rawlsian justice and non-human animals

Journal of Applied Philosophy, Vol. 1, No. I , 1984 95

Rawlsian Justice and non-Human Animals

ROBERT ELLIOT

ABSTRACT In his book, A Theory of Justice, John Rawls argues against the inclusion of non-human animals within the scope of the principles of justice developed therein. However, the reasons Rawls, and certain commentators, have advanced in support of this view do not adequately support it. Against Rawls’ view that ‘we are not required to give strict justice’ to creatures lacking the capacity for a sense of justice, it is initially argued that (i) de facto inclusion should be accorded non-human animals since their exclusion strains just institutions, and (ii) Rawls’ account of the sense of justice has implicit and undefended human chauvinist elements. Two further counter-arguments are then developed in more detail. First, the suEestion that some non-human animals do have a capacity for a sense of justice is explored. Second, the suggestion that the capacity for a sense of justice is unrealised in so many human beings that Rawls’ basis for marking out a special place for them is undermined is explored. Attention is next given to Rawls’ characterisation of the participants in the original position. It is claimed that there are no good reasons for disallowing the possibility that these individuals turn out to be non- human animals in the real world. I f sound, this claim brings non-human animals directly within the scope of Rawlsian principles of justice. The claim is defended against three objections.

I assume that considerations to do with justice should be among the constraints on any general policy of maximising welfare. The interesting question is whether these considerations extend to animals. The best place to start is with an example in which welfare is maximised as a consequence of causing an animal to suffer but where there is nevertheless something wrong with treating the animal in that way. Imagine, then, that an extremely rare kind of animal is trapped for its fur and that the method of trapping causes significant pain to the animal. It might nevertheless be argued that the trapping is justified because of the compensating benefits which derive from the trade in the particular fur. For example the trappers earn large sums of money which significantly increase their level of welfare, and the people who eventually end up with the furs derive enormous satisfaction from them. It is by no means unrealistic to suppose that the benefits of this trade outweigh the resultant disutili- ties. Despite this there does seem to be something morally wrong with the state of affairs in question. What I shall suggest is that it is wrong partly because it is unjust. Moreover, I shall attempt to fit this suggestion to the theory of justice developed by John Rawls [ 11 .

John Rawls, for one, suggests that animals cannot be unjustly treated. They are not excluded from the moral community entirely, only from that part of it defined by justice. Rawls says:

We use the characterization of the persons in the original position to single out the kind of beings to whom the principles of justice chosen apply.. .

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justice is owed to those who have the capacity to take part in and to act in accordance with the public understanding of the initial situation. (p. 505)

While Rawls hesitates to say that possession of the capacity he specifies is a necessary condition for falling within the scope of the principles of justice, his reasons seem to be normative rather than theoretical. He hedges, remarking that:

Even if the capacity were necessary, it would be unwise in practice to withhold justice on this ground. The risk to just insitutions would be too great. (p. 506)

Rawls is thinking here of human beings who do not strictly satisfy the condition, for example mental defectives. The suggestion is that we should not insist on the possession of the relevant capacity in the case of humans, but rather take it for granted that all humans possess it. If we do not do so, then we are running the risk that institutions that guarantee justice to those to whom it is properly owed will break down or function inadequately.

Restricting justice to human beings and denying it to animals apparently causes no such risk. This is presumably because mental defectives are recognisably of our species and may frequently be difficult to identify as members of our species who do not have a capacity for a sense of justice. Animals on the other hand are recognisably different and so can be safely and, in Rawls’ view, properly left out. This may make the point too bluntly since there is an ambivalence in Rawls’ final remark on the topic. He says:

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. (P. 512)

There are two points of criticism which Rawls invites at this point. First, it may be claimed that de fact0 inclusion should be accorded non-human animals because withholding justice in their case strains just institutions. This line of argument disputes Rawls’ empirical suppositions about the effects of excluding this or that subset of the set of individuals to whom justice does not properly apply. It is not clear how the argument would go in detail but the following would be a rough instance of it. If soldiers frequently entertain themselves by bombing and machine- gunning herds of elephants [2] then they will develop a degree of callousness and sadism which makes it very likely that they will act unjustly in the conduct of a war, for example by massacring prisoners or raping civilians.

Whether this is true I have no idea. It is certainly not implausible and it may be possible to verify it by exhaustive and detailed case-studies. The point, however, is that Rawls too readily assumes that excluding human mental defectives will weaken just institutions but that excluding animals will not. I do not think Rawls can confidently claim this: he certainly offers no evidence for it. However, it would not serve my purpose very much if Rawls did extend justice to animals for this kind of reason. In effect he would be saying that in order to be just to human beings with the capacity for a sense of justice we have to pretend to be just to human mental defectives and to animals.

The second point of criticism is aimed at the human chauvinist element in Rawls’ remarks. Without explicitly saying so Rawls suggests that it is only human beings who can satisfy the conditions for being owed justice. Rawls remarks:

. . . one who lacks a sense of justice lacks certain fundamental attitudes and

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capacities included under the notion of humanity. . . by understanding what it would be like not to have a sense of justice-that it would be to lack part of our humanity too-we are led to accept our having this sense. (P. 489)

Rawls may not intend to link the notion of humanity as closely with the possession of a capacity for a sense of justice as this quotation suggests, but certainly such remarks encourage the reader to make the link. They may even cause the reader to close his or her mind to the possibility that beings other than human beings could possess the capacity. Talk in terms of the capacity being partly definitive of the notion of humanity can work as a persuasive definition securing the conclusion that only human beings can be owed justice. This conclusion might well be drawn despite any hedging Rawls does on the question of whether justice is owed only to those with a sense of justice. This would be to confuse a biological classification with a moral one.

Now Rawls does spell out in some detail the principles of moral psychology which are supposed to open the way for the development of a sense of justice. However, there is no argument presented showing that animals could not share this psychology and no attempt to discover cases in which they might plausibly be said to. This suggests a two part strategy to employ against Rawls. Having stressed that membership of the class homo sapiens can only be contingently and empirically identified with membership of the class of beings with the capacity for a sense of justice, we can begin to seek out cases involving non-human animals which reveal that some non-humans do have such a capacity. I shall develop this part of the strategy in a moment.

The second part of the strategy is to question the degree to which the capacity is realised in human beings. Admittedly Rawls wants to include within the scope of justice individuals in whom the capacity is unrealised although present, for example young children. However, it would count against Rawls marking out a special place for human beings with respect to justice if it could be shown that a significant proportion did not have the capacity realised. Rawls says:

It should be stressed that the sufficient condition for equal justice, the capacity for moral personality, is not at all stringent. When someone lacks the requisite potentiality either from birth or accident, this is regarded as a defect or deprivation. There is no race or recognised group of human beings that lacks this attribute. Only scattered individuals are without this capacity, or its realisation to the minimum degree, and the failure to realise it is the consequence of unjust and impoverished social circumstances, or fortuitous contingencies. (p. 506)

The reason that the sufficient condition is ‘not at all stringent’ seems to be that the number of individuals excluded after it is stretched is proportionately small.

I am not convinced that this is true. One problem in tackling Rawls on this point is that it is difficult to know how rotten, corrupt or exploitative individuals must be for their behaviour to reveal that they do not have even a minimal sense of justice. Certainly there is an abundance of evidence to suggest that the moral horizons of many are very narrow indeed. For many, the touchstone of right policy is the advancement of self-interest irrespective of the interests of others. This can be confirmed by an examination of patterns in history: the ruthless conquest and suppression of Central and South American Indians by the Spanish, the institution of human slavery, the depredations of Leopold I1 in the Congo, the so-called Opium Wars waged by England against the Chinese, the exploitative conduct of Conzinc

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Rio Tinto in the interests of corporate profit. The catalogue goes on. The examples I have adduced support the view that a significant proportion of human beings are devoid of an active sense of justice. This second part of the anti-Rawlsian strategy is successful to the extent that it shows that human beings are not widely and generally morally elevated. I turn now to the second part of the strategy.

Rawls mentions three psychological laws that operate so as to promote the capacity for a sense of justice. They are:

First Law: given that family institutions are just, and the parents love the child and manifestly express their love by caring for his good, then the child, recognising their evident love of him, comes to love them. Second Law: given that a person’s capacity for fellow feeling has been realised by acquiring attachments in accordance with the first law, and given that a social arrangement is just and publicly known by all to be just, then this person develops ties of friendly feeling and trust towards others in the association. . . Third Law: given that a person’s capacity for fellow feeling has been realised by his forming attachments in accordance with the first two laws, and given that a society’s institutions are just, then this person acquires the corresponding sense of justice as he recognises that he and those for whom he cares are the beneficiaries of these arrangements. (pp. 490-491)

What I take to be the most significant characteristic of these laws is that they represent the psychological principles which shape behaviour in ways that establish and maintain mutually advantageous, co-operative and stable social arrangements. In the case of human beings this set of appropriate behavioural dispositions may be mediated by cognition, as the second and third laws suggest. However, it is not clear that the cognitive states involved are generally articulated in any theoretical way. Complaints by human beings that certain practices are unfair or unjust are not typically expanded in terms of worked out, consciously held moral principles. Nor do I think that in many cases they could be. Most people do not attempt to articulate, formalise and systematise their moral judgments in the manner of normative ethicists.

My claim here may be thought to conflict with an observation of Rawls’ concerning his three laws. He observes that they are not to be considered

merely principles of association or of reinforcement. While they have a certain resemblance to these learning principles, they assert that the active sentiments of love and friendship, and even the sense of justice, arise from the manifest intention of other persons to act for our good. Because we recognise that they wish us well, we care for their well-being in return. (p. 494)

I do not think that what Rawls says here conflicts with my earlier claim about the most significant characteristic of the three laws. I said that what was significant was their tendency to maintain mutually advantageous, co-operative social arrangements. Active sentiments such as familial love and affection may have an important role to play in this. They may make the development and maintenance of those conventions which underpin co-operative social life possible.

It is appropriate to draw attention to similar mechanisms maintaining similar ends


in non-human animals. The work of zoologists and ethologists is relevant in this regard, since it provides us with the basis for comparing and contrasting the social life of animals and the social life of human beings. If there are comparisons to be made in which certain human behaviours are shown not to be unique but part of a pattern evident in many animal species, then there would seem less reason to exclude animals from the scope of justice. This is especially so if the regulative patterns of human society are evident in animal societies. What Mary Midgley says about the social life of wolves is pertinent:

. . . ethologists have taken the trouble to watch wolves systematically, between meal-times, and have found them to be, by human standards, paragons of regularity and virtue. They pair for life, they are faithful and affectionate spouses and parents, they show great loyalty to their pack, great courage and persistence in the face of difficulties, they respect each other’s territories, keep their dens clean, and extremely seldom kill anything they do not need for dinner. If they fight with another wolf, the fight ends with his submission; there is normally a complete inhibition on killing the suppliant and in attacking females and cubs. They have also, like all social animals, a fairly elaborate etiquette, including subtly varied cere- monies of greeting and reassurance by which friendship is strengthened, co-operation achieved and the wheels of social life generally oiled. All this is not the romantic impressions of casual travellers; it rests on long and careful investigations by trained zoologists, backed up by miles of film, graphs, maps, population surveys, droppings analysis and all the rest of the contemporary toolbag. [ 31

Now Rawls claims that the sense of justice is one of the co-operative virtues appropriate to what he calls “the morality of association” (p. 472). It develops as individuals, according to the second psychological law, begin to understand their place in an association and to appreciate how they and others may benefit from co- operative, regulated behaviour. Something like this happens when the wolf cub is socialised into its particular association, the pack.

The obvious objection to my suggestion is that in the case of the wolf cub the ‘enculturation’ is more mechanical, more instinctual than in the case of human beings. There is an answer to this objection and, as it turns out, there are traces of the answer in Rawls’ remarks. Midgley notes that many would resist her claims about the animal nature of human beings. She says that such critics often make much of the absence of closed instincts (i.e. behaviour patterns fixed genetically in every detail) and “ignore [humankind’s] persistent patterns of motivation” [4] . Midgley draws attention to some of these patterns by asking a series of questions:

Why do people form families? Why do they mind about their homes and quarrel over boundaries? Why do they own property? Why do they gamble, boast, show off, dress up and fear the unknown? Why do they talk so much, and dance and sing? Why do children play, and for that matter adults too? [5]

What these questions indicate is that the social life of human beings shares with the social life of animals certain kinds of determinants. Indeed Rawls is quite prepared to support his principles of justice in a way that echoes ethologists’ explanations of animal behaviour. He says that “the capacity for a sense of justice and the moral feelings is an adaption of mankind to its place in nature” and elaborates, saying that,

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for members of a species which lives in stable social groups, the ability to comply with fair co-operative arrangements and to develop the sentiments necessary to support them is highly advantageous, especially when individuals have a long life and are dependent on one another. (p. 503)

Rawls’ remarks highlight the common features of the social lives of human beings and many species of (other) animals. While I do not want to suggest that it is exactly Rawls’ second law, couched in its particular intentional form, which under- pins regulative structure in animal association, something very similar would seem to.

Whether anything like Rawls’ third law operates in the case of non-human animals I am not sure. The law, as Rawls spells it out, makes reference to a capacity in human beings for abstract thought about social arrangements. One thing worth remarking is that in the case of human beings social behaviour is something people typically fall into without subjecting it to abstract analysis, without viewing it through some articulated normative network. Lawrence Kohlberg’s studies confirm this. He claims that only 35% of the population develop a principled morality where there is a high degree of abstract reasoning about moral issues [6].

The preceding arguments have been indirect attacks on Rawls aimed at revealing and questioning certain human chauvinist elements in his view of justice and its scope. It is time to consider some direct arguments. To this end I wish to take up one particular statement Rawls offers of his sufficiency condition, namely, “it is reasonable to say that those who could take part in the initial agreement, were it not for fortuitous circumstances, are assured of equal justice” (p. 509). If it can be shown that non-human animals can be plausibly introduced into the initial agreement then they are secured a place within the ambit of justice. How then does the characterisation of the persons in the original position preclude animals from participating in it?

It will be remembered that in the original position participants choose behind a veil of ignorance. They are ignorant about their situations in the actual world, about their natural talents, intellect, handicaps and so on. The imposition of this ignorance condition functions so as to guarantee that decisions made are, in some sense, fair decisions. It might therefore be suggested that the participants in the original position might, when their actual positions are revealed, find that they are non- human animals. I wish to defend this modification to Rawls’ theory.

Just such a suggested modification is discussed by Michael S. Pritchard and Wade L. Robison who make three objections to it. First, they claim that the modification “would enormously complicate calculations. For example, the primary good, self- esteem, would be inapplicable to animals, so any presumption of initial equality with respect to it would be pointless” [7]. There are two steps in the reply to this argument.

First, we should not suppose that animals feature in the initial position as animals. We can regard the participants in the original position as rational, self-interested beings, not necessarily human beings, who have some grasp of the possibilities the actual world holds for them. One thing they might know is that the various capacities they utilise in reaching their agreement behind the veil of ignorance may be diminished, even radically diminished, in the actual world. In Rawls’ characterisation of the initial situation there is much that makes it clear that he views it as an agreement among human beings. For example, when he discusses the constraints on knowledge he allows that the participants “know the general facts about human society” (p. 137). Remarks such as this do not so much substantiate the case against


animals but rather presume it. What is really required to justify their exclusion is a sound, non-arbitrary theoretical consideration which shows that they could not be present (even in some idealised form) in the initial situation in much the same fashion as human beings. Indeed there would be little point in having animals present if no information concerning animal society, needs, interests, desires, goods and so on could be fed into the decision-theoretic system that the original position essentially is. However, there is no sound theoretical reason apparent to me for excluding such information.

Presumably one response that Rawls would make to the suggested modification is the one that he makes to the inclusion of members of all generations in the original position, namely that it stretches fantasy too far. However, the whole conception of the original position is fanciful. It describes a situation which is purely hypothetical and, in the sphere of the hypothetical, fantasy can only be stretched too far if it suggests logical impossibilities or if the imagination is unable to grasp what is hypothesised. The modification under discussion breaches neither of these require- ments.

The problem to which the original position is supposed to provide an answer is the problem of how competing interests are to be adjudicated. The answers generated in the original position are supposed to explicate the concept of justice as fairness. All of this is perfectly consistent with allowing that beings party to the original position may, and know that they may, turn out to be non-human animals in the real world [8]. The basic requirement is that they should have a point of view which can be represented in the initial situation. And of course in the case of animals this requirement is satisfied.

There is no obvious non-arbitrary way of excluding animals from being represented in the original position that does not equally exclude some humans.

The second part of the reply to Pritchard’s and Robison’s first objection is to show that the calculation would not be enormously complicated. I presume that their point is that the theory of primary goods that Rawls utilises in discussing the decision made in the original position does not carry over easily to animals. If this is what they think they are wrong.

It is worth noting, first of all, why Rawls develops his theory of primary goods and the associated thin theory of the good. As Brian Barry [9] has pointed out, Rawls introduces both theories in order to avoid the formulation of straightforwardly want- regarding rules in the hypothetical contract situation. Rawls wishes to avoid a normative moral theory that fails to differentiate between the moral significance of wants in terms other than their relative intensity. He may, for instance, count certain kinds of wants as corrupt or morally unworthy and urge that they be severely discounted in the evaluation of social policy. The difficulty Rawls faces is that of hitting upon a technique which allows the initial situation to generate ideal- regarding, rather than want-regarding, principles without requiring that participants in that situation have specific information about themselves.

There are two points to note. First, there are no special problems created for animals if it is allowed that the initial situation generates only want-regarding principles. Animals do have wants, interests and desires which could be taken into account. Second, if it can be shown that Rawls’ attempt to avoid want-regarding principles is bound to be frustrated, then the position of animals is secured provided that sense can be made of animals being represented in the initial situation.

Brian Barry, for one, thinks Rawls’ attempt to overcome the difficulty is bound to fail. He remarks, concerning Rawls’ efforts on behalf of ideal-regarding principles,

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that “the lengthiness and complexity of Rawls’ manoeuvres are, I believe, an illustration of the slogan ‘The impossible takes a little longer’ ” [lo] . Barry’s claim is that Rawls is faced with an unavoidable dilemma. If he wishes to avoid want- regarding principles then he must write into his description of the initial situation specific information concerning the moral beliefs participants will have in the actual world. It is only by introducing such information at the outset, Barry suggests, that Rawls can guarantee that the principles produced (or deduced!) will be ideal- regarding. However, to do this would undermine the enterprise of explicating justice as fairness; the characterisation of the initial situation would be morally loaded far in excess of the minimal constraints imposed by the veil of ignorance. Rawls attempts to show that the dilemma is not genuine, that there is a way around the problem.

The way is, of course, supposed to be provided by a theory of primary goods which would “enable Rawls to say that, although different men may want different things, there are certain standard features of wants and they provide the basis for arguing to standardised want-fulfilment” [ 11 ] . These standard features will serve to differentiate wants and thus render the principles deduced from the hypothetical contract situation ideal-regarding. As I have said, Barry thinks that the project fails. He thinks it fails either because it involves false empirical generalisations about psychology or because it is question-begging. If Barry is right, as I think he is, then well and good so far as animals are concerned. However, I do not propose to contest this issue; rather I shall grant Rawls his theory of primary goods and show that animals can be still introduced into the explication of justice as fairness.

Rawls’ definition of a being’s good is that it consists in “the successful execution of a rational plan of life” (p. 433). From the point of view of the initial situation, located as it is behind the veil of ignorance, the conditions for realising this good are secured in so far as certain distributions of the primary goods are secured. The primary goods “to give them their broad categories are rights and liberties, opportunities and powers, income and wealth.. . (and) . . . a sense of one’s own worth” (P. 92).

There are two obstacles to the inclusion of non-human animals in Rawls’ discussion of primary goods. First, the discussion is in thoroughly human chauvinist terms: Rawls obviously regards the primary goals as closely bound up with the execution of human life-plans. In other words, his terminology and the examples he employs are prejudiced against non-human animals from the outset. Clearly he has not give serious consideration to the place of non-human animals in his scheme of things apart from some scattered and not very detailed remarks. This makes for difficulties in fitting non-human animals into his scheme even though there may be no theoretical reason for not so including them. In the absence of such a reason we are compelled to take the case for including non-human animals seriously and to strive to divest ourselves of the prejudicial pre-theoretical views that encumber our thinking.

The second problem is that not all the primary goods are essential to, or even helpful in, the successful execution of many non-human life-plans; Pritchard and Robison instance self-esteem. There are, in addition, difficulties associated with opportunities and powers since these are to be understood as opportunities and powers defined in a political context. The political context is absent in the case of animals. However, there is some plausibility in suggesting that income and wealth make sense as primary goods for the satisfaction of non-human interests. We could think of wealth partly in terms of the capital value of land and resources. If animals have an interest in excluding human beings from certain of their habitats then this


could be accomplished if they had entitlement to wealth that could be used to purchase areas of habitat on their behalf. Similarly the value of habitats, for example the resources contained therein, could be thought of as the animals' share of wealth. Moreover, the maintenance of such habitats may require that money be spent on a continuing basis, for example, to ensure that hunters are kept out, to make good damage caused by human beings in earlier times (for instance cleaning up polluted rivers) and so on. These remarks are not meant to mark out definite entitlements that animals have. Rather they are meant to show how the primary goods of wealth and income can serve the interests of non-human animals.

Admittedly, the inclusion of animals does complicate the calculations that would be required in assessing actions and policies from the point of view of Rawlsian justice. Pritchard and Robison are correct on this score. However, it is not so damaging a point as they seem to think. To begin with, the calculations required if only human beings are included are cumbersome enough to render impossible the completion of policy assessment with exactitude. The theory provides a rough guideline in so far as it provides the outline of an ideal social arrangement. We might try to ensure that our policies produce changes which bring our society closer to the ideal but I do not see how it would be possible to tell if a given society exactly realised the ideal. The addition of non-human animals does not render impossible something which, in their absence, could be accomplished. The regulative ideal provided by the results of the hypothetical contract could still serve as a guide in policy development and assessment.

When Rawls considers questions about how the various primary goods are to be weighted he makes it clear that the calculations he thinks his theory requires are very different from the calculations that, say, utilitarianism requires. He remarks:

If positions can be ranked as better or worse, the lowest can be found. The further difficulties of cardinal measurement do not arise since other interpersonal comparisons are necessary. (p. 91 )

. . . the standpoint of the representative individual from this group (i.e. the least well off group) . . . asking which combination of primary social goods it would be rational for him to prefer. In doing this we will admittedly rely upon our intuitive capacities. This cannot be avoided entirely, however. The aim is to replace moral judgments by those of rational prudence and to make the appeal to intuition more limited in scope, more sharply focussed. (P. 94)

The difficulty that the inclusion of non-human animals creates is that it requires human beings to make judgments about how things are from the point of view of animals and to rank these against judgments about how things are for human beings.

The idea of judging how things are from an animal's point of view makes sense. Indeed we do make such judgements. We are capable of empathetic understanding with regard to animals and we can make comparative judgments about different lifestyles for them based on our understanding of the propensities, desires, interests and preferences that they have. I shall give an exahple of this in a moment. Moreover, it does not seem impossible to rank the position of a human being comparatively with the position of an animal. We may hear it said that the life of some (miserable) human being is less desirable than the life of a well-cared for, well- loved, domestic animal. While such claims are sometimes exaggerations they do

and suggests that in applying his difference principle we should take up:

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make sense. They make sense in two ways. First, there may be certain goods that both human being and beast desire such as food and warmth. The animal may have all that it could want in this regard and the human being may typically go cold and hungry. Second, we might want to say that given the things in which the animal has an interest its life is, all round, more satisfying than the life of some human being, given the (different) interests he has.

I do not see that the difficulties involved in making these kinds of comparative judgments are problematic. They seem at least no more problematic than similar comparative judgments concerning human beings. Sometimes the judgments involving animals may be simpler if only because their interests appear more straightfor- ward and less abstract than some human interests. It might prove difficult to make the required judgment concerning a human being whose rational life-plan centres on the satisfaction of the desire to eat, drink, make love and to watch television [12] and a human being whose rational life-plan centres on the desire to influence political policy and write the definitive book on social justice. Thinking ourselves into the position of another human being is not an easy thing to do if it is meant to involve taking on all their desires, preferences and the like. Thus it is not a valid complaint to say that animals cannot be included in a theory of justice because we cannot easily think ourselves into their positions.

Arne Naess has supplied an interesting case-study which illuminates the way in which inter-specific justice, based on something like a contract, would work in real life. Naess describes the relationship between human beings and bears in certain sheep farming regions of Norway. There are potential conflicts of human and ursine interests since both sets of interests require the free use of overlapping territory. Most conflicts arise when bears kill sheep. When this happens a complex chain of events is triggered:

When sheep are killed. . . an expert is called in. He investigates closely the way the sheep has been killed and notes all the signs of the presence of the bear. . . he is generally able to tell not only whether a bear has been there, but also which bear.. . If that bear has been guilty of similar ‘crimes’, a verdict may be reached that it has forfeited its right to existence. . . Many factors are considered before a bear is condemned to death. What is his or her total record of misdeeds? How many sheep have been killed? Does he or she mainly kill to eat, or does he or she maim or hurt sheep without eating? Is particular cruelty shown? Is it a bear mother who will probably influence her cubs in a bad way? Did the sheep enter the heart of the bear area or did the bear stray far into established sheep territory? 1131

Implicit in this account is the assumption that bears have some claim on the territory that they typically inhabit and that they have certain interests that it is legitimate for them to attempt to satisfy. It is not implausible to agree with Naess that the bears are treated as moral beings within “a community comprising wild animals, domesti- cated animals, and humans” [ 141. Including a large number of different kinds of animals within a system of justice would be considerably more difficult. However, Naess’ account of how it is done on a narrow scale does gesture towards how it could be done on a wider scale.

Pritchard and Robinson have a second criticism of the suggestion that participants in the initial situation know that they might be animals in the real world. They claim that this would “conflate the derivation of Rawls’ theory of justice with the derivation of morality in general’’ [ 151. This is false. What the move does is merely


to include animals within the scope of principles of justice. There are still varieties of moral concern unaccounted for. Most obviously there is the question of the moral status of non-sentient natural objects. Whether or not some of them possess intrinsic value is a coherent question and one which is in no way answered by including animals in the derivation of Rawlsian principles of justice. Moreover, there are categories of moral evaluation concerning human beings other than the category of the just. Rawls says this. For example, he says that benevolence, which he counts a virtue, is “more comprehensive than the sense of justice and prompts us to acts of supererogation” (p. 192). Not only are many aspects of morality left aside, but no account is given of right conduct in regard to “animals and the rest of nature” (p. 512). The implication is that justice does not exhaust the moral categories in terms of which we evaluate those actions of human beings which affect only human beings. There seems no reason why the inclusion of animals in the initial position should change matters in this regard.

Pritchard and Robison have a third objection to my suggestion. They say: If it is an essential condition of a contract for Rawls that those who make it be able to keep it, and if a condition of keeping it is that one have the capacity for a sense of justice, then there can be no contract among participants, some of whom may become sentient beings without the capacity for a sense of justice. Perhaps this is why Rawls says that “it does not seem possible to extend the contract doctrine in a natural way” to include duties of compassion and humanity. [ 161

Whether Pritchard and Robison think that the two conditional clauses are true is not perfectly clear. However, I want to take issue with each.

There is a distinction between claiming that a sense of justice is required by all parties to a contract in order to ensure that it be kept and claiming that a sense of justice is required (by someone) in order that a contract be kept. The former is too strong a claim. Human beings often attempt to break contracts and default on agreements and have to be forced by the law to honour them. Such facts do not of themselves subvert Rawls’ attempt to rehabilitate and develop the contract view of justice. It should be remembered that the contract view seeks to derive principles of justice in a hypothetical, ideal situation. The principles thus derived define justice in the real, non-ideal world. The presumption that a given set of principles are the ones that would be accepted unanimously in the ideal situation is supposed to justify their regulative role in the real world. Presumably they will often have to be enforced and people who are not inclined to act justly made to act justly. There is no incoherence in this.

What is required for justice to prevail is that those with a sense of justice be sufficiently numerous and appropriately placed to enforce justice. Certainly the stability of a just social arrangement will be increased the more human beings there are who have, and are motivated by, a sense of justice. However, this is because human beings opposed to just policies and just institutions will, if they organise and use their strength and intelligence, pose a real threat to them. Animals, on the other hand, do not typically pose this kind of threat. For example, Naess’ bears can be relatively easily made to keep their contract with sheep farmers. The contract is not, of course, one that is made in the real world and the bear cannot be motivated by considerations of what is just and fair. The contract is made in an idealised situation and provides a regulative principle which, in the real world, requires that the bears be kept up to their contract. By the same token this regulative principle requires that many humans be kept to their contracts. Let me stress again that the contract

106 R. Elliot

device in Rawls’ theory is hypothetical and as a hypothetical device it cannot be made to disappear by pointing out that there are no precise analogues to it in the natural world. Animals can participate in the hypothetical contract since in that situation they do (like the human participants) have certain idealised characteristics and abilities which they do not have in the real world [ 171.

Correspondence: R. Elliot, Brisbane College of Advanced Education, 130 Victoria Park Road, Kelvin Grove, Queensland 4059, Australia.

NOTES AND REFERENCES

[ 11 All references to Rawls are to: RAWLS, JOHN (1972) A Theory ofJustice (Oxford, Clarendon Press). [2] See DOMALAIN, JEAN-YVES (1978) The Animal Connection, pp. 204-205 (London, Heinemann). [~~MIDGLEY, MARY (1976) The concept of beastliness, in: REGAN, TOM & SINGER, PETER (Eds)

[4] Ibid., p. 103 [S] Ibid., pp. 103-104. [6] See, for instance, KOHLBERG, LAWRENCE (1975) The cognitive development approach to moral

development, Phi Delta Kappan, 56, p. 10. [7]PRITCHARD, MICHAEL S. & ROBISON, WADE L. (1981) Justice and the treatment of animds,

Environmental Ethics, 3, p. 60. [8] The claim assumes that the change is metaphysically possible, that identity of consciousness is not

destroyed in the transformation from rational, self-interested being to (not so rational) animal. I believe that this is metaphysically possible though I do not intend to argue for it here. The trend of argument which I think would secure this result is to be found in WILLIAMS, BERNARD (1972) The self and the future, in his Problems of the Self (Cambridge University Press).

Animal Rights and Human Obligations, p. 96 (Englewood Cliffs, Prentice-Hall).

191 BARRY, BRIAN (1973) The Liberal Theory ofJustice, pp. 21-23 (Oxford, Clarendon Press). 1101 Ibid., p. 22. [ 111 Ibid., p. 26. Although Barry’s remark is couched in human chauvinist terms (sexist as well) it can be

[ 12) The example is from Ibid., p. 30. [I~INAESS, ARNE (1979) Self-realisation in mixed communities of humans, bears, sheep and wolves,

[ 141 Ibid., p. 238. [ 151 PRITCHARD & ROBISON op. cit., p. 60. [ 161 Ibid., p. 60. 11711 would like to thank the two anonymous referees for the journal for their helpful comments.

easily rephrased.

Inquiry, 22, p. 237.

rawlsian justice and non-human animals

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