Contractualism Defined

Contractarianism (also called contractualism) holds that no morality or principles of justice exist outside of agreements, or contracts, made "among rational, self-interested agents," with animals ostensibly excluded. For the good of society, we choose to limit our activities to certain socially sanctioned behaviors. Contractarianists hold this to be the origin of morality and justice. Without mutually agreed upon contracts, there is no justice. While this explanation seemingly limits our sense of morality to what is always socially agreed upon, a contractarian account could allow our principles of morality "a greater degree of control and clarity" in choosing those agreements augmenting the social good. However, as rational agreement to the laws of society is a prerequisite for moral consideration, animals come to lack distinctly moral qualities.

The Basics of Hobbes' Contractualism

In the most basic form of human interaction, humans find themselves in a "state of nature," political anarchy without protection from the dangers of other humans. The state of nature described by Hobbes does not entail a continuum between humans and other animals but rather that humans have distinct faculties leading to conflicts. Animals don't require contracts to live peacefully. Humans, without such contracts, find themselves either constantly at war for resources or constantly seeking peace for the sake of everyone. In order to ensure such peace, the newly formed "body politic" attributes power to the government to enforce these contracts. Without the ability to recognize these laws, animals are left to fend for themselves, under the dominion of humans. Animals' lack of language, the capacity of agreeing to social sanctions, disallows them moral status among humans. Hobbes deems speech "the most noble and profitable invention of all…without which there had been amongst men neither Commonwealth, nor society, nor contract, nor peace, no more than amongst lions, bears, and wolves," (Fellenz, 108).

The Basics of Rawls' Contractualism

A purely contractual approach could support, along with a pure utilitarianism, the oppression of a minority group for the good of society as a whole; the minority group may even agree to this social arrangement for the sake of self-preservation. Such a formulation of morality ignores our sense of fairness or equity. Whereas the moral sentiments, as natural phenomena, are divorced from Hobbes' contractarian account of justice, John Rawls attempts "to find room for the moral value of fairness within a contractual theory of justice," (109). Rawls substitutes what he calls "the original position" for Hobbes' "state of nature." Contractors begin not in a dangerous pre-social arena but rather under a "veil of ignorance," under which none of the contractors know their place in the social order. Rawls' veil of ignorance entails the theory that no one would willingly choose against another member of the potential social order without prior knowledge of where he or she would fit into it. Thus, fairness should be the end goal of whatever agreement is achieved. As this theory relates to our moral obligations to animals, Rawls recognizes that the veil of ignorance does not necessarily include animals under principles of fairness. However, authors such as Bernard Rollin attempt to utilize Rawls' contractarian framework to extend the consideration offered to "marginal cases" toward an animal ethic. This approach would seem to assume more altruistic reasoning than the rational, "mutual disinterest" by which Rawlsian or Hobbesian contractors would come to agreements. The contractors are, in theory, seeking to gain something by way of these contracts.

Fellenz's Critique of Contractualist Approaches to Environmental Ethics

Fellenz is quick to point out that one of the basic problems with trying to employ a contractualist approach to Environmental Ethics is that animals (and other nonhumans) lack the capacity to be parties to the kind of agreements that contractualism relies upon to generate normative force (p. 104). However, as he notes, contractualism can be very appealing because: 1) it "explains in a non-mystical way why human beings have morality at all" and 2) as something created by humans it can be more sensitive to the particulars of human life (p. 105).

The Hobbesian focus on language as a necessary condition for contractual agreement means that an attempt to incorporate animals into a contractualist framework will need to be rooted in Rawls' contractualism (p. 108). One strategy for extending contractualism to animals is to treat the parties of the contract as stewards of non-humans (p. 112). This strategy builds upon Rawls' own idea of focusing on heads of household so that the participants in the original position would take into account the needs of marginal cases such as children and the mentally disabled who were in their care. Fellenz objects to this particular strategy because the idea that animals are something under the care of humans is an anthropocentric approach that will privilege human interests over animal interests and it takes for granted the idea that the only animals we have moral relationship with are domesticated animals.

The "Pre-original Position"

Another strategy is presented by Donald VanDeVeer. VanDeVeer argues that we need to raise the "veil of ignorance" higher so that the contractors do not know which species they belong to, only that they are sentient beings (p. 113). When the original position is adjusted in this manner VanDeVeer thinks that every contractor would agree to the principle of "Life Preferability" which holds that everyone has an obligation to "refrain from forcing upon another sentient being conditions that make its life not worth living" (p. 114). Such an obligation would proscribe factory farming and animal research, but it would not be sufficient to forbid more "humane" practices of farming and slaughter. Fellenz criticizes this strategy for similar reasons as the previous strategy. It seems to be presumed that those in (what VanDeVeer calls) the "pre-original position" will recognize that some form of domestication will be seen as to the benefit of the least advantaged. After all, if the results of adopting this heightened veil of ignorance was to create principles that were very far removed from the current state of affairs, it would fail to find purchase with real human beings because it lacked any sort of reflective equilibrium. From the perspective of the pre-original position, all domestication could be called into question. On the other hand, from that same perspective one might also conclude a much stronger obligation to domesticate all animals - due to the benefits of domestication (p. 115).

Fellenz's critique of these strategies relies on the idea that an ethics that includes animals must encompass all animals - wild and domesticated. This makes sense, but it also raises the question as to whether it is possible to create an animal ethic. Contractualism is based on the presupposition that ethical obligations arise out of the kinds of interaction that create moral relationships. The attempt to describe the original position in rational terms is an attempt to describe the properties of a being that can enter into moral relationships. Although Rawls has been criticized for having too minimal a notion of person, it seems difficult to argue that an even more simplified notion of person (mere sentience) can form moral relationships. Sure, such a being might be the object of moral relationships - but that is the kind of stewardship that Fellenz wants to avoid. The critique of contractualism presumes a certain moral dignity is present in animals, but that is precisely the kind of "mystical" morality that contractualism seeks to avoid. A stronger argument needs to be presented against the contractualist claim.

Marc Fellenz. The Moral Menagerie: Philosophy and Animal Rights. (University of Illinois Press, 2007)
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