Animal Rights and the Wrongness of Killing

2. Animal Rights and Justice for Animals

2.3 Non-Utilitarian Theories of Rights and Justice

Book cover: A Theory of Justice by John Rawls

In the previous section, we saw how finding out that animals do not possess 'moral rights' does not preclude us from having other kinds of obligations to animals. This question about the limits of the scope of application of certain types of moral strictures also applies to the demands of justice. Objections to killing human beings are often based on such demands. Do we owe justice to animals? A utilitarian could, perchance, settle on a utilitarian theory of justice, from those available, that entails that animals are not the kind of creatures to whom we can owe justice. In this case, the utilitarian could simply conclude that the demands of justice cannot exhaust our obligations.

These observations apply equally to non-utilitarian theories of moral rights and justice. Consider, for example, a claim theory of rights and a Rawlsian ideal contract theory of justice. Within a claim theory of rights, animals cannot possibly have rights because they cannot make claims on their own behalf. Similarly, within Rawls' ideal contract theory, as articulated in his A Theory of Justice [1972], animals cannot possibly be owed justice because they cannot be contractors. In both these cases, such theories simply raise the question of whether 'moral rights' and 'justice' in these senses prescribe the sum total of our obligations.

As explanations of commonly held basic moral judgements, these two types of theories fail because of their exclusion of mental defectives and very young children from the class of beings that possess rights and are owed justice. In the case of Rawls' contract theory, the exclusion of animals from the class of the recipients of justice is compensated by Rawls [1967: 512] by their inclusion under duties of compassion and humanity. However, his attempt to include very young children within the ambit of justice by appealing to their potentialities [1967: 504f, 509], in order that his contract theory will accord with considered intuitions, is clearly ad hoc.

Rawls [1967: 509] considers this manoeuvre of including children whilst excluding animals defensible on the grounds that 'regarding the potentiality [of children] as sufficient accords with the hypothetical nature of the original position, and with the idea that as far as possible the choice of principles should not be influenced by arbitrary contingencies.' This move fits poorly with Rawls' [1967: 12, 120, 136–42] stipulated intention behind the hypothetical nature of the contract and the veil of ignorance, which was to guarantee unanimity of agreement over principles of justice and the fairness of these principles in their application to the contractors. The inclusion of very young children within the terms of justice furthers neither of these aims and so is not necessitated by the demands of coherence.

If Rawls now wants to expand the hypothetical nature of the contract so as to include 'undeveloped capacities' for rationality and autonomy as an 'arbitrary contingency' and 'fortuitous circumstance' that must be eliminated as a partial determinant of the content of the principles of justice, then there can no longer be any a priori barrier to including also 'no capacities' for rationality and autonomy as an 'arbitrary contingency' and 'fortuitous circumstance'. Young children with undeveloped capacities are just as unable to enter into contractual arrangements as dogs with no capacities. If Rawls' hypothetical original position is to include the former, I can think of no non-arbitrary reason for not including the latter.

In making this concession to ordinary moral sentiments, Rawls is retreating from his original conception of the contract. Instead of watering down his contract theory, it may be easier for Rawlsians simply to include children in our duties of compassion and humanity, as with animals. With this restricted scope, his theory of justice will lose some of its explanatory power. However, within the scope of the theory, it will lose none of its prescriptive force.

Because of these conceptual difficulties involved in determining which beings are owed just treatment and which possess moral rights, I will not deal with this issue further here. For a utilitarian, the concepts of 'justice' and 'moral right', whenever they are used, are not morally primitive notions. These concepts derive from the more primitive ethical duty to maximize utility. For this reason, I will not rely on these notions for the purpose of this essay.

Copyright © 2015

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