In Justice as Fairness the entities are restricted to those parties which possess “the two moral powers.” There are a number of problems with Rawls’ political conception of justice. The greatest of these is the issue of what entities are represented in the Original Position, and as such are considered to have rights under the basic structure. This is the major problematic aspect of Rawls’ conception of political justice because it assumes that the only entities which involve themselves in society, or are forced to be involved in society, are humans with “the two moral powers.” This is patently untrue. Society forces its rules upon not only those with “the two moral powers” but also on those without them. This includes not just humans who lack one or both of these powers, for whatever reason, be it developmental disability or the result of an accident, but also animals which are ruled by human law. This paper will argue that entities, specifically any animal, human or otherwise, should be considered under a political conception of justice if they are part of and contribute to the society that holds that conception of justice.
Rawls' description of the workings of the Original Position is roughly as follows. It is a method of determining what the members a society would rationally and reasonably agree to as fair in terms of a political conception of justice. The agreement is to be entered into by “free and equal persons” and “threats of force and coercion, deception and fraud, and so on must be ruled out[p15, Rawls].” He also introduces the idea of the “veil of ignorance,” under which the parties negotiating in the Original Position are unaware of the social position, ethnic group, gender or various other traits of themselves and of those they represent. Although he says that those represented are assumed to be endowed with “various native endowments such as strength and intelligence, all within the normal range,” he does not specify what we can consider “the normal range,” which is part of what the problem is in the first place. Because Justice as Fairness would be chosen above other political conceptions of justice under the Original Position it is a conception of justice that is superior to the other options.
There are a number of aspects of Rawls' ideal theory that are important to the scope of this paper. The first is the idea of society as a fair system of cooperation over time from one generation to the next. The Rawlsian idea of social cooperation has three primary components:
1)It is not merely coordination among people such as in an authoritarian state.
2)It includes terms that are fair and would be reasonably accepted by the participants, such as reciprocity.
3)It is to the rational advantage of those participating.
If we look at this in terms of who is represented, as noted above, we find what Rawls leaves out. We see that he includes those who are able to cooperate, that is those who are able to agree to a conception of justice that will benefit those who can agree to a conception of justice. Given that there are those entities which fall outside of this scope and yet fall within the laws of said society, such as animals or those humans who simply lack the two moral powers, we see the beginnings of the problem.
To a large extent this problem is inherent in nearly all political theory; this is certainly the case in the Western tradition, excepting some strains of utilitarianism such as more recent work by Singer and others. In this tradition anything not considered fully human, which at one time included women, people of color and children, is considered only of derivative value, or of value only insomuch as they were of value to those considered fully human. Generally the range of entities considered human has expanded over time, but it is still the fully-humanness that determines what rights, privileges and protections an entity receives. Rawls includes in his conception of humanness those with the two moral powers; these are the capacity for a sense of justice and a capacity for a conception of the good. However, the goal should not be to expand humanity to everything deserving justice, but simply to involve those things in justice.
The problem with Rawls’ Original Position is not just that it is restricted to specific entities, it is this combined with the fact that those negotiating in the Original Position are self interested that causes problems. If we assume self interestedness and assume that the entities which can enter into the Original Position are limited, in Rawls’ case by the possession of the two moral powers, then we come up against a situation where any entity not represented in the Original Position is considered to have only derivative value in the resulting conception of political justice, meaning they are of no value in and of themselves but only as a means for others or because the comprehensive belief system of some group represented in the Original Position considers them to be valuable. We see this in Rawls in that he gives no justification for the protection of those entities outside those represented in the Original Position. Because of this we have a result that I would find terribly unjust, that any entity not represented in the Original Position has no protections except those that entities which are included in the Original Position chose to give them.
This becomes a problem further because the goods of those entities which are represented in the Original Position differ by group or individual, and because the comprehensive systems which those groups or individuals adhere to give differing amount of value to entities not included in the Original Position, down to no value at all. If there exists a comprehensive system which gives no value to those entities which are not included in the Original Position then individuals which adhere to said comprehensive system can make a compelling argument that the system of political justice allows them to treat entities not represented in the Original Position in whatever way they may wish, including torture and killing said entities, because to stop the individual from acting as such would violate their rights, even assuming that the entity acted upon has no derivative value for other entities represented in the Original Position.
For example, If I am represented in the Original Position then I am given rights and allowed to pursue my goods. If I have a comprehensive system wherein torturing animals is a good, say as a religious rite, then the government which results from the two principles must allow me to torture animals to at least some extent. This is because of the second principle under which the difference principle says that if there is a possible state of distribution of goods where the goods of the most advantaged are increased then the goods of the least advantaged must be maximized. Practically speaking this means that the political institutions must be put together in such a way that even if the majority of people think that no one should be able to torture cats, their goods, or their comprehensive system in this case, must be forwarded in such a way so as to allow me some of my good, cat torturing.
What this means is that it is not only limited to cats, I can include in my goods the damaging of any entity of which I am allowed ownership. So any animal or plant or even, because they were not represented in the Original Position, people who do not have the capacity for moral development. So a sociopath or someone who is developed or incapacitated such that they have little to no rational ability are also not represented by the Original Position and as such are not considered by the basic structure. This lack of protection means that such a person is fair game for whatever treatment society wishes to heap upon them, perhaps as a medical guinea pig or as slave. This differs little from many older political systems but in the extent of entities to which protection is extended. For hundreds of years blacks in America were held as slaves with the justification being that they were not mentally fit to live as free people. Similarly, women have historically held, and in many places now hold, a position subordinate to men on similar rationale. Rawls’ conception of political justice does away with the subordination of women in theory, though not necessarily in practice, a topic outside the scope of this paper.
To give an existing wrong for which there is no provision in Rawls’ conception of political justice we need only look to the practice of factory farming. As I write this there are an enormous number of animals being treated in a way which if a human was subjected to it would be considered inhumane in the extreme. But Rawls’ conception of political justice gives no protection for these poor creatures. One could argue that they are not a part of political society and thus do not deserve inclusion in a conception of political justice, but this returns us to the situation of the sociopath or developmentally disabled. They are necessarily a part of society because they have been forced into society. They have been born and bred, quite literally, within the milieu of the state and participate society in a real way. Do they not as such deserve real protection and not just derivative value?
One of the aspects of Rawls' theory that is less than thoroughly covered is that of individuals whom are in a state where they are not able to exercise the two moral power. This may seem a minor point, applicable to only children and those who have the mental problems that sometimes accompany an advanced age. Rawls' does touch on the case of children. In the case of children they are to be considered future citizens, and raised and treated as such. It isn't clear exactly what is meant in this case, but in regards to education Rawls explains that children are to be educated such that they are aware of their political rights. In regards to the family and children Rawls notes that “the principles of justice also impose constraints on the family on behalf of children who are society's future citizens and have claims as such.” Here we can see that entities which lack the two moral powers, children, are protected under the principles of justice. If this is true then there is not in general an argument against having entities which lack the two moral powers have representation in the Original Position. Were this not the case then the principles of justice would not apply to children except insofar as they have derivative value.
One could argue that this application of the principles of justice, even in a limited form, to children could not extend to other entities which lack the two moral powers. Under this objection children are included because they will at some point in the future possess the two moral powers, or they have the potential to possess the two moral powers. The first problem with this argument is that it would only extend to children who we know will make it to adulthood. If a child had a disease which was known to be deadly before said child had possession of the two moral powers then that child would not be represented in the Original Position and would thus not be considered under the principles of justice. It seems exceptionally cruel to treat an already sick child as less than human and not deserving of consideration in a just manner. Most people would agree with this and say that the principles of justice can be extended to children, regardless of their potential development of the two moral powers.
There is a further case, which has been mentioned in brief above, that of the elderly person who is no longer possessed of the two moral power. In this case we can make no argument that they have the potential to develop the two moral powers as we did with the child. It can be argued that because these people were at one time possessed of the two moral powers then they are represented in the Original Position and are thus considered by the principles of justice. I certainly accept this argument. In both of the previous arguments we see that we are willing to admit for inclusion under the principles of justice of entities which lack the two moral powers, it is a small step to apply this to a broad class of entities which Rawls did not consider to be represented in the Original Position, specifically animals.
There are a number of possible ways to allow for the intrinsic value of those entities not represented in Rawls’ Original Position. One of these ways would be to include them as full parties represented in the Original Position and thus having them share the full protection of the two principles of justice. This has the drawback of being too inclusive. We cannot expect a mouse to have the same rights and privileges as a person who has full capabilities for rational thought and it is absurd to say that a mouse should be able to hold political office. However, if we accept that all entities should be considered to be covered by the two principles of justice then we would have to allow for mice or rabbits or dogs to hold office, or at least structure society such that their opportunity to hold offices is supported. It doesn't seem that we can expect reasonable parties to agree to be ruled by animals. This option seems out.
A second option is to represent them in the Original Position but not to give them the full two principles of justice. It would be reasonable to say that while not including all rights into the lesser conception of justice we should include some rights. It can be reasonably assumed that even those entities without the two moral powers would consider the right to life to be necessary, as would they consider the right to not have gross bodily harm inflicted upon them. Further, we can say that it would be possible to include them in calculations under the difference principle The reasoning for this is that we know that these entities participate in society and we know that they have goods which they pursue, though not in the form of a rational life plan, and so we know that if they had a choice of distribution and they behaved rationally then they would choose the difference principle, for the same reasons that Rawls gives for those entities he includes in the Original Position. This would result in a protection of those entities not included in the Original Position by Rawls and would not lead to conundrums such as whether a mouse or rabbit should hold office. I’ll admit some influence from Nozick on this point, as he recommends that the principle of utility might be used in regards to animals in a political state; but, the argument against the utility principle in Justice as Fairness give reason for people to choose the difference principle, so why not for those other entities not included?
It might be argued that this arrangement still puts those entities not represented in Rawls Original Position at a distinct disadvantage, and I do not disagree. There are a number of entities left out wholly, such as animals which are not a part of society at all, plants, and inanimate objects. The point here is not to perfect the theory of justice as fairness, but to make it more fair. We can look back to the case of factory farming for an example of how this would be more fair. The cows, or whatever animals are farmed, will be included in the political conception of justice and the calculations of the difference principle. In this case we would find that we could not, most likely, allow the death and mistreatment of the animal as an acceptable outcome for the good of someone eating meat. This would hold in other cases as well, such as for the sociopath or the developmentally disabled. In addition, it might be the case that nature would be preserved as habitat for animals, or, if we wanted to include nature in general in our calculation, nature would be protected in and of itself, though it is not totally clear that this would be the case. The last of the suggestions would clearly bring up issues far to complex to cover in a short paper, but it should be left open for consideration.
A major objection to the argument in this paper is that under it we would be forced to included entities such as corn or wheat or other plants which are included in human society in a way similar to farmed animals. This is a difficult objection to deal with because neither plants nor non-human animals are possessed of the two moral powers and yet we see the inclusion of plants within a conception of justice as being basically absurd. No one wants to argue that my spider plant deserves consideration in political conceptions of justice. There are two possible responses to this objection, the first is the more acceptable. We should exclude plants, and even some lesser animals because animals have the ability to pursue their good in an active way as opposed to a purely reactive way. For example, if one watches a cat it is clear that the cat has an idea of what it is doing when it chases birds. It does not follow a simplistic plan wherein it simply reacts to the presence or absence of sunlight, it creatively chooses the route by which it will attack the bird. It is because of these two reasons that we can include animals and not plants.
Alternatively, we can argue that this is not in fact an objection, but a natural outgrowth of the theory. Though we may find it absurd to argue that corn has rights, the majority of people alive today find it absurd for people to argue that animals have rights. If it is the case that this argument requires that we include plants in our political conception of justice then, assuming that the argument holds, could we not say that we should do so. In the same way that the arguments in Mary Wollstonecraft's Vindication of the Rights of Women were argued against because they would extend rights to animals, sould we not say that it is in fact our notion of what is absurb that is flawed and not the argument herein?
An additional argument against this position might be that including entities which lack the two moral powers will denigrate the position of those whom Rawls includes in the Original Position. On the surface this seems to be a fair objection, but in fact it is just another way of saying that said entities lack moral standing. Does it denigrate the position of men to argue that women have rights? Or the position of Whites to argue the same of people of color? Further, It is good to remember here that what we have shown here is that animals should be protected by a political conception of justice, not that they have equal moral standing in a comprehensive moral conception of justice. Or put another way, If I light a candle while under a spotlight it does not decrease the light but increase it. The point is to expand the conception of justice.
The goal is to allow that those entities which lack the two moral powers to be integrated into a just society in a way that is just for those entities, not just for the entities possessed of the two moral powers. Because those entities without the two moral powers have different abilities and need there need to be a different standard applied to them, one that is not the same as that applied to those entities which possess the two moral powers. One way to think of this is as in the feminist conception of equality wherein equality is considered given the differences between the sexes. In this case saying that because men get time off if they get pregnant then it is consistent with equality for women to get time off if they get pregnant. Of course, men cannot get pregnant, so they would never get that time off. Similarly, to say that we will extend the benefits of society only to those who are able, theoretically or actually, to participate in the cooperation is misguided because we still force said entities to contribute to society and to follow the rules of society.
I hope I have shown that Rawls’ conception of political justice is lacking and that it can be expanded so as to include more entities within it. I for one cannot countenance a theory of justice which allows for torture and murder simply because of reasons of rationality or moral ability. The inclusion of those entities not possessing those traits can be included in such a way as shown above without denigrating those previously included in the Original Position.