Ethic Theory Moral Prac (2016) 19:973–984

DOI 10.1007/s10677-016-9702-0

Is there a Rawlsian Argument for Animal Rights?

David Svolba 1

Accepted: 8 February 2016 / Published online: 22 February 2016

# Springer Science+Business Media Dordrecht 2016

Abstract Mark Rowlands defends a Rawlsian argument for animal rights, according to which
animals have rights because we would assign them rights when deciding on the principles of
morality from behind a veil of ignorance. Rowlands’s argument depends on a non-standard
interpretation of the veil of ignorance, according to which we cannot know whether we are
human or non-human on the other side of the veil. Rowlands claims that his interpretation of
the veil is more consistent with a core commitment of Rawlsian justice—the intuitive equality
principle—than either Rawls or his critics realize. Here I argue that Rawls is not committed to
the intuitive equality principle, as Rowlands articulates it, and hence Rowlands’s argument is
in fact only superficially Rawlsian. Furthermore, Rowlands’s intuitive equality principle is
dubious on its own terms, and thus a poor principle on which to base a case for animal rights.

Keywords Mark Rowlands . Animal Rights . John Rawls . Contractualism

In BContractarianism and Animal Rights^ and, more recently, Animal Rights: Moral
Theory and Practice, Mark Rowlands argues that John Rawls’s theory of justice Bcan
be used to justify the claim that nonhuman animals possess moral rights^ (Rowlands
2009, 118). The linchpin of Rowlands’s Rawlsian argument for animal rights is a
principle of fairness, which Rowlands takes Rawls to endorse, according to which it is
unfair that any individual should enjoy better life-prospects than another by virtue of
differences in the Bundeserved properties^ they possess (Rowlands 2009, 138). After
providing an overview of Rowlands’s argument (Section 1), I argue (Section 2) that
Rowlands’s argument for animal rights is not, in fact, Rawlsian. I then argue (Section 3) that,
shorn of its Rawlsian pretensions, Rowlands’s argument fails on its own terms. I conclude
(Section 4) with some cautionary remarks about applying Rawls’s well-known social-contract
argument outside the context of distributive justice.

* David Svolba
dsvolba@fitchburgstate.edu

1
Humanities Department, Fitchburg State University, 160 Pearl Street, Fitchburg, MA 01402, USA
974 Svolba D.

1 Rowlands’s Rawlsian Argument for Animal Rights

In A Theory of Justice John Rawls defines a political society as a cooperative enterprise

undertaken by free and equal persons (citizens) for their mutual advantage, and primary social
goods as B[political] rights and liberties, powers and opportunities, [and] income and wealth^
(Rawls 1999, 54). Rawls addresses his theory of justice—Bjustice as fairness^—to the
question: what would be a fair distribution of primary social goods among citizens of a
political society? Rawls claims that a fair distribution of primary social goods would be
governed by principles that Bfree and rational persons concerned to further their own interests
would accept in an initial position of equality^—a position he terms the original position
(Rawls 1999, 118). The most conspicuous feature of the original position is that persons are
situated behind a veil of ignorance, whose purpose, according to Rawls, is to ensure that
reflection on which principles of justice to accept is not influenced by considerations that
Bseem arbitrary from a moral point of view^ and Birrelevant from the standpoint of justice^
(Rawls 1999, 14, 17). Rawls explains that the veil obscures.
certain kinds of particular facts. First of all, no one knows his place in society, his class
position or social status; nor does he know his fortune in the distribution of natural assets
and abilities, his intelligence and strength, and the like. Nor, again, does anyone know
his conception of the good, the particulars of his rational plan of life, or even the special
features of his psychology such as his aversion to risk or liability to optimism or
pessimism (Rawls 1999, 118).
What makes Bparticular facts^ like these Barbitrary^ and Birrelevant^ from a moral point of
view? Why should we think that depriving ourselves of access to such facts promotes fairness
or impartiality in our reflection on the principles of justice, rather than occluding morally
relevant facts about ourselves? It is not, after all, just obvious. For example, I doubt that I could
convince my students that the Bfair^ way to distribute final grades is according to whichever
principles it would behoove them to select if ignorant of particular facts about themselves like
the amount of work they put into the course and their performance on exams. They might
plausibly insist that particular facts like these were directly relevant to determining what’s
Bfair.^ It is thus not the mere Bparticularity^ of the facts Rawls seeks to place behind the veil
that justifies their exclusion. Why, then, exclude them?
According to Mark Rowlands, Rawls accepts a basic principle of fairness, which Rowlands
calls the intuitive-equality principle, that explains his use and characterization of the veil.1 The
principle states that.
if a property is undeserved in the sense that its possessor is not responsible for, or has
done nothing to merit, its possession, then its possessor is not morally entitled to
whatever benefits accrue from that possession.
Possession of the property is a morally arbitrary matter and, therefore, cannot be used to
determine the moral entitlements of its possessor (Rowlands 2009, 134).
Rowlands offers two reasons for attributing the intuitive-equality principle to Rawls. The
first I have already mentioned: the principle explains Rawls’s characterization of the veil of
ignorance. Why, Rowlands asks, would we follow Rawls in placing Brace, sex, natural

1
In fact, Rowlands calls it the Bintuitive equality argument,^ but it functions more as a principle than an
argument, so I’ll refer to it as the Bintuitive-equality principle.^
Is There a Rawlsian Argument for Animal Rights? 975

intelligence, and so on, behind the veil of ignorance? We do it precisely because these
properties have been shown by the intuitive equality argument to be morally arbitrary^
(Rowlands 2009, 149). In other words, Rowlands’s view is that Rawls regards properties like
Brace, sex, natural intelligence, and so on,^ as illegitimate bases on which to assign shares of
the primary social goods because they are undeserved properties.
Rowlands’s second reason for attributing the intuitive-equality principle to Rawls appeals to
Rawls’s critique of a prevailing liberal conception of distributive justice that he calls the doctrine
of liberal equality. According to that doctrine, a distribution of income and wealth among the
members of a society is fair provided it arises within the context of fair equality of opportunity.
Fair equality of opportunity requires, Rawls explains, that members of society with Bsimilar
abilities and skills should have similar life chances….[or that] those who are at the same level of
talent and ability, and have the same willingness to use them, should have the same prospects of
success regardless of their initial place in the social system^ (Rawls 1999, 63). Although Rawls
approves of the attempt to Bmitigate the influence of social contingencies and natural fortune on
distributive shares,^ he remarks, in a well-known passage from A Theory of Justice, that the
distributive scheme favored by the doctrine of liberal equality Bstill appears defective^:
For one thing, even if it works to perfection in eliminating the influence of social
contingencies, it still permits the distribution of wealth and income to be determined by
the natural distribution of abilities and talents…. [D]istributive shares are decided by the
outcome of the natural lottery; and this outcome is arbitrary from a moral perspective.
There is no more reason to permit the distribution of income and wealth to be settled by
the distribution of natural assets than by historical and social fortune (Rawls 1999, 64).
According to Rowlands, Rawls’s endorsement of the intuitive-equality principle explains his
objection to the doctrine of liberal equality. Rawls believes it to be unfair that primary social goods
should be distributed on the basis of properties that are the result of the natural lottery because
these (along with those resulting from the social lottery) are unearned or undeserved; his judgment
that the doctrine of liberal equality is defective on grounds of fairness centers on the notion of
desert. As Rowlands says, summarizing what he takes to be Rawls’s basic objection to the
doctrine of liberal equality, Bif it is unjust for someone to benefit from possession of undeserved
social, racial, economic, or gender properties, then it must be equally unjust for them to benefit
from possession of undeserved natural talents^ (Rowlands 2009, 135).
Establishing Rawls’s endorsement of the intuitive-equality principle is merely preparatory
to Rowlands’s main argument, which aims to show that a Bcorrect understanding of [Rawls’s]
concept of the original position,^ and, in particular, a Bconsistent application of the intuitive
equality [principle],^ justifies Bthe claim that non- human animals possess moral rights^
(Rowlands 2009, 138, 151, 118, my emphases). Correctly understood, Rawls’s social contract
argument Bcrucially depends^ on the intuitive- equality principle: Rawls’s preferred principles
of justice are justified because they are the principles that would be chosen in the original
position, which crucially includes the veil of ignorance, whose constraining influence in turn
crucially rests on the intuitive- equality principle. What Rowlands calls the consistent appli-
cation of the intuitive- equality principle first requires a characterization of the veil of
ignorance as excluding knowledge of all undeserved properties. On this thicker
characterization of the veil, properties like Brationality and species-membership—
and, for that matter, what Rawls calls ‘moral personality’—should be excluded [by
the veil] on the grounds that they are unmerited^ (Rowlands 2009, 154). Rowlands
summarizes his position in the following passage:
976 Svolba D.

[W]hen the relation between the intuitive equality argument and the principles derivable
from the original position is made clear, it seems that knowledge that one is a human
being must also be bracketed in the original position. The property of being human is…
something over which we have no choice. The property is undeserved in the sense that
we are not responsible for possessing it. Therefore, according to the intuitive equality
[principle], the property is as morally arbitrary as the property of belonging to a given
class, race, or gender. It is something over which we have no control. Therefore,
according to the intuitive equality argument, we are not morally entitled to whatever
benefits accrue from possession of this property. Therefore, given that the considerations
underlying the intuitive equality argument are partly constitutive of the description we
give of the original position, knowledge of one’s human status should be bracketed in
the original position. Therefore…the sphere of morality should not be restricted to
human beings (Rowlands 2009, 151–152).
Here Rowlands states that Rawls is right to require fair and impartial reflection on the
principles of justice, and that the veil of ignorance is a useful device for modeling impartiality.
But Rawls’s mistake, according to Rowlands, is that Rawls’s own thinner characterization of
the veil fails to model full, and therefore genuine, impartiality. On Rowlands’s view, full
impartiality is secured only by a characterization of the veil that deprives occupants of the
original position of knowledge of any particular fact about themselves that reflects an
undeserved property, including facts about whether, on the other side of the veil, they will
be persons or human beings.2 And, Rowlands claims, when knowledge of one’s humanity or
rationality on the other side of the veil is bracketed along with characteristics like race and sex,
occupants of the original position find themselves with compelling prudential reasons for
assigning (at least some) basic moral rights to (at least some) nonhuman animals, since
occupants of the original position would have to countenance the possibility that they are
nonhuman animals on the other side of the veil. As Rowlands says of his revised version of the
Rawlsian argument, that argument implies that from Bthe perspective of the original position,
the limits of moral considerability, that is, the limits of what one can be morally concerned
with, coincide with the class of individuals one can rationally worry about being^ (Rowlands
2009, 163). And since, on Rowlands’s view, one can rationally worry about being a nonhuman
animal on the other side of the veil, the Bprinciples of morality have to be chosen accordingly^
(Rowlands 2009, 149).
There are thus two stages to Rowlands’s Rawlsian argument for animal rights, and criticism
of that argument might be aimed at either of these two stages. The first stage concerns
Rowlands’s interpretation of Rawls and, in particular, Rowlands’s claim that Rawls endorses
the intuitive-equality principle and, hence, that Rawls’s own characterization of the veil of
ignorance leaves open an objectionable form of partiality in the selection of the principles of
justice. It is this first stage that makes the argument Rawlsian. The second stage concerns
Rowlands’s claim that persons situated behind the veil of ignorance, as he characterizes it,
would in fact assign moral rights to nonhuman animals. In the remaining sections I raise
objections to the first stage of Rowlands’s argument, omitting, for the most part, considerations
pertaining to the argument’s second stage. The main flaw in Rowlands’s argument, I contend,

2
It should be noted that Rowlands is not the first to raise this objection to Rawls’s theory. A similar objection was
raised not long after Rawls published A Theory of Justice by Donald Van De Veer (1979). See also Tom Regan’s
(1984) critique of Rawls.
Is There a Rawlsian Argument for Animal Rights? 977

is that he mischaracterizes the basic principle of fairness on which Rawls relies in developing
his theory of justice.
Before turning to my criticism of Rowlands’s argument, however, there is an ambiguity in
his discussion of Rawls that must be addressed. On the one hand, Rowlands sometimes claims
to be highlighting an implication of Rawls’s theory of justice that Rawls himself overlooks.
This is the impression one gets when Rowlands writes of the Bcorrect understanding^ of the
original position, and also when he charges Rawls with a Bfailure to understand the entailment
of his own theory^ (Rowlands 2009, 153). On the other hand, Rowlands also seems to
acknowledge, at times, that he is putting Rawls’s theory to use in a context that Rawls did
not himself intend. For example, Rowlands writes: BI propose to use [Rawls’s] contractarian
idea in a somewhat broader sense [than Rawls’s] as providing a framework for the assignation
of moral rights and duties in general, and not just political [and economic] rights of the sort
discussed by Rawls^ (Rowlands 2009, 131). But there is a tension between these aims. Since
Rawls limited the scope of his theory of justice to the distribution of political and economic
rights, there is a perfectly straightforward and principled reason why he allowed occupants of
the original position to assume that they will be persons in the society on whose principles of
justice they are deciding, or why he does not exclude characteristics like rationality or moral
personality along with characteristics like race, sex, and social position. The principles of
justice Rawls aims to justify concern the distribution of what we may call the goods of
citizenship, and nonrational animals are not citizens. They are not even potential bearers of
political and economic rights, and hence it makes no sense to criticize Rawls on the grounds
that he excludes at the outset nonrational individuals from consideration of how political and
economic rights should be distributed. In what follows, then, I will focus on Rowlands’s own
rejoinder to such concerns, which is that Rawls’s theory of justice is Bin principle…capable of
providing us with general principles of morality, and not simply principles relating individuals
to basic societal structures^ (Rowlands 2009, 131). As I aim to show, this claim is doubtful.

2 Does Rawls Endorse the Intuitive-Equality Principle?

Rowlands is right that Rawls is committed to a basic principle of fairness, and that this principle
serves to justify the use and characterization of the veil of ignorance in Rawls’s description of
the original position and informs his critique of the doctrine of liberal equality. Rowlands is
mistaken, however, about the content of the basic principle of fairness to which Rawls is
committed. That principle is not the intuitive-equality principle (hereafter, IEP). Rather, it is the
intuitive-equality-of-persons principle (IEPP), which may be summarized as follows:
For any person, P, in a political society, S, if P possesses a property, Y, and if P’s
possession of Y is undeserved, in the sense that P is not responsible for, or has done
nothing to merit, Y, then P’s possession of Y cannot justify assigning to P a greater or
lesser share of primary social goods relative to other persons in S.
The IEPP and IEP express distinct and incompatible principles of fairness, as may be seen
by noting three significant differences between them. First, the IEPP states that the undeserved
inequalities—inequalities in primary social goods purportedly justified by undeserved prop-
erties—that are objectionable on grounds of fairness are those between persons. Second, the
IEPP states that undeserved inequalities pertaining to one’s share of primary social goods are
objectionable on grounds of fairness, and not that any undeserved inequality between persons
978 Svolba D.

is thus objectionable. Third, specifying still further, the IEPP states that what is objectionable
on grounds of fairness is undeserved inequalities in the shares of primary social goods between
co-members of S, and not underserved inequalities in the shares of primary social goods among
persons per se. Thus, the IEPP is quite specific whereas Rowlands’s IEP is comparatively very
generic. I argue in this section that the IEPP is more plausibly attributed to Rawls than the IEP.
Notice, first, that Rowlands’s reasons for attributing the IEP to Rawls serve equally well as
reasons for attributing the IEPP to Rawls. That is, the IEPP explains why Rawls places behind
the veil of ignorance facts concerning one’s race, sex, relative intelligence, and initial wealth.
Since these are all Bundeserved properties,^ they are irrelevant to determining a person’s Bfair
share^ of primary social goods, and hence should not enter into deliberation about the
principles of distributive justice. The IEPP also explains Rawls’s critique of the doctrine of
liberal equality. That doctrine, insofar as it endorses or at least permits some persons’ enjoying
a greater share of primary social goods than their fellow citizens by virtue of possessing natural
talents or aptitudes that their fellow citizens lack, contravenes the IEPP. The IEPP does not
imply, however, as the IEP does, that it is unfair that persons in S should enjoy greater well-
being (or prospects for well-being) than nonpersons in S by virtue of possessing undeserved
properties, such as rationality, moral personality, or humanity, that nonpersons in S lack.
The fact that the IEPP explains these aspects of Rawls’s theory weakens Rowlands’s
argument for attributing the IEP to Rawls, but of course it is not fatal to Rowlands’s argument.
Rowlands, I assume, would claim that the IEPP is unduly restrictive, and therefore unstable.
He could press the objection that if undeserved properties are not a legitimate basis for
determining a person’s moral entitlement to primary social goods, then undeserved properties
should not be considered a legitimate basis for determining any individual’s moral entitlements
to the Bbenefits of justice,^ construed more generally. At the very least, Rowlands might insist,
Rawls must provide reasons for thinking that the narrower IEPP does not collapse in favor of
the broader IEP—that the principle behind the IEPP does not imply, rather, the IEP. As it turns
out, this demand can be met. There are two distinct and compelling reasons why one might
endorse the IEPP, rather than the IEP.
One reason is that one might believe, plausibly enough, both that undeserved inequalities
are morally objectionable if and only if the subjects of these inequalities are moral equals, and
that not all individuals are equal from a moral point of view. I suspect Rawls held this view.
Rawls, after all, affirmed the Kantian principle of equal respect for persons.3 Rawls held that
human beings are moral equals by virtue of their status as moral persons, or beings capable of
having a Bconception of their good^ and a Bsense of justice^ (Rawls 1999, 442). As moral
equals, human beings are Bentitled to equal justice^ and have a prima facie equal claim to
primary social goods. The relevant point here is that Rawls’s claim that moral persons are
owed moral consideration and respect qua moral persons is implicit in the IEPP but totally at
odds with the IEP. The IEP, in fact, amounts to an outright denial of the Kantian (and
Rawlsian) principle of equal respect for persons. According to the IEP, an individual’s moral
status, or facts concerning what that individual is morally entitled to, cannot be (legitimately)
based on that individual’s undeserved properties. And since the properties constitutive of
personhood in Kant, or moral personality in Rawls, are undeserved properties, the IEP seems
to imply that these properties are morally irrelevant. Regardless of whether the IEP is a

3
This principle underwrites Rawls’s rejection of utilitarianism and his claim that Beach person possesses an
inviolability founded on justice that even the welfare of society as a whole cannot override^ (1999, 3).
Is There a Rawlsian Argument for Animal Rights? 979

defensible principle, then, it cannot be credibly attributed to Rawls. It contradicts the Kantian
core of Rawls’s theory of justice.4
What Rowlands overlooks, I think, is that Rawls’s objection to undeserved inequalities is
grounded in his affirmation of the moral equality of persons. Rawls should not be understood
as objecting to undeserved inequalities per se, but rather to undeserved inequalities among
persons who are moral equals and hence have equal moral claims to the necessary means for
living a decent life. Evidently, Rawls does not think that nonhuman animals, lacking the
capacities constitutive of moral personhood, are the moral equals of moral persons, enjoying
equal moral claims to the satisfaction of their basic interests: B[Nonhuman animals] have some
protection certainly, but their status is not that of human beings^ (Rawls 1999, 442). Rawls
might be mistaken about this, of course, and to my knowledge he never explicitly argues in
defense of this position, but the claim is certainly not inconsistent with other fundamental
elements of his theory of justice.
A second reason why one might plausibly endorse the IEPP over the IEP has to do with the
widely accepted fair-play principle, formulated first by Hart and subsequently adopted by Rawls:
…when a number of persons conduct any joint enterprise according to rules and thus
restrict their liberty, those who have submitted to these restrictions when required have a
right to similar submission from those who have benefited from their submission (Hart
1955, 185).
Rawls views society as, first and foremost, just the sort of Bjoint enterprise conducted
according to rules^ to which Hart’s fair-play principle most significantly applies:
The most fundamental idea in [my] conception of justice is the idea of society as a fair
system of social cooperation over time….Fair terms of cooperation specify an idea of
reciprocity or mutuality: all who do their part as the recognized rules require are to
benefit as specified by a public and agreed-upon standard (Rawls 2003, 5–6).
The core idea here is that civil societies distribute among their members benefits and
burdens, and that it would be manifestly unfair to assign equally the Bburdens of justice^ while
assigning unequally the Bbenefits^ or Bprotections of justice.^ Rawls assumed that anyone
possessing a Bsense of fairness^ would spontaneously object to such arrangements, just as they
would spontaneously object—as we in fact do—to Bfree riders^ who enjoy an equal share of
benefits without accepting an equal share of burdens. Now, foremost among the benefits and
burdens made possible by the formation of a civil society are rights and duties. Significantly,
however, rights benefit me only insofar as others accept the associated burdens of duty. Others
Bpay^ for my moral rights, as it were, in the currency of liberty. The fair-play principle requires
that I pay them back in kind. Some may reject fairness as a governing social norm, of course,
but those who accept it can hardly reject an equal distribution of basic rights and duties. This is
one of the fundamental theses of Rawls’s theory of justice.
The crux of my disagreement with Rowlands, then, concerns his interpretation of Rawls’s
claim that the point of the veil of ignorance is to ensure that Bno one is advantaged or
disadvantaged in the choice of principles [of justice] by the outcome of natural chance or

4
Indeed, the Kantian principle of equal respect for persons is so important to Rawls’s conception of his own
project that he claims at one point in A Theory of Justice that his account of justice amounts to a Bprocedural
interpretation^ of Kant’s conception of Bmoral legislation^ enacted by Bfree and equal rational beings^ (1999,
221).
980 Svolba D.

the contingency of social circumstances^ (Rawls 1999). Rowlands interprets Rawls as ex-
pressing here his commitment to the IEP. He takes Rawls to mean that it is unfair that any
individual’s welfare or life-prospects should depend on the natural or social Blotteries.^ But I
think Rowlands is ignoring the context in which this remark is embedded and in which it
acquires its intuitive force. We should interpret Rawls to mean that it would be unfair to
deprive persons of an equal share of primary social goods on the basis of properties applying
to them as a result of the natural and social lotteries, since we expect these same persons to
shoulder an equal share of the burdens of justice regardless of the properties they possess as a
result of those same natural and social lotteries.
The point may be illustrated as follows. It would be unreasonable for me to endorse a society
in which whether a person, P, has a duty to refrain from taking my life depends on whether P is
male or female, black or white, rich or poor, beautiful or ugly, strong or weak, and so forth.
Rather, I would elect to live in a society wherein all members of that society who are capable of
justice recognize my rights and accept corresponding duties of justice. But I also affirm,
antecedently and independently of thinking about the society I would (rationally) prefer to live
in, that anyone shouldering equally the burdens of justice has a claim, rooted in the fair-play
principle, to enjoying equally the protections of justice. Therefore, in deciding on the principles
of justice, I should regard any characteristics unrelated to one’s status as a rational person as
morally arbitrary, and so irrelevant with respect to that decision. To the extent that my decision
about the distribution of rights and duties is influenced by such morally arbitrary characteristics,
my decision is bound to offend against the fair-play principle and hence bound to be unfair by
my own lights. And thus we arrive at Rawls’s characterization of the veil of ignorance: the veil is
a heuristic aid whereby we imagine deciding on the distribution of rights and duties in S as if
ignorant of everything about oneself in S except what is morally relevant to determinations of
whether one is a subject of justice—that is, one’s status as a rational person in S. Notice that, in
the light of the fair-play principle, Rawls’s view of what facts are obscured by the veil of
ignorance makes perfect sense. We should conclude, I think, that the inconsistency Rowlands
claims to find in Rawls is due to Rowlands’s misinterpretation of Rawls’s argument.
If we now re-raise the question of animal rights against the background of Rawls’s argument
as I have suggested we should interpret it, it seems that IEPP and the fair-play principle do not
provide any grounds for assigning rights to nonhuman animals. These principles apply to
persons, and require that the protections of justice be proportionally offset by the burdens of
justice. Consequently, individuals not subject to the burdens of justice cannot claim—or have
others claim on their behalf—the protections of justice (rights, for example) as a matter of
fairness. Of course, this does not mean that nonhuman animals lack rights. It means only that
we have moral reasons for recognizing the political and economic rights of other persons that
are not at the same time moral reasons for recognizing the rights of nonhuman animals.

3 Rowlands’s Argument for Animal Rights

One reason for preferring my interpretation to Rowlands’s is that my interpretation explains

Rawls’s characterization of the veil of ignorance without saddling Rawls with a rather glaring
and indeed careless inconsistency. But there is an additional reason for preferring my inter-
pretation. An explicit and important aim of Rawls’s theory of justice is to provide moral
reasons for recognizing the equal rights of all persons that accommodate what Rawls calls the
Bfact of reasonable pluralism.^ By this, Rawls means to acknowledge the existence of, among
Is There a Rawlsian Argument for Animal Rights? 981

other things, a variety of distinct, conflicting, and defensible views about morality and what it
requires of us. Rawls aims to ground his principles of justice, including the equal-rights
principle, on moral reasons that proponents of competing conceptions of morality could
nevertheless recognize as binding. This requires him to be as neutral as possible in his
description of the original position, and it is why he instructs us to be careful not to import
controversial moral presuppositions into our description or Bset up^ of the original position.
Given this aim, it seems highly unlikely that Rawls would have based his own description of
the original position on the intuitive-equality principle defended by Rowlands—a principle
that few, if any, moral and political philosophers could be expected to accept without
argument.5 The intuitive-equality-of-persons principle, however, seems a far better candidate
for moral common ground. It is significantly less controversial than Rowlands’s intuitive-
equality principle and thus much better suited to Rawls’s purposes in making his argument. It
has a much better claim to being a principle that Bwe are ready upon due consideration to
recognize as reasonable,^ and as imposing constraints on our choice of principles that Bexpress
what we are prepared to regard as limits on fair terms of social cooperation^ (Rawls 1999, 10).
This brings me to my objections to Rowlands’s contractarian argument for animal rights.
Setting aside questions about whether Rowlands’s argument is genuinely Rawlsian, the argu-
ment faces two serious problems. First, the intuitive-equality principle is too tendentious for use
in setting up the original position. Second, that principle leaves it unclear which properties are
relevant to determining an individual’s moral entitlements. I explain these in turn.
As Rawls recognized, and as I have noted, the more controversial the principles to which
one appeals in justifying one’s description of the original position, the less credibility will be
attached to the moral principles derived from the original position. After all, showing that it
would be reasonable to endorse certain rules under the deliberative constraints of the original
position will carry normative weight with us only insofar as we think it reasonable, in the first
place, to impose those deliberative constraints. As Rawls says, when deciding on the condi-
tions of the original position, the aim is to argue Bfrom widely accepted but weak premises to
more specific conclusions….Each of the presumptions [informing the description of the
original position] should by itself be natural and plausible….^ (Rawls 1999, 16).
But now suppose we consider Rowlands’s description of the original position, and his
intuitive-equality principle in particular, in light of Rawls’s remarks. We see immediately, I
think, that the intuitive-equality principle is far too controversial to be of use in establishing the
conditions that make up the original position. For starters, the principle would be roundly
rejected by those who—like Rawls—subscribe to the traditional and still pervasive moral view
that persons, by virtue of their distinctive capacities for rationality and moral agency, are owed
special moral consideration and respect. Proponents of this view—I will call them
exceptionalists—will reject the idea that a fair and impartial evaluation of what the moral
rules should be would omit consideration of properties like rationality and moral agency. They
will complain that we do not promote fairness and impartiality in the creation of the moral
rules by ignoring such properties.
Of course, exceptionalists may be wrong about the moral significance of properties like
rationality and moral agency, but that is not the point. The point is that original position
arguments in support of certain moral rules will not work if they depend on conceptions of the
original position that are as controversial as the moral rules they are called on to support. And
this seems to be the situation Rowlands finds himself in vis-à- vis his exceptionalist opponent:

5
I return to the principle’s implausibility later in the current section.
982 Svolba D.

their disagreement about the most defensible conception of the original position is just their
initial disagreement about animal rights under a different guise. Rowlands will argue that we
would assign rights to animals from a fair and impartial perspective in which we consider all
and only morally relevant facts, and his opponents will rightly accuse him of begging the
central question at issue—that is, whether facts about an individual’s possession (or lack of)
properties like rationality and moral agency are morally relevant to the individual’s moral
entitlements. This issue cannot be settled by an argument from the original position, since our
description of the original position must take a side on the issue.
But it is not only Rowlands’s exceptionalist opponents who will balk at the intuitive-equality
principle. Champions of animal rights, like Tom Regan, or of equal consideration of animal
interests, like Peter Singer, will find the principle unacceptable as well. Regan argues that being
the Bsubject-of-a-life^ is necessary and sufficient for having moral rights, that many nonhuman
animals satisfy these conditions, and hence that many nonhuman animals have moral rights
(Regan 1984). Singer defends a view according to which the moral status of nonhuman animals
lies in their having vitally important interests, interests which, other things equal, matter as
much morally as corresponding human interests. For both Regan and Singer, then, the moral
status of nonhuman animals is grounded in the ‘undeserved properties’ these animals possess.
It is striking to consider that if the intuitive-equality principle is correct, all of these views
concerning the moral status of nonhuman animals are false, and for the same reason: they
assign moral rights on the basis of properties—rationality, being the subject of a life,
sentience—that, according to the intuitive-equality principle, are morally arbitrary and hence
irrelevant when it comes to determining an individual’s Bmoral entitlements.^ At this point one
might begin to wonder whether there are any morally relevant properties to attend to in the
original position as Rowlands conceives it. Any even remotely plausible suggestion about the
properties in virtue of which an individual has moral status or is owed moral consideration and
respect will appeal to undeserved properties that individual possesses. Fundamental moral
status, after all, is not something we earn.6
Rowlands, as I interpret him, thinks that there is one and only one morally relevant property
to consider from the fair and impartial standpoint of the original position: whether an
individual is the kind of thing Bone could rationally worry about being [when the veil is
lifted]^ (Rowlands 2009, 160). This is the basis of Bmoral considerability,^ on Rowlands’s
view—and indeed it is the only basis he can offer, since his intuitive- equality principle has
eliminated all of the usual suspects. But this proposal is unsatisfactory for two reasons.
From the standpoint of the original position, we confer moral status on individuals by virtue
of the fact they are among the individuals that we might be on the other side of the veil. But
this seems to present Rowlands with a dilemma. To appreciate the dilemma, notice first that
whether an entity, E, is among those we can rationally worry about being on the other side of
the veil will depend on facts about the undeserved properties that E possesses. For example,
the reason that, on Rowlands’s view, I need to worry about being a veal calf but not a stone, is
that veal calfs are sentient but stones are not (there is ‘something that it is like’ to be a veal
calf). But this seems to imply either that (i) we confer moral status on an entity on the basis of
its possession of properties that are, by the logic of Rowlands’s own argument, morally
arbitrary and irrelevant, or that (ii) there are at least some undeserved properties (those which
determine whether an entity is one we can rationally worry about being, perhaps) that are not

6
It’s not even clear what this would mean—after all, lacking moral status, why feel obliged to confer moral status
on an individual in exchange for effort?
Is There a Rawlsian Argument for Animal Rights? 983

arbitrary and irrelevant from a moral point of view. Taking the first option seems unattractive:
why should we think an entity’s moral status depends on its possession of (allegedly) morally
arbitrary and irrelevant properties? Taking the second option significantly weakens Rowlands’s
overall argument, since his opponents may simply insist that rational capacities, too, are among
the ‘undeserved properties’ that determine an individual’s moral status. It seems the dialectic
simply returns to the starting point.
My second objection is that Rowlands’s proposal severs the link between prudential and
moral justification in the original position. (At least, it does so if we interpret his intuitive
equality principle to disqualify as morally arbitrary and irrelevant all the undeserved properties
that an individual possesses.) Suppose we ask, why should facts about the choices it would be
prudent for us to make in the original position entail anything about the choices it would be
moral for us to make under the actual circumstances? Recall how this question is answered in
the context of Rawls’s theory. In Rawls’s version of the original position, our pursuit of self-
interest is constrained by the veil of ignorance, which forces us to focus exclusively on what
Rawls assumes are the morally relevant facts about ourselves: our status as moral persons,
possessing capacities for autonomy and moral agency. In the original position each maximizes
her own interests by choosing the principles of justice that are best for her qua moral person,
which is to say that each, in choosing the principles that are best for herself, chooses the
principles that are best for all moral persons. In this way, the original position collapses in
practice the ordinary distinction between the prudential and moral points of view. This is why
Rawls can say that facts about the choices it would be prudentially best for us to make in the
original position tell us something important about the choices we ought morally to make
outside the original position.
This is not the case in Rowlands’s version of the original position. From that standpoint,
there is no reason to think that, in pursuing our own self-interest, we are focusing solely on
morally relevant facts in determining principles of morality. Rather, we are simply hedging our
bets under conditions of radical uncertainty. Rowlands might be right about the principles it
would be prudent to choose under such conditions, but it is unclear on his view why we should
draw any moral conclusions from the choices we would make under these hypothetical
conditions. Granted, he could say that the choices we make are, by hypothesis, not influenced
by morally irrelevant considerations, but nor are they influenced, it seems, by any morally
relevant considerations. It seems doubtful, then, that Rowlands’s argument for animal rights
will persuade those who are not already predisposed to affirm animal rights.

4 Conclusion

Rawls offers us such a vivid and well-rendered social contract argument that it is very tempting
to press it into forms of service that Rawls himself did not intend. In particular, it is tempting to
appeal to it as a quite general method of moral justification and argument. With respect to any
putative moral principle, we may simply ask: would we affirm this principle from behind the
veil of ignorance, deprived of all particular facts about ourselves and our circumstances? In this
way, we might think, our moral judgments issue from an impeccably fair and impartial
decision-procedure. It seems to me, however, that Rawls’s social contract argument is not so
easily lifted from its original context; it is first and foremost an argument concerning the just
distribution of primary social goods among cooperating members of a liberal society, ad-
dressed to liberals (i.e., those who affirm the intrinsic moral equality of all persons). When we
984 Svolba D.

change its focus, or its audience, it becomes significantly less clear whether facts about the
principles we would choose or endorse in the original position have any moral claim to being
principles we should choose or endorse outside the original position. This is well-illustrated by
Rowlands’s Rawlsian argument for animal rights.7

References

Hart HLA (1955) Are there any natural rights? The Philosophical Review 64(2):175–191
Rawls J (1999) A theory of justice. Harvard University Press, Cambridge
Rawls J (2003) Justice as fairness: A restatement. Princeton University Press, Cambridge
Regan T (1984) The case for animal rights. University of California Press, Oxford
Rowlands M (2009) Animal rights: moral theory and practice. Palgrave Macmillan, New York
Van De Veer D (1979) Of beasts, persons, and the original position. Monist 62(3):368–377

7
I am grateful to two anonymous reviewers whose comments helped me improve my exposition and argument in
this paper.
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