‘Much Ado About Nothing?: Barry, Justice and Animals’.

This is a version of the article that was, after peer review, published in the journal Critical Review of International Social and Political Philosophy, 15, 3, 2012, pp.363-76.

There are three principal reasons for addressing the role of nonhuman animals in Brian Barry’s contractarian theory of justice. Two relate to contractarianism in general. In the first place, the contractarian approach has certain benefits for those seeking to defend the interests of animals. Establishing contractual grounds for granting to animals a considerable moral status has the effect, added to well-known rights and utilitarian versions, of covering all the bases. And the added bonus is that contractarian theories of justice have dominated in debates about the subject over the past thirty years or so. In addition, the clear and concise and, some would say, objective way in which principles of justice are derived from contractarian theories contrasts with the ‘mysterious’ way in which rights, for humans and for animals, are often justified. The target here is the account put forward by Tom Regan (1984) who bases animal rights on what Mark Rowlands regards as the ‘controversial metaphysical assumption’ that animals, as ‘subjects-of-a-life’, are beings with inherent value.  As a result, for Rowlands, we should reject the concept of inherent value as mysteriousad hoc and, ultimately, unnecessary’. By contrast, ‘properly understood’ contractarianism is the ‘greatest ally’ of animal rights since it ‘provides the most satisfactory theoretical basis for the attribution of moral rights to non-human and non-rational individuals’ (Rowlands, 1998: 118, 119, 2).

The third reason for the topic of this article relates specifically to Barry.  Much of the work on the role of animals within contractarian thought has focused on Rawls. Nothing much has been written on the role of animals in Barry’s version of contractarianism. This represents a gap in the literature because Barry’s work does consider the interests of animals in various places and, superficially at least, he would appear to be more sympathetic to the interests of animals than Rawls.  

After a brief sketch of the Rawlsian context in which Barry is operating, Barry’s position on the protection of animals is explored. Here, it is argued that, despite the optimism that Barry might offer a theory of justice that can provide substantial protection for the interests of animals – promoted, in part, by his critique of Rawls – the conclusion of this article is that he is unable ultimately to break the shackles of his contractarian framework, which automatically rules out animals as direct beneficiaries of justice. Insofar as animals can be protected within Barry’s theory of justice as impartiality, they are not being protected as a result of their intrinsic value, but merely as one, non-vital, human set of beliefs included within a conception of the good. Barry does offer the possibility of adjudicating between competing conceptions of the good according to principles laid down by justice as impartiality. However, the decisions (as opposed to the procedure by which they are made) emanating from Barry’s procedural device are not themselves substantive principles of justice, to be constitutionally entrenched, and are open to repeal at any point in the future. Moreover, it is unlikely that many issues involving animals will be subject to the justice as impartiality procedure anyway since Barry is committed to the liberal position that, as far as possible, individuals should be left alone to pursue their own conceptions of the good. 

Whatever Barry’s intention, then, the moral worth of animals within his contractarian theory derives ultimately from the degree to which a recognition of that worth contributes to human self-interest rather than from the intrinsic value of animals independently of human self-interest. This anthropocentric position, dependent on an indirect duty view of animals, means that their protection is contingent upon enough humans regarding animal protection as important. For many animal ethicists, protecting animals as a by product of anthropocentric concerns, even though those concerns might be enlightened, is flawed morally and has counter-intuitive implications. Nevertheless, as is suggested in the final section of this article, an indirect duty view towards animals does have its advantages for the advocate of animal protection. This is not least because an indirect duty view, enshrined in Barry’s procedural device, reflects accurately the way in which issues relating to animals are placed by humans on the political agenda, and rely on them for support.

Barry, Rawls and Animals

Although they have written extensively about Rawls, those working within the animal ethics field have virtually ignored the work of Brian Barry. This might be a mistake because Barry does appear to be much more sympathetic to the plight of animals than Rawls is, and therefore seems to offer the prospect of a contractarian theory of justice that might be able to incorporate the interests of animals. For instance, he agrees with Peter Singer, one of the major exponents of the view that the moral status of animals is considerable, that ‘a lot of cruelty to animals is going on and ought to be stopped’ (Barry, 1998: 206). He also states that ‘I take it to be uncontroversial that we can act wrongly in relation to non-human animals’ (Barry, 1999: 95). In the case of particular uses of animals, Barry is adamant that hunting and the ritual slaughter of animals are both indefensible (Barry, 2001: 39-43).

Barry is also critical of Rawls’s position on animals. Contractarian theories have provided one arena for those seeking to theorise animal protection, existing alongside more traditional rights and utilitarian approaches.1 The main target here, not surprisingly, has been Rawls. It is assumed that animals cannot be protected directly from within a contractarian approach. This view is primarily derived from Rawls (1972: 504-5) who excludes animals from his theory of justice mainly on the grounds that only ‘moral persons’ are entitled to be beneficiaries of justice. Rawls does not rule out protecting animals from cruel treatment but, for him – as for many liberal political theorists – this concern belongs to a broader moral arena which is not part of the realm of justice.2

There would seem to be two general responses we can make to Rawls’s reluctance to include animals as beneficiaries of justice. Barry appears to reject the first of these, which is that we should accept Rawls’s exclusion of animals. For example, he is dismissive of the attempt, by David Richards (1971), to allow individuals within the original position to protect nonhuman animals, not because they calculate they might end up being nonhuman animals, but because of some other motivational device. Such an approach accepts Rawls’s exclusion of animals as direct recipients of justice since it does not dispense with moral agency as the crucial qualification for being considered a beneficiary of justice. Rather, it sees the moral agents in the original position acting on behalf of animals. Clearly, the motivational device cannot be based on altruism but it could be based on a calculation that, once out from behind the veil of ignorance, the participants in the original position might discover that they do care about animals and the ability to do so is important to them.

Rawls himself uses this device to accord justice to future generations.  Thus, he argues (1972: 128) that ‘we may think of the parties as heads of families, and therefore as having a desire to further the welfare of their nearest descendants’. Participants in the original position still pursue their own interests but these interests are expanded so as to include the welfare of (at least some) future generations. Richards (1971: 207) incorporates animals into his theory in the same way. Thus, participants in the original position are aware ‘that persons generally have certain basic sympathies with animals and animal life’. Barry is critical of the attempt to incorporate the interests of animals through such a motivational device. He doubts whether the contractors would know that people are generally sympathetic to animals since it is far from being a universal human trait, and in so far as it does exist it tends to be reserved for companion animals and not those used to produce food or as scientific subjects. As he writes: ‘I do not therefore think that much regard for the interests of nonhuman animals would emerge from the protection of strictly human interests’ (Barry, 1989: 207).

The second response to Rawls that animal ethicists have made is to adapt his contract so as to allow for the inclusion of animals as beneficiaries of justice. This has involved amending the veil of ignorance so as to make species, along with gender, race and social situation, as an unknown. Since participants in the original position will then not know whether they will end up being humans or animals they will protect themselves against the latter eventuality by making sure that animals are owed duties of justice.3

Despite the doubts raised about whether this adaptation of Rawls is valid, Barry (1989: 204) sides with those who think it is possible to incorporate animals within Rawls’s theory of justice. As he writes: ‘There is no reason in principle why we could not derive protection for the interests of nonhuman animals by using the machinery of the original position. All we have to do is to extend its scope to include representatives of all sentient beings’.4 To those who would challenge this move he points out that Rawls is prepared to include small children and cognitively-disabled adults as beneficiaries of justice. ‘If a day-old infant can be represented in the original position’, he concludes, ‘why not a monkey or a dog?’ (Barry, 1989: 212). There would seem, then, to be something in Andrew Vincent’s claim (1998: 130) that Barry is ‘much more open to extensionist arguments’ than Rawls is.

Coupled with this assent to the adaptation of Rawls in favour of animals is Barry’s assertion that Rawls’s conclusion, that it is wrong to be cruel to animals but not unjust, ‘is perhaps not an unreasonable place to come out’ (Barry, 1989: 212). Whilst this assertion does seem to contradict Barry’s preparedness to accept the strategy of incorporating animals into Rawls’s theory of justice, it does give the impression that he recognises that animals can be harmed directly. Indeed, he argues that the duty not to be cruel to animals is ‘clearly preferable to Rawls’s proposal to make duties to future generations parasitic on justice among contemporaries’ (Barry, 1989: 212). Given this sympathy to animals it is worth asking whether Barry’s contractarian theory – justice as impartiality – can incorporate the interests of animals in ways that Rawls’s theory cannot.

Animals in a Scanlonian Contract

Barry’s justice as impartiality starts by arguing that Rawls’s original position is inadequate, and therefore ought to be replaced with an alternative, derived from Thomas Scanlon (1982; 1988). This Scanlonian approach, originally devised as a vehicle for moral arguments rather than those concerned with justice, ‘takes the fundamental question to be whether a principle could reasonably be rejected by parties who, in addition to their own personal aims, were moved by a desire to find principles that others similarly motivated could also accept’ (Scanlon, 1988: 137-8). The Scanlonian contract differs from Rawls’s version in two crucial ways. In the first place, it dispenses with the veil of ignorance. In other words, parties in the original position are aware of their identities and their interests. Secondly, the parties are not merely self-interested but are motivated by ‘the desire for reasonable agreement’ (Barry, 1995: 67). Individuals, therefore, have a ‘desire to behave fairly’ (52). Principles of justice, for Barry therefore, will come about as a result of bargaining and negotiation within the original position. It is therefore impartial because it ‘entails that people should not look at things from their own point of view alone but seek to find a basis for agreement that is acceptable from all points of view’ (Barry, 1989: 8). Only those principles that cannot be reasonably rejected by others pass the test and can be included as principles of justice.  To this end, Barry (1995: 69) envisages a veto power for each person ‘on all proposed principles for regulating social life’.

            Where does Barry’s version of the contract leave animals? According to him, the inclusion of animal protection principles within justice as impartiality would require that they be principles that cannot be reasonably rejected. Unlike Rawls, Barry can include the interests of animals within a theory of justice because he adopts a broad notion of interests. Interests, for Barry, are not just narrow self interests but can include altruistic wants such as a desire to see animals well-protected. Thus, Barry’s original position contains ‘people who are well informed, concerned to further their own interest and conceptions of the good, but capable of recognising reasonable objections on the part of others’ (Barry, 2005: 99). This approach can be contrasted with what he calls justice as mutual advantage, associated with Hobbes and, more recently, David Gauthier (1986). This Barry (1995: 31-46) rejects, not least on the grounds that it is an unstable framework because individuals will always try to promote their interests, even when an apparent agreement has been reached, if they think they can get away with it. For animals, and indeed non-rational humans too, justice as mutual advantage is therefore clearly inadequate.5

Despite the positive noises Barry makes about the moral status of animals, however, there is every reason to think that all but the most basic animal protection principles would fail to achieve reasonable agreement, and thus be excluded from a theory of justice. To see that this is so note that, according to the terms of the Scanlonian contract, a principle of justice involving animals would not be owed directly to animals, only to those humans who regard it as a good, who regard it as in their broad interests to protect animals. This is because, in the Scanlonian version of the contract, the participants know they are humans and know what their particular, narrow, self-interests are. This can be contrasted with Rawls’s theory of justice whereby it is possible, as we saw, to argue that, because the participants are behind a veil of ignorance, they do not know they are going to be humans. As a result, in Rawls’s formulation, it is open to us to argue that participants in the original position ought to seek the direct protection of animals just in case any of them turn out to be animals. Such a move is not open to Barry because of the nature of the contract he adopts. 

Here, we come up against what might, at first site, seem to be a puzzling feature of Barry’s thought, for despite seeming to recognise that we have direct duties to animals, in his mature contractarian theory he adopts an indirect duty view of animals. That he does so is evident in his dismissal of the claim that justice as impartiality is equivalent to Mill’s harm principle, that state action ought to be restricted to the prohibition of actions harmful to those other than the actor. One of his arguments against such a claim of equivalence is that it would ‘entail the illegitimacy of any kind of legislation for the protection of the interests of non-human animals’, as well as other activities, such as public nuisances and the destruction of ancient trees and buildings, that affect others adversely but could not be said to harm them. ‘Yet it seems absurd to suggest’, he continues, ‘that all animal welfare legislation is inherently unjust’ (Barry, 1995: 86).

Barry could only reject a privileged position being given to the negative sense of the harm principle – whereby only harmful consequences can be a justification for intervention – if he thinks that animals cannot be said to be harmed by the actions of others. Instead, the most charitable version of Barry’s position has him arguing that actions which affect negatively the interests of animals should only count if they harm those humans who are concerned about animal welfare, in the same way that some humans may be harmed by the destruction of an ancient building.

It is easy to see why the protection of animals – conceived as a good – is more likely to be rejected in a Scanlonian contract than a more narrow human self interest. Consider an interest directly impinging on (human) participants in the original position such as an interest in not being harmed. Now, a principle protecting humans from harm is unlikely to be rejected since to do so would sacrifice a fundamental interest, one that is necessary for the pursuit of any conception of the good. In a similar vein, as Barry (1995: 8) points out, although you would benefit from privileged treatment being given to your skin colour or gender, you cannot reasonably expect this to be acceptable to those (with a different skin colour or gender) who would lose out. However, this is a very different category from the upholding of a particular conception of the good, such as the protection of animals. In this latter category, it might not be reasonable to reject a principle that prohibits gratuitous cruelty, defined as cruelty that does not serve any other human function.  Many would object, however, to a principle of justice aimed at protecting animals precisely on the grounds that it impacts negatively either upon their alternative conception of the good such as one involving a fundamental economic interest. 

This conclusion is heightened by the fact that all that is required for a proposed principle of justice to be rejected is an individual veto. As Paul Kelly (1998: 57) points out, Barry’s contract ‘seems to weight the argument too much in favour of an individual’s own self-interest’. This resort to (usually economic) self-interest is exactly, of course, how the exploitation of animals is usually justified. In fact, the position of animals would be worse under Barry’s justice as impartiality than it would under the current animal welfare orthodoxy. Thus, for example, the economic interests of agribusiness or pharmaceutical companies will, if the Scanlonian model is applied, always act as a veto upon measures to improve the welfare of animals, and this veto would override public opinion. It is difficult to see how measures, say, to eliminate the worst excesses of factory farming – which are beginning to happen in practice at least in Europe – would be justified by justice as impartiality. 

So, whatever Barry’s intuitive thoughts about our direct duties to animals might have been, his contractarian model excludes them. And it is clear, in addition, that he thinks that ‘no conception of the good should be built into the constitution or the principles of justice’ (Barry, 1995: 172. Thus, only if animals themselves are regarded as being direct beneficiaries of justice, as opposed to being part of a human’s conception of the good, would substantial animal welfare measures be acceptable according to justice as impartiality. This is consistent with his statement that ‘it does not seem to me that the concept of justice can be deployed intelligibly outside the context of relations between human beings’ precisely because ‘justice and injustice can be predicated only of relations among creatures who are regarded as moral equals’ (Barry, 1999: 95). 

One option that is open to Barry, although he does not take this up, is to imagine that the interests of animals could be represented by a trustee or surrogate. This would ensure that the interests of animals could be considered directly in the original position. Some, such as Martha Nussbaum (2006: 335), regard this as a weak form of moral entitlement in that, in                                                                                                                                                Andrew Cohen’s words, ‘it denies them their independent standing by filtering their interests through the interests of trustees’ (Cohen, 2007: 195-6). I am inclined to agree with Cohen (2007: 195-6) that this is a criticism of ‘irresponsible or sloppy’ trusteeship rather than a criticism of trusteeship in general. In other words, if it is accepted that animals can be represented by trustees under the terms of the contract then their interests can be considered directly, and all that is left is the, by no means easy, task of deciding the practicalities of representing animals in this way. 

A more significant question for our purposes is to ask whether there are grounds for including animals as worthy recipients of trustee representation? Cohen (2007) thinks so.  He distinguishes between what he calls primary and secondary moral standing within a contractarian framework. Primary moral standing is attached to those (normal rational adult humans) who are part of the ‘circumstances of justice’ in the sense that they are able to participate in the making of agreements. Secondary moral standing is attached to those unable to participate in the making of agreements (nonhuman animals and marginal humans). This latter form of moral standing applies when enough rational agents (the advocates) insist upon other contractors regarding animals and marginal humans as beings with moral standing in return for their (the advocates’) cooperation. Christopher Morris (1998: 191) adopts essentially the same position in defence of contractarianism. Thus, he argues that: ‘No normal human being would interact cooperatively with someone who was not ready to accord genuine moral standing to one’s children’ and by extrapolation animals.

We can accept that the interests of animals can, as a matter of practice, be represented directly by a trustee. What is much harder to accept is the position that secondary moral standing, as described by Cohen, provides grounds for the effective representation of animal interests. The problem is, as with our discussion of Barry’s contract in this article, that justice (secondary moral standing for Cohen) is owed to animals in so far as other humans regard it as a good worth having. As a result, the extent to which animals are accorded moral standing will be dependent upon enough humans wanting this outcome, plus their ability to persuade others that it is worthwhile. It is, in other words, contingent. Cohen (2007: 196) admits this when he writes that the awarding of secondary moral standing to animals ‘would depend on empirical considerations: how many people insist on direct moral regard, and for which animals?’. Morris (1998: 192) likewise accepts that ‘it certainly cannot be denied that some creatures, who we ordinarily believe have at least some moral standing…will lack that status, on this contractarian view’. As a result, ‘the dependence of moral standing on the contingent pattern of people’s interests may seem too arbitrary’ in the sense that members of the same nonhuman species may be treated differently merely because one has the ‘fortuitous relational property of being cared for by me’.

Another problem with the anthropocentric contractarian attempt to incorporate the interests of animals is that it would seem to justify the extension of moral consideration to anything that a particular human advocate wishes including inanimate objects.6 Remember, all that is required for moral worth to be applied, according to the contractarian position, is for enough humans to desire it. Cohen (2007: 192) responds to this by arguing, correctly it seems to me, that moral standing requires an entity to have interests. ‘Infants and dogs have welfares and so have interests that persons can promote, hinder or ignore’, Cohen writes, but ‘mountains and statutes…do not have welfares or goods of their own’. 

Cohen is here suggesting that moral standing requires sentiency. Interestingly, too, Scanlon (1982: 113-4; see also 1998: 182-3), if not Barry, engages with the possibility of having the interests of animals represented in the original position on the grounds that they are sentient. He argues that the necessary conditions are that a being must ‘have a good, that is, there must be a clear sense in which things can be said to go better or worse for that being’ and that ‘its good be sufficiently similar to our own to provide a basis for some system of comparability’ and that we need to have some idea of ‘what it is like to be that being’. The capacity to feel pain, Scanlon thinks, is likely to satisfy these conditions. In such situations, he continues, it might be possible to countenance a trustee acting on behalf of those that are ‘incapable of literally agreeing to anything’. However, Scanlon is ‘not clear’ whether these conditions are sufficient for a being to be included in a contract situation whereas moral agency clearly is.

Limiting moral standing to sentient beings, as Cohen suggests, is not an entirely satisfactory response to the critics of contractarianism who argue that it supports a much too broad conception of what counts as morally considerable. This is because moral standing is, for contractarians, not based on the properties of the potential recipients, but on the contractual agreement reached. It is not therefore limited to sentience, but on anything the participants in an original position agree upon. If they want to accord moral standing to inanimate objects then there does not seem much to stop them. Moreover, and even more importantly, if sentience is being introduced at this point as an important property of moral standing, why does it not qualify as a source of moral standing independently of any contractural agreement?

Just Procedures for Adjudicating Between Conceptions of the Good.

What I have said so far suggests that it is unlikely, by utilizing Barry’s justice as impartiality, that substantial animal welfare measures would be adopted as principles of justice. Like Rawls, though, Barry takes a very narrow view of justice. ‘It is…a great mistake’, he writes, ‘to suppose that justice as impartiality is intended to constitute a complete, self-sufficient moral system’ (Barry, 1995: 77). Nevertheless, he also raises the possibility – as does Rawls in a later work – that the state does not have to remain neutral about competing conceptions of the good but might intervene to promote one at the expense of another (Barry, 1995: 77; Rawls, 2001: 252). The outcomes would not be regarded as principles of justice but are part of justice as impartiality in the sense that decisions are taken in accordance with procedural justice. Thus, he writes that ‘as far as the great bulk of contemporary legislation and policy making is concerned, justice as impartiality will have things to say about how the legislation or policy can be framed consistently with the demands of justice, but it is silent on the question of what the content of the legislation or policy should be’ (Barry, 1995: 143).

Barry (1995: 86) rejects the ‘preclusion’ principle – that issues which raise moral controversy should always be settled by leaving the decision to the individual, at least where to do so does not cause harm to others – partly at least on the grounds that he does not ‘believe…it is plausible to suggest that there is a principle of justice demanding that the law must come down against the protection of foetuses or animals’ (1995: 92). Public policy, therefore, ‘will in many matters reflect some conception of the good’ (1995: 161). This is promising, from an animal protection perspective, because Barry (1995: 91) is right to say that the preclusion principle is used ‘by defenders of the continued legality of barbarous sports such as fox hunting, stag hunting, and hare coursing, and could, presumably, be used with equal force for the restoration of legality to such things as cock fighting, dog fighting, and bear baiting’. It is no accident that the defenders of fox hunting campaigned against the proposal to ban the practice primarily on libertarian grounds, that it was a matter of individual conscience and liberty.

For those concerned about the welfare of animals, however, Barry’s acceptance that a theory of justice must have a procedure to adjudicate between competing conceptions of the good does not seem to offer much. Even though majority decisions – accompanied by a full, free and well-informed debate – are acceptable, so there is no veto, it is a hit and miss affair with no guarantee that decisions would be made protecting animals. As Richard Arneson (2000: 66) points out, the claim that ‘”we are following fair procedures” cannot be an adequate answer to someone who complains that she is unfairly disadvantaged by sectarian state policy’. Moreover, Barry’s liberal focus means that he is still committed to the distinction between the right and the good, where the latter, unlike the former, ‘cannot be resolved by rational argument’ (Barry, 1995: 30). He is therefore clear that a neutral stance is desirable, albeit not always possible, because disputes about the good are irresolvable, and neutrality is therefore ‘the only fair, and thus generally acceptable, way of dealing with this fact’ (Barry, 1995: 13).

            Barry (1995: 171) himself, for example, admits to being an admirer of the ecocentric conception of the good, which seeks to attach intrinsic value to nature, including animals, living but non-sentient entities and inanimate objects. ‘But I do not see’, he confesses, ‘how its claims can be presented in such a way as to show that it would be unreasonable to adopt a different view, and I take it that any other conception of the good is subject to the same liability’. This is why, for Barry, a communitarian attempt to derive a theory of justice from a particular conception of the good is doomed to failure. 

Justice as impartiality, then, is not in itself a comprehensive moral system but instead sets ‘the legitimate limits to the pursuit of any particular moral system’s precepts’ (Barry, 1995: 77). These limits are set by the prevention of harm which is the fundamental principle of justice as impartiality because ‘what is harmful is deleterious to the furtherance of virtually any conception of the good’ (Barry, 1995: 143). All of this would seem to suggest that only when it is absolutely necessary for the state to adjudicate actively between competing conceptions of the good should it do so. Thus, the main example Barry provides is of this type. This is the case of the building of a dam, the consequence of which would be the extinction of a species of fish, the snail darter.  In the process of deciding whether the dam should be built, Barry (1995: 151) thinks it justifiable for individuals to ‘appeal to your own conception of the good and try to convince others of your case on the basis of that’.  If you hold a conception of the good which includes the preservation of the snail darter and the democratic decision goes against you and the dam is built you can continue to argue the decision was wrong and regrettable.  Provided the procedure was just, however, under the terms of justice as impartiality, then the decision is ‘legitimate but bad’ (1995: 150).

            Barry appears to offer a way out of the difficulty of reconciling moral pluralism with a moral imperative to treat animals humanely, since it would seem justifiable for the good of animal protection to be pursued by the state through the mechanism of a democratic procedure, even though by so doing competing conceptions of the good might be damaged in the process.  The problem with Barry’s argument, however, is that putting competing conceptions of the good to the vote must surely be a last resort for liberals since to do so offends against moral pluralism.  Clearly in some cases – Barry’s dam is one example – a decision has to be taken one way or the other.  Where such a decision can be avoided, though, a commitment to moral pluralism surely necessitates inaction.  

Indeed, Barry accepts that many different conceptions of the good pursued by individuals and groups do not conflict. I, for instance, may abstain from pork on religious grounds whereas you do not. Even if I think that your moral view is misguided, Barry (1995: 80) argues, ‘we may still agree that each of us has a perfect right…to do either x or y’. This, as a matter of fact, is the way that the treatment of animals tends to be framed in liberal societies. Thus, I may choose to absent from eating meat whereas you do not and I may choose to buy ‘cruelty free’ cosmetics whereas you do not. Both of our conceptions of the good are accommodated in a liberal polity.

The problem with this from an animal protection perspective, however, is obvious. As long as the interests of animals within a liberal framework are framed in terms of a human conception of the good, their protection is likely to be limited if not non-existent. Protecting animals in most cases is, as we have seen, unlikely to receive the reasonable agreement that Barry demands to be incorporated as a principle of justice. Moreover, the neutrality principle is always likely to be an obstacle to putting animal protection issues through the just decision procedure that Barry recommends, and even if an issue involving animal protection is decided in a way that benefits animals, its existence is fragile.

Case Studies of Hunting and Ritual Slaughter

Two animal protection issues particularly illustrate the difficulty Barry’s theory creates for those who wish to protect animal interests. The first is fox hunting. Hunting with hounds was, after a long campaign by anti-hunting groups, banned in Britain in 2004. Seen in terms of Barry’s position, this was a conflict between two competing conceptions of the good. On the one side were those whose conception of the good included a desire to hunt, on the other side were those who regarded hunting as cruel and unnecessary. The issue was eventually resolved in favour of the latter, in the sense that legislation was passed ostensibly banning hunting with hounds.7

Two main points can be made about the relationship between the hunting issue and Barry’s theory of justice. In the first place, the anti-hunt lobby campaigned for many years to persuade the British Parliament to introduce a ban. The reason for the delay was that successive Labour governments were unwilling to commit themselves to including a ban as part of their policy programme. Indeed, they were even reluctant to provide time for a free vote on the issue. It is undoubtedly the case that part of the reason for this reticence was the feeling that, in a liberal democratic polity, it would be inappropriate for government to intervene in what was essentially regarded as a conscience issue. Here, it is not insignificant that the hunting community has increasingly framed the issue in terms of the right to the freedom to pursue their conception of the good. Indeed, the hunting community has elicited a good deal of sympathy by painting the opponents of hunting as an illiberal mob intent upon an attack on a defenceless minority.  Thus, the 2002 Countryside Alliance demonstration in London was labelled the ‘Liberty and Livelihood’ march.

The fact that fox hunting was abolished, leaving aside the apparently feeble attempts to enforce the ban, suggests that animals can be protected by utilizing Barry’s procedural justice scheme. The second point to make though is that the ban remains fragile since it is open to repeal. Thus, at the time of writing, the likelihood of a repeal is strong given Labour’s electoral defeat. Conservative MPs, along with many Liberal Democrats, are generally favourable to hunting and the Government is likely to allow another free vote on the issue.

The second issue relates to the ritual slaughter of animals. This would seem to be the classic example of an issue where Barry’s contractarian theory of justice would recommend state neutrality. That is, those who eat meat, and who observe either the Jewish or Muslim faith, should be allowed to eat meat only from animals that have been ritually slaughtered (slaughtered, that is, without prior stunning). For other meat eaters, who hold different faiths, or no faith at all, there is no such compunction to eat ritually slaughtered animals. Indeed, in many countries – including Britain and the United States – this coexistence is exactly what exists. Yet, what is ignored is the extensive evidence that the practice of ritual slaughter has severe welfare consequences for animals (FAWC, 1985: 20; Fraser and Broom, 1990: 152).

Interestingly, Barry (2001: 39-43) argues that because of the evidence that animals suffer as a result of ritual slaughter, it is a practice which is ‘virtually impossible to provide an intellectually coherent rationale for’, and yet it exists, he claims, because of, what he sees as, the illegitimate influence of multiculturalism rather than liberalism (2001: 295).  Thus, ritual slaughter, he argues, is mistakenly regarded as an issue of religious liberty whereas in fact it is a dietary request.  Jews and Muslims could and should, therefore, cease eating meat. It is, Barry (2001: 43) writes, ‘hard to see why some cows and sheep should have to suffer in ways that are unacceptable generally in order to enable people with certain religious beliefs to eat their carcasses.

However, a liberal would surely not accept Barry’s critique of the application of an exemption on religious or cultural grounds, since from a liberal animal welfare perspective it is not the feelings of the animals that takes precedence but the benefits to humans.  Thus, on liberal grounds it is quite justifiable to allow a minority to gain the perceived religious benefits that it is claimed derive from ritual slaughter.  In short, religious toleration is an important liberal principle.  Even if we accept that Barry is right to say that a law banning ritual slaughter ‘does not restrict religious liberty, only the ability to eat meat’ (2001: 44), it is the case then that those involved are deprived of the freedom to eat meat, all in the name of an attack on religious autonomy.  Unlike hunting, too, ritual slaughter continues on the grounds that it is illegitimate to intervene to prohibit one particular conception of the good.

Both of the issues discussed in this section reveal the problem associated with basing the protection of animals on their inclusion within a conception of the good. Even though Barry is opposed to fox hunting and ritual slaughter his theory by no means guarantees that they will be outlawed. The only way in which animals can receive permanent and guaranteed protection against being hunted and ritually slaughtered is if we recognise that they have a fundamental interest in not being so treated, as opposed to having their interests represented, at one remove, as a part of a human conception of the good. In other words, only if this interest is protected, as a matter of justice, can the animal protection requirement be fully met. 

Beyond Contractarianism?

We have seen that it is unlikely that participants in Barry’s Scanlonian original position would opt for principles of justice that involved considerable protection for animals. To propose such principles would invariably fail to get reasonable agreement since they would be vetoed – as conceptions of the good which do not serve the vital interest of their advocates – by those with a fundamental interest in continuing to exploit animals. To avoid this conclusion from within a contractarian framework requires either that species membership is included as an unknown behind a veil of ignorance, or that some justification is found for representing the direct interests of animals within Barry’s version of the original position. The former option is unavailable to Barry and the latter, as we have seen is a doubtful prospect. Barry (1989: 207) himself recognises the weakness of animals’ position if they are excluded from the original position. In a comment on Rawls’s and Richard’s work he points out that if we make the assumption ‘that the rational contractors are to pursue their own ends from within the original position, then it must follow that the only way of guaranteeing that the interests of animals will be protected is to include them among the parties whose assent is required’.

The exclusion of the direct consideration of animal interests within the original position means that their well-being becomes dependent upon being part of what humans regard as a flourishing life for themselves rather than because of any intrinsic value of animals which obligates us to treat them well. It is therefore a so-called indirect duty view of animals. Moreover, as with Rawls, it is of little import for Barry to claim that, whilst not protected by principles of justice, what is done to animals is subject to principles of morality. This is because, like Rawls, Barry is committed to the principle that the state should refrain, as far as possible, from intervening in the pursuit of individual conceptions of the good that cause no harm to humans.

For many animal ethicists, the anthropocentric flavour of this liberal discourse leaves a bad taste. This position would seem to represent a backward step in the sense that most moral philosophers now accept that we have direct duties to animals, that they can be harmed directly as a result of their capacity to suffer. As a result, the consensus is that only a theory of justice that accords intrinsic value to animals – so that it is recognised that at least some harm inflicted on them ought to be prohibited, not because it benefits humans, but because it is of direct benefit to the animals themselves – is valid. It is wrong, then, to claim that animals’ lack of moral standing, derived from contractarian theories, is compatible with our ‘common-sense’ view of animals. For about two hundred years, in Britain at least, the moral orthodoxy has been that inflicting unnecessary suffering on animals is a wrong done to the animal and not to those humans who might be affected negatively by it. This position is, of course, not equivalent to animal rights precisely because humans are still regarded as superior morally. The infliction of suffering on animals only becomes illegitimate morally when such suffering produces no human benefit.

In defence of the intrinsic value of animals it is important to note that it is possible to distinguish between the fact that a moral statement about animals is ‘by definition a “human-based-interest” statement’ and the claim that ‘none of my statements about the world have any independence or informative content outside the fact of my humanity’ (Vincent, 1998: 133). In other words, the fact that the valuer of the moral status of animals is human does not exclude the possibility that animals have intrinsic value, a value, that is, which exists independently of the human valuer. There is strong evidence that at least some nonhuman animals do have, like humans, intrinsic value. The fact that animals are sentient, and have varying degrees of cognitive ability, means that what we do to them matters to them, and would continue to do so even if no human was prepared to act as though it did. Animals therefore have moral standing and should be regarded as a direct moral object ‘something to which moral consideration is paid’ rather, as with the indirect duty view, ‘something about or concerning which moral consideration is paid (Morris, 1998: 191).

As a result, it follows that the interests of animals need to be protected directly from within a theory of justice. This involves, as Brian Baxter (2005) recognises, expanding the community of justice, a task with which Barry does not engage. Andrew Cohen (2007: 196-7), although generally supportive of the contractarian position, outlines accurately the cost to animals of its anthropocentric character. ‘The theory’, he writes, ‘is committed to holding that torturing horses is permissible if nobody believes it is impermissible. But torturing horses is wrong. Not only is it wrong, it is wrong to the horses’, and ‘it remains wrong even if no one believes it is’. This argument leads to the claim that the protection of animals should not be dependent upon being part of a conception of the good but, rather, their inclusion in a community of justice, so that at least some of their interests are protected, along with those of humans, by the basic structure of society. In this sense, Barry’s stricture that ‘any society that does not make the prevention of harm a priority is to that extent unjust’ (Barry, 1998: 233) can be applied to animals as much as to humans.


The conclusion of this article is that, ultimately, both Barry and Rawls are constrained by their contractarian framework. The bottom line for contractarian theories is that it is impossible to have agreement on principles of justice without some form of assent to that agreement. That is the point of a contract. A contract which did not have the assent of one of the parties would be declared null and void. Indeed, as we saw, Rawls’s original position was designed in such a way as to automatically exclude the interest of animals. Or rather, the exclusion of animals is an inevitable consequence of choosing the contractarian method in the first place. 

            As a result, Barry’s contractarianism can only justify indirect duties to animals, and this position is morally counter-intuitive. Of course, these conclusions do not mean that the quest to include animals as beneficiaries of justice fails, only that contractarian accounts cannot do the work required. The first step is to emphasise the beneficiary role and reject the participatory one. Many theories of justice do just that. It is to such theories – based, for example, on needs, interests and sentience – that those committed to protecting animals as a matter of justice need to focus. It is important to note here that this conclusion applies to any meaningful conception of animal protection, including animal welfare. For, as we saw, Barry’s contractarianism would only seem to justify prohibiting gratuitous cruelty to animals. In other cases, particularly where there is an economic interest at stake, there is a case to be made, from within contractarianism, for exploiting animals in many different ways.

Having said that, Barry’s contractarian theory does have the advantage that it reflects the political reality that it is humans who do the valuing of animal interests and it is humans who put animal interests on to the political agenda. This is an important insight which is politically significant. Indeed, contractarian theories provide a political model for how animal interests are represented in practice. As Baxter (2000: 49) points out, ‘whether or not any component of non-human nature is saved depends on whether or not enough people can be persuaded’ that they ought to be. In the context of environmentalism, Rawls and Barry’s liberalism is, in Derek Bell’s words, a ‘”contingently green liberalism” rather than an “intrinsically green liberalism”’ and it is ‘up to the environmentalist to persuade enough of their fellow citizens of the value of their “green ideals”’ (Bell, 2002: 721). In the same way then, Barry offers us contingent support for the protection of animals. 

In this context, it is important to recognise, as Christopher Morris (1998: 188) has emphasised, that contractarianism is ‘not merely a method for determining the nature and content of the requirements of justice; it may also give us a way of providing reasons for accepting and complying with justice’. Morris is referring here to a theory of justice as mutual advantage in which self-interest is a condition upon agreeing to abide by principles of justice. As he writes, ‘the fact that certain principles or practices are determined by rational agreement is a reason for accepting and abiding by them’ (Morris, 1996: 218). As we have seen, such a theory explicitly excludes animals, and it may help to explain a contemporary reality about animal protection politics. For why, despite the work of many animal advocates, ethicists and activists, and the strength of their arguments that animals deserve to be regarded as morally considerable, is it that the message has tended to have so little influence? Animals are still, despite many decades of campaigning, exploited mercilessly and made to suffer in innumerable ways and not, in short, treated as if they are morally considerable. 

The answer might lie in the fact that it is not enough to simply state in dry philosophical language that animals have intrinsic value, because of the characteristics – sentience or autonomy – they possess, and therefore ought to be treated in a certain way. Many accept the logic of this position, however imperfectly, but still ignore and tacitly accept the exploitation of animals. One conclusion to this paradox relates to Morris’s claim that because of its ‘other-directed’ character – the fact that it benefits others -‘sometimes we do not have reason to be just’ or, to put it in a stronger way, ‘sometimes it pays not to be just’ (Morris, 2008: 16). What is needed, as well as – or instead of – a case for the moral considerability of animals, is a focus on how the protection of animals benefits us. The exact form a politically-viable indirect duty approach to animals would take, though, is a subject for another article. 


This article was researched and written whilst I was the holder of a Leverhulme Research Fellowship and I would like to thank the Leverhulme Trust for its support.


  1. A contractarian account is provided by Mark Rowlands (1998), an animal rights account provided by, amongst many others, Tom Regan (1984), and a utilitarian account provided by Peter Singer (1990).
  2. Both Peter Carruthers (1992) and Peter Sandoe & Stine Christiansen (2008: 19), uphold Rawls’s assertion that animals are not owed duties of justice. 
  3. The best known attempts to adapt Rawls in order to incorporate animals are provided by Mark Rowlands (1998) and Donald Vandeveer (1979).
  4. Doubts about the validity of adapting Rawls to include animals have been expressed by Brian Baxter, (2005: 95-6) and by author……
  5. David Gauthier (1986: 268) confirms this when he writes that: ‘Animals, the unborn, the congenitally handicapped and defective, fall beyond the pale of a morality tied to mutuality’.
  6. This is a position held by Peter Carruthers (1992: 99-100). 
  7. The degree to which this legislation has actually worked in achieving its objectives is open to question. Certainly, foxes are still killed quite legally although it is now illegal to hunt them with a pack of hounds. The level of enforcement, however, remains doubtful and there would seem to have been relatively little impact on the number of hunts existing.


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