Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, February 11, 2010

Response to Patrick on Social Contract and Animals

[I would like to have put this in the comments section, but the software will not let me put a comment on my own posts either here or at RLL. Anyone else with this problem?]

Patrick, I appreciate your very thoughtful comments. I agree with much of what you say. But I would continue to note regarding social contract theory (1) a central theme of social contract theory is that the result must be to the mutual advantage of the parties. As Nussbaum shows and as Rawls recognizes, this is part of the reason that people with disabilities are not parties to the Rawlsian contract; (2) One must possess sufficient rationality to form a contract and because the theory equates the parties to the contract with those owed justice, those with certain mental disabilities are not owed justice under social contract theory (any moral duties must come from outside justice theory). The same is true under Habermasian analysis. Such persons can not participate in an undominated conversation. I think bargaining or mutual advantage assumptions  infect social contract theory and the infection goes far beyond Gauthier as Nussbaum’s detailed discussion of Rawls shows.

My understanding of Regan is that he has a deontological theory and is Kantian in that respect, but his rights based conception as applied to animals is distinctly not Kantian. I would be interested in learning about the kind of indirect moral duties toward animals you refer to in Kant. My recollection is that Kant opposed cruelty to animals – not because of any duty to animals but because it would brutalize human beings. And Nussbaum maintains that “Kant denies that we have any moral duties to animals . . . .” Frontiers, p. 131.

cross posted at religiousleftlaw.typepad.com soon to be religiousleftlaw.com


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Hi Steve- I'd again strongly recommend reading Freeman's review, where he shows, quit clearly, I think, and in a way that can't be done in a blog post (careful textual analysis, etc.) how Nussbaum has quite a few things wrong with contractualism in general and with Rawls in particular. Anyone interested in the discussion really should read that review.

Posted by: Matt | Feb 11, 2010 9:16:18 AM


Thanks for your response.

One reason for my comment is found in the conclusion to Freeman's review, namely, that Nussbaum's "capabilities approach" is "more complementary to, rather than competitive with, Rawlsian contractarianism." I think the "mutual advantage" motivation is NOT a central theme of Rawlsian social contract theory nor even of the Hobbesian covenant/contract if it assumes an egoistic or self-preservation model of human nature (or simply purely 'self-interested' or 'self-centered' motivation), rather, such mutual advantage as may obtain amounts to a consequence or by-product of contract that theorists might (hence need not) cite, as a second-order or subsidiary reason, in its support. Thus I think Freeman is right to argue, for example, that

"The fundamental idea behind Rawls's contract doctrine is not mutual advantage but is implicit in the moral ideal of a well-ordered society. Is is an ideal of free and equal persons motivated by their moral sense of justice and their rational good cooperating on terms of reciprocity and mutual respect that all reasonably accept and agree upon, and these terms are justified to them for reasons they also accept as reasonable and rational persons." [emphasis missing]

Thus the critique of "mutual advantage" motivation IS better directed at the likes of those CONTEMPORARY social contractarians I earlier referred to: Gauthier, Kavka, Binmore, et al., who are attracted to game theoretical models that mistakenly believe them to be, as Lloyd explains, improvements on Hobbesian moral and political reasoning. In other words, the model of rational egoists (or 'narrowly egoistic interest maximizing deliberators') trapped in a prisoner's dilemma motivated by their perception of mutual advantage does not apply, strictly speaking, to either Hobbes or Rawls. And the latter is closer to the former when he abandons, as Freeman notes, the notion of mutual advantage in favor of a conception of reciprocity, although Freeman is apparently unaware of how central the notion (or 'theorem') of reciprocity was to Hobbes as well, inspired as it was by his religious commitment to the Golden Rule (which summarize his Laws of Nature).

I don't think it is true, as Freeman makes clear, that the idea of mutual advantage "is part of the reason that people with disabilities are not parties to the Rawlsian contract," and the fact that they are not parties to the original contract does not mean that they are not owed duties of justice. It helps to keep in mind that, correctly or not, for Rawls,

"[R]emedial institutions and agencies for the disabled, like other important social institutions, such as religion---however profound their influence on people's lives---are NOT basic institutions. It is WITHIN the framework of basic social institutions that these and other important social institutions pursue their goals and that more specific problems of justice arise, including justice to the disabled. Claims of the disabled are important problems of justice. But not all 'basic political principles,' as Nussbaum understands them, are basic principles of BACKGROUND JUSTICE. Principles of redress for the disabled may be 'basic' in the sense that they are of great moral importance. But principles of redress are not principles of background justice for the basic structure of society, and the institutions needed to realize principles of redress are not basic social institutions in the aforementioned sense. [....]

Given the veil of ignorance, the specific nature of the problem of background justice, and the fact the problems of background justice and the basic structure are not resolvable by principles of redress, representatives for the disabled would agree (I believe) on Rawls's principles of justice. THERE ARE MANY IMPORTANT PROBLEMS OF JUSTICE THAT ARE NOT DIRECTLY ADDRESSED IN THE ORIGINAL POSITION OR BY THE PRINCIPLES OF JUSTICE FOR THE BASIC STRUCTURE OF SOCIETY [emphasis added] [Thus, it is not true that any 'moral duties must come from outside justice theory,' for there are principles and forms of justice that exist OUTSIDE those principles and that form that are applicable solely to the basic structure of society.] In addition to principles of redress for disabilities, there are principles of retributive justice...; 'commutative' justice...[etc., etc.]."

I therefore remain in vigorous disagreement with your claim that "bargaining or mutual advantage assumptions infect social contract theory and the infection goes far beyond Gauthier as Nussbaum’s detailed discussion of Rawls shows."

You've answered your own question about Kant's indirect duty to animals, which indeed involves the brutalization of human beings (hence the 'indirect' part) thought to result from the cruel treatment of animals.

For the record, and owing to its cosmopolitian orientation, I am far more attracted to Nussbaum's capabilities approach (which I've long spoken in favor of) to questions of justice and human rights than I am to social contract theory in general. Similarly, with regard to Regan, I merely wanted to clarify some of his ideas, not defend them, as my approach to the treatment of animals is motivated by Buddhist precepts and practices in the first instance and not by any of the contemporary secular philosophical defenses of animal ethics or 'rights,' however much I've learned from such defenses.

Posted by: Patrick S. O'Donnell | Feb 11, 2010 9:46:04 AM

Thanks for taking the time to pick out some of the text, Patrick. I appreciate you doing it!

Posted by: Matt | Feb 11, 2010 11:28:03 AM

Thanks again for your comments. I will have to read Freeman's review, but I do think Nussbaum makes a strong case for her view. In particular, see Frontiers, pp. 56-67, but the argument runs throughout the book (see the index under mutual advantage). Second, Rawls does exclude many people with disabilities from the contracting position. They may get benefits at the legislative stage, but the principles of justice afford them nothing because they are not necessarily part of the worst off group because the methods of defining that group do not take them into account. Third, animals are outside the theory of justice and the contract theory can not be extended to them, according to Rawls TJ 512. I would think the same argument he makes there would apply to some with mental disabilities. We certainly agree on Gauthier! And I agree that the conditions of the initial position are driven by a moral theory. The veil is designed to force benevolence. I look forward to reading Freeman's review. Would be interested in learning more about Buddhist approaches to animals.

Posted by: Steve Shiffrin | Feb 11, 2010 12:23:05 PM


For now at least, here's a link to a webpage with the titles of Buddhist scriptures and other books and articles discussing various facets of the Buddhist approach to animals: http://www.shabkar.org/

And you'll find a handful of titles in my bibliography for animal ethics, rights, and law, available here: http://ratiojuris.blogspot.com/2008/06/animal-ethics-rights-law-bibliography.html

All good wishes,

Posted by: Patrick S. O'Donnell | Feb 11, 2010 12:44:16 PM