The Struggle for Recognition : On Animal Rights - part four

'The real nature of the body's totality constitutes the infinite process in which individuality determines itself as the particularity or finitude which it also negates, and returns into itself by reestablishing itself at the end of the process as the beginning. Consequently, this totality is an elevation into the primary ideality of nature. It is however an impregnated and negative unity, which by relating itself to itself, has become essentially self-centred and subjective. It is in this way that the Idea has reached the initial immediacy of life. Primarily, life is shape, or the universal type of life constituted by the geological organism. Secondly, it is the particular formal subjectivity of the vegetable organism. Thirdly, it is the individual and concrete subjectivity of the animal organism'.

- Georg Wilhelm Friedrich Hegel, (1770 - 1831), 'Philosophy of Nature'

'Shepherdess', 1660s, Johaness Siberechts

Immanuel Kant's, (1724 - 1804), decidedly rationalist notion of universalization may well with a bit of licence be demonstrated to require respect for animals despite his own intention to exclude them but his also decidedly complex theory of mind may indeed render his overall position as insupportable albeit many philosophers have been charmed by the apparent force of Kant's moral thinking and have endeavoured to to arrive at roughly similar results from the logic of accord and concession among individuals looking to reform the moral foundation of their community thereby side-stepping the problems Kantianism poses and yet new and perhaps even more irresolvable issues emerge from the denial apparently unavoidable with such theorists of moral standing to animals. For John Rawls, (1921 – 2002), the universalization of rules, in his case the principles of justice, (see my article On Plato's 'Crito' - Truth in Action) is attained by the notion of a contract or agreement among participants in an 'original position' whereby their conditions are concealed from them by a 'veil of ignorance' so that they do not know their date of birth, sex, religious and other preferences, their social standing, or their skills and talents, all they know are the general principles that govern social processes (a rather absurd scenario if you ask me but let us run with it). Special circumstances are hence filtered out by the construction of the original position so that the preferences of the participants are purely general and being ignorant of any special preferences or interests they arrive at an 'agreement about justice' that all are now committed to follow. The rules of justice are thereby the functional equivalent of Kant's categorical imperative and the 'veil of ignorance' and the 'original position' offer a procedure for determining which principles of justice will be chosen with complete impartiality, a procedure recommending itself to Rawls in virtue of its side-stepping of Kant's epistemological and metaphysical presuppositions while avoiding the difficulties of utilitarianism.

And what of the exclusion of animals. The Rawlsian outcome as far as that goes is not so different from the Kantian one and in 'A Theory of Justice' the animal question is dealt with very briefly, first within the context of a discussion about equality.

'Here the meaning of equality is specified by the principles of justice which require that equal basic rights be assigned to all persons. Presumably this excludes animals; they have some protection certainly but their status is not that of human beings. But this outcome is still unexplained. We have yet to consider what sorts of beings are owed the guarantees of justice. ... The answer seems to be that it is precisely the moral persons who are entitled to equal justice. Moral persons are distinguished by two features: first they are capable of having (and are assumed to have) a conception of their good (as expressed by a rational plan of life); and second they are capable of having (and are assumed to acquire) a sense of justice, a normally effective desire to apply and to act on the principles of justice. We use the characterization of the persons in the original position to single out the kind of beings to whom the principles chosen apply'.

- 'A Theory of Justice'

Animals have no sense of justice? He's got to be kidding. Oh well he did die three years before YouTube was founded:

Rawls goes on to tackle the limits of a theory of justice:

'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. A conception of justice is but one part of a moral view. 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. But it does not follow that there are no requirements at all in regard to them, nor 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 imposes duties of humanity and compassion in their case. I shall not attempt to explain these considered beliefs. They are outside the scope of a theory of justice, and it does not seem possible to extend the contract doctrine so as to include them in a natural way'.

- 'A Theory of Justice'

Such remarks upon the moral status of animals are beset with ambiguity and equivocation for it appears that Rawls is endeavouring to merge together two distinct notions into a single assertion, that is to say, one is an order of justice applicable only to humans and the other is the idea of an indirect duty to animals. Tom Regan, (1938 - 2017) critiques Rawls' suggestion of an indirect duty to animals and what it is supposed to mean. In virtue of the ambiguity of some pivotal statements of Rawls the line between his view of indirect duty and his reasons for excluding animals from the original position is rather difficult to draw. The distinction between direct and indirect duty remains unclear. Evidently animals are excluded from the original position and from the agreement about justice as strictly understood.

Animal rights theorists may respond to Kant and Rawls by pressing the difficulty of drawing a line between those who are moral agents and those who are not, for animals are evidently not moral agents because they cannot act by general moral principles.

I must just interrupt my flow here and pose a question: Is it a necessary condition of moral agents that they can act in accordance with moral 'principles'? What are your moral 'principles'? Can you list them? What about moral intuition?

Back to YouTube:

And then of course humans that are mentally impaired in some way and human infants are brought up as not being moral agents either in accordance with this critique and if they have moral standing as we usually believe they do then why not animals as well? The point is that by denying equal moral standing to animals Kant and Rawls have to deny it to mentally disabled and undeveloped humans also an outcome that cannot be softened through an appeal to some vague notion of indirect duty. As Tom Regan sees it this dilemma of the speciesist (see part one of this series for what I think about speciesism) in dealing with marginal cases bolsters his point that all mammals of a year or more of age no matter what their moral capacities have equal claims to moral consideration. They may not be moral agents, but they nevertheless have rights as moral patients for albeit Although they cannot do injustice they can suffer it and to deny this is to say that human moral patients are equally devoid of rights and that we have no obligations toward them either.

Such is the frequently presented argument of those supportive of recognising that animals have rights but it falls short of refuting Rawls who albeit begrudgingly accepts the consequences or at least an significant part of them and cautiously disclaims any endeavour to include mentally disabled humans any more than animals in his theory of justice (I am so happy not to be a Kantian). Equal justice is owed only to those 'who have the capacity to take part in and to act in accordance with the public understanding of the initial situation' and normal infants are moral persons because they are born with that capacity but mentally disabled humans who are permanently incapacitated are not included:

'The problem of those who have lost their realized capacity temporarily through misfortune, accident, or mental stress can be regarded in a similar way [to infants]. But those more or less permanently deprived of moral personality may present a difficulty. I cannot examine this problem here, but I assume that the account of equality would not be materially affected'.

- 'A Theory of Justice'

Rawls at times talks rather vaguely of 'natural duties' which may or may not be taken to mean that these form a special area of obligation apart from the duties of justice arising from the original position, but neither interpretation solves the problem of animals, for uf there is a real duty and it arises from the original position then their interests ought to have been considered in reaching an agreement on justice, but if there are duties to animals outside of the agreement about justice which is therefore to recognise that they have moral standing nevertheless the failure to include them in the original position would lack consistency.

'In Beech Forest', 1881, Volodymyr Orlovskyi

'It is your duty'

by Aasmund Olavsson Vinje (1818 - 1870)

Man, it is your duty

to die

when you are no longer able

to love the fair maid.

Forget all talk

of manly prowess and honour.

Life is already burnt out,

only ashes remain.

And therefore as always

it's a question of character,

A man must be devoted until

his dying day.

And if there should be one who doesn't seek

a life of love,

well then he will live his life

aimlessly as a pale shadow.

'Det fyrste du har ? gjera'

Det fyrste du har ? gjera, Mann,

det er ? d?y,

n?r ikkje du l?nger elska kan

den fagre M?y.

For d? er det ute med spr?ke Gut

og Mannes V?rd,

for d? er Livet alt brunni ut,

det Oske er.

Og derfor st?dt som det beste galdt

eit Hjartelag,

Og derfor Mannen han elskar alt

til D?yan Dag,

Og lever der Nokon, som ikkje Liv

af Kj?rleik saug,

d? gjeng han atter og sviv og sviv

som bleike Draug.

'The Animals are given Salt', 1862, Siegwald Dahl

I digress, although 'duty' is such a slippery word, we find it in all sorts of contexts. Yes, as I was saying, such quandaries as those just described could account for Rawls making no mention of natural duties in later works of his on justice and fairness, political liberalism, and so on, and the real issue in Rawls is that the exclusion of animals and the disabled from the original position is never justified albeit he believes that some consideration is due to them and to the rest of nature but he sees no way of accounting for it within the theory of justice and can only hope that some solution to the problem will be found at some point in the future. Animals, defectives, nor charity are no where mentioned in 'Political Liberalism'. And notwithstanding such hope Rawls' problem with the original position is much the same as Kant's in the categorical imperative whereby the restriction of participation to normal humans goes unjustified albeit Rawls fesses up to the difficulty.

If it is conceded that recognition of rights in animals is a rational duty how can such rights be overridden without just cause? How can we determine what a just cause would be without including animals in the original position and the agreement about justice? In 'Political Liberalism' Rawls responds that his theory does not deal with all of justice to say nothing of general morality but only with political justice thereby entitling him so he believes to evade any comprehensive theory and simply inquire into what follows for social institutions and personal attitudes from the notion of normal human beings participating in a fair system of cooperation. The rule of his 'political constructivism' is that many moral issues can be left to more truly comprehensive theories so long as these exhibit an overlapping consensus on those areas that are covered by political justice, and there appear to be at least two kinds of issues that this doctrine must accommodate. One is the resolution of such issues as the legitimacy of using nuclear weapons or of capital punishment, these are not covered by political justice, but in a well-ordered democracy partisans will not deem them worth a conflict severe enough to undermine the democratic political order that political justice sanctions. Advocates of different comprehensive theories, religious or otherwise, may arrive at conflicting positions but these are to be dealt with as reasonable disagreements outside the scope of political justice.

However there is a second and less somewhat manageable issue to which political justice would have to accommodate to do with such issues as charity to the disabled and the treatment of animals. Hardly mentioned in 'A Theory of Justice'. Passed over entirely in 'Political Justice'. Yet rather awkward to deal with within the bounds of political constructivism, (a method for producing and defending principles of justice and legitimacy most closely associated with Rawls' technique of subjecting our deliberations about justice to certain hypothetical constraints). Charity toward the mentally disabled and others incapable of productive participation in society is certainly espoused by religions (indeed what would religions do without the disadvantaged?) and is generally approved in principle by the public whether they give to charity or not. But Rawls' hands are tied, he has no choice but to exclude charity from political justice given that political constructivism deals only with normal human beings in a fair system of social cooperation and Rawls may like to see his theory extended to encompass charity but there is no way to do so within the bounds of logically possibility.

The issue of animal rights is doubtless more controversial in the public mind than charity toward humans facing various challenges such as mental impairment but of course there is a public consensus that animals should not be subjected to unnecessary or avoidable pain which sentiment is to a degree incorporated in public law and which implies that animals do have rights whether we regard them as limited or extensive but either way the exclusion of animals from the original position and political justice requires justification in a way that the issues of nuclear arms and capital punishment do not, for the latter policies raise questions of degree, of more or less destruction, more or less punishment, that may raise hackles once debates concerning them ensue nonetheless the moral status of potential enemies and convicted criminals is not an issue whereas as far as animals are concerned the issue is whether or not they are entities which by their inherent nature are to be incorporated into political justice. Such is logically more fundamental than a choice of policies, it is an issue of moral status, and animals as well as disabled humans having moral status is intuitively evident and they are the subjects of rights in one degree or another.

Animals and the disabled can be victims of injustice and must be incorporated into the original position and to achieve this the entities who participate must not know what species they belong to, and what do you suppose should transpire then upon the lifting of the veil of ignorance thereupon universalized? According to Regan there is no principled reason why participants should be assured that they will turn out to be normal humans when the veil is lifted and they must thus take the obvious precautions given that they can conceive of incarnation as mentally disabled humans, they will select principles of justice protective of that interest and by the same logic they will want to protect the interests of non-human animals, nor can such a consequence be precluded by raising metaphysical objections to the possibility of incarnation as an animal:

'To allow those in the original position to know what species they will belong to is to allow them knowledge no different in kind from allowing them to know what race or sex they will be'.

- 'The Case for Animal Rights'

And so endeavours to raise metaphysical objections to the possibility of incarnation as animals are bound to fail on Rawls' premises about identity, and Rawls himself emphatically insists in 'Political Liberalism' that the 'veil of ignorance has no specific metaphysical implications concerning the nature of the self'.

'A Farmer at Rest with His Stock', Eugene Verboeckhoven, (1798 - 1881)

Peter Carruthers, (1952 - ), is critical of Regan though conceding the logic of his critique of the veil of ignorance while deploring its consequences. It is a not a requirement of the veil of ignorance that animals appear in the original position as beings without the capacity to reason, their interests are rather to be embraced by disembodied rational agents, as Carruthers explains:

'For it is presumably possible that rational agents should bracket their status as rational agents, even in the process of rationally constructing a system of rules. If they can forbear from making use of their knowledge of their sex and social status, then presumably they can just as well forbear from making use of their knowledge of their species or, indeed, of the fact that they are rational agents'.

- 'The Animals Issue'

What would the agreement upon justice incorporate if the possibility of incarnation as an animal were introduced into an expanded construction of the original position? Not much it may be supposed, the determination of what rules of distribution will bring about the best position of that class of society which is the worst off, that is, the difference principle, would no longer be relevant. (Rawls' difference principle?permits diverging from strict equality so long as the inequalities in question would make the least advantaged in society materially better off than they would be under strict equality. This really is all airy-fairy stuff is it not? If I may use a non-academic term like airy-fairy). One cannot discourse upon the advantages of animals generically nor talk about the maximin conditions of the great variety of species that would have to be considered, instead in support of Regan you may want to suggest a decent existence as the common principle of justice albeit such a measure could not be the same for all species, a decent existence for deer, cattle and wild boar would include among other policies the eradication of tigers while a decent existence for tigers would require the greater availability of deer, cattle, and wild boar.

Hence it is apparent that there is only one basic claim that all species would have in common, they would all concur that no animal, human or non-human, should be treated as an instrument by humans, and this does not oblige us to say that it is unjust for one non-human animal to consume another, the rule of justice is binding only upon normal human beings, and only they as moral agents can commit injustice to each other and also to animals as moral patients. And wherever the representation of animal interests is incorporated in the original position the consequence is the same in essentials as in the revised version of the second form of the categorical imperative (so act as to treat humanity, whether in your own person or in that of any other, in every case as an end and never as merely a means). Sentient beings must never be treated only as a means, and nothing else and particularly not the difference principle would be part of the basic agreement, for rules of property, of contract, and of the redistribution of product would become relevant only when the veil of ignorance is lifted and systems of conscious cooperation are instituted.

These will consist primarily of relations among human beings, but insofar as domesticated animals enter into human systems of cooperation concern for their well-being and ascribed interest in co-operating with humans will also be obligatory upon their human custodians and partners. Revision of the original position to accommodate the rights of animals would thus undermine its function in Rawls’s theory of justice an outcome that Carruthers recognises albeit he still arrives at the conclusion conclude that it is not Rawls who is in error but Regan:

'The real line of reply to Regan is that his suggestion would destroy the theoretical coherence of Rawls’s contractualism. As Rawls has it, morality is, in fact, a human construction. ... To suggest, now, that contractualism should be so construed as to accord equal moral standing to animals would be to lose our grip on where moral notions are supposed to come from, or why we should care about them when they arrive'.

- 'The Animal Issue'

Well, maybe the consequences do follow as he suggests so what is to be done? The consequences of Regan's critique of Rawls cannot be demonstrated to be in error theoretically nor can they be set aside merely in virtue of their theoretical inconvenience and therefore just as Kant's version of the categorical imperative is no longer the basic ground of ethics once it is properly universalized so too with the revised original position of Rawls, for that procedure also is intended to establish universal principles abstracted from every private interest of the participants but it transpires that the yield from political justice fall short of expectations upon the introduction of a proper view of moral status and it does not issue in a theory of equal opportunity and distributive justice but in the mere discovery that no sentient being may be treated as a simple instrument.

And hence Rawls' procedure is rendered otiose for the right of animals is already implicated in the recognition that animals have moral status, and furthermore the notion that animals may not be harmed without just cause is exactly what is intended with the assertion that they have moral status. Yet the construction of the original position in a satisfactory form presupposes this recognition of animals, although the rights of humans are more extensive than the rights of animals in that they include the basic rights associated with the capacity to reason but that does not affect the fundamental claim of animals to equal respect on matters of equal relevance, and the single consequence of the original position is that sentient beings must never be treated as mere means.

This rule does not necessarily imply that all sentient beings must also be treated as ends under all circumstances in the sense that they are always entitled to human intervention on their behalf and there are conditions in which one may be bound to intervene against abuse of animals by humans but against nature the ability to help is seldom to be had and wild animals are an obvious instance. They may be illicitly employed as instruments in many ways, hunting, trapping, and most forms of captivity in zoos, but enhancement of their well-being in the wild is rarely obligatory for humans and under most circumstances we cannot sensibly mediate between predator and prey or adjust a given species to an alteration in its food supply, such interventions are normally beyond our powers given some reasonable schedule of priorities and what we think of David Attenborough, (1926 - ), doing such a thing?

Concern for the well-being of animals becomes mandatory only when they become participants in a scheme of cooperation instituted by humans albeit here also there is a difference between animals and humans in what it means to treat an individual as an end. Something like the difference principle still applies to moral agents in that cooperation by human beings ought to be rewarded with equal benefits except insofar as differences enhance the well-being of the least advantaged, and this rule need not be grounded upon the principle of fairness as it is discovered in Rawls, instead it may be derived from the rationally grounded rule forbidding exploitation. Cooperation among humans is a group affair instituted for the common good of all and if some participants are left worse off than they could be if redistribution were instituted they are being exploited as means at least to some degree and some animals may also be regarded as participants with humans in a cooperative enterprise, though with modern technology this class continues to get smaller and smaller but one may take the view that cows participate in milk production (although it is strictly soya milk for me call me a soy boy if you like), that cats, dogs and horses serve as pets, (remember though that horses do not like to be ridden that is why they need 'breaking in'), and that primates sometimes take part in learning and speech experiments.

And let us not forget Congo, (1954–1964), the artist, a chimpanzee whose abilities were first observed by zoologist Desmond Morris when he was offered a pencil and paper at two years of age:

?'30th Painting Session 11th December', 1957, Congo

Which reminds me:

To continue, under present conditions much of this participation is in the form of callous exploitation (maybe Congo was exploited too or certainly the chimp in the video that you have just watched dressed up in human attire which does not ever seem quite right although I am sure he was well looked after but I am not sure how his acting career progressed afterwards), well though one can at least consider the possibilities of a radically reformed society. If the services thus mentioned are not burdensome and if they are appropriately rewarded by a comfortable existence lasting a lifetime the participation of animals could perhaps be considered as to all intents and purposes as voluntary, their welfare requirements doubtlessly relatively fixed and their share per head of the social product would increase but little with increased productivity but maybe they would then not be victims of exploitation and would in a sense receive equal consideration relative to their natures, as ends and the same kind of reasoning would also apply to mentally disadvantaged humans as well.

?'Бр?д' ('Ford'), 1901, Mykola Kornylovych Pymonenko?

Jürgen Habermas, (1929 - ), also gave universalizability central place in his moral theory approaching such a fundamentally Kantian notion not from analytic philosophy in the manner of Rawls but rather from the school of critical theory which has its roots in Hegel and Karl Marx, (1818 – 1883), yet for Habermas also the Kantian notion appropriately reworked, is pivotal to the construction of a moral theory, for though the restatement of Kant by Rawls is by use of the instrument of the original position to attain impartiality for Habermas the reconstruction is given by the notion of 'an ideal speech situation'. The fatal flaw of the categorical imperative for Habermas is that it is arrived at by an internal monologue rather than a proper exchange of views and also that it is abstracted from all existing social and cultural conditions. For Kant the reflections through which moral rules are established occur only within the mind of every individual and are then considered to be applicable universally without regard to the concrete historical conditions under which they have to be applied.

For Habermas all assertions claiming truth have to be redeemed in actual discourse, scientific hypotheses are redeemed by common interpretations of the experimental evidence, moral assertions are no less cognitive and no less capable of being proven true, but the discursive method appropriate to morals is of a special kind whereby claims to validity have to be validated by the participation of everyone affected in a process of practical reasoning, or argument:

'A norm cannot be considered the common interest of all who are affected simply because it seems acceptable to some of them under the condition that it be applied in a non-discriminatory fashion. The intuition expressed in the idea of the generalization of maxims intends something more than this, namely that valid norms must deserve recognition by all concerned. It is not sufficient, therefore, for one person to will the adoption of a contested norm after considering the side effects and the consequences that would occur if all persons followed that norm or whether every person in an identical position could will the adoption of such a norm. In both cases the process of judging is relative to the vantage point and perspective of some and not all concerned. ... Thus every valid norm has to fulfill the following condition:

(U) All affected can accept the consequences and the side effects its general observance can be anticipated to have for the satisfaction of everyone's interests (and these consequences are preferred to those of known alternative possibilities for regulation). We should not mistake this principle of universalization (U) for the following principle, which already contains the distinctive idea of an ethics of discourse.

(D) Only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse'. -

'Moral Consciousness and Communicative Action'

Three additional considerations will shed some light upon this procedure. Practical discourse, (a discussion concerning aims and objectives, is to be understood as being conducted in the light of an 'ideal speech situation' which means that all who can speak competently can participate, that all expressions of attitude and questionings are permitted, and that all coercion is ruled out except the force of the better argument. And furthermore this does not mean that the ideal speech situation is present, imminent, or even fully realisable but is instead something to be anticipated when norms are to be validated. As William Outhwaite puts it: 'It is clear enough that Habermas never intended the ideal speech situation to be understood as a concrete utopia which would turn the world into a gigantic seminar'. And even further the requirement of validation does not mean that all working norms have been or ought to be validated by the above procedure, human individuals exist in a given network of immediately understood and mostly unarticulated norms and understanding that Habermas designates 'the lifeworld'. There is always 'the horizon of unquestioned, inter-subjectively shared, non-thematized certitude that participants in communication have ‘at their backs'.' Only when this lifeworld is challenged or disrupted must new norms or amendments of old ones be consciously considered for possible validation.

Well, animals cannot be incorporated in an ideal speech situation whether it be actual or anticipated and the whole notion of a discourse ethic, of the acceptance of new norms through dialogue, makes it evident enough that animals are excluded from the process but Habermas makes no attempt to justify this exclusion for consistent with his point of view no justification is possible for were one to allow humans to represent animal species the difficulties would be not much different from those encountered with Rawls, requirements and objectives differ with each species, a difficulty that may be side-stepped by allowing human beings of good will to agree upon norms that would govern the treatment of animals by humans but this appears to violate the fundamental principle of a discourse ethic, it is, in principle, a matter of being a monologue so far as the animals are concerned and if monologue is adopted one returns to Kant with all the difficulties associated with his moral theory.

Another contractual theory has been presented by Onora O’Neill, (1941 - ), who maintains that Kant's position does not ultimately depend upon metaphysics for his idea of reason in 'The Critique of Pure Reason' need not be derived from the a priori conditions of objective knowledge, it follows rather from the logic of what it is that makes communication possible among a plurality of potentially rational individuals. Beings like ourselves

'... without prescribed modes of coordination ... cannot share a world if there is no cognitive order. ... The most then that they can do is to reject basic principles of thought and action that are barriers to cognitive order. ... Those who are to be fellow workers must at least refrain from basing their action on basic principles that others cannot share. ... [I]f they wholly reject [this step], communication and Animal Rights and Post-Kantian Rationalism 65 interaction (even hostile interaction, let alone coordination) will be impossible. To act on this maxim is simply to make what Kant elsewhere calls the Categorical Imperative the fundamental principle of reasoning and acting. It is to base action and thought only on maxims which one can at the same time will that they be universal laws'.

- 'Constructions of Reason'

O’Neill would therefore justify a wholly revised conception of Kant's enterprise, not only in the 'Groundwork of the Metaphysic of Morals' but also in his theory of knowledge. 'The deep structure of the 'Critique of Pure Reason' and the view of philosophic method that it exemplifies are both anti-rationalist and anti-foundationalist'. And what O’Neill means by deep structure and universal laws in this anti-foundationalist interpretation of Kant is suggested through her critique of Rawls whereby she is not dissatisfied with Rawls' basic project but she finds his moral construct too closely tied to a particular culture and she criticizes him for having introduced a Western liberal ideal of personality in constructing his theory of justice and then anticipates a universal agreement that is more abstract and so more readily reconciled with Kant:

'Three Pigs', George Morland,?(1763?– 1804)

'A more Kantian constructivism (perhaps not one everybody would attribute to Kant) must then start from the least determinate conceptions both of the rationality and of the mutual independence of agents. A meagre and indeterminate view of rationality might credit agents only with the capacity to understand and follow some form of social life, and with a commitment to seek some means to any ends (desired or otherwise) to which they are committed'.

- 'Constructions of Reason'

O’Neill's notion of rationality is somewhat abstract yet is not vulnerable to the charge of John Stuart Mill, (1806 – 1873), that Kant fails to derive any actual principles of duty. From an animal rights point of view it is instead much too narrow in confining itself as it does to human interests. She would construct the principles of moral reasoning by postulating a structure of human society upon which all agree rather than deriving the structure of society from reason. and animals must thus be excluded, the fatal flaw rears its ugly head again. Moral reason might well be evoked by social development as Kant's anthropology indicates but it does not determine reason's content or mode of acting upon us.

So, to the French Enlightenment, Denis Diderot, (1713?– 1784) was very much aware of animal rights as a problem, while Jean-Jacques Rousseau, (1712 – 1778), bemoaned the plight of animals in human hands and condemned the eating of animal flesh as unnatural and quoted Plutarch, (c. AD?46?– after AD?119), and Porphyry, (c. 234?–?c. 305 AD)?at length (see the first part of this series), he contributed little of theoretical interest but Diderot went in deep in his article on the general will in the Encyclopédie where he confronts the fact that animals do not participate in forming it. Whether Diderot or Rousseau first introduced the idea of a general will to explain political obligation is uncertain but their sense of its range differs significantly. In Rousseau the general will almost always refers to the internal cohesion of a state, that is to the obligations of the citizen, while with Diderot the general will is more inclusively universalized:

It is to the general will (volonté générale) that the individual should look to know what it means to be a man, a citizen, a subject, a father, a child and when it is right for him to live or to die. It is for the general will to determine the bounds of all his duties. You have a natural right (droit naturel) to anything that is not denied you by the entire race. It is in humanity that you will find the meaning of your thoughts and your desires. If you pay heed to what has been said above, you will always be convinced: ... that a man who listens only to his particular will is an enemy to the human race; that the general will in each individual is a pure act of the understanding, which, the passions silent, reflects on what a man can demand from others like himself and what others may rightly demand of him'.

- 'Droit Naturel', in the 'Encyclopédie'

Such a universalist conception of the general will led Diderot to ask about duties between humanity and animals:

'Particular wills are suspect; they may be either good or bad; but the general will is always good; it never has deceived and never will deceive. If animals were on a level more or less equal to ours; if there were reliable means of communication between them and us; if they could clearly transmit their thoughts and sentiments to us and recognize ours with the same clarity; in a word, if they could vote in a general assembly, they would have to be called to attend, and the case for natural right would no longer be put before humanity, but before animality. But animals are separated from us by unchangeable and eternal barriers; and we are concerned here with a set of findings and ideas which are peculiar to the human species and which emanate from and constitute its dignity'.

- 'Droit Naturel', in the 'Encyclopédie'

Diderot is assuming that if animals do not fit the conditions of moral agency they may be simply left out and the obligations of morality confined to human beings. And then of course we can hear the charge speciesist! (See part one of this series for my thoughts on speciesism). Given that Diderot does not deny that animals have some sort of moral status perhaps he should have said that if animals cannot be included in the general will there is something fundamentally wrong with that conception. The fact that sentient beings cannot be taken as mere things is fatal to any theory that constructs morality upon the outcome of some universal agreement among rational beings, animals cannot take part or even be represented in any process of agreement real or hypothetical, and even O’Neill's abstract agreement upon morals does not remove the difficulty arising from the failure to recognize animals as moral patients.

There is many theories traceable back to the Ancients and revived by Thomas Hobbes, (1588 – 1679),?and David Hume, (1711?- 1776), that are contractual or semi-contractual in that they derive the obligation to do justly from enlightened self-interest, unless all or most of us agree that we must treat each other according to the usual rules of justice society as a whole will suffer and we will suffer with it. Upon such a derivation of our obligations we can have no duty toward animals and animals can have no claim to the benefits of justice, and humans may love animals and take good care of them, they may even be vegans (not quite me yet) and vegetarians (me) and there may well be agreements between one human and another by which animals are made to benefit but animals cannot be parties to a binding agreement, they may share the same end momentarily but they cannot have any understanding with us that resembles a contract.

What about obligations? Jan Narveson, (1936 - ), contends (in 'Animal Rights', an article critiquing Regan and Singer), that an indirect obligation to animals can be established through the interests that humans have in them. I do not want my pet, my child, or my mentally impaired aunt to be injured and so I oppose injuring anyone in that class, I oppose infanticide of disabled children since I might have been born disability (I won't get into the issue of the aborting of disabled children or the rights of unborn children generally, maybe there should be no areas a philosopher is unwilling to wade into, but, well, there are). Nonetheless there are some defective (and I am comfortable in using that particular word in this context) people who don't care about pets, nor for that matter about children, and aunts, and at this stage of life none of us can become the victims of infanticide, and none of us whatever our views for or against abortion can now be aborted, in the womb anyway. Therefore many people will not share and will not be obliged to share our protective attitudes,and no rule against such evils will be generally acknowledged.

Peter Carruthers is aware that he must offer a point of view that is consistent with his denial of equal respect for animals and in 'The Animals Issue' without going into too much detail he presents a version of contractualism an alternative to both Singer's utilitarian defense of animals and Regan's theory of animal rights and for him a moral theory must have a basic contractualist concept as well as the desire to comply with it that is held to be innate, selected for in evolution because of its value in promoting the survival of our species. It may be objected that this line of reply to Regan implausibly reduces morality to anthropology, well, I always think bringing in evolution to justify a moral theory is putting the cart before the horse an appropriate metaphor in this context, but then the rejoinder may be that the claim is not that moral statements are really disguised claims about he conditions for the survival of the species but rather they are about what rational agents should reasonably accept who share the aim of reaching free and unforced agreement. The claim is then merely that we have this concept of morality innately and have an innate desire to justify our actions in terms that others may freely accept because doing so has promoted the survival of our species in the past, but if the contractualist concept expresses what morality is, for us, then there is no moral standpoint from which it can be criticized 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.

'Kittens and a Dog', 1882, Walter Hunt

This resembles Thomas Scanlon's, (1940 - ), version of contractualism that endeavours at delivering a unified account of the subject matter of a central part of morality which Scanlon designates 'what we owe to each other' and the normative domain of what we owe to each other is intended to encompass those duties to other people which we bear in virtue of their standing as rational creatures, while a wider conception of morality incorporates whatever else we may owe to specific people, such as the special obligations we bear in relations with friends, family, lovers (in that last case of course the rules all change) or whatever else morality may require of us such as the manner in which we treat ourselves or nature and what we owe to each other, the morality of right and wrong, is distinct from this wider conception of morality in that contractualism provides a unified account of its content. So, assumptions are added to make this work but the problem in Scanlon is how we can all want to reach reasonable agreement, how we know what reasonable is, and why we are bound by it.

For Carruthers the answers are that the desire is innate, and what is reasonable is what promotes survival of the species, (putting the cart before the horse you see, how does it get us anywhere?). Why are we bound by any agreement however reasonable? Carruthers contends that it is because the sense of being obliged is also innate, or because we necessarily care about the future of the species. And what is an innate desire? Instinct? A notion? What if we disagree about what will advance the survival of the whole species now or in the long run? Suppose in any case it is a goal to which we resist sacrificing our interests to achieve. The good of the species after all is not always coincident with our own self-interest except in the very long run that we will never live to see. But for Carruthers moral behavior is ultimately anthropology despite his denial just as moral behavior ultimately becomes social psychology for Narveson. We have moved out of the scope of philosophy then, Rawls and Habermas too appeal to social processes antecedent to reflections on justice albeit their arguments on justice and morality properly belong to philosophy.

The agreements they postulate are compelled by logic rather than recommended by prudence but within a philosophical perspective the fact that sentient beings cannot be taken as mere things proves fatal to any moral theory founded upon some universal agreement among rational beings and the issue becomes how a comprehensive account of human obligations toward each other and toward animals can be developed. Perhaps the limitations of post-Kantian theories do not rule out a rational construction of morality but unlike the post-Kantians perhaps the starting point should be a basic norm that antedates the hypothetical inauguration of society. In the classical versions of the social contract the state of nature is governed by some such rule. In Hugo Grotius, (1583–1645), it is God's rational will. In Samuel Freiherr von?Pufendorf, (1632 – 1694), and John Locke, (1632?– 1704), it is the will of God. In Kant it is the categorical imperative, and in 'The Metaphysics of Morals' he demonstrates how the categorical imperative is externalized in relations among humans, first as private right and then as public right. While taking account of all significant differences Kant's procedure is similar Locke's except that Kant's views on public right are coloured by his conservative biases and he somewhat inconsistently rejects any right of revolution not only by the individual but by the community as a whole. Animal rights could fit into a version of the social contract taking from Locke's 'Second Treatise of Government the basic rights and corresponding duties that follow from the law of nature, this law, for Locke, deriving from God's desire to preserve his handiwork and hence requiring a proof of God's existence (well we always have William Lane Craig, (1949 - ), to help us out there.

Locke's belief in God as the ultimate author of the moral law that already governs in the state of nature can be substituted by the second form of Kant's categorical imperative which would be the first level of Locke's account of moral obligation, he second being Locke's social contract. Neither here nor in the first level, or state of nature, do animals have duties and Locke would exclude animals not only from the human duties associated with the law of nature but also from any of the rights that it confers. God, he contends, must have intended humans to survive, and so they are permitted to go to nature for their food, and this requires God's implied permission because nature is his creation and his property and this permission to use nature applies only to those parts of it that are clearly intended for that purpose. Since humans are created roughly equal to one another it is clearly not God’s intention that one human use another merely as a means.

Humans must rather be respected and if possible preserved in their existence and freedom but all other animals being lower than humans may be exploited for food and other purposes, just as animals as well as humans make use of vegetables so humans may make use of animals. Locke's line between life that is sacrosanct and life that is not thus corresponds not to sentience but to level of worth in a hierarchy of nature and his justification of eating the flesh of animals together with the other uses this implies is reminiscent of Aristotle, (384 – 322?BC), yet Lockean epistemology is not Aristotelian epistemology and Lockean natural theology is not Aristotelian natural theology and like Pufendorf and maybe most of the more notable natural law theorists of the time Locke is a voluntarist in theology and not an intellectualist. He does not hold, with the Thomists (Thomas Aquinus, (1225 – 1274)), and neo-Thomists that God was bound by reason in his creation of the universe but rather that the creation is the expression of his will and that will must no doubt be good by its very nature and having been promulgated will not be changed. Yet God's commands to humanity cannot be found by rational speculation about some portion of an eternal reason inherent in God’s mind, His will can be ascertained only by empirical inspection of how nature has been constituted. this is how Locke arrives at the basic equality of humans and the inferiority of animals:

'A [natural] State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection, unless the Lord and Master of them all, should by any manifest declaration of his Will set one above another, and confer upon him by clear appointment and undoubted Right to Dominion and Sovereignty'.

- 'Second Treatise of Government'

Later he elaborates on what this means for animals:

'[T]here cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses, as the inferior ranks of Creatures are for ours'.

- 'Second Treatises of Government'

Animals are inferior to humans in many respects, (albeit we are inferior to them in many respects), and Locke goes from there to go from there to the use of them as instruments, on the grounds that eating an animal is some sort of 'nobler use, than its bare Preservation' and again we can hear the charge speciesism! which carries so little force for the reasons I spelled out in the first part of the series (a different approach is needed altogether to animal rights issues, the Hegelian one, which I will get to eventually). Locke could just as well have started from the status, common to animals and humans as sentient beings, and arrived at vegetarianism. God, after all, provided plenty of vegetables for humans to eat. And suppose we substitute the notion of the categorical imperative substitute Locke's 'speciesist' account of the law of nature, it now asserts that no sentient being shall ever be treated solely as a means but also at the same time as an end, and the obligations of moral agents to respect life are not now restricted to other moral agents, they would also extend to animals as moral patients. Animals, that is to say, would have the same presumptive right to life and liberty that humans have, maybe not the right to property even in a primitive sense of a right of access to the fruits of nature, all species, including the human species, are, or can be, in competition for the use of nature, a domain in which otherwise legitimate interests can come into conflict.

The adjudication of possible conflicts between humans and other animal species is hence an issue in itself and the settlement of priorities between species would set the boundaries to the rights of any individual, and the rights of animals do not bar humans from agreeing to form a government in which only they participate but this does not abolish human duties to moral patients, it must instead be a way of enforcing them, hence at every level of the formation of government the relevant rights of animals must be expressly stated. The establishment of a constitution provides a good instance whereby animals could not be guaranteed freedom of speech or of the press but any due process requirement would have to be written in terms of sentient beings not persons in the human sense only. Consistent with the reformulated law of nature every animal would have to be given a guarantee of representation in the courts by friendly humans and there is an significant clarification to be noted in comparing this formulation of the social contract with Locke's for in Locke the creation of government is almost always presented as a means of protecting and preserving the rights of one individual against infringement by another, but in this amended formulation the emphasis falls upon the enforcement of duties and up to a certain point there is no difference between the two approaches. The rights of a human individual suppose a duty in others to respect them, hence if government protects it at the same time enforces the duty so there is no particular need to emphasize the latter. With animals however the emphasis must shift since their rights are best understood as the consequence of human duties and the change to government established by means of the social contract therefore must also emphasize the enforcement of human duties.

It may perhaps be supposed that the absence of symmetry between rights and duties for animals is not completely unfavourable to humankind for the extra burden thus placed upon humans who alone have duties as well as rights carries with it a particular compensation in that only they can participate in government. And one other approach to justice is various forms of prudentialism, (moral principle based upon precautionary principles acting to avoid a particular negative effect for instance acting in self-defence), all such theories ultimately reduceable to a conception of utility. For Hobbes the individual's own advantage is always paramount this making any genuine political obligation impossible, and for Hume the individual supports a common good upon which his own depends but this common good is implicitly utilitarian with all its larger difficulties. In any event neither these nor any other form of prudentialism does full justice to the claims of animals. The conclusion though is that the rule against using any sentient being as a mere instrument for human advantage must be taken as the ultimate foundation of a theory of justice otherwise one must deny that justice is a virtue and substitute something like power as the highest good, (well, why not?) and this is why such an approach to animal rights is doomed at the outset and another is needed in its place, an Hegelian one.

'A?young poet seated in a landscape before ruins, with sheep and goats resting',?Charles Towne, (1763 - 1840)

'I?think?I?could?turn?and?live?with animals'

by Walt Whitman (1819?– 1892)

I think I could turn and live with animals, they are so placid and self-contain'd,

I stand and look at them long and long.

?

They do not sweat and whine about their condition,

They do not lie awake in the dark and weep for their sins,

They do not make me sick discussing their duty to God,

Not one is dissatisfied, not one is demented with the mania of owning things,

Not one kneels to another, nor to his kind that lived thousands of years ago,

Not one is respectable or unhappy over the whole earth.

?

So they show their relations to me and I accept them,

They bring me tokens of myself, they evince them plainly in their possession.

?

I wonder where they get those tokens,

Did I pass that way huge times ago and negligently drop them?

?

Myself moving forward then and now and forever,

Gathering and showing more always and with velocity,

Infinite and omnigenous, and the like of these among them,

Not too exclusive toward the reachers of my remembrancers,

Picking out here one that I love, and now go with him on brotherly terms.

?

A gigantic beauty of a stallion, fresh and responsive to my caresses,

Head high in the forehead, wide between the ears,

Limbs glossy and supple, tail dusting the ground,

Eyes full of sparkling wickedness, ears finely cut, flexibly moving.

?

His nostrils dilate as my heels embrace him,

His well-built limbs tremble with pleasure as we race around and return.

?

I but use you a minute, then I resign you, stallion,

Why do I need your paces when I myself out-gallop them?

Even as I stand or sit passing faster than you.?

To be continued ...