the original

position we accept and this then tells us which principles of justice we shall accept. If the

intuitive equality is consistently applied this will yield a certain sort of description of the

original position from which the yielded principles of justice will apply not only to rational

human beings but also to non-rational humans and non-human animals.

Therefore, if properly understood, there is nothing in Rawls position which entails that non-

rational humans or non-human animals fall outside the sphere of justice.

33

FROM THEORY TO PRACTICE

If Rowlands is right and the Rawlsian contractarian model (if consistently followed through)

entails the inclusion of animals28 within the scope of justice then one might assume that the

duties humans have towards non-rational agents such as animals are the same as they have

towards those fellow rational-humans who are capable of participating in the negotiating

procedure in the original position. Of course, even in Rowlands’ picture we cannot talk about

our duties towards animals being the same as our duties towards our fellow rational human

beings in the literal sense and I think that very few would argue that we should. For example,

it would not make sense to claim equal opportunity in education (or in the workplace) for

animals as they are not involved in such social matters. I think that, through common sense,

it is possible to pick out duties and rights that do not apply to animals simply because we do

not share the same social world with them. Similarly, I believe that Rawls’ conception of

“primary goods” can be applied to animals (e.g. through empathy, intuition, scientific data)

in areas where such application makes sense. If the good of humans is, as Rawls (1971: 80)

puts it, “the satisfaction of rational desire” then it is reasonable to say that the good of

animals is the satisfaction of their desires. Of course, two potential differences at least seem

to arise. First, the satisfaction of a desire in a creature possessing self-awareness may be

different to that in a creature that lacks it. Second, since the satisfaction of a life-plan is

partly what liberals want to allow for and value, the value of this relies on the capacity for

28

My reason for focusing ‘only on animals’ here (i.e. rather than animals and non-rational humans) is simply

because Rowlands is particularly concerned with animal rights, generated by Rawls’ reinterpreted theory.

Although, if Rowlands’ version of the theory brings animals within the scope of justice (as it does) then it

logically follows from his arguments that non-rational humans will also be protected by the principles of

justice. Later in the paper however, I will return to the question of whether or not there can be any difference

between the two categories (i.e. animals and non-rational humans) with regards to where they fall within the

contractarian framework (i.e. in or outside of the realm of justice).

34

rational choice. If animals lack reason, they lack the capacity for rational choice, which, when

added to the lack of self-awareness, means they cannot have a life-plan. This, it could be

argued, will alter the nature of the “satisfactions” involved. This might all be true but it will

not make an objection to the point I am trying to make, for if we find part of the conception

of the ‘good’ which is true to both rational and non-rational agents, then to refer to

rationality as a feature will not offer a sufficient basis for differentiated treatment.

Rawls’ remarks about essential features such as the capacity for feelings of pleasure and

pain and the sociability of animals were already touched upon in the first chapter. The belief

that humans and animals share these particular features is accepted by most contemporary

philosophers whose views might be different in many other respects. It is usually not in

dispute for instance that the pursuit of pleasure (or satisfaction) and the avoidance of pain

(or suffering) are essential and overlapping interests of both humans and animals. This point

of course, (following Rowlands’ interpretation of contractarianism) must be reflected in the

chosen principles in the original position. I shall now consider the application of Rowlands’

contractarian approach to a specific practical issue.

In his book, Animal Rights: Moral Theory and Practice (1998), Rowlands discusses the

question of whether his reinterpreted theory would yield the conclusion that vegetarianism

is morally obligatory. In short, his conclusion is: yes it would (although, as we will see, not in

all cases).

In order to see why it is morally wrong to raise and kill animals for food, or more precisely, in

order to find out what ethical standpoint should be taken on the issue, one has to put

herself in the original position. Here of course, behind the veil of ignorance, one does not

know whether she will be a human or an animal so in order to make a rational choice about

whether or not to adopt vegetarianism, one has to consider the question what can be gained

35

and lost in each case. Things that humans would have to give up if opting for vegetarianism

are trivial in comparison to what they would lose if opting for meat eating. Certain pleasures

of the palate which humans gain by eating meat29, to be weighed up with suffering and

death animals have to undergo in the animal husbandry industry. A rational and self-

interested choice in the original position which would render vegetarianism obligatory

seems to be almost an obvious one. “And if this is the rational choice in the original position,

then, if contractarianism is correct, it is the moral choice in the actual world.” (Rowlands

1998: 165)

There are however, circumstances “in the actual world” where, if obeying such a principle,

humans would have to give up much more than just gustatory enjoyment. The Eskimos are

an example. In their case, killing animals for food is a necessity as, given the climate of their

habitat, there is no option for an alternative diet. Rowlands concludes that, according to the

contractarian position, “it is perfectly acceptable for such individuals to eat meat.”

(Rowlands 1998: 170)

In order to establish the above conclusion, Rowlands first considers the relation between

predator and prey in the animal world. An objection often made against ‘moral

vegetarianism’ asks whether or not it is morally wrong for a predator to kill a prey. If the

answer is no, so the argument goes, why is it wrong for humans to kill animals for food?

Such a question usually meets the objection that predators (such as sharks and lions) are not

29 Perhaps the claim that our benefit from eating meat is no more than ‘pleasures of the palate’ might be controversial (although perhaps not as controversial as it was a few decades ago). Rowlands himself considers this challenge before rejecting it. I will not go into details on this issue for I think that the “existence of millions of healthy vegetarians living in almost all parts of the world” is a case in point. (Rowlands 1998: 163) I suspect that in most cases, arguments that are based on premises which rely on a connection between health

and meet eating, spring from the attempt to rationalize an existing custom. Empirical data is certainly on

Rowlands side here.

36

moral agents and so cannot evaluate their actions in the light of moral principles or assess

them in any way, therefore they cannot be morally blamed for taking the life of another

animal. According to Rowlands however, “this reply, by itself, will not do the work required

of it” since a further question can be asked which is not calling for moral duties of predators

(or the moral rights of the prey, on that matter) but rather asks whether or not moral

agents, in the light of their established principles, have the duty to assist animals on which

predators prey in the same way in which humans might have a duty to prevent harm of

others by any innocent threat.

If a baby has acquired possession of a loaded gun and is firing it in the direction of passers- by, then the baby, not being a moral agent, is not doing anything for which it can be morally blamed. (...) Nevertheless, if I am, at fairly minimal risk to myself, able to dispossess the baby, then it seems, prima facie, that I have a duty to render assistance to the innocent bystanders by doing so. (Rowlands 1998: 168)

In order to solve the dilemma, and to show that contractarianism does not entail duties of

assistance to prey animals, Rowlands invites us again back to the original position where the

parties do not know whether they will be predatory or prey animals when the veil is lifted. In

this situation, Rowlands says, it would be irrational to choose a world where moral agents

have a duty of assistance to prey animals as such a principle would result in disastrous

consequences, that is, death of the predators through starvation. However, it is not at all

self-evident why parties in the original position would reject the duty of assistance principle

since they have a similar chance to end up as prey animals. Given this possibility, more

reason is needed as to why the parties would choose one particular world over another.

Rowlands tries to provide with an additional reason by relying on information that is

available for the parties in the original position:

One of the things one would know in the original position- since one is in possession of all laws pertaining to the natural world-...that any situation where a prey animal’s natural predator has been eradicated is a situation in which the number of prey

37

animals explodes so drastically that disease and starvation are the inevitable result. Even if one turns out to be a prey animal, therefore, opting for a world where moral agents have duties to protect one from one’s predators is to opt for a world where the likelihood of one’s succumbing to disease or starvation is greatly increased. Thus there is nothing in the contractarian position which entails that moral agents have duties of assistance to prey animals. With regard to the relation between predators and the animals upon which they prey, the contractarian position is this: Leave them alone! (Rowlands 1998: 169)

Rowlands aim here is to throw the status quo in the original position off balance in order to

come to a certain conclusion regarding the rational choice of the parties. I do not think

however, that the argument succeeds. Even if Rowlands is right about the “inevitable

results” that would follow from the acceptance of the duties of assistance principle, there is

an important point that the argument ignores. That is, the eradication of predators would

then enable moral agents to provide assistance against disease and starvation. Surely, such

assistance is required by the principles of justice, and if animals are equal recipients of such

principles (i.e. included within the scope of justice) every effort needs to be made to avoid

their suffering and death by natural forces. After all, the “explosion” of the number of

human beings on the planet, mainly due to the absence of natural predators has not

resulted in such consequences.

But even if we ignore the above problem (or if I am wrong to claim that Rowlands does not

provide a convincing argument as to why the rejection of the duties of assistance principle

would be the rational choice in the original position) further difficulties arise when one

considers cases where meat eating is a necessity practice even for moral agents. Rowlands

argues that, according to the contractarian position, in cases where individuals are, “for

whatever reason”, unable to survive without eating meat should be treated along the same

lines as predatory animals.

The Inuit provide an obvious example. In such cases, if we assume that the humans involved are unable to relocate to more hospitable climes, then they must be classified

38

as, for all practical purposes, carnivores: creatures unable to survive without eating meat. The original position allows that it is morally acceptable for these people to eat meat. In the original position to adopt a rule which proscribed this would be irrational; it would be to adopt a rule which potentially sealed one’s own fate. (Rowlands 1998: 170)

This is a curious move from Rowlands that might make one recall Rawls’ social contract

argument30, and wonder how it is possible for them to come to the above conclusion if the

very point of the hypothetical exercise in the Original Position (where individuals are placed

behind the veil of ignorance) is to “ensure that no one is advantaged or disadvantaged in the

choice of principles by the outcome of natural chance or the contingency of social

circumstances.” (Rawls 1971: 11)

The social contract argument plays a crucial role in Rowlands’ interpretation of

contractarianism. That is to say, this is the very argument in Rawls theory where

unacceptable inconsistencies were recognised. Such recognition is the cradle of Rowlands

reinterpretation of the theory which eventually leads him to the conclusion that animals

must also be included (as recipients) in the sphere of justice.

But Rowlands seems to sail into dangerous waters by seemingly suggesting that one can

describe circumstances when a moral agent is allowed to peep out from behind the veil of

ignorance when choosing the right principles of justice. His argument which states that it

30 The social contract argument runs as follows:

“...no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances.” (Rawls 1971: 11)

39

would be irrational in the original position to adopt a rule which potentially seals one’s own

fate raises the question: Whose fate exactly are we talking about here?

According to Rowlands’ version of the social contract argument, in this particular situation,

information about rationality and species membership should not be known by the Inuit (or

at least this fact should not be taken into consideration) when deciding what principles to

accept, otherwise the person would be advantaged in the choice of certain principles “by the

outcome of natural chance”. Opting for meat eating by the Inuit might be the rational

choice, it is certainly not true that this would also be an “ideally rational choice for

everyone”. Given the restrictions in Rowlands’ theory it is hard to see any sufficient reason

that might allow moral agents to ignore or suspend the requirements of the original position

even in such circumstances.

It seems that, in the case of the Inuit, moral agents are in a more favourable situation when

deciding what principles to choose. When one says that it would be irrational, in a given

situation, to opt for vegetarianism, this really means that, it would be irrational for them to

choose that particular principle.

To see this more clearly, consider the following scenario:

Suppose that, due to climate change, animals upon which polar bears prey have been

drastically decreased in number, so the bears, desperately trying to find food, start to hunt

anything they can find in order to survive. As the Inuit are the only creatures who remained

in a relatively large number in the arctic and who qualify as food for carnivores, they become

the only prey for polar bears. Without the Inuit as prey, all polar bears would suffer a

miserable death through starvation.

Following Rowlands argument, in order to decide what the right moral choice is with regard

to meat eating, one has to be placed in the original position where the reasoning process can

40

be carried out in accordance with certain restrictions. But following such constraints means

that individuals have no knowledge of certain qualities about themselves, and these qualities

include rationalism and species membership. The claim that it is irrational to choose a

principle in the original position which “potentially seals one’s own fate” only makes sense if

the choice is made from the standpoint of only one (but not both) of the affected parties and

the outcome will depend on which side we stand. Once we try to solve the situation by

looking at it from one particular standpoint, it is hard to deny that in the second scenario it

would be irrational for the polar bear to seal its own fate by refraining from meat eating. Of

course, one might argue that it is not disputed that the framers of the contract must be

moral agents so, it is always the moral agents who are involved in the negotiation process.

This might mean that the Inuit have a moral right to protect themselves even by causing

harm (i.e. injury or death) to their predators, as this would be the rational decision in the

original position. But such an argument, again, does not comply with essential restrictions,

formulated by the social contract argument (i.e. Rowlands’ reinterpreted version) and

therefore missing the point of the whole idea.31

It is hard to see any other way out for Rowlands but to admit that moral agency does matter,

at least in some cases, when deciding who will be the beneficiaries of the principles of

justice.

31 Note that there is another possible scenario which is (at least) highly counterintuitive: Here the Inuit is (for some reason) not capable of defending themselves against the united force of polar bears and so become their prey. Here, if animals are equal recipients of the principles of justice, the ‘duties of assistance principle’ could not be applied either, as following Rowlands’ reasoning there is nothing in the contractarian position which entails that moral agents have duties of assistance to prey animals. And surely, under Rowlands approach the fact that in this case the preys are humans (rather than animals) cannot be taken into consideration. Therefore the contractarian position leads to the following conclusion: Leave the bears alone!

41

Rowlands tries to widen the sphere of justice by getting rid of inconsistencies and

unnecessary elements that he recognised in Rawls’ theory. But the reconstructed theory

seems to be unable to deal with situations where there is a serious clash of interest between

moral and non-moral agents. In such cases, Rowlands is forced to bend the rules of his own

theory by allowing the framers of the social contract to consider morally irrelevant

information about themselves. With this, Rowlands’ carefully considered criticism towards

Rawls’ idea catches up (although at a later stage) with his own reinterpreted theory and

therefore fails to secure animals a place within the scope of justice that is equal to those

who have the capacity to establish principles of justice through rational reasoning.

Of course, following Rowlands’ approach the question is not whether or not adopting a rule

which would potentially seal one’s own fate would be irrational, but it is rather about the

very possibility of choosing a particular principle in the original position. In a sense it is

obvious that it would be irrational for individuals to accept a rule that potentially brings

about their own destruction. However, again, one might wonder how it becomes possible in

the original position for individuals to possess morally non-relevant information about

themselves. In Rawls’ case, such information (i.e. rationality and species membership) is not

covered by the veil of ignorance so for example, a principle which, if adopted, would benefit

animals at the expenses of humans can be seen as a potentially irrational choice.

However, considering Rowlands’ main point on which his criticism of Rawls’ and his

reinterpreted theory rests, that option is simply not open since the very purpose of the

hypothetical exercise is to make sure that no one (regardless of their rationality or species

membership) is advantaged or disadvantaged in the choice of principles by the outcome of

natural chance. The violation of such a vital constraint suggests that, at least in some

42

circumstances, discrimination between the framers of the principles of justice and the

recipients of it is accepted for the disadvantage of the latter.

In addition to this, Rowlands’ conclusion about suspending moral duties in the case of

extreme necessities could be explained by the Humean circumstances of justice. As it was

discussed in the first part of the paper, Rawls’ draws heavily on Hume’s idea of the

background conditions under which human cooperation becomes both possible and

necessary. (Rawls 1971: 109)

There I was only focusing on ‘the equality of power condition’ in order to evaluate the moral

relation between the framers and recipients of the Rawlsian justice. There is however,

another condition which becomes appropriate here as they tell us a great deal about certain

assumptions on human nature.32

Hume argues that in situations where great abundance or extreme scarcity is present, justice

becomes inappropriate. In other words, since the subject matter of justice is the distribution

of things that are in short supply, then if nothing were in short supply or if there is so little of

something that people’s survival is in doubt, the concept of justice would have no

application. (Barry 1989: 154-6)

Air provides a good example (under normal circumstances) of the top end of the scale as a

thing that has no natural limit. Here no one can have more or less than others so that is why

the question of justice with regards to air usually does not arise. Rowlands’ scenario

regarding the Inuit and the justification for meat eating can be used as an example of gross

32 Another of the circumstances of justice is the moderate selfishness condition. Hume suggests that questions

of justice can only arise if the extremes are absent. As H.L.A. Hart (1961:192) puts it:

“With angels, never tempted to harm others, rules requiring forbearances would not be necessary. With devils, prepared to destroy, reckless of the cost to themselves, they would be impossible.”

43

scarcity (i.e. the other end of the scale) where human beings are driven to pursue self

preservation at all costs.

When Rowlands argues that it would be irrational in the original position to adopt a rule

which potentially seals one’s own fate, it is not easy to resist making a possible connection

between his view and the sort of Hobbesian psychological necessity explained by Hume. As

we saw, in the Rawlsian framework the Inuit’s decision to opt for meat eating can be

described (and justified) by certain information, available to the individual in the original

position. I argued that such a possibility was not available for Rowlands where the

information about rationality and species membership were also covered by the veil of

ignorance. I also suggested that Rowlands perhaps tries to make exceptions regarding such

information, at least in extreme cases (e.g. where self-preservation is at stake). But now it

seems that the justification for meat eating by the Inuit could be explained without violating

the rationality or species membership conditions, that is, it could be explained by the

circumstances of justice itself. That is to say, it seems possible to uphold Rowlands’ demands

for consistency by ‘bracketing off’ all morally irrelevant information in the original position

and still justify meat eating in exceptional circumstances. Placing oneself in the original

position, the thought process of the Inuit would be something like this: In order to find out

whether or not it is morally acceptable for me to eat meat I have to imagine myself not

knowing anything about my personal circumstances and qualities, including my species

membership and rationality. I have equal chances to turn out to be a human or an animal on

which I prey. If opting for meat eating I have an equal chance to live or die than if opting for

vegetarianism. I cannot base my decision on my actual circumstances and qualities in any

case as this would be the violation of a fair procedure and would therefore entail unjust

conclusions. Therefore, I cannot take into account that I am actually a rational human being.

44

However, if the circumstances of justice hold, I have enough information through which I

can justify meat eating as a morally legitimate practice. This is because, although my species

membership could not be considered, I do know that if I turn out to be a human and find

myself in a situation where my survival is at stake, it would be a psychological necessity to

opt for a principle which would conserve my life. In the case of the Inuit of course, this

means that it would be psychologically impossible to choose a principle that forbids meat

eating therefore one cannot be morally blamed for objecting it. Such an assumption about

human psychology will be important in our later discussion. My point here is only that while

the circumstances of justice and its entailments sits well with Rawls theory, Rowlands’

extended theory rejects Hume’s idea out of hand as an unnecessary element in Rawls’

theory. However, the ‘exceptional cases’ in the argument for vegetarianism suggests that

the Humean idea is not only endorsed by Rawls but Rowlands also makes a use of it. It is

always the rational individual who will choose the principles of justice. Now, for Hume and

also for Rawls, justice only arises if there is the possibility of conflicts of interest. If conflicts

of interest obtain between the recipients of the contract, from which one group is also the

framers of the contract (i.e. rational humans), whereas the other (e.g. animals) is simply

recipients of it, the protection by the generated principles of justice can apply to the latter

group only up to a point. From Rowlands’ argument for the moral case for vegetarianism

through contractarianism, one can identify the point where moral agency becomes an

advantage, at least in some cases.

However, if the possession of moral agency gives an advantage to one group over another in

any situation then the principles of justice do not apply to all of its recipients with the same

45

degree.33 But surely, the concept of justice in the Rawlsian sense cannot be a matter of

degree. It would simply not be comprehensible in the Rawlsian framework to talk about

‘strong justice’ or ‘loose justice’. Similarly, it would not be comprehensible to choose

principles of justice and then specify certain exceptions where their protection is not-

applicable. Something is either just or not just. In Rawls case, this is true among rational

humans, due to the existence of the circumstances of justice. Rowlands is right about

pointing out that rationality and species membership should, for the sake of consistency,

also be bracketed off in Rawls’ social contract argument. For Rowlands however, “to

exorcise Rawls of his Hobbesian demons”34 also means to free the theory from an

unnecessary element, namely the circumstances of justice. This seems to be unattainable.

Rowlands claims that the plausibility of Rawls’ account stems from its Kantian core and

much of what is questionable about it stems from its Hobbesian elements.35 But Rowlands’

project to purify the Rawlsian account to a more Kantian form fails because he is not

prepared to accept conclusions at all times, where the authority of the generated moral

principles call for categorical obedience. If the principles of justice are the morally correct

33 It might be argued that non-rational agents should be included at least on the level of the difference

principle which allows certain inequalities (i.e. in income) so long as this fact improves the condition of the

worst off. Here principles, although applied equally, affect everyone differently. However, while principles

chosen in the OP do not ensure that those principles when applied will benefit all equally, permitting

inequalities in that particular sense (i.e. interpreting it to the human-animal relationship) would then violate

Rawls’ first principle of justice as fairness which is to ensure equal basic rights and liberties for all individuals.

And according to the Rawlsian theory, the fulfillment of the first principle takes priority over fulfillment of the

second principle. If, in our particular case, the ‘right to life’ is covered by the first principle, then justice

requires the application of this right to all in all circumstances. This is why Rowlands’ extension of the realm of

justice cannot entail some of the conclusions he claims to entail without embracing at least some, previously

‘rejected’, Rawlsian ideas.

34 Rowlands 1998: 128

35 Ibid.

46

principles then obeying them is the right thing to do in all circumstances, since no rule

would be adopted in the original position that would permit one individual or group to

benefit at the expense of another. As we saw however, following Rowlands’ approach, one

can find circumstances where the ignorant parties in the original position are in no

possession of any information on which they could base their decision.36 In such situations,

in order to be able to choose between possible principles, moral agents must access either

or both of the following information: They must know that they will be moral agents when

the veil is lifted; and/or, they must know that the circumstances of justice stand. Of course,

(unlike for Rawls) for Rowlands neither of these options are available as according to his

account the former information would be an inconsistent application of vital restrictions in

the social contract while the latter is no more than a conserved but unnecessary element of

the orthodox social contract tradition. Rowlands is right to argue that simply by admitting

that a project is limited does not necessarily entail that it cannot be criticized for failing to

address cases which it was not designed to cover. The case for the need to reinterpret

Rawls’ social contract argument is therefore justified since the very nature of that argument

calls for correction. I do not think however, that certain assumptions regarding the

circumstances of justice can be eradicated and I suspect that Rowlands’ theory implicitly

makes use of certain features of the circumstances of justice. Only if Rowlands is ready to

admit this, could he come to his conclusions regarding practical moral issues such as

vegetarianism. In his book, The Case for Vegetarianism, J.L.Hill (1996: 50-1) summarises the

36 Perhaps the communitarian claim about the “unencumbered and essentially dispossessed self” becomes

more real when one considers Rowlands’ version of contractarianism. (see for instance: Sandel (1985)

Liberalism and the limits of justice)

47

contractarian standpoint on the practice of vegetarianism, using the argument familiar to

Rowlands’:

Following similar reasoning as that employed by the parties in Rawls’ original position, the signatories to this new, trans species social contract would permit no rule that would benefit some at the unnecessary expense of others. Since the parties would have access to all general knowledge necessary to making their decisions, and this would include a general understanding of nutritional knowledge, they would know that meat eating was not necessary for the survival of humans. Further, since each party would also face a great possibility of winding up an animal, human vegetarianism would be the obvious response to the question of diet. It would be the most rational response by the party who is not certain whether he will end up human or animal, pursuer or pursued, the eater or the eaten.

And continues:

Note here that a different agreement might certainly take place if an omnivorous diet were necessary to human survival. In this event, all parties might take their chances, leaving open the possibility for human survival even with the risk they might turn out to be a cow. Even here, however, the parties would sanction only the least amount of carnage necessary to maintain human survival. Eating animal meat for the pleasure of it would remain a breach of the social contract.

Rowlands would certainly agree with the above outcome of the contract, but as I argued, for

this he would have to modify his account because it becomes obvious that he cannot

maintain the claim (as his interpretation suggests) that the framers of the contract are in an

equal position to those who are mere recipients of it. The vantage-ground of the very

establishers of the principles of justice is explained by the circumstances of justice. Rawls

theory entails that principles of justice must apply to all moral agents (i.e. the very

establishers of the principles). Once the Rawlsian theory is freed from all its constraints

however, one has to face questions about the feasibility of a conclusion which might state

that the principles of justice must apply to all sentient creatures without differentiation.

48

I conclude that contractarianism has a strong case for the protection of individuals other

than those who are the very participants of the social contract. Rawls says that “the capacity

for moral personality is a sufficient condition for being entitled to equal justice.”37 At he

same time however, “the capacity for feelings of pleasure and pain and for the forms of life

of which animals are capable”38 does not seem to be a sufficient condition in itself to be

claimants of justice. Rawls curiously uses the term “strict justice”39 as the kind of justice we

do not owe animals. It is as if justice could be realized on different levels or be thought of as

a matter of degree. This is of course, not the case for Rawls, nevertheless he makes no

attempt to explain the meaning of “duties of compassion and humanity”40 towards animals

and the place of such duties in his theory. Rowland’s account provides a clearer meaning to

those duties by reminding us that the recipients of justice cannot be restricted to a certain

group of individuals if such restriction is based on morally irrelevant features such as

rationality or species membership. A proper understanding of ‘justice as fairness’ would not

allow that kind of exclusion. However, there are circumstances when the framers and mere

recipients of the contract have to be seen as separate groups, from which only one can be

protected by the strict rules of justice. From what has been discussed so far, it seems that in

the search for contractarian explanations regarding the moral standing of animals, the

strongest claim that can be formulated is that if the conception of justice tells us that it

would permit no rule that would benefit some at the expense of others then the trans

species version of it would tell us that it would permit no rule that would benefit some at the

37

A Theory of Justice p. 442

38 Ibid. p.448

39 “While I have not maintained that the capacity for a sense of justice is necessary in order to be owed the

duties of justice, it does seem that we are not required to give strict justice anyway to creatures lacking this capacity.” (Rawls 1971: 448)

40 Ibid p.448

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unnecessary expense of others. What counts as ‘unnecessary’ or what can be considered a

‘sufficient reason’ to hurt an animal is an important question which needs to be carefully

considered but which I cannot do in this paper. From the various day to day interactions with

animals41 where such a question arises I have considered whether contractarianism would

yield the conclusion that vegetarianism is morally obligatory. I concluded that according to

contractarianism, gustatory pleasure that moral agents benefit from by meat eating provides

an insufficient reason to such practice at the unnecessary expense of animals.

41

From cosmetics to medical research, farming, blood sports, zoos and so on.

50

NON-RATIONAL HUMANS RE-VISITED

There remains now, a last question to consider. At the beginning of the paper I set out to

examine possible contractarian resources through which it may become possible to

determine the moral relationship between rational and non-rational agents. Within the

category of non-rational agents I distinguished between non-rational humans and non-

human animals. I considered cases where non-rational humans might be directly (e.g.

temporary non-rational humans such as young children) or indirectly (e.g. permanently non-

rational humans through emotional ties to moral agents) included within the sphere of

justice. However, I pointed out that there is certainly a group of non-rational humans who

cannot be included by using either of those arguments. Rawls does not provide arguments

which would give these permanently mentally handicapped humans protection by the

principles of justice. In the second chapter, I was mainly focusing on animals since, as

Rowlands’ points out, if his reinterpreted theory of justice is capable of offering moral

protection to animals, it will do the same for non-rational humans. However, distinction

between the two groups might be necessary. As I argued, contractarianism can offer

animals direct rights, but only up to a point. Where the interests of animals and moral

agents clash it is always the latter group who is in a favourable position. Let me point out

another problem which, I think, cannot be solved adequately in Rowlands account. In a

lifeboat scenario in which a number of humans and a pig are involved and where one

individual has to be thrown overboard in order to save the lives of the others, sacrificing the

animal would be a morally acceptable conclusion42 for Rowlands. But in a similar scenario

42

Although, as I argued, in order to have sufficient basis for such a conclusion Rowlands implicitly embraces

features of the circumstances of justice.

51

where a choice has to be made between an animal and a (permanently) non-rational

human, again, the decision becomes impossible. What would be the rational (i.e. the right

moral) choice if the question of species membership cannot be taken into account in the

consideration? Rowlands never considers a scenario where such a choice has to be made.

Peter Carruthers (1992:102-3) offers an explanation why non-rational humans should

receive primary protection in such situations. First, he deals with the animal question by

making a careful connection between the origin and the content of morality. The connection

is drawn up circumspectly in order to avoid the charge of genetic fallacy43. A possible

explanation of how the concept of morality evolved is that it has promoted the survival of

our species in the past. According to Carruthers, morality is a human construction in order

to facilitate interaction between humans. Moral motivation and the desire to justify our

actions in terms that others may accept is innate in humans.

If the contractualist concept expresses what morality is, for us, then there is no moral standpoint from which it can be criticised, or from which it can be argued that we are morally required to extend that concept so as to accord equal moral standing to animals. (Carruthers, 1992: 103)

Carruthers’ view brings upon him a fair amount of controversy not just for heavily relying on

assumptions regarding the origin of morality, but also for suggesting that the origin of

morality is what determines and marks out the scope of morality. Carruthers’ argument is

somewhat familiar from our previous discussion regarding Rawls’ admittedly limited project

which from that very reason should not be criticised for not addressing cases which it was

43

Carruthers denies that what he is claiming is that moral statements are really disguised claims about the conditions for the survival of the species. His point is rather that we should not lose sight of where moral notions are supposed to come from when considering the comparative moral standing between humans and animals.

52

not designed to cover. The difference here is that Carruthers makes reference to the origin

of morality in order to come to his conclusion. Moreover, he also suggests that such a view

on human co-operation is also presupposed by Rawls.44 That claim, I believe, does not stand

up. That Rawls’ theory is not dependent on any story about the origin of morality was

already discussed at the beginning of the paper when his account was contrasted with the

classic contractarian view. I do think however, that Carruthers is on to something important

here, regardless of the speculative nature of his argument. This will be clearer a few

paragraphs later. First however, I would like to consider Carruthers’ line of thought (1992:

114-8) a little further in order to see what he has to say about the moral standing of non-

rational humans. In an attempt to secure direct moral rights to all human beings, he puts

forward two arguments. First is the argument from ‘slippery slopes’ which claims that if one

insists, that only rational agents have rights, this would leave a number of cases in which

possession of rights would be indeterminate. Or one can even argue (coherently, at the level

of theory) that the possession of rights should be a matter of degree so the moral standing

of individuals depends on the extent of their rational agency. It is the application of these

theories in the real world where the danger lies, as they would be open to abuse, therefore

they should not be adopted.

But there is not the same practical threat to the welfare of rational agents in the suggestion that all animal should be excluded from the domain of direct moral concern. Someone who argues that since animals do not have rights, therefore babies do not have rights, therefore there can be no moral objection to the extermination of Jews, Gypsies, gays, and other so- called ‘deviants’, is unlikely to be taken seriously… (Carruthers, 1992: 115)

44

Carruthers, 1992: 102

53

Carruthers’ second argument is the argument from ‘social stability’. One fact that rational

contractors have to consider when choosing principles of justice is human psychology. One

such fact is that human beings care intensely about their offspring, irrespective of age and

intelligence. A rule that withholds moral standing from non-rational people would therefore

create social instability. “The only way of framing rules that we can live with, then, is to

accord all human beings the same basic rights- that is to say, moral standing.” (Carruthers,

1992:118)

A major problem with both of Carruthers’ arguments is that they do not cover all the cases

of non-rational humans. In fact, the group of non-rational humans the arguments do not

cover is the very group which I set out to examine in the last part of the paper, for the

reason that such cases are the most vulnerable to contractarianism. The argument from

‘slippery slopes’ only considers cases where the rational agency of individuals is

indeterminate. The argument seems to work when suggesting that ascribing rights only to

rational humans would be susceptible to abuse because of the lack of scale one can use to

measure the extent of rationality. But surely, there are obvious cases where individuals

possess no rational agency whatsoever. After all, if we are confident to claim that most of

the animals are in no possession of rationality, we must be just as confident in the case of

people with severe mental dysfunction. In such cases however, there is no reason to offer

moral protection. Therefore, the argument from slippery slopes (even if one finds it

convincing) does not generate the alleged conclusion. The argument from social stability

runs into a similar problem, since Carruthers only considers non-rational humans who are

subjects of emotional attachments. This again leaves out cases where such attachments are

not present. Despite this difficulty, I think that, by alluding to human psychology, the

argument from social stability has something important to offer. And this is where

54

Carruthers’ idea about the connection between the origin and scope of morality enters into

consideration. It is accepted by many thinkers that whatever the truth is regarding the origin

of morality, it is unlikely that its present or future content is simply determined by its origin

without the possibility to affect its scope. Peter Singer for instance, forcefully argues that

morality can develop in ways that are different or even incompatible with its origin. (Singer

1981: 54-87) The reason that Carruthers’ argument is vulnerable to the charge of genetic

fallacy comes from his speculative argument regarding the origin of morality. Although he

insists that his point is simply that one should not lose sight of where moral notions are

supposed to come from, it is hard to see how this is supposed to silence possible criticism if

he, at the same time, relies on a particular story (i.e. a contractarian one) about the source

of our moral notions. I do not think however that one has to rely on such shaky premises

regarding the origin of morality. Regardless of the origin and evolution of our moral notions,

human beings have certain psychological traits and moral attitudes which determine or at

least influence our actions towards each other. Just like one should not claim that the origin

of morality is what marks out the scope of morality, it would also be a mistake to state that

once we found a convincing and coherent moral theory, these traits and attitudes should be

reshaped accordingly.45 The parties of the Rawlsian hypothetical contractual situation know

the psychological traits and limits of humans. It is reasonable to say that most people would

find themselves psychologically incapable of complying with rules that deny moral standing

from mentally defective people. I believe that Carruthers (1992: 164-5) is right to argue that

we have a natural impulse of sympathy for the sufferings of all who share human form, so a

moral rule that would not object to killing or hurting the mentally disabled would clash

45

Recall from our earlier discussion that in the Rawlsian approach we need to work from ‘both ends’ in order

to match our considered judgements in reflective equilibrium.

55

powerfully with our moral convictions. However, he is certainly wrong to say that “no

similar dangers attend the exclusion of animals from possession of moral standing.” We saw

that other qualities, such as sentience might also be subject to those natural impulses. It is

hard to put a finger on concepts like psychological traits or moral intuitions without trying to

see the whole picture where they come from or what to do when we find ourselves with

them. But we cannot deny that they influence our moral decisions. And this is something

that rational parties who are trying to agree on rules about moral rights and duties have to

take into consideration. If the ‘duties of assistance principle’ would be accepted by rational

contractors in the case of the Inuit who are attacked by desperately starving polar bears but

not the other way around; or similarly, if the pig would be sacrificed in the lifeboat scenario

in order to save a mentally disabled human, then the contractarian case to include non-

rational humans within the scope of justice is stronger than the case for the inclusion of

non-human animals.

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CONCLUSION

This paper has been concerned with contractarian justice and its relation to non-rational

agents. It is widely accepted that contractarian moral theories cannot entail the conclusion

which would grant moral protection to non-rational agents such as non-human animals and

non-rational humans. Engaging with the work of Rawls I suggested that rationality is not

necessarily an obligatory quality in order to be owed justice. For this I considered the

circumstances of Rawls’ negotiation procedure in the original position where the principles

of justice are chosen by moral agents. It is the very nature of the decision making process in

Rawls’ theory which forces one to question the moral relevance of rationality and species

membership while other qualities are rejected as morally irrelevant in the establishment of

the principles of justice. Mainly relying on arguments developed by Mark Rowlands, I

claimed that the consistent application of rules and constraints in Rawls’ theory would also

include rationality and species membership to be covered by the veil of ignorance. From this

however, it follows that the contractors would come to a different conclusion regarding the

moral standing of non-rational agents. What extent of moral protection would this entail? By

rejecting not just the rationality and species membership criteria but also the circumstances

of justice from the Rawlsian theory, one has to conclude that in Rowlands’ account the moral

standing of humans and animals must be equal. I disagreed and argued that

contractarianism would place rational agents in a favourable position at least in

circumstances when there is a serious conflict of interest between the framers of the

contract and the mere recipients of it. Such a contract would still not permit a rule that

would benefit rational agents at the unnecessary expense of non-rational agents. This

57

explains why, for instance, certain ‘pleasures of the palate’ provides an insufficient reason to

the practice of meat eating at the unnecessary expense of animals, but also explains why

rational agents cannot be morally blamed for eating meat in order to survive.

Finally, I argued that there is one particular feature of Rawls’ theory which enables the

parties in the original position to make a distinction between non-human animals and non-

rational humans. I suggested that knowledge about facts of human psychology would make

it impossible for the parties not to be influenced by the question of species membership

when deciding on the extent of our moral duties towards non-rational humans as opposed

to non-human animals.

58

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