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 mysterious, ad 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.

Conclusion

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. 

Acknowledgements

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.

Notes

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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This was a version of an article that was published, after peer review, in the Journal Of Global Ethics, 7, 3, 2011, pp. 279-90

ABSTRACT

This article provides a critique of the IWC’s traditional focus on anthropocentric conservation in the governance of whaling. It is argued that this position, which relies on accepting the view that we have no direct moral duties to whales, is out of step with the moral status that now tends, in theory and practice, to be granted to animals. More specifically, anthropocentric conservation conflicts with the widespread acceptance, in theory and practice, that nonhuman animals such as whales have moral standing, that what we do to them matters to them directly. This does not mean that whaling should necessarily be prohibited on ethical grounds, although the animal welfare analysis of whaling sketched in this article does suggest that, on balance, it is difficult to defend morally. Rather, it is being claimed that it is morally objectionable to deny, as the whaling nations do, that the IWC ought to be mandated to consider the welfare implications of whaling.

The international regulation of whaling has reached crisis point as parties to the International Convention for the Regulation of Whaling (ICRW) have repeatedly failed to agree on a way forward (Epstein, 2008: 199-200; Chasek et. al. 2010: 205-14). This impasse has been driven by the existence of competing interests among the parties, predicated upon different ethical world views. Traditionally, the International Whaling Commission (IWC) – the governing body of the ICRW – has been dominated by the ideology of anthropocentric conservationism, whereby whales are to be preserved, not because they are regarded as intrinsically valuable, but in order to maintain a sustainable stock to allow hunting them to continue. As the membership of the IWC has expanded, and the whaling nations reduced to a small minority, however, there has been enormous pressure, both from the governments of non-whaling nations and NGOs, to take account of the welfare of individual whales. There is currently no agreement on whether animal welfare falls within the IWC’s mandate, and there is no requirement for animal welfare data to be collected. However, animal welfare has been identified as a major issue for resolution in the current reform process. To this end at its meeting in 2010 the IWC agreed to the British delegation’s offer to convene a whale welfare and ethics workshop, which was held in March 2011 (IWC, 2010).

It is the aim of this article to outline and evaluate the ethical approaches current in the debate in order to make a moral judgement on the practice of whaling.² It is argued that the IWC’s traditional focus on anthropocentric conservation, which relies upon an acceptance of the view that we have no direct duties to whales, is out of step with the moral status which now, in theory and practice, tends to be accorded generally to animals. In particular, such a position conflicts with the widespread acceptance, in theory and practice, that nonhuman animals such as whales have moral standing, that what we do to them matters to them directly. This does not mean, of course, that whaling should necessarily be prohibited on ethical grounds. The acceptance that animals such as whales have a moral right to life would enable us to reach this conclusion. The application of an animal welfare ethic to whaling would, by contrast, require us to weigh up the costs to whales against the benefits to those who seek to catch them. As this article will suggest, a plausible animal welfare case against whaling can be made. At the very least, though, to deny, as the IWC currently does, the validity of engaging in such an animal-welfare centred debate is clearly objectionable morally.

Anthropocentric Conservationism and the IWC

The regulation of whaling provides the classic example of an anthropocentric wildlife treaty, in the sense that the only value of whales is as a resource for humans. Unregulated whaling over many centuries decimated the whale population, bringing many species to the brink of extinction (D’Amato and Chopra, 1991: 28-9). This resulted in the creation, in the 1930s, of an international body to protect whale stocks. Its present incarnation, the ICRW, came into being in 1948. It was designed to conserve whales, not because they were regarded as intrinsically valuable, and therefore worthy of some respect and decent treatment, but because whaling nations recognized that they needed to be conserved in order for hunting them to continue. The convention set up a standing body, the IWC, which is designed to regulate the industry by imposing annual quotas determined by calculating the maximum sustainable yields. The moratorium on commercial whaling, introduced in 1982, was designed, at least for the whaling nations, ostensibly to allow whale stocks to recover. 

The ethical position denoted by anthropocentric conservation is equivalent to the so-called indirect duty view approach to animals. This approach was common particularly prior to the nineteenth century. Thus, for philosophers such as Kant (1965/1797), the treatment of animals may raise ethical issues, but animal interests do not matter in their own right. In other words, ill-treating an animal does not infringe any morally important interests that animals themselves possess, but we may infringe the interests of other humans in the process. The obligation to treat an animal well is, then, an indirect obligation since it derives from the direct obligation to another human.

From the perspective of anthropocentric conservationism, then, since the intrinsic value of animals is not recognised, their protection depends entirely on whether it is in the interests of humans to do so. For example, the need to conserve whale stokes was, at least for the whaling nations, the reason behind the moratorium on commercial whaling, which, as an indirect consequence, has protected at least some whales.³ An indirect duty ethic also justifies protecting whales on aesthetic grounds. The case for whale watching, for instance, is that it benefits humans who get pleasure from observing whales in their natural habitat. In addition, of course, there are economic benefits to be had from facilitating whales from being seen. In fact, it is possible to justify a prohibition of whaling on the general grounds that it serves a wide variety of human interests – including squeamishness, and an emotional dislike of cruelty – to do so. Of course, these have to be balanced against the interests of those humans with an economic or cultural interest in continuing to hunt whales.

Whaling and Modern Animal Ethics

There is a problem with basing a modern wildlife treaty on an ethical framework which denies or ignores the moral standing of nonhuman animals. The problem is that this ethical framework conflicts with the widespread acceptance, in theory and practice, that we do have direct duties to animals; that what we do to them is of ethical importance in and of itself.

Few philosophers would deny now that we owe at least something to animals directly. What we do them, in other words, matters to them and not just to those humans with a vested interest in their protection. Accepting that we owe direct duties to animals, however, does not mean that any use of animals is automatically prohibited. A useful distinction here, following Goodpaster (1978), is between moral standing and moral significance. The former I take to mean the existence of any degree of direct moral considerability, the latter I take to mean the degree of moral worth, so that, as Attfield (2003: 43) clarifies, ‘moral standing…is compatible with different degrees of moral significance’. All that is being claimed here so far is that, for the vast majority of philosophers, animals have moral standing, but that claim is consistent with the position that humans have greater moral worth than animals. In other words, accepting that animals have moral standing does not rule out sacrificing their interests in order to benefit humans who may have a greater degree of moral significance.

            The moral orthodoxy regarding animals, which emerged in the nineteenth century, does seek to make a distinction between moral standing and moral significance. This animal welfare ethic holds that, whilst we owe some obligations to animals on the grounds that they can be harmed directly, it is morally justifiable for humans to exploit them provided that humans benefit significantly in the process. The principle of unnecessary suffering, therefore, can be invoked if the level of suffering inflicted on an animal outweighs the benefits likely to be gained by humans. Robert Nozick (1974: 35-42.) provides a concise but admirably effective definition of animal welfare when he writes that it constitutes ‘utilitarianism for animals, Kantianism for people.’ Sacrificing the interests of animals for the aggregative welfare, then, is permissible providing that the benefit is significant enough, but treating humans in the same way is prohibited whatever the benefits that might accrue from so doing.

Of great importance in the transformation of the moral status of animals is the recognition of the moral significance of sentience. This claim derives from utilitarianism. As Bentham (1948: 311) wrote, in an oft-quoted passage, ‘the question of moral status is not ‘Can they reason? Nor, Can they talk? But, Can they suffer?’.  Animals’ lack of other psychological capacities, such as reason, autonomy, moral agency and so forth, is still, for many philosophers, important but this lack is now more often than not invoked to deprive animals of an increase in moral significance rather than the existence of any moral standing. There is a consensus, in other words, that the sentiency of animals means that we have some moral obligations to them.

             There are some animal ethicists, of course, who want to go much further and accord moral rights to at least some animals. Traditionally, animal rights has been associated with an abolitionist position, whereby the granting of rights to animals is equivalent to a prohibition on their use, as sources of food or models of scientific research, irrespective of what is done to them whilst being used. Regan (1984), for instance, argues that because animals have what he calls inherent value, they possess a right to be treated with respect. Being treated with respect is inconsistent, Regan argues, with being exploited even if the exploitation does not involve suffering. 

I do not think that an animal rights position necessarily equates with abolitionism. If one grants to animals a right not suffer, for instance, then it is not using animals that ought to be of concern morally, but rather what is done to them whilst being used (author, 2010; 2011).  It is important to note, though, that both versions of animal rights use ‘rights’ in the same sense. The purpose of a right is to draw a protective fence around its possessor. In other words, we are not entitled to sacrifice an individual’s right even if by so doing we could maximise aggregate general welfare. For example, if it was possible to find cure for a range of currently fatal diseases by inflicting pain and death upon a small number of humans (or even one) the rights view – or, to be completely accurate, a particular version of rights theory – would impose significant constraints upon so doing, on the grounds that such constraints protect important individual interests.

            What an animal rights ethics prescribes with regard to whaling will depend on which version is adopted. If we accept the strong version of animal rights, whereby the use of animals is prohibited, then whaling would clearly be morally wrong. Finding a method of killing that reduced or eliminated the infliction of pain would not alter this, since killing them, irrespective of the method used, is still a wrong. If, on the other hand, we accord to animals such as whales a right not to suffer, then the moral legitimacy of whaling will depend upon the degree to which it does cause suffering. This, of course, is an empirical question, which will be discussed further below in the context of an animal welfare analysis of whaling. 

For now, it should be noted that the position that whales have a right not to suffer differs from the consideration of suffering in such an animal welfare analysis. In the case of the former, even if there are human benefits to be had from causing whales to suffer these are illegitimate morally because they have been achieved by infringing the rights of whales. In the case of the latter, the pursuit of such human benefits may be legitimate morally depending on the degree to which they can be regarded as necessary. Since whales do not have rights, according to the animal welfare ethic, it may be legitimate morally to sacrifice their interest in not suffering.

            Of course, describing what is meant by an animal rights position, and its implications for practices such as whaling, is easier than justifying according rights to animals in the first place. Such an analysis is beyond the scope of this paper. A starting point would be to establish on what grounds animals are being accorded rights. For some philosophers, mere sentience is enough for such a move (Francione, 2008), whereas for others – such as Regan (1984) – establishing that at least some animals have psychological characteristics beyond mere sentience, is important. This latter move is designed to counter the common argument that personhood – including a range of psychological capacities such as autonomy, rationality, language use, moral agency and so on – is synonymous with human beings and explains our greater moral worth (see, for example, Steinbock, 1978)

There is little doubt physiologically that whales can feel pain. In addition, although it is impossible to ascertain with certainty, there are a number of factors that suggest that whales have considerable cognitive capacities. They have remarkable sensory powers, and complex communication capacities. Moreover, some whale species are social animals, and have developed interspecies communication with dolphins (Lilly, 1967). Dolphins themselves are regarded, by some scientists, as possessing the necessary cognitive capacities for personhood (http://www.timesonline.co.uk/tol/news/science/article6973994.ece). Much is often made of the size of a whale’s brain (the biggest being six times larger than a human’s) but this, of course, is insignificant compared to the size of the brain relative to the body. What is more important is the structure of the brain and, in particular, the number of neocortical neurons. Here, research has found that the number of such neurons in the Minke whale is, at 12.8 billion, 13 times that of the rhesus monkey but only two thirds that of the human (Eriksen and Pakkenberg, 2007).

If we accept the view that whales can be regarded as persons because of the characteristics they possess, then they are entitled to the same degree of moral status as human persons. That is, if humans have a right to life, then so do whales. As Regan (1984:110), who holds this view, points out: ‘a painless killing, from the point of view of what a whale loses when killed, is just as harmful, just as great a loss to the whale, as a painful one’. As a result ‘Even were the day to come …where we had the technological means to kill a whale instantaneously, painlessly, that would not cancel the immorality of the killing’. Importantly, though, even if we reject the claim that whales, unlike normal adult humans, are persons, it is still possible to justify the prohibition of whaling on rights grounds, if one accepts that it is credible to accord to them a right not to suffer, and it can be established that whaling causes suffering. It seems to me that such a position is a valid one. Whales clearly have an interest in avoiding suffering whereas it is more contentious to argue they do have an interest in continued life.

Animal Welfare and and the Treatment of Animals in Practice

It is undoubtedly the case that some, maybe many, of those involved in NGOs oppose whaling because they regard it as a practice which infringes the rights of whales. The granting of rights to animals, however, remains extremely contentious. In practical terms, the glaring inconsistency is between the practice of anthropocentric conservation in the case of whales, which denies or ignores their moral standing, and the dominance of the animal welfare ethic in the way animals are treated in general. Thus, the acceptance of the animal welfare ethic has led to the introduction of animal welfare laws in most developed countries. In a world-wide survey by Boreham (2011), for example, it is concluded that ‘it is now quite a rarity for a country to have absolutely no coverage of animal welfare in their laws’ and ‘there is now recognition of animal welfare across all regions, including the Middle East, Africa and Asia’. Many of these animal welfare laws provide legal constraints on what can be done to animals in the pursuit of human gain in a variety of spheres.

            Not only has the animal welfare ethic predominated within individual countries. It is also increasingly the basis for international agreements involving animals. For example, the World Organisation for Animal Health (OIE) – an intergovernmental organisation with a membership of 172 countries including Norway, Iceland and Japan – first adopted culturally neutral standards for the humane slaughter of animals for human consumption in 2005. Although written with specific reference to terrestrial animals in a slaughterhouse environment, the guidelines note that the principles apply to all animals slaughtered outside slaughterhouses. The latest version of the guidelines (OIE, 2009: chapter 7.5) include guiding principles for animal welfare (Article 7.1.2), incorporating recognition and promotion of the ‘five freedoms’⁴, as well as a chapter detailing recommendations to ‘ensure the welfare of food animals during pre-slaughter and slaughter processes until they are dead’ (Chapter 7.5). Provisions include various prohibitions on animal handling, as well as criteria for the effective application of pre-slaughter stunning (Article 7.5.7). The provisions in this agreement quite clearly recognise the moral standing of animals and are designed to protect their interests in not suffering.

It is true that many treaties concerned with wild animals remain primarily anthropocentric (author, 2005: 118-20). However, the interests that individual wild animals have in avoiding suffering are being increasingly recognised. For example, throughout the European Union there has been enormous political pressure to ban the particularly harsh leg-hold trap in favour of a more humane alternative. Moreover, there is an, admittedly very weak, Agreement on International Humane Trapping Standards between the EU, Canada and the Russian Federation signed in 1998, and a similar agreement between the EU and the United States was signed in the same year (Harrop, 2003). These standards set out the permitted length of time it should take for an animal to die once trapped. However weak these agreements are, they do involve a recognition that wild animals are not merely resources for us to exploit as we see fit but entities with moral standing whose interests have, however perfunctorily, to be taken into account.

Even within the IWC, pressure, from non-whaling nations and NGOs, has resulted in some consideration of the welfare of whales. The impact on whales of slaughter methods has been a matter for discussion in the past (see below). More recently, the IWC has started to address issues – such as ship strikes and entanglements in fishing gear – which have a significant welfare component (Johnson, et. al., 2005). Clearly, there is a conservation motive here too since if whales are killed by ship strikes, as they usually are, or by getting entangled in fishing gear, then it impacts upon the sustainability of the species.  Nevertheless, it is undoubtedly the case that the welfare of individual whales has been a consideration here too. 

For example, at the IWC meeting in Agadir, Morocco, in 2010 the report of a workshop on welfare issues (originally proposed by Norway) associated with euthanasia and the entanglement of large whales was endorsed. This report accepted that, in some circumstances, euthanasia is often the most appropriate option because it is the most humane option (http://iwcoffice.org/_documents/commission/IWC62docs/62-15.pdf; http://www.defra.gov.uk/wildlife-pets/wildlife/protect/whales/documents/iwc62.pdf). Such a conclusion is at odds, of course, with an approach concerned exclusively with maintaining species numbers.

The principles of animal welfare, then, are adopted extensively at the national and supra-national levels. Moreover, the welfare of individual whales is given some consideration by the IWC itself when more general human/whale interactions are discussed. Given this, it is inconsistent that animal welfare is not currently regarded as within the IWC’s remit, and that the welfare of whales is not regarded as a factor that ought to be taken into account in discussions about whaling. 

An Animal Welfare Analysis of Whaling

An assessment of the moral acceptability of whaling from an animal welfare perspective requires the weighing up of the costs to whales against the benefits to those who seek to catch them. Any significant human benefit can justify the exploitation of animals, which are not protected by a right to life or a right not to suffer at human hands. Crucially, what is regarded as unnecessary suffering is not static and there are reasonable disagreements about what constitutes ‘unnecessary’ in this context. Indeed, over the past few decades what is regarded as unnecessary suffering in the treatment of animals in general has expanded to reflect a growing awareness of the different ways animals can suffer, changes in cultural norms, and technological developments which have made it possible to use alternatives. Thirty years ago or so, for example, the wearing of fur and the testing of cosmetics on animals was regarded as acceptable.  Now, many people in the developed world frown upon both practices. 

The cost-benefit calculation relating to whaling is not an exact science, but it is possible to sketch out a framework. On the cost side, it is widely accepted that the method of killing whales causes enormous suffering and is likely to be unavoidable. High speed pursuits are likely to cause fear and agitation in the hunted whale. The use of harpoons whose explosive charge detonates inside whales cannot ensure that the animals do not suffer before death ensues. The Japanese Government’s own data suggests that up to 60% of minke whales do not die instantaneously in special permit whaling (Ishikawa, 2005). This is not surprising since whalers are trying to catch a rapidly moving target, which may only appear at the surface for a short period of time. As a result, the chances of the harpoon acting as a stunning device are relatively small. Therefore, the suffering endured by a whale that is caught but not killed instantaneously is caused by four major factors: the fear engendered by the hunt, the initial harpoon strike, the subsequent explosion and the application of ‘secondary killing methods’ (further harpoons or rifle fire, until death ensues).  

It is not difficult to show that the level of suffering involved in killing whaling is greater than that deemed to be ethically permissible in the case of killing domesticated animals slaughtered for food. It is quite clear, for instance, that the methods used to kill whales do not meet the OIE standards described above. To put it starkly, if the OIE published a recommendation that it was internationally acceptable to fire hand grenades into cows as they ran around the field there would rightly be an outcry! Of course, the OIE regulations apply to domesticated animals that are to be consumed for food. However, charges of ethical inconsistency can be raised against those countries which sign up to the standards pertaining to domesticated animals but then completely ignore them in the context of the killing of wild animals for the purposes of commercial meat production. This is particularly applicable given that the major use to which dead whales are now put is, as we will see below, a source of food. 

Against this evaluation, it can be pointed out that greater suffering – than experienced by farm animals or by wild animals such as whales – may, and often is, inflicted on some animals used in experimental contexts. In those cases, however, the benefits, or potential benefits, to shumans and/or other animals may well be greater. In defence of whaling, too, it can be argued that whilst whales suffer in the process of being caught it is probably true that, in general, they live better lives than confined animals (such as veal calves on which see below) on factory farms, where the moral case reform is even greater. In part answer to this, it should be pointed out that the worst excesses of factory farming (for instance, the veal crate, the battery cage, the sow stall and tether and so on) are being dismantled across the countries of the European Union, although it is conceded that world-wide the incidence of factory farming methods is growing.

There is also some validity in the argument, put forward by delegates from whaling nations, that whaling should be compared with other forms of hunting rather than with the treatment of domesticated animals. Here, though, there is a strong case for saying that the method of killing whales involves the infliction of greater suffering than that inflicted upon most other hunted animals.  It is arguably easier to kill a land-based wild animal humanely than it is to kill a whale, although in practice it is conceded that a clean kill is not always possible and suffering sometimes does take place. In addition, although trapping animals can cause great suffering, there have, as we saw above, been attempts to take the welfare interests of individual trapped animals into account. 

Given the suffering inflicted on whales, the moral justification, from an animal welfare perspective, for their continued hunting depends on two factors. The first is the ability of the whaling industry to develop more humane hunting methods. There is some possibility of this. The first discussion within the IWC of the welfare of whales, as opposed to their conservation as a species, occurred in 1958, and this was the start of a process whereby the conservation agenda has been challenged by ‘protectionist’, and later ‘preservationist’ agendas (D’Amato and Chopra, 1991: 32-48). As a symbol of this, a Working Group on Humane Killing was set up within the IWC in 1982, and some changes have occurred as a result of the IWC’s increasing focus on protectionism, a development driven in particular by the approach of the British Government (Harrop, 2003). In addition, the use of cold (non-exploding) harpoons was banned in 1981, although it is still used by subsistence hunters. Moreover, other changes, such as the tailoring of weaponry to the size and species of the whales being hunted, improvements to ‘secondary killing’ methods – concerned with killing whales that have not been killed by the harpoon – and ensuring that welfare standards improve in the area of subsistence whaling, have also been mooted. Nevertheless, it is difficult to see how welfare standards can improve dramatically. As Harrop (2003: 85) points out: ‘a large whale in a cruel sea is not an easy quarry for hunting and necessarily the killing of these animals will fail to conform with contemporary welfare expectations’.

            The second factor to be considered in an animal welfare assessment of whaling is the human benefits gained by continuing to catch whales. To what extent, in other words, is whaling, and more specifically the suffering inflicted on whales, necessary? By the beginning of the twentieth century, the products derived from catching whales constituted a significant economic resource.  Whales traditionally had a large variety of commercial uses – most notably the oil extracted from their bodies was used for a variety of purposes and not least for lighting – and it no exaggeration to say that the ‘whaling industry was the equivalent of today’s petroleum industry’ (Epstein, 2008: 28). As substitutes were found, and whale stocks plummeted, however, whaling has long ceased to be an economically important activity, for states at least, although it may still represent an important source of economic value for some small communities.The primary use of the whales caught now is as a source of food. But, despite the fact that whaling nations have sometimes sought to justify whaling in terms of food security (Epstein, 2008: 231-4), whale meat represents a tiny proportion of the food consumed in whaling nations. Indeed, few people, even in whaling nations, have ever eaten whale meat (Allaby, 1986: 146-7). 

In this sense, a useful comparison would be between whaling and the veal trade. Origi­nally, the tender and pale veal meat came from calves slaughtered after a few days of birth before they began to eat grass and their flesh darkened. The problem for the veal producers was that these very young calves were very small. In the 1950s, veal producers in Holland hit upon the idea of keeping the calves alive longer without their flesh becoming any less pale or tender.  During the 16 weeks of their lives, calves were fed a liquid diet which lacked the required amount of both roughage and iron and, because the animal could not be permitted to consume these elements naturally and develop muscles which reduce the tenderness of the meat, it was necessary for them to be removed quickly from their mothers and confined. The most notorious confinement was the so­-called veal crate, a device which prevented the calf from turning round or grooming the whole of its body and which isolated the animal completely from external stimuli and even bedding which might be a source of iron. It has been widely recognised in Europe that the suffering inflicted on calves simply did not justify a delicacy which was enjoyed by very few, and the veal crate was banned in Britain in 1990 and later throughout the EU. It can be argued that whaling occupies a very similar position ethically to the veal crate, and it is therefore vulnerable to the same outcome.

Of course, there will be some economic dislocation caused by the banning of whaling and, from an animal welfare perspective, those who oppose whaling have to show that this dislocation can be readily rectified by alternative sources of employment and investment opportunities. Here, the economic benefit of whaling need to be measured against the income that is currently raised by whale watching and the additional amounts that could be raised if additional resources were put into promoting it. The point, though, is that, even from an animal welfare perspective, the infliction of suffering on animals is not justified by just any human benefits. These benefits have to be shown to be significant. 

Cultural Diversity, Ethics and Animal Welfare

The reality now, as Epstein (2008: 235-43) has shown, is that the pro-whaling discourse is more about cultural identity than it is about economics. A challenge to attempts to pass a moral judgement against whaling on animal welfare grounds, therefore,  is offered by those who say that whaling should be permitted on the grounds that it represents an important part of the culture of the society that permits it, just as, say, bullfighting is revered in Spain or fox hunting in Britain. Thus, it has been claimed that the ban on commercial whaling represents a cultural bias against the Japanese since the consumption of whale meat reflects ‘dietary customs, religious beliefs, cultural backgrounds and emotional sensibilities…For the Japanese people, the whale is not only a food source, but also a basis of culture’ (Sumi, 1989: 318).

Assessing the degree to which cultural diversity is a sufficient justification for the suffering inflicted on whales from an animal welfare perspective is a difficult task, and requires more research in particular to ascertain the actual loss to members of a particular culture if whaling is prohibited. This, of course, is likely to vary. Much will depend on the extent to which the killing and consumption of whales is an integral part of the culture, as opposed to a more general relationship with the animals which might be satisfied by alternative means, such as whale watching, which do not involve the infliction of suffering. What can be challenged effectively is the assumption of moral relativism that often appears to lie behind claims linking cultural diversity with whaling.⁵ Moral relativism is the ‘idea that the authority of moral norms is relative to time and place…so that they cannot be objectively justified and so cannot be absolute’ (Lukes, 2008: x, 16). The pro-whaling literature tends to link cultural diversity and whaling with moral relativism in this way. Thus, in a Japanese paper seeking to defend whaling, it is stated that ‘there are two kinds of ethics or morals, one is innate and universal, and the other is acquired and culture-social specific’ (Hayashi, Morishita and Ohmagari, 2006)

This statement expressively acknowledges that only a part of ethics is ‘innate and universal’ whilst that part of ethics concerning whaling is ‘acquired and culture-social specific’. There is, however, a strong case to be made in favour of the claim that the ethics involving the treatment of whales ought to be governed by a universal ethic too. By utilising familiar arguments, it is possible to suggest that that such a relativistic view of morality in the case of animals is mistaken. In the first place, although it might be the case that moral diversity does exist in the world as a descriptive fact, we cannot move from observing this diversity of morals to the conclusion that ‘therefore there is no one true morality and no privileged value perspective’ (Lukes, 2008: 133). In the context of this article, therefore, just because a particular culture regards whaling as ethically acceptable does not automatically mean that it is so. Thus, it may be correct to say, as one ethical defence of whaling does, that: ‘Depending on one’s cultural as well as ethnic background, there are differences in the things people judge to be cruel’ (Hayashi, Morishita and Ohmagari, 2006), but that, by itself, is not a justification for the claim that all actions deriving from different cultural or ethnic backgrounds are thereby morally permissible.

Second, a moral relativist position underestimates the degree to which we can reach considered judgements on moral questions involving animals. Such a judgement includes assessing the logical consistency of a moral claim as well as the validity of any factual claims made. Central to many competing moral positions are facts which are empirically verifiable. To give one relevant example, Descartes (1912/1637) justified the acceptability of using animals in scientific experiments on the grounds that they could not feel pain. There are few thinkers who would now accept this empirical conclusion and therefore the major justification for the normative claim no longer holds. Of course, it is the case that a moral conclusion, that experimenting on animals is wrong, cannot be derived from the empirical fact that animals feel pain, since such a conclusion requires a normative premise to the effect that we ought not to experiment on beings who can feel pain. Nevertheless, facts can have an important bearing on moral arguments. We have seen, for instance, that the moral case for and against whaling involves the use of factual statements – for instance, on the cognitive capacity of whales or on the economic benefits which can be derived from their exploitation – which can be subject to empirical verification. 

Third, the moral relativist position underestimates the degree to which there is consensus on the moral status of animals. As this article has revealed, there is evidence that most governments, at least in the developed world – including the governments of whaling and non-whaling nations – agree that we ought to take into account the interests of animals in our decision-making, that what we do to animals as, say, sources of food or as experimental subjects, has an impact on their welfare, and that we have moral obligations to ensure that we try as far as possible to protect the interests of animals. 

Fourth, it can be argued that the reason why the extensive degree of moral consensus is not fully appreciated is because of a failure to distinguish between the concepts of the good, on the one hand, and, on the other, the right. Those who seek to link moral relativism with cultural diversity in order to justify the continuation of whaling seem to confuse a theory of the good with a theory of the right. A conception of the good refers to what an individual or a group regards as an ideal way of living. For instance, I might base my life on the teachings of the Bible, whilst others might base their lives on the Koran, and others might adopt a secular life-style. The list of possible conceptions of the good is endless. A desire to spend a great deal of time on the sofa watching game shows on television is as much a conception of the good as is going to the opera. It is a central feature of liberal political thought that the state (or indeed the international community) should not intervene to favour one conception of the good over another. 

Those supporting whaling argue that their conception of the good involves catching whales and consuming whale products, and that non-whaling nations and peoples have no business in intervening to impose their way of life on them. Before this is accepted, however, we need to contrast a conception of the good with the idea of a right. A right is what individuals are owed. At the very least, it represents a right to be free of interference that causes harm. Crucially, in liberal political thought, the right takes precedence over the good. In other words, ‘the ‘rights which people have, and which it is the job of the state to protect, come first and stand as constraints on the conceptions of the good which people can choose to pursue’ (Mulhall and Swift, 1992: 30) So, if my conception of the good consists in engaging in practices that causes harm then the state should intervene to stop it. In other words, the moral pluralism that liberals advocate has to be a ‘reasonable pluralism’ (Rawls, 1993: xix-xx). For instance, most would argue that a conception of the good that involves genital mutilation is unacceptable because it causes harm to others. Likewise, the vast majority would regard slavery in a similar light, as a conception of the good that is unacceptable because of the harm caused by pursuing it.

The point I am edging towards here is that, when it comes to conceptions of the good, moral pluralism is to be encouraged. We do live in a world of variety and it is not possible, or desirable, to intervene by claiming that one good is better than another. However, there is a great deal of consensus, across different cultures and different nations, on what can be regarded as a right and therefore what conceptions of the good are beyond the pale morally. To give a stark example, a culture that sought to inflict severe harm on a racial minority would be universally condemned.

Those who seek to defend whaling on the grounds of moral relativism tend to regard the activity as a conception of the good. Those who seek to prohibit whaling are then accused of seeking to impose their own conception of the good on others. This is the grounds for the charge that to seek to do so is an example of cultural imperialism. The case against whaling, however, involves much more than this. To regard whaling as a legitimate conception of the good, to be weighed against competing and equally legitimate conceptions of the good, is to disregard the harm that is inflicted on whales in the pursuit of this particular lifestyle. Built into the claim of cultural relativism, therefore, is an assumption either that whales cannot suffer or that their suffering is inconsequential. The animal welfare case against whaling is based on the assertion that neither assumption is justified. As a result, we are entitled to take into account the suffering of whales in building a moral case against the practice. It will not do, in other words, to dismiss opposition to whaling on the grounds that it is merely one conception of the good amongst others. 

Conclusion

This article has suggested that the IWC’s continuing adoption of anthropocentric conservation conflicts with the widespread acceptance, in theory and practice, of an ethic that accords direct moral standing to nonhuman animals. Few philosophers today, for good reason, would deny that we have direct moral obligations to animals such as whales. Such an ethic is now widely accepted in practice in the case of domesticated animals, and is increasingly a consideration in the way in which wild animals are treated by humans. The IWC itself has recognised this ethic in some human/whale interactions, but has denied its validity in the case of whaling. Of course, the application of animal welfare principles to whaling does not necessarily justify its prohibition on moral grounds, although the adoption of an animal rights ethic which accorded a right to life to whales would do so. The first step, therefore, should be an amendment to the convention schedule creating a permanent working group on animal welfare and mandating the submission of animal welfare data. 

The animal welfare analysis of whaling sketched in this article does suggest that, on balance, it is difficult to defend morally, although more work is needed to establish the case. Despite the suffering that does occur, at least sometimes, during the catching of whales, whaling is not now justified primarily for the economic benefits it produces but for its cultural value. This justification, however, is vulnerable to the charge that alternative, non-exploitative, uses of whales are equally appropriate. There are strong grounds for thinking that the cultural benefits claimed for whaling cannot be justified on the grounds of a moral relativism, as some whaling advocates seek to do. Nevertheless, an animal welfare case for whaling centring on the cultural benefits that may derive from it, is not dependent on the validity of moral relativism but could be based merely on the balancing of interests. There is no case, however, for the IWC to fail, as it has done, to engage seriously with the process of balancing these interests. What is clear is that a version of cultural diversity which holds that it is justifiable to deny that whales have any moral worth, and that we are entitled to do anything we want to them, is inconsistent with the widely-held principle that they have intrinsic value.

Notes

1.         acknowledgements omitted.

2.         It is not being claimed here that moral arguments are likely to be the key determining variable in the development of the international regulation of whaling. Mitchell (1998) has shown that in the case of whaling a scientific-based discourse has had more impact than those that are interest or moral-based. By contrast, Epstein (2008) points to the importance of an anti-whaling discourse and minimises the political importance of the scientific community. This article does not take a position in this debate. All that is being claimed is that moral arguments ought to be decisive, irrespective of whether they are or not. 

3.         Whaling still persists under the guise of ‘scientific’ whaling conducted by Japan under the auspices of the IWC. In addition, Iceland and Norway set themselves annual quotas for the commercial hunting of whales having lodged objections to the moratorium. About 1,500 whales were killed by these methods in 2008. In addition, the IWC awards Aboriginal Subsistence Whaling quotas for whale hunts in Russia, the USA, Greenland and St. Vincent. Between 300-400 whales are caught annually under these quotas (www.iwcoffice.org/conservation/table_permit.htm.

4.         Freedom from hunger, thirst and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behaviour.

5.         The position taken here is also one adopted by Barry (2001) and Casal (2003).

References

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Attfield, Robin. 2003 Environmental Ethics, Cambridge: Polity.

Barry, B., 2001, Culture and Equality: An Egalitarian Critique of Multiculturalism, 

            Cambridge: Polity.

Bentham, Jeremy. 1948 An Introduction to the Principles of Morals and Legislation. New 

York: Hafner Press.

Boreham, Carla. 2011 ‘Animal Welfare: Emerging Trends in Legislation’, paper presented to the 

            Whale Welfare and Ethics Workshop, held at Eden Project, 22-23 March.

Casal, Paula. 2003 ‘Is Multiculturalism Bad for Animals?’ Journal of Political Philosophy 11,

            no.1:1–22.

Chasek, Pamela., Downie, David And Welsh Brown, Janet. 2010 Global Environmental Politics

               (Philadelphia: Westview Press, fifth edition).

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Method. London: Dent.

Epstein, Charlotte. 2008 The Power of Words in International Relations: Birth of an Anti-

         Whaling Discourse. Cambridge: Mass: MIT Press.

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            Mysticete Brain’, Anatomical Record, 290, no, 1: 83-95.

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            York: Columbia University Press.

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308-25.

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the International Whaling Commission’, Journal of International Wildlife Law and Policy, 6: 79-104.

Hayashi, Yoshimasa., Morishita, Joji. and Ohmagari, Kayo. 2006 Ethics of Whaling (Draft), 

            IWC/58/WKM & AWI Information Paper.

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Program in the Antartic Sea (JARPA) and Northwestern Pacific Ocean (JARPN and 

JARPN II)’. Paper submitted to the 2005 IWC Whale Killing Methods and Associated Welfare Issues Working Group. IWC/57/WKM&AWI 11.

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            Prospects’, Journal of International Law and Policy, 17.

Of great importance in the Oxford Group story was the place – Oxford. It was, in Farrell’s (2001) term, a ‘magnet place’, an important explanatory factor in the Oxford Group’s development and direction. Put simply, access to a major seat of learning – particularly one which had such a reputation in the field of philosophy and which was at the forefront of the development of the new field of applied ethics – and the stunning rural and urban environments that the Oxford Group members were exposed to, played an important part in sustaining and furthering their goals. The importance of the ‘magnet place’ is a central claim of psychogeography, a discipline that can be described as ‘the study of the precise laws and specific effects of the geographical environment, consciously organised or not, on the emotions and behaviour of individuals’ (Guy Debord quoted in Coverley, 2018: 14).

This blog explores some of the key locations in Oxfordshire of most importance to members of the Oxford Group.

1.  To start with, three of the Oxford Group members (Harris, David Wood and Mike Peters) lived on Pullens Lane, a narrow leafy road in Headington a suburb of Oxford. They occupied the top floor flat of a big old house called Fairfield. This was a key venue for members of the Group to meet. By the time they moved in, they were the only tenants and they had free-rein of a huge garden with its own vegetable plot and a lawn.

Originally known as the Pullens, the house was built by William Markby – the senior Bursar of Balliol College – in 1879 and marked the development of Pullens Lane as a residential area. After Markby’s death, his widow renamed the house Fairfield. She died in 1928 and, after changing hands a number of times, the house was divided into three flats. Harris, Wood and Peters were the last tenants. After they had departed in the early 1970s, the house fell into disrepair and was demolished. The site is now occupied by the EF Language School, a private international educational company that specialises in language training.

2. Two important locations relate to Richard Ryder, another member of the Group. He was different from the others in that he was not connected to the University, or married to someone who was. Instead, he arrived in Oxford to take up a post as a clinical psychologist at the Warneford psychiatric hospital also in Headington. Whilst working there, Ryder met the other members of the group and continued to engage in animal rights activism, often using Warneford Hospital-headed notepaper to write to MPs.

The second location of importance was the house Ryder lived in at the time. This was an early seventeenth century house in Sunningwell – a village near Boars Hill, about 4 miles from Oxford – called the Old Manor. The Old Manor was built by Benedictine monks. It is said that Elizabeth I frequently stayed there when collecting monies from her Treasurer, who lived in the neighbourhood. A former owner, Una Duval, was a companion of Emmeline Pankhurst.

It was sitting in the bath at the Old Manor that Ryder had his eureka moment, thinking of the label ‘speciesism’ to describe the 

illegitimate favouring of human interests over those of non-human animals merely because of species membership and not because of any morally relevant characteristics. It was at the Old Manor too, that Peter Singer had regular conversations with Ryder over the concept which played a central role in his subsequent work, and not least his book Animal Liberation.

3. A small basement flat in Norham Gardens, a residential road in central North Oxford – adjourning the north end of Parks 

Road  – was occupied between the late 1960s and early 1970s by Roslind and Stanley Godlovitch, two central figures in the Oxford Group. In their flat, shared with budgies and turtles, Ros and Stan played host to other members of the Group. Indeed, it was dinners there with Peter and Renata Singer, and Mary and Richard Keshen that played a key role in persuading them to become vegetarians in the first place.

4. Another home, this time occupied by Richard and Mary Keshen, played an important role in the Oxford Group.

From April 1970, the Keshens rented a small cottage in Old Boars Hill, a rural area four miles South West of Oxford. Tinkerbell Cottage was an agricultural servant’s cottage dating back to the eighteenth century which the Keshens rented for the princely sum of £8 per-week. This was the location of numerous dinner parties the Keshens had with the Singers and the Godlovitchs as guests.  Intense philosophical discussion about vegetarianism and animal rights, and how to persuade others of the validity of the cause, was a big part of these dinner parties.

5. The Oxford Town Hall was the location for an annual fair of animal welfare societies in Oxford. Organised by the Oxford Federation of Animal Welfare Societies, this event was attended, during their time in Oxford, by Wood, Harris and the Godlovitchs. Their participation in the Oxford animal movement brought them into contact with others, most notably Margery Jones and the young Andrew Linzey the latter going on to become the leading theologian of animal rights and, subsequently, the Director of the Oxford Centre for Animal Ethics.

The Oxford Town Hall, built in the late nineteenth century, is an imposing, now Grade II listed, Jacobethan-style building on St. Aldate’s Street in the centre of the city.

6. The Oxford Group also did some of their own campaigning. On a number of occasions they sought to highlight the plight of  factory-farmed animals by mounting demonstrations next to the stone tower of St. Michael’s Church in Cornmarket, Oxford’s busiest shopping street. The first of these was held on Saturday 25th April 1971. Armed with a stuffed felt veal calf and papier-mache hens in real battery cages as props, Richard Keshen, Wood, Harris, Mike Peters and Peter Singer stood all afternoon trying to persuade the passing public to, at the very least, boycott meat produced in factory farms.

7. The final location significant in the Oxford magnet place takes us right to the centre of the city and the University. It takes the form of a video clip showing the walk, of about five minutes, between New College to Balliol College. The walk takes us from New College on Holywell Street to the East of the city westward along Broad Street, with the Sheldonian Theatre on the left and the Blackwell Bookshop on the right, to the entrance of Balliol College on the right near the junction to Cornmarket and St. Giles.

llhttps://www.youtube.com/watch?v=_nCz0EHHazY

This walk has great significance in the Oxford Group story for it marked the beginning of Peter Singer’s exposure to vegetarianism and animal rights. Keshen had already met the Godlovitchs and he, and Mary, had converted to vegetarianism. He then met Singer towards the end of 1970 when both attended a lecture given by the moral philosopher Jonathan Glover at New College. The two got talking as they left and Richard invited Peter to his college, Balliol, for lunch. Waiting in line perusing the menu, Keshen asked the catering staff if the spaghetti sauce on the menu contained meat and, being told that it did, he chose a salad instead. Singer was curious and asked Keshen why he had made the choice. The rest, as they say, is history!

Of great importance in the Oxford Group story was the place – Oxford. It was, in Farrell’s (2001) term, a ‘magnet place’, an important explanatory factor in the Oxford Group’s development and direction. Put simply, access to a major seat of learning – particularly one which had such a reputation in the field of philosophy and which was at the forefront of the development of the new field of applied ethics – and the stunning rural and urban environments that the Oxford Group members were exposed to, played an important part in sustaining and furthering their goals. The importance of the ‘magnet place’ is a central claim of psychogeography, a discipline that can be described as ‘the study of the precise laws and specific effects of the geographical environment, consciously organised or not, on the emotions and behaviour of individuals’ (Guy Debord quoted in Coverley, 2018: 14).

This blog explores some of the key locations in Oxfordshire of most importance to members of the Oxford Group.

1.  To start with, three of the Oxford Group members (Harris, David Wood and Mike Peters) lived on Pullens Lane, a narrow leafy road in Headington a suburb of Oxford. They occupied the top floor flat of a big old house called Fairfield. This was a key venue for members of the Group to meet. By the time they moved in, they were the only tenants and they had free-rein of a huge garden with its own vegetable plot and a lawn.

Originally known as the Pullens, the house was built by William Markby – the senior Bursar of Balliol College – in 1879 and marked the development of Pullens Lane as a residential area. After Markby’s death, his widow renamed the house Fairfield. She died in 1928 and, after changing hands a number of times, the house was divided into three flats. Harris, Wood and Peters were the last tenants. After they had departed in the early 1970s, the house fell into disrepair and was demolished. The site is now occupied by the EF Language School, a private international educational company that specialises in language training.

2. Two important locations relate to Richard Ryder, another member of the Group. He was different from the others in that he was not connected to the University, or married to someone who was. Instead, he arrived in Oxford to take up a post as a clinical psychologist at the Warneford psychiatric hospital also in Headington. Whilst working there, Ryder met the other members of the group and continued to engage in animal rights activism, often using Warneford Hospital-headed notepaper to write to MPs.

The second location of importance was the house Ryder lived in at the time. This was an early seventeenth century house in Sunningwell – a village near Boars Hill, about 4 miles from Oxford – called the Old Manor. The Old Manor was built by Benedictine monks. It is said that Elizabeth I frequently stayed there when collecting monies from her Treasurer, who lived in the neighbourhood. A former owner, Una Duval, was a companion of Emmeline Pankhurst.

It was sitting in the bath at the Old Manor that Ryder had his eureka moment, thinking of the label ‘speciesism’ to describe the illegitimate favouring of human interests over those of non-human animals merely because of species membership and not because of any morally relevant characteristics. It was at the Old Manor too, that Peter Singer had regular conversations with Ryder over the concept which played a central role in his subsequent work, and not least his book Animal Liberation.

4. Another home, this time occupied by Richard and Mary Keshen, played an important role in the Oxford Group. From April 1970, the Keshens rented a small cottage in Old Boars Hill, a rural area four miles South West of Oxford. Tinkerbell Cottage was an agricultural servant’s cottage dating back to the eighteenth century which the Keshens rented for the princely sum of £8 per-week. This was the location of numerous dinner parties the Keshens had with the Singers and the Godlovitchs as guests.  Intense philosophical discussion about vegetarianism and animal rights, and how to persuade others of the validity of the cause, was a big part of these dinner parties.

5. The Oxford Town Hall was the location for an annual fair of animal welfare societies in Oxford. Organised by the Oxford Federation of Animal Welfare Societies, this event was attended, during their time in Oxford, by Wood, Harris and the Godlovitchs. Their participation in the Oxford animal movement brought them into contact with others, most notably Margery Jones and the young Andrew Linzey the latter going on to become the leading theologian of animal rights and, subsequently, the Director of the Oxford Centre for Animal Ethics.

The Oxford Town Hall, built in the late nineteenth century, is an imposing, now Grade II listed, Jacobethan-style building on St. Aldate’s Street in the centre of the city.

 

6. The Oxford Group also did some of their own campaigning. On a number of occasions they sought to highlight the plight of  factory-farmed animals by mounting demonstrations next to the stone tower of St. Michael’s Church in Cornmarket, Oxford’s busiest shopping street. The first of these was held on Saturday 25th April 1971. Armed with a stuffed felt veal calf and papier-mache hens in real battery cages as props, Richard Keshen, Wood, Harris, Mike Peters and Peter Singer stood all afternoon trying to persuade the passing public to, at the very least, boycott meat produced in factory farms.

6. The final location significant in the Oxford magnet place takes us right to the centre of the city and the University. It takes the form of a video clip showing the walk, of about five minutes, between New College to Balliol College. The walk takes us from New College on Holywell Street to the East of the city westward along Broad Street, with the Sheldonian Theatre on the left and the Blackwell Bookshop on the right, to the entrance of Balliol College on the right near the junction to Cornmarket and St. Giles.

This walk has great significance in the Oxford Group story for it marked the beginning of Peter Singer’s exposure to vegetarianism and animal rights. Keshen had already met the Godlovitchs and he, and Mary, had converted to vegetarianism. He then met Singer towards the end of 1970 when both attended a lecture given by the moral philosopher Jonathan Glover at New College. The two got talking as they left and Richard invited Peter to his college, Balliol, for lunch. Waiting in line perusing the menu, Keshen asked the catering staff if the spaghetti sauce on the menu contained meat and, being told that it did, he chose a salad instead. Singer was curious and asked Keshen why he had made the choice. The rest, as they say, is history!

References

Coverley, M. (2018) Psychogeography, Harpenden, Herts: Oldcastle Books.

Farrell, M. (2001) Collaborative Circles, Chicago: University of Chicago Press.

The book ‘The Oxford Group and the Emergence of Animal Rights: An Intellectual History’ by Robert Garner and Yewande Okuleye will be published by Oxford University Press in 2020.

This blog details who the members of the Oxford Group were, where they came from and how they met. The ten core members consisted of three married couples – Roslind and Stanley Godlovitch, Peter and Renata Singer and Richard and Mary Keshen, three singletons who shared a house in Oxford – John Harris, David Wood and Michael Peters – and, finally, Richard Ryder who was older and not an Oxford student, or married to one.

Ros and Stan Godlovitch arrived in Oxford in 1968. Stan had worked out an animal rights position as an undergraduate in Montreal and he and Ros had therefore become vegetarians before arriving in Oxford. Stan enrolled to study for a DPhil in the philosophy of biology. Ros had not, at this stage, enrolled as a student, although did so, albeit briefly, later.

Peter Singer arrived in Oxford – with Renata, his wife – in October 1969 to undertake a graduate degree in philosophy. Born in 1946 in Melbourne, he was the son of Jewish Austrians who fled Vienna as soon as possible after the Anschluss (the annexation of Austria into Nazi Germany), their escape facilitated by the remarkable altruism of an Australian citizen who agreed, despite having only met Peter’s mother once, to act as a sponsor for Singer’s parents’ Australian visa application. His father was a coffee trader, and his mother was a doctor. His grandparents did not leave and were sent to concentration camps with only his maternal grandmother surviving.

Richard Keshen graduated with a degree in philosophy in 1969 from York University in Toronto. He then secured a four-year Canada Council scholarship to undertake postgraduate study. Just before setting off for Oxford in August 1969, he married Mary Robertson, an English graduate and qualified teacher, whom he had met in his second year of undergraduate study. Both were 22 year’s old.

Harris was born in London in 1946. After attending a Grammar School (his A levels were in science) in Fareham, Hampshire, Harris went up to Manchester originally to study Chemistry but after a year, transferring to study philosophy which interested him more. After obtaining a first-class degree, he went, in 1968, to Oxford to study, at Balliol, for an MPhil which was then upgraded to a DPhil. Harris met David Wood whilst studying philosophy as undergraduates at Manchester University so it was no surprise that they both gravitated to Oxford once they have graduated in 1968, the latter enrolling for an DPhil at New College. Mike Peters was Wood’s friend from Leeds who met Harris when arriving in Oxford to study for a DPhil in Sociology. Quiet and intense, Peters, unlike the others, was extremely left-wing, interested in revolutionary movements.

The final core member of the group was Richard Ryder. He was a bit older than the others (born in 1940) and in the late 1960s did not have a University affiliation, but was working as a clinical psychologist at the Warneford psychiatric hospital in Oxford. He grew up in Dorset. His father, ‘Jack’ Dudley Ryder, was a county squire, a landowner of a large estate near Corfe Castle. Both his mother and father were fond of animals and Ryder puts his subsequent concern for animals down, in particular, to his mother’s intense dislike of animal cruelty.

Three others who subsequently became well-known animal ethicists had links with Oxford at the time but were either more peripheral figures, or had no involvement at all, in the Oxford Group. In the latter camp was Stephen Clark who was a PPE undergraduate at Balliol, and, in 1968, became a Fellow at All Souls. However, he had no contact with the others at the time and puts his conversion to vegetarianism down to an event external to Oxford. Secondly, there is Tom Regan, an American philosopher later to be the author of the influential book The Case for Animal Rights. Regan did visit Oxford – in the summer of 1973 – but it was only a fleeting one of six weeks on a trip with a group of students. He did meet Singer and they met on a number of occasions, thus beginning an acquaintance that was to last for the rest of Regan’s life (he died in 2017).

Finally, mention should be made of Andrew Linzey who later became the leading theologian of animal rights. Linzey lived in Oxford at the time and had done since childhood. However, he was only 17 in the Autumn of 1969 and was not a student at the University.  He was, though, extremely active in local Oxford animal societies, particularly before 1970 when he left to go up to King’s College in London to read for a degree in theology and was certainly part of the wider social network to which the Oxford Group members belonged.

Stanley and Ros Godlovitch’s role as gatekeepers is very obvious. They brought the Group together. For example, Harris and Wood met Stan in a lecture before being introduced to Ros. Similarly, Richard Keshen’s involvement can be dated from meeting Stan, together with John Harris, in the early part of 1970, at a sparsely-attended lecture given by Brian Farrell (who held the Wilde Readership in Mental Philosophy between 1947-79). Subsequently, Stan invited Richard and Mary to dinner.

Richard Keshen, armed with the arguments gleaned from the Godlovitchs, then played a key role in Singer’s introduction to the group. The crucial meeting was by accident. After they had both attended a well-attended lecture given – at New College towards the end of the Autumn term in 1970 – by the moral philosopher Jonathan Glover (part of a series on free-will, determinism and moral responsibility), a few students, including Keshen and Singer, stayed behind to ask questions. The two got talking as they left, and Richard invited Peter to his college, Balliol, for lunch. Waiting in a line, they perused the menu and Singer was curious when Keshen asked if the spaghetti sauce contained meat and, being told that it did, chose a salad instead. Eventually, after discussing Glover’s lecture, Peter asked Richard about his dietary preferences. Richard then recounted the arguments gleaned from the Godlovitchs so, for Singer, beginning a discussion that was to change his life. Over the next two months, Peter and Renata Singer were introduced to Mary Keshen, and Ros and Stanley Godlovitch and, through them, the other members of the loose grouping of vegetarians.

Richard Ryder was already a committed animal activist, although not a vegetarian, focusing on opposing animal experimentation and otter hunting. In the Spring of 1969, whilst waiting to see some late patients at the Warneford hospital, he wrote a letter to the Daily Telegraph pointing out the similarities between humans and animals and the imperative to regard them more equally ethically. Following a sustained, albeit mixed, response from readers when it was published, he then wrote two additional letters. In terms of the Oxford Group the key intermediary was Brigid Brophy.

Brophy was a very well-regarded and well-known British novelist in the 1950s and 1960s, one of the founders of the enormously influential author’s collecting society, the Writers’ Action Group. She was also well ahead of her time in promoting animal causes. By the mid-1950s, she was a vegetarian and anti-vivisectionist. One of the key moments in the development of the modern animal protection movement was the publication in the Sunday Times on 10 October 1965 of Brophy’s article on animal rights. 

After seeing Ryder’s letters, Brophy – who lived in London with her husband the art historian Michael Levey who later (1973-87) became the Director of the British National Gallery – wrote to Ryder about a month later so beginning a working relationship that was to last until she was struck down by MS in the 1980s. More importantly, for our present concerns, Brophy, who already knew the Godlovitchs and Harris, put Ryder in touch with them and he met them for the first time, at the Godlovitch’s flat, about three weeks after Brophy’s initial contact.

The book ‘The Oxford Group and the Emergence of Animal Rights: An Intellectual History’ by Robert Garner and Yewande Okuleye will be published by Oxford University Press in 2020.