Animals, Political Liberalism and Public Reason [1st ed.] 9783030495084, 9783030495091

Table of contents :
Front Matter ....Pages i-xiii
Introduction (Federico Zuolo)....Pages 1-13
Animal Treatment as a Matter of Reasonable Disagreement (Federico Zuolo)....Pages 15-71
Public Justification and the Disagreement on Animals (Federico Zuolo)....Pages 73-127
Views on the Moral Status of Animals (Federico Zuolo)....Pages 129-181
Applying Public Justification: Interests, Principles and Competing Reasons (Federico Zuolo)....Pages 183-230
Addressing Unlawfulness: Admissible and Non-admissible Forms of Protest (Federico Zuolo)....Pages 231-267
Conclusion (Federico Zuolo)....Pages 269-274
Back Matter ....Pages 275-280

Citation preview

Animals, Political Liberalism and Public Reason Federico Zuolo

Animals, Political Liberalism and Public Reason

Federico Zuolo

Animals, Political Liberalism and Public Reason

Federico Zuolo Department of Classics, Philosophy, and History University of Genoa Genoa, Italy

ISBN 978-3-030-49508-4    ISBN 978-3-030-49509-1 (eBook) https://doi.org/10.1007/978-3-030-49509-1 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

The bulk of this book has been written thanks to the generous support of the Alexander von Humboldt Foundation (project Politics and Animals), which funded a Senior Fellowship at the Freie Universität Berlin and the University of Hamburg. The lively atmosphere in Berlin and Hamburg and the warm welcome by the hosts (Bernd Ladwig and Peter Niesen) created the ideal environment to work on the manuscript. I owe many debts of gratitude to different people who have variously contributed to the preparation and drafting of this book. I am especially indebted to Robert Jubb and Peter Niesen for having read and commented on the entire manuscript. I am also grateful to Gabriele Badano, Giulia Bistagnino, Maria Paola Ferretti, Roberto Frega, Bernd Ladwig, Federica Liveriero and Philipp von Gall for their comments to parts of the book and the lively discussions that preceded and followed their comments. Discussions with Enrico Biale, Michele Bocchiola, Ian Carter, Emanuela Ceva, Alessandro Ferrara, Anna Elisabetta Galeotti, Christian List, Julian F.  Müller, Valeria Ottonelli, Fabienne Peter, Enzo Rossi, Fabian Wendt and many others have greatly contributed to the formulation and refinement of many arguments at an early or late stage of the drafting. Seminars in Berlin, Genova, Hamburg, Paris, Pavia and Vercelli devoted to the discussion of earlier versions of parts of the manuscript v

vi Acknowledgments

provided substantial feedback to the formulation of the arguments that I employed. I have also had the opportunity to discuss some parts of the book in larger workshops and conferences in Hannover, Leusden, Milan and Newport. I am very grateful to both audiences. Their contribution gave me the opportunity to test the preliminary idea of the volume as well as refine some parts at later stages. Parts of Chap. 1 are a reformulation of materials included in a previously published article I co-authored with Giulia Bistagnino (“Disagreement, Peerhood and Compromise”, Social Theory and Practice 44(4), pp. 593–618).

Contents

1 Introduction  1 1.1 Why Disagreement About Animals Matters   1 1.2 Overview of the Book   7 1.3 Animal Ethics of What Animals?  10 References 13 2 Animal Treatment as a Matter of Reasonable Disagreement 15 2.1 Only a Matter of Disagreement  15 2.2 Why Focus on Disagreement?  21 2.3 Dimensions of Disagreement and Some Comparisons  24 2.4 Going More Epistemic  28 2.4.1 Epistemic Pedigree of the Disagreeing Parties  30 2.4.2 Reasonable Disagreement  32 2.5 Faultless and Peer Disagreement  34 2.5.1 Faultless Disagreement  34 2.5.2 Peer Disagreement  36 2.5.3 Qualified Disagreement  41 2.6 A First Paradigmatic Case of Qualified Disagreement: The Use of Animals in Research Laboratories  44 2.6.1 Descriptive and Normative Grounds for Disagreeing 44 2.6.2 Idealized and Real Cases of Competent Peerhood  48 vii

viii Contents

2.7 A Further Paradigmatic Case: The Weight of Suffering  52 2.8 Being Justified in Disagreeing About Animals  62 2.8.1 The Burdens of Judgment  62 2.8.2 The Epistemic Purchase of This Argument  64 2.9 Conclusion  66 References 68 3 Public Justification and the Disagreement on Animals 73 3.1 Why Public Justification?  73 3.2 The Premises of Public Justification  78 3.2.1 Personhood  79 3.2.2 Reasonableness  82 3.3 Epistemic Constraints  85 3.4 A Hybrid Theory  90 3.4.1 Neutral Reasons (nRs)  92 3.4.2 Internal Reasons  93 3.4.3 This Account of Public Justification Vis-à-Vis Rawls’s and Gaus’s Accounts  99 3.4.4 Why Hybrid? 103 3.5 More on Neutrality and Inclusiveness 105 3.6 The Challenge of Moral Realism 113 3.6.1 Why Idealize and Exclude 114 3.6.2 Moral Facts, No Bullshit! 117 3.7 What Should the Disagreeing Parties Do? 121 References125 4 Views on the Moral Status of Animals129 4.1 What Is a View? 130 4.2 SEN More in Detail 132 4.3 What Views Are Publicly Admissible and Why? 138 4.3.1 Animal Subjectivism 140 4.3.2 Pathocentrism 142 4.3.3 Relationalism 144 4.3.4 Environmentalism 148 4.3.5 Humanism 150 4.4 Mixed Views and Borderline Cases 152

 Contents 

ix

4.5 Publicly Non-admissible Views 157 4.5.1 Non-admissible Philosophical Views: Cartesianism and Indirect Views 157 4.5.2 Religions: Christianism, Hebraism, Islam, Hinduism, Buddhism, Animism 161 4.5.3 Popular Societal Views 168 4.6 Conclusion: How to Include Persons While Filtering Their Views 174 References177 5 Applying Public Justification: Interests, Principles and Competing Reasons183 5.1 Animal Interests and Normative Principles 184 5.2 Liberty-Related Interests and Principles 188 5.3 Life-Related Interests and Principles 195 5.4 Welfare-Related Interests and Principles 205 5.5 Inconclusiveness and Democratic Outcomes 218 5.6 Why Publicly Non-acceptable Views May Endorse These Results222 5.7 What Kind of Agreement? 224 References229 6 Addressing Unlawfulness: Admissible and Non-admissible Forms of Protest231 6.1 Rejecting the Outcome 231 6.2 Diverse Forms of Unlawful Protests 235 6.3 Communicative Unlawful Actions: Whistle-Blowing and CD 239 6.3.1 A Suitable Definition of CD 242 6.4 Direct Actions: Animal Rescue and Sabotage 250 6.4.1 Open and Covert Rescue 253 6.4.2 Mixed Cases: Anti-whaling Activities 255 6.5 Forms of Communication, Reciprocity and Unlawful Protests257 6.6 Violations of the Law and Institutional Response 260

x Contents

6.7 What Is Admissible and to What? Public Justification, Morality and What We Ought to Do 262 6.8 Conclusion 264 References265 7 Conclusion269 References274 Index275

List of Figures

Fig. 2.1 Types of disagreement Fig. 3.1 The structure of the public justification procedure (PJP) Fig. 4.1 Chart of publicly admissible views

43 113 155

xi

List of Tables

Table 2.1 The pervasiveness of disagreement Table 2.2 The complexity of disagreement

25 26

xiii

1 Introduction

1.1 W  hy Disagreement About Animals Matters People disagree widely over the moral status of animals and the treatment we owe to them. The disagreement touches upon whether animals have a moral status, and, if so, what such a status demands of us. Some people care about animal welfare, others campaign for animal rights and animal liberation. Other people use (some may say exploit) animals for economic purposes. Some people have deep affective relations with animals and see them as fundamental to their lives. Others seem to care about none of the above. Whatever one’s view on the matter, animals clearly play an important role in everyone’s lives, even in the lives of those who deny any moral status to animals: indeed, all human beings have at least some indirect relation with animals, for instance, when one eats meat or uses a drug which has been tested on animals prior to its use by humans. This is something of a platitude. But what bearing does this issue have on public rulings? When thinking about these issues, it is important to bear in mind that many practices involving human-animal relations (in particular, food © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_1

1

2 

F. Zuolo

production and scientific experiments on animals) have a public dimension and cannot merely be confined to the private sphere. Why? Because such practices require public regulation, at least insofar as matters of safety are concerned (regarding meat and drug production, for instance), and because most people think that this is not a morally indifferent domain. Hence, in virtue of the pervasiveness and ubiquity of relations between human and non-human animals, and the importance of such relations to the lives of those who consider animals worthy of moral concern and those who do not, animal treatment is a matter of public concern: it touches upon fundamental interests and either directly or indirectly affects us all. Although what I have been saying so far might seem rather trivial, it immediately becomes non-trivial if we consider how widely people disagree on the moral status of animals and the way we ought to treat them morally. How should we deal with such disagreement? What bearing does it have on the need for a public ruling? Unlike standard approaches in animal ethics, in this volume I will argue that we should take the disagreement on this issue seriously. Theories in animal ethics, by contrast, have typically overlooked the disagreement on the moral status of animals as unjustified and have variously urged that public institutions and citizens adopt a comprehensive and controversial ethical stance on animals—be that utilitarian, rights-based, feminist or otherwise. But a liberal response to a situation of disagreement over an issue that should be ruled publicly requires that a method of justification be compatible with a pluralistic background. As a way out of this unsettling situation, we ought to find a form of public justification that is suitable to addressing the treatment of animals in such a way that its results are acceptable to all those who are subject to them. The primary aim of this book is to propose a change of perspective in dealing with the issue of the treatment of animals. Unlike the vast majority of existing theories in animal ethics, I will argue that we should start from the disagreement on the moral status of animals and the treatment we owe to them. Given the profound diversity of perspectives on how animals ought to be treated, we should start from this disagreement and take it as the baseline for a normatively informed public ruling. This claim, which has become the standard approach of (political) liberalism

1 Introduction 

3

in nearly all domains, has never been pursued in respect of animals, despite the recent and notable political turn in animal ethics. Indeed, even Robert Garner’s (2013) theory of justice for animals—which is admittedly political and non-ideal (sentience position), that is to say, it seeks to outline a proposal that could be feasible—does not recognize the importance of disagreement as an unavoidable and constitutive background. Rather, for Garner, the disagreement is merely a component of the feasibility constraint ruling out the possibility of fully implementing the animal-rights ideal (enhanced sentience position). In a sense, my theory follows the overall political turn in animal ethics because it is preoccupied with the problem of justice, namely our collective enforceable duties toward animals which are to be distinguished from what we owe to animals as a matter of morality (Cochrane et al. 2016). However, unlike other ethical theories toward animals, I do not assume a substantive moral account—whether utilitarian, rights-based and so on—but rest within a purely political set of duties toward animals; and unlike other political theories regarding animals, my proposal is based on and starts from the disagreement about the moral status of animals. Hence, it is not just a political theory; it is also, and just as importantly, a liberal theory in that it seeks to outline an inclusive set of principles that can be accepted by all. For this reason, my proposal significantly differs from that of Donaldson and Kymlicka (2011), since they start from a rights-based approach and outline a political account only with regard to animals’ inclusion in human communities. It also differs from the most recent political theory of justice for animals, namely that outlined by Cochrane (2018). Cochrane is coherent in drawing the implications of animal rights for a polity in terms of the institutions that should enshrine and implement the recognition of animals’ equal worth. Moreover, he discusses issues about its implementation and the problem of what such a sentientist political order should tolerate. Hence, his theory is properly political because he is concerned with the institutional issues and with the problem of diversity. However, he starts from (and argues for) a position of animal rights which I do not take for granted. As we will see below, there are some fundamental issues regarding animals’ interests that need to be reconsidered. Therefore, a liberal position on animals does not consist in deploring the mere fact that the recognition of animal rights would

4 

F. Zuolo

restrict people’s liberties. Rather, it starts from the idea that disagreement should be taken seriously and draws the normative implications of this recognition. The striking fact of ethical and political theories about the treatment of animals is that despite the wealth of alternative approaches, to date no coherent liberal theory has been outlined. We will consider why this is the case in due course, but for now, it is worth delving into the foreground of my proposal. In a sense this book takes up Jeremy Waldron’s initial statement in Law and Disagreement (1999) about justice and applies a similar (but suitably modified) perspective. Waldron wrote: Reflecting on the philosophical significance of our political disagreement is not just a matter of meta-ethics. … A confident theorist of justice may announce, ‘Well, of course there is disagreement about justice; but as the moral realists have shown, the existence of disagreement is quite compatible with one of the contestant views being true and the others false.’ He can say that, but it is hardly sufficient, particularly if it is just a prelude to his saying, ‘And of course the true view about justice is my view…’ For if he is all self-aware, he knows very well that he will be followed, one by one, by all his ideological rivals. … The vocation of the political philosopher is to examine philosophically, not just the metaphysics, but the morals and politics of disagreement. (Waldron 1999: 3)

Like Waldron’s theory, I do take disagreement seriously and as the starting point of my analysis. Unlike Waldron’s theory, however, I will not pursue this analysis through the lens of jurisprudence and the role of legislatures. Rather, my analysis will be focused on animals, but it will also devote much more space to the epistemic dimension of disagreement (Chap. 2) and the need for a theory of public justification (Chap. 3). Building on this meta-analysis I will also argue for a specific set of normative outcomes, rather than merely resting with an analysis of the political implications of disagreement. However, the normative implications I will suggest will not be put forward as a substantive first-order moral theory, which would rule out as false or insignificant the other substantive first-­ order moral theories. The normative implications, instead, will be the outcome of a public justification procedure that seeks to discover

1 Introduction 

5

principles that are acceptable to all the moral views that can take part in the procedure. If, in the literature on animal ethics, the concern for disagreement is almost absent, such a preoccupation is the focus of many political philosophers, who, however, have devoted scant attention to the specific problems posed by the treatment of animals. An exception to this relative neglect of animals in political philosophy is Jonathan Wolff’s (2011) proposed method for handling the issue of animal experimentations. He analyzes the issue of research on animals as one controversial problem which is deeply divisive in our contemporary societies and in need of some sort of normative settlement. I share this overall concern but, despite some similarities—taking disagreement seriously and attempting to be as inclusive as possible of all the positions—there are some differences between our respective approaches. First, I try to propose a more systematic account of the nature of the disagreement on the moral status of animals. Unlike Wolff’s explicit bottom-up approach and his commitment to making sense of current practices and the status quo, the methodology employed here will seek a greater generality and will lead to a more revisionary outcome. Second, the kind of normative solution I advance is more principled and based on epistemic grounds, thus claiming for a general validity, whereas Wolff does not seem to require that his solution (a compromise) be principled, provided that it constitutes a step forward in public ethics and is politically acceptable. Unlike Wolff’s account, a preoccupation for real disagreement is absent in Nussbaum’s (2006) avowed commitment to political liberalism. Although she does consider what most important religions teach about the treatment of animals, and on this point she is optimistic about a possible agreement on this issue, Nussbaum does not engage with the details of this and rather assumes that an agreement is possible, even relatively straightforward, without analyzing the real arguments stemming from each religion. Moreover, her approach is not consistent with one of the tenets of political liberalism. Indeed, she subscribes to an animal-rights approach, and as such is not neutral with respect to this issue. In sum, Nussbaum describes her approach as politically liberal, but in fact she does seem to smuggle in a substantive approach under the guise of a politically liberal one.

6 

F. Zuolo

Unlike Nussbaum’s, my theory will be distinctively liberal. In particular, it will subscribe to political liberalism in the sense that will be expounded in the chapters to follow. Liberalism has traditionally been seen to be at odds with the claims of animals, insofar as it relies on a Kantian priority granted to humans which presumably gives license to humans to pursue their own interests so long as such pursuits do not infringe the interests and rights of other persons. This, however, does not restrain human liberty when it comes to the use of animals. In Gary Steiner’s trenchant words, liberalism seems incompatible with a robust defense of animal interests: Even if we acknowledge that animals, unlike trees and streams, suffer, their suffering nonetheless counts less than human suffering, because according to the anthropocentric logic of liberalism only human beings possess the highest and purest moral status. Unless limits are placed on liberalism, animals in our society will invariably be sacrificed for the sake of promoting human interests in all except those uncontroversial cases in which the recognition of the interests of animals does not interfere with the promotion of human interests. (Steiner 2005: 202)1

One of the contentions of this book is that it is possible to outline a convincing defense of animals within the liberal tradition. Accordingly, this volume seeks to respond to the critiques leveled by Pepper (2017) according to whom a politically liberal position on these themes is illsuited to defend animals’ interest because it cannot account for their moral status directly or misconstrues the kind of social disagreement that affects many disputes. Perhaps the extent of my proposed defense of animals will not satisfy the most fervent animal-rights theorists. Still, my proposal would entail limitations on some human liberties and would not merely justify the status quo.

 Similar charges may be found in the works of Garner (2012) and many others who address more specific versions of liberalism and not the whole idea of liberalism. 1

1 Introduction 

7

1.2 Overview of the Book The book will be divided into three parts, which may be roughly labeled as the epistemology, ethical normativity and politics of disagreement about animals. The first part, comprising Chaps. 2 and 3, will deal with the epistemology of disagreement about animals and the kind of public justification necessary to address it. The second part, Chaps. 4 and 5, will first present the variety of ethical views about the moral status of animals and then apply to them the procedure of public justification previously outlined. The third part (Chap. 6 and conclusion [Chap. 7]) will focus on politics and the issue of violations of the law for the sake of animals, as well as further practical applications of public justification. The thread of the argument is unique and continuous. This three-part division is meant to highlight the specific dimensions of disagreement (epistemic, ethical and political) that, while interconnected, need to be considered separately. In more detail, the volume will proceed as follows. In Chap. 2, I will provide an overall analysis of the disagreement about the moral status of animals and the treatment we owe to them. I will first sketch out some categories to characterize this type of disagreement, namely its pervasiveness (horizontal and vertical) and its complexity (descriptive and normative, first- and second-order). Next, I will discuss its epistemic nature with a view to investigating whether and in what cases parties to this disagreement are justified in holding their position; hence, whether reasonable disagreement is an epistemically tenable position and whether it is practically possible in this domain. To tackle the first problem, I will discuss the notions of faultless and peer disagreement. To address the second problem, I will present two paradigmatic cases of peer disagreement, the first regarding the admissibility of the use of animals in research laboratories and the second regarding the problem of weighing animal suffering. I will conclude by drawing the implications of this analysis for my overall thesis. The purchase of this idea is that our best available arguments and evidence in a condition where competent epistemic peers disagree show that, at least over certain issues, the parties are equally justified in holding their positions. Hence, reasonable disagreement is possible and relevant.

8 

F. Zuolo

Chapter 3 will draw on the findings of the first to argue that, given that we cannot rule out one of the positions in reasonable disagreement as false or non-justified, we need a different method to find publicly acceptable principles. Such a method is a procedure of public justification that is compatible with both the nature of reasonable disagreement and the need to find principles that are acceptable to all. After discussing the main models of public justification in the literature about public reason, I propose a hybrid theory of public justification that draws on some features of the two main models (the consensus approach and the convergence approach). My proposed public justification procedure embeds the principles of neutrality and inclusiveness, thus seeking to provide generally valid outcomes and principles acceptable to all the views participating in this procedure. But, as anticipated, the proposed procedure of public justification does not start from the mere fact of pluralism regarding animals because it endeavors to arrive at an epistemically justified outcome. Hence, not all the existing views on the moral status of animals may take part in the public justification procedure because some of them are clearly false. Hence, I will propose two conditions that define those views that are minimally rationally acceptable (to be presented in Chap. 4). I call them the formal epistemic norm (requiring that a view be non-­inconsistent and non-discriminatory) and the substantive epistemic norm (demanding that a view be compatible with the findings of science). In Chap. 4, I will outline the main views about the moral status of animals that pass the test of minimal rational acceptability. Such views are Animal Subjectivism, Pathocentrism, Relationalism, Environmentalism and Humanism. These views can be placed on a continuum from the one according the greatest value to animals’ status to that giving structural priority to the status of human beings. Indeed, in the first view animals are attributed autonomous (and equal) moral status as separate individuals; the second view holds that we have direct duties toward animals in virtue of their interests but individuals are not recognized as having any irreducible worth as such; the third view rejects the jargon of rights and intrinsic worth independently of one’s relation with animals; the fourth view values collective entities (species and ecosystems), not only individuals; the fifth holds that we have only a duty of benevolence and humanity toward animals, but not duties of

1 Introduction 

9

justice. In the rest of the chapter, I will explain why these views are sufficient to partially represent some other socially widespread views (e.g. some religiously informed views) and show what views are to be excluded from public justification. The views to be excluded are those incompatible with the findings of science and those that include incoherent attitudes toward similar animals. In Chap. 5, I will apply the public justification procedure to the views outlined in the previous chapter. The objects of the public justification procedure will not be the views per se. Rather, I will discuss whether some of the most important principles regarding the treatment of animals may be supported by neutral reasons and acceptable to the main views. I will divide these principles into three main families: principles protecting animals’ interests in life; principles protecting animals’ interests in freedom; and principles protecting animals’ interests in welfare. I will argue that the procedure of public justification yields a conclusive outcome only with regard to principles protecting animals’ interests in welfare, while in the other two families we have inconclusive outcomes. The principle that passes the procedure of public justification is the one demanding that animal suffering be minimized in interactions with human beings as much as reasonably possible. Regarding animals’ interests in life and freedom we have to employ democratic procedures to find out what principles, albeit not fully justified, are more acceptable than others. I will conclude the chapter by clarifying what kind of agreement the parties will have reasons to reach (consensus or compromise). In Chap. 6, I will discuss what response liberal institutions ought to give to the problem of radical dissent, in particular the dissent expressed through illegal acts. If, in the previous chapters, I have only presented and dealt with the reasonable parties, that is, parties committed to finding a mutually acceptable solution by peaceful means, in this chapter I will sketch possible responses to the problem of radicality that are respectful of the principle of liberal inclusion which informs the public justification procedure. The response will be dependent on the type of claim put forward by the unreasonable parties and their attitude. By discussing a range of cases, including cases of civil disobedience and direct actions for the sake of freeing animals, I will argue that acts of civil disobedience may be compatible with public justification on certain conditions, while acts of animal rescue and sabotage cannot be part of public justification.

10 

F. Zuolo

Finally, in Chap. 7, I will conclude with some possible applications of the result of this procedure to some thorny topics (the issue of hunting and genetic engineering) and provide some considerations on whether real, and not merely hypothetical, people may uphold and accept the spirit and implications of this procedure.

1.3 Animal Ethics of What Animals? A final clarification is in order before we begin. In the animal ethics literature, as well as in other debates addressing the animal question, theorists and laypeople alike often employ the very broad category of “animals”. Some have expressed concerns about this notion being too broad. In this category we ought to include both very simple beings and very complex mammals. Hence, so this argument goes, we ought to refer more specifically to subsets of animals. In response to this critique, I agree that the category of animals is sometimes too general and inclusive and that, when necessary, we ought to specify which kind of animals we are dealing with. However, most of my discourse will concern the overall category of animals, not including human beings, because, as we will see in the next chapters, my approach addresses the question of persons’ disagreement about the moral status of animals. Hence, the proper object of analysis will not be animals themselves, but humans’ conception thereof, and the commitment that these conceptions bring about in people’s lives. Another critical strand takes the opposite route and challenges the decision to focus on animals insofar as the notion is too restrictive. Theorists of this type may have diverse conceptual frameworks and yet be commonly motivated by the radical refusal of an anthropocentric outlook. Let me consider here only two of them. The first is rooted in a radical ecological view and is concerned with any living being, which thereby also includes non-sentient living organisms. In particular, on Paul W.  Taylor’s view, all living beings—including plants and the simplest forms of life—have an equal moral status (inherent worth) and, accordingly, deserve moral considerability. We owe moral considerability to all entities that have a good of their own. All living creatures are the types of beings that have a good of their own because only living beings are

1 Introduction 

11

individual and self-reproducing teleological centers of life—that is to say, all living beings are original and non-derivate, goal-oriented activities (Taylor 1986, chaps. 2–3). The second approach that I want to mention takes the opposite route and starts from the fact of cooperation. On this view, we owe justice to any being with which we have a cooperative relation for the production of social goods (Coeckelbergh 2009). In this domain we ought to include not only animals that humans employ in farms or in scientific laboratories, but also non-living entities, including forms of artificial intelligence or synthetic entities providing services to humans. Against both tendencies that would question my focus on animals as having too restrictive a scope, I think it is more appropriate to focus on sentient animals. In this regard, I follow the vast majority of theories in animal ethics concerning the fundamental property to merit direct moral concern: sentience. In animal ethics, sentience is usually understood in a rather broad sense, as involving the minimal capacity to have attractive or aversive experiences, and the capacity to act upon them. As Broom notes (2014: 5), a sentient being is one that has some ability: (i) to evaluate the actions of others in relation to itself and third parties; (ii) to remember some of its own actions and their consequences; (iii) to assess risks and benefits; (iv) to have some feelings; and (v) to have some degree of awareness.2

Only sentient animals can at least have conscious experiences that favor or hinder their well-being, while non-sentient animals or synthetic and artificial entities cannot. One may retort that a plant or a machine can also be said to be well-off, if it thrives or works properly, or be worse-­ off if it withers or does not work. I cannot provide a full response to this kind of challenge because it would mean delving into issues regarding what confers moral status to the existing entities, and what constitutes the best theory of moral status. As anticipated, my point will be precisely  It is worth specifying that in a broad understanding of the idea of sentience we should not take these features as either separately necessary or each sufficient to determine sentience. There is still a lot of disagreement as to how these criteria obtain in specific species of animals, and as to how they should be deemed sufficient and/or necessary to guarantee the ascription of sentience. 2

12 

F. Zuolo

that of avoiding this kind of talk and instead focusing on the disagreement about it. However, here it is sufficient to say that those views that reject sentience as the threshold of moral considerability are far more implausible for the following reason. Sentience seems a better candidate than being a mere living entity or being an artifact with a certain function to be morally considerable. This is so because merely living entities (plants) do not have subjective experiences. Hence, even if they somewhat interact with the environment, they cannot perceive it. Any damaging event that happens to them is not perceived or properly felt in any neural system. Regarding artificial intelligence and synthetic activities, we can safely say that, to date, they cannot have such subjective experience and seem to be replaceable. Hence destroying an item does not seem a disvalue per se to the extent that a copy of it can be produced. Although these considerations are by no means a definite proof of the idea that sentience is the best criterion with which to attribute moral status, it is uncontroversial to say that, in any perspective, sentience, qua capacity to have conscious experiences, is a fundamental criterion, even though for some (minoritarian) perspectives it is not the only one. Having specified that hereafter by “animals” I mean sentient living beings, the next question is: Where do we draw the line of sentience? A traditional but probably outdated rule of thumb posited this threshold with vertebrates. Now we should at least, but probably not only, include at least many crustaceans and cephalopods. But this might not include all relevant species because our knowledge of subjective experience, nociception and development of the nervous system is still largely incomplete, particularly in respect of invertebrates. Hence, I cannot address the issue of where to posit the threshold of sentience, since this question exceeds the scope and intention of the present book and certainly goes beyond my competences.3 As such, if not otherwise specified, in what follows I will simply use the general category of animals, which can be understood to include only sentient animals, and thereby to exclude non-sentient individuals (whether plants or non-sentient animals) and artificial entities.  A synthetic overview of the complexities in establishing the threshold of sentience and its implications for the ethical duty to take animal suffering into account is provided by Birch (2017). 3

1 Introduction 

13

References Birch, J. (2017), “Animal Sentience and the Precautionary Principle”, Animal Sentience 2(16), pp. 1–15. Broom, D. M. (2014), Sentience and Animal Welfare (Wallingford: CABI). Cochrane, A. (2018), Sentientist Politics. A Theory of Global Inter-Species Justice (Oxford: Oxford University Press). Cochrane, A.  Garner, R., O’Sullivan, S. (2016), “Animal Ethics and the Political”, Critical Review of International Social and Political Philosophy 21(2), pp. 261–277. Donaldson, S. and Kymlicka, W. (2011), Zoopolis. A Political Theory of Animal Rights (Oxford and New York: Oxford University Press). Garner, R. (2013), A Theory of Justice for Animals. Animal Rights in a Nonideal World (Oxford: Oxford University Press). Mark Coeckelbergh, (2009), Distributive Justice and Co-Operation in a World of Humans and Non-Humans: A Contractarian Argument for Drawing NonHumans into the Sphere of Justice. Res Publica 15 (1), pp. 67–84. Nussbaum, M. (2006), Frontiers of Justice. Disability, Nationality, Species Membership (Cambridge, Mass: The Belknap Press of the Harvard University Press). Pepper, A. (2017), “Political Liberalism, Human Cultures, and Nonhuman Lives”, in L.  Cordeiro-Rodrigues and L.  Mitchell (eds.), Multiculturalism, Race and Animals: Contemporary Moral and Political Debates (Houndsmill: Palgrave), pp. 35–59. Steiner, G. (2005), Anthropocentrism and Its Discontents. The Moral Status of Animals in the History of Western Philosophy (University of Pittsburgh Press: Pittsburgh). Taylor, P.  W. (1986), Respect for Nature: A Theory of Environmental Ethics (Princeton: Princeton University Press). Waldron, J. (1999), Law and Disagreement (Oxford: Clarendon Press). Wolff, J. (2011), Ethics and Public Policy. A Philosophical Inquiry (London and New York: Routledge).

2 Animal Treatment as a Matter of Reasonable Disagreement

2.1 Only a Matter of Disagreement Animals feature in nearly every part of our public, associative and private life. And yet there is wide and deep disagreement as to how they ought to be treated by human beings. Is it admissible to dispose of animals’ life for the sake of pursuing some human ends? And if so, what are the legitimate ends that human beings may pursue that involve animals? These questions concern two of the thorniest and most intricate questions over whether we can dispose of animal liberty and life. One may suppose that if we were to switch to a less contentious domain, we could achieve a higher degree of agreement. The most plausible candidate in this regard is the question of animal suffering. Indeed, most people think that animal suffering morally matters. Hence, we may expect that as far as suffering is concerned, the disagreement is likely to fade away. However, this is not so, because even if most people agree on the very abstract principle that suffering matters, how much it should morally weigh is even more likely to stir up controversy. As we will see, some think that animal suffering should be considered on a par with human suffering (§2.7). Others disagree and think that priority should be given to human beings. Not © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_2

15

16 

F. Zuolo

only do laypeople disagree on the basis of their pre-reflective attitudes and intuitions regarding this matter; philosophers also continue to hotly debate these issues. And the groundings of these positions reflect the multifaceted controversies among utilitarians, rights-based approaches, relational theories, humanist and many other approaches too (see Chap. 4). But one may object that this picture of disagreement is overstated because nowadays people at least agree that animals morally matter. However, this ostensibly common basic principle becomes more intricate if we go into more detail. Suppose we subscribe to the widespread idea that human interests should be prioritized but animal interests and suffering matter. If so, how might we measure animal interests and suffering? What kind of priority should human interests have over animal interests? Are human interests always supposed to “trump” animal interests? These are all middle-level ethical questions, namely normative issues that pertain neither to the domain of fundamental questions of philosophical grounding nor to the domain of ordinary everyday choices. Hence, we might think that on pragmatic and foundational issues there are more established ways to handle the matter. For instance, if we think that animal life has the same comparable value as human life, should we be committed to rescuing endangered animals whose life is put at risk by predation or by other natural phenomena as we commonly think we should for human beings? Although many people would be ready to help an animal in difficulty should they find themselves in such a situation, many would find it hard to believe that we have a general duty to rescue animals, independently of whether human beings have caused the harm to animals.1 Or consider what may follow from a commitment to veganism: do we also have a duty to feed companion animals according to veganism even if such animals (for instance, cats) are likely to suffer without meat?2 Some foundational questions are even more intricate, such as:  This conclusion used to be a reductio of certain radical animal-rights positions (e.g. Gruen 2011: 179). However, nowadays, some defend it and bite the bullet. See McMahan (2016) and Nussbaum (2006: 379). 2  Again, such a stance—the idea that we cannot moralize nature, nor impose moral behavior on animals insofar as they are not moral agents—has typically been used as a reductio against radical 1

2  Animal Treatment as a Matter of Reasonable Disagreement 

17

What is the basis of animals’ moral worth? What is the minimal threshold of moral considerability? Is the fact that an individual can experience pleasure and pain a sufficient basis on which to be considered a being worthy of moral consideration? Or should individuals have agency? And how are we to account for the fact that diverse individuals, whether humans or animals, possess to varying degrees the morally relevant features that determine moral status? Perhaps, despite these difficult and controversial questions at the bottom of morality or at the practical level, there is wide agreement on some intuitions, such as the idea that certain practices of mass production and animal exploitation are not justifiable. Nowadays, many people would subscribe to this idea. However, beyond this minimal consensus, disagreement and controversies soon resurface again, even on the same matter: Should a ban on mass animal farming also imply the ban on less intrusive and exploitative methods of rearing animals? These are just a few issues within the overall field of animal ethics about which there is deep disagreement. But what does disagreement prove, if anything? One may be suspicious about all of this and think that the mere fact that people—whether they are laypeople or philosophers, animal farmers or activists for animal rights—disagree proves nothing because for each issue we can discern who is right and who is wrong. After all, people’s disagreement is a social fact and the different positions should not automatically be considered epistemically justified. Indeed, over certain issues, we may now see that past disagreements have been resolved because some positions were shown to be false. For instance, to explain the apparent movement of the sun we no longer rely on geocentrism, and to explain combustion we do not employ the phlogiston theory either. But such examples of consensus are not confined to the scientific field, for something similar has been reached in relation to some moral values too: for instance, the idea that there are some human beings who are slaves by nature is currently considered untenable (and false) by all, at least in Western countries. Building on this, why shouldn’t we think that some of the presented alternatives in animal ethics are wrong veganism. However, nowadays some defend this principle. For a discussion of the compatibility of cat feeding in a vegan state, see Milburn (2015).

18 

F. Zuolo

and that it is only a matter of time before such disagreement dissolves as better evidence becomes available and a correct reasoning adopted? This might be true, and I do not want to discard this possibility in general. However, in this chapter I want to suggest that at least with regard to some thorny, important and widespread issues, we may encounter reasonable disagreement, that is to say, disagreement that is not the result of faulty reasoning or lack of evidence. Rather, on at least some issues, disagreement seems inevitable, wherein even equally competent and informed persons may justifiably come to divergent conclusions. Hence, this chapter is especially addressed to those who reject the possibility of reasonably disagreeing about animals because either they subscribe to a substantive position (e.g. animal rights or utilitarianism), or they are moral realists (see §3.6). The normative implication of this argument is that disagreement is relevant for political legitimacy and calls for a solution based on public justification. However, my claim is not that the mere fact of disagreement is relevant. Rather, I only claim that some qualified disagreements are epistemically justified and normatively relevant. Although this statement seems relatively limited, it will be fundamental for my argument in order to prevent two objections. But one may object to the significance of disagreement on the basis of a substantive moral theory—be it utilitarian, rights-based or otherwise. Call it the objection from first-order moral theory. Indeed, traditional debates in animal ethics have always assumed that only one position among others could be the right one. Accordingly, disagreement was seen as a sign of cognitive and moral error. Such errors might be due to the incapacity to draw the implications of a correct, Darwinian, view of reality (Rachels 1990), or people’s disingenuousness that is committed to preserving the advantages that derive from the human exploitation of animals. After all, the motivation behind Peter Singer’s groundbreaking book, Animal Liberation (Singer 1975), was that if people were to discover what lay behind the practice of raising animals and could be put in a position to reflect on it on the basis of clear and plain evidence, such practices would be deemed impermissible. A common saying in animal ethics is that if slaughterhouses had glass walls, we would all be vegetarian, because the mere fact of witnessing acts of slaughter would convince us not to eat meat.

2  Animal Treatment as a Matter of Reasonable Disagreement 

19

Many more recent theories in animal ethics still rely on the idea that there is something obviously wrong in many types of animal treatment, such that once people are presented with the bare facts, they cannot help but recognize the wrongs. All these views, which still comprise the majority of approaches in animal ethics, certainly have a point. After all, people usually follow habits and adopt received practices without reflecting on their admissibility from an impartial point of view. However, most theories in animal ethics rely on the assumption that there is no space for disagreement over fundamental issues. Although I concur that certain practices are clearly wrong, in this volume I want to challenge the assumption that there is no room for reasonable disagreement. Recognizing the space for reasonable disagreement over animal issues means that not all disagreements are due to cognitive and moral failures; hence, at least some parties to diverse disagreements have incompatible and yet justified different positions. As a second objection to my thesis, the significance of disagreement might be rebutted at the metaethical level by a perspective committed to metaethical realism. If one holds that there are objective moral facts independent of people’s attitudes to values, disagreements may be the result of people’s failure to access these facts. Again, this implies the presence of cognitive or moral mistakes. On this view, although disagreement may be significant to the extent that we might lack epistemic access to the moral facts, in principle there is only one correct moral response, even if we do not know what it is. Hence, disagreement, per se, should not be respected or taken as a starting point because what we call “reasonable disagreement” may not have epistemic validity, thus being reducible to mere disagreements among persons some of whom are, however, wrong. Such a perspective would demand of us to continue the inquiry to find out the true response. Against moral realists, in this chapter I will argue that we may have some reasons to be suspicious of this position. Although I will not defend an overall specific metaethical thesis, the current state of our knowledge and our best available arguments do not seem to afford the belief in a single set of moral facts that rules out the significance of reasonable disagreement, at least over certain important and complex issues. On the contrary, the best available arguments and current knowledge lends support to the idea that multiple—albeit not infinite and not unqualified—justified answers may be given to certain disagreements. In sum, although I will challenge the two objections from first-order moral

20 

F. Zuolo

theory and metaethical realism, respectively, my argument will not give us reasons to be skeptical, to be relativist or to abandon the need for a proper justification.3 Indeed, in the next chapter I will propose a public justification procedure to provide some normatively and epistemically justified responses to these objections. This introductory section on the epistemic relevance of disagreement may give the impression that public justification is necessary on purely epistemic grounds. However, this is not so. Indeed, even if disagreement were ultimately epistemically irrelevant, there are moral reasons to consider disagreement—namely, that in recognizing it, we respect people’s capacity to form beliefs, values and courses of actions. This moral grounding for taking disagreement into account will not be pursued at length in this book. Many important liberal theorists have outlined and defended this idea (Habermas 1990; Rawls 1996; Larmore 1990; Quong 2011, to name just a few). From time to time, I will appeal to this moral foundation to which I generally subscribe. But in this book, I want to purse a complementary approach, which is more epistemically based. As a general strategy few theorists— among whom we should mention at least Peter (2013)—have proceeded in this way. But I do not see an epistemic approach to political liberalism and public justification as opposed a normative-­based approach.4 Rather, I think an epistemic approach is more appropriate for the specific purposes of this analysis because the disagreement over the moral status of animals differs from the standard object of concern of political liberalism (people’s rights and what we owe to each other given the overall condition of pluralism). Unlike the latter topics, the analysis of disagreement about animals requires a more robust epistemic dimension, as I will explain in more detail in the next chapter. As will become apparent in due course, the purely normative approach to political liberalism and public justification is incomplete when applied to animals. But my focus on the epistemic dimension does not mean that I reject the moral grounding of political liberalism.

 In this sense, I will not join those who start from the argument from disagreement to challenge metaethical realism. Although my argument is compatible with expressivism or non-cognitivism, it does not entail them. 4  As an alternative approach, which combines epistemic and moral elements, we should at least mention the ethics of belief, as outlined by Ferretti (2018). 3

2  Animal Treatment as a Matter of Reasonable Disagreement 

21

2.2 Why Focus on Disagreement? The fact of disagreement on animals has multiple and profound consequences on animals and humans themselves regarding what is admissible to eat, how scientific research should be conducted, how pets ought to be treated, whether and how animals may help human beings in performing certain tasks (helping blind people, searching for drugs), what it is admissible to use as clothing and so on. All these questions concern what human beings are permitted to do to animals, which is the standard concern of animal ethics. However, there is a further set of questions closely related to the previous ones that remain relatively neglected in animal ethics. These questions concern how diverse forms of disagreement ought to be treated in our contemporary liberal democracies. Indeed, as we will see in the last part of the book, people may violently contest certain practices and laws and oppose them in unlawful manners. How should liberal states treat these forms of dissent? Is there any bearing between the answers we give to the former set of questions and this latter set of questions? Although this will be the topic addressed in the sixth chapter, allow me here to anticipate the main thread that I will follow throughout the book. My general claim is that both standard issues in animal ethics and questions regarding how conflicts over the treatment of animals ought to be dealt with should be addressed through the lens of the disagreement about the moral status of animals. One of this book’s fundamental contentions is that in a liberal state, both sets of questions should be addressed through a common method. Although they clearly pose different problems, to solve such disagreements we need a method of public justification that provides a liberal solution to both. One may ask why I adopt disagreement as the main focal point of my analysis. Even if one were to agree that it makes sense to take the diversity of people’s views on animals as a starting point, the choice to focus on disagreement calls for some explanation. After all, other cognate perspectives might have been taken. For instance, I might talk of the pluralism about the moral status of animals and the treatment owed to them. Pluralism-talk is very common in contemporary political philosophy. And adding the pluralism about the moral treatment of animals would,

22 

F. Zuolo

in some sense, complete this picture beyond the standard patchwork of religious and cultural forms of pluralism. This is the common perspective in liberal political philosophy, particularly those accounts to which I broadly subscribe (Gaus 1996; Larmore 1990; Rawls 1996; Quong 2011). Pluralism-talk focuses in particular on the diversity of views at the societal level, and it is especially relevant if we want to make people’s liberties compatible. At the same time, one may think that I might have addressed this topic from the point of view of conflicts, where by conflicts I understand all those cases in which disagreement is publicly manifested in actions of opposition and breaches of the order. For instance, we may think of trespassing into scientific laboratories, protests against the production and commercialization of furs, public campaigns against research on animals and so on. From the point of view of political philosophy and applied ethics, these are all very important and relevant issues. Indeed, they have all been, and continue to be, discussed in the public domain and in the scientific literatures (Hadley 2009; Milligan 2013). If one wants to have a practical perspective and address some of the most urgent problems regarding animal activism, civil disobedience, animal rescue and other types of violations of the laws, one may analyze them all as cases of conflicts that should be solved, managed or contained like other deep social conflicts (Ceva 2016: chap. 2 and passim). This line of thought seems even more appropriate because my overarching aim is a practical one; indeed, I also want to provide a set of answers regarding how radical protests (including acts of civil disobedience) ought to be treated in liberal democracies (see Chap. 6). To that end, why not directly focus on these protests and conflicts? Why start out from disagreement? Before proceeding, it might be useful to define what I mean by disagreement: Disagreement occurs when two or more people hold mutually incompatible epistemic attitudes towards a certain belief. A holds that p is true and B holds that not-p is true.5  Unlike disagreements involving personal preferences, here disagreements concern positions that are not jointly possible at the same time because they concern mutually incompatible positions with regard to a fact of the matter. 5

2  Animal Treatment as a Matter of Reasonable Disagreement 

23

Returning to the defense from my point of view, the decision to focus on disagreement has several bases. First, as a way of fine-tuning the picture, it is worth remembering that despite my specific focus on disagreement, the findings and arguments in the debates regarding pluralism and conflict will certainly be relevant too. Obviously enough, pluralism, disagreement and conflicts are often related. However, second, it is not necessarily the case that pluralism implies disagreement which in its turn may cause conflicts. For instance, there can be disagreements without there being what we usually call pluralism; this is so, for instance, with disagreements within the same cultural horizon or among people who have the same value commitments and worldviews. Nothing is more common than this. In this case there would be disagreement in virtue of people having different evidence, reasoning differently or because of different interests pulling in opposing directions. Furthermore, focusing on disagreement can provide a vantage point from which to assess both the epistemic dimension and the practical dimension. Indeed, it is not merely the fact of diversity of descriptive and moral claims that is troublesome for political philosophy and social life. Rather, it is the fact that such diversity gets people to disagree about what is the justified solution to a number of issues. This is a problem even if we do not reach a condition of conflict, because in cases of disagreement people risk losing guidance or confidence about the appropriateness of their solutions. In sum, focusing on disagreement allows us to address the juncture of diverse relevant dimensions simultaneously. For instance, by concentrating on conflicts, one is naturally led to emphasize the dimension of the attitudes of the parties. Moreover, the very notion of “conflicts” is not completely normatively inert, for it automatically denounces some rupture in the order and the balance, thus calling for a solution.6 Disagreement,  Even those subscribing to radical political realism—according to which conflicts are a structurally non-eliminable component of human interactions, caused by human egoism and aggressive behavior in an environment characterized by limited resources—cannot claim that in the face of a conflict we ought not to seek to resolve it. A radical political realist might be skeptical about whether such a conflict may eventually be resolved, but she will not typically claim that a conflict is per se a morally neutral condition. 6

24 

F. Zuolo

instead, does not per se require that we pass a moral evaluation on it, and as such it is not per se a sign of a normative problem. Addressing the problem from the point of view of disagreement means directly questioning the issue of justification of the treatment of animals because when people disagree, they implicitly or explicitly call for a justified response. But, then, one may ask: Why is justification so important here? There are many reasons why we might need to justify something. An influential view holds that the act of providing justification is at the basis of our communicative actions. On this Habermasian view (Habermas 1990), in principle any claim for validity, be it moral or epistemic, ought to pass a form of universal justification. In a similar manner, on Rainer Forst’s view (2011), people have a right to justification because, qua practical and rational beings, persons must provide a justification to others for their actions. Only justification respects people’s rational and practical nature and can ground the validity of one’s claims. These approaches are certainly compatible and in line with my approach. However, the kind of public scrutiny and validity I am interested in here is more restricted and focuses in particular on those claims for validity that aim at being enforced through public rulings. For these kinds of claims, we need a special type of justification that is acceptable to all. As anticipated, I am working within a liberal account of legitimacy in which a law, position or any other public stance is legitimate to the extent that it can be publicly justified to those to whom it is addressed.

2.3 Dimensions of Disagreement and Some Comparisons If we agree that disagreement is a fruitful vantage point from which to address some notoriously tricky problems, then we have to ask what kind of disagreement we are facing. My aim here is not to provide a comprehensive analysis or a taxonomy of disagreement. Rather, in what follows I will briefly discuss some helpful categories through which we can analyze the type of disagreement at stake here, without claiming that these categories are complete, comprehensive and perfectly applicable to other

2  Animal Treatment as a Matter of Reasonable Disagreement 

25

domains too.7 All these considerations will provide us with a clearer and more nuanced picture of the disagreement about the moral status of animals before assessing its epistemic dimensions (§2.4, §2.5). First, we should distinguish between horizontal and vertical dimensions of disagreement. A disagreement over a certain issue scores much horizontally if it affects a number of diverse social areas and parties. If so, it is wide. A disagreement scores highly in its vertical dimension if it is deep, that is, if it touches the most profound levels of a certain issue, ranging from its practical components down to its very grounding. I want to call the common measure of these two components (horizontal and vertical, or if you prefer, width and depth) the measure of pervasiveness of a disagreement. Put this way, this measure is a practical criterion with which we can gauge the impact and weight of disagreement across diverse levels and areas of social and personal life (Table 2.1). The second pair of distinctions is meant to capture, instead, the inner nature of disagreement. On the one hand, we have to distinguish between the normative and descriptive components of disagreement. The former concerns whether a disagreement is about what ought to be done, or how something ought to be evaluated; the latter concerns the disagreement over what is the case in a state of affairs (Table 2.2). On the other hand, to this couple of notions we have to add the distinction between first-level and second-level disagreement. A first-level disagreement concerns the substantive content of individuals’ beliefs regarding normative or descriptive issues. A second-level disagreement concerns the correct way of justifying what is the case at the first level. This distinction allows us to pinpoint the objects over which individuals disagree, whether they concern substantive beliefs, systems of justification, or both. If we Table 2.1   The pervasiveness of disagreement Horizontal Vertical

Wide Deep

Narrow Superficial

 For a complete analysis of the dimensions of disagreement, see Frances (2014). For the overall epistemic significance of disagreement, see, among others, Feldman and Warfield (2010). 7

26 

F. Zuolo

Table 2.2   The complexity of disagreement First-level Normative dimension Descriptive dimension

Second-level

Whether experiments on The ground of moral status animals are admissible Are experiments on animals Counterfactual reasoning on the reliable scientific models? necessity of experiments (§2.6.2)

combine both the question about the content of disagreement and its firstor second-level nature, we can come up with a rough measure of its complexity. In other words, a certain disagreement including both normative and descriptive components and first and second levels is usually more complex than a disagreement being only descriptive and of a first-level order. This does not mean that a more complex disagreement is more difficult to solve than a less complex disagreement, because a less complex disagreement may be socially intractable and apparently impossible to solve because it has reached an impasse in virtue of a long-standing history of conflict or entrenched interests.8 Complexity, rather, here means that it includes diverse orders of arguments (normative and descriptive, first- and secondlevel) thus requiring diverse and multifaceted types of justification. As I have anticipated, these categories are not meant to be taxonomically complete or flawless. Indeed, there can be some overlap, for instance between the depth measure and the multilevel nature of disagreement. That is, a deep disagreement typically runs through first- and second-level issues. But it is useful to keep the distinction between depth and the first and second levels of disagreement because the category of depth concerns the practical dimension of disagreement—in a sense, its impact—whereas the distinction between levels of disagreement concerns the type of

 For instance, two siblings may disagree as to how, lacking their parents’ will, the inheritance ought to be shared between them. This may be due to past grievances and a feeling of being unjustly treated by one of the siblings. However practically difficult this case may be, this is not a complex disagreement because the causes of disagreement and the type of solution seem clear, albeit difficult to reach because—say—one of the siblings would rather receive nothing and boycott the deal than accept a fair distribution that would allot to each their due. 8

2  Animal Treatment as a Matter of Reasonable Disagreement 

27

reasons that may be employed (whether first-order substantive reasons or second-order reasons regarding the type of justificatory system available). To prove the sense of these categories and better characterize the disagreement we are concerned with, some comparisons may be helpful. The first comparison is the case of abortion. The disagreement about the permissibility of abortion is one of the most intractable kinds of disagreement in contemporary societies. The clash between pro-lifers and pro-­ choicers is characterized by its depth. Indeed, people disagree about not only the conduct to be taken in one’s own life, but also the most fundamental issues regarding the moral status of the fetus, what a right to life entails and so on. Relatedly, the disagreement about abortion is often a disagreement cast upon two levels: what is the case about what one ought to do and the correct description of reality (first level), and what the correct justification about what the case is (second level). Notably, some invoke the idea of a soul and ensoulment as a justification of the first-­ order moral principles. Moreover, like the disagreement about the moral status of animals, the disagreement about abortion features both normative and descriptive components, because the moral treatment owed to fetuses depends (among other things) upon the type of descriptive account we give of fetuses.9 Hence, it is a complex disagreement. Finally, both feature a clash of alleged rights (of fetuses and of animals, respectively) which, according to some parties in the dispute, current practices are said to neglect. Unlike the disagreement about the moral status of animals, the disagreement about abortion is not equally horizontally pervasive because it does not touch upon many areas of social and personal life. To be sure, in many cases there are correlations between convictions regarding abortion and other areas of life, such that pro-­choicers tend to praise and be committed to women’s liberty, autonomy and non-discrimination, whereas it is often the case that pro-lifers are committed to religious beliefs and the sanctity of life. But this is not necessarily the case and one may be a pro-lifer in her private life without thereby implying  For instance, depending on what we know about the fetus’s level of cognitive development, the moral assessment of the case changes. 9

28 

F. Zuolo

that she is a religious person. Instead, being an earnest and conscious vegan implies a whole host of convictions regarding many other areas of life. The second useful comparison is that between our case and religious disagreement. Obviously enough, religious disagreement is the paramount case of pervasiveness and complexity. It is pervasive because it is deep, regarding both the most foundational issue about the existence of god and ordinary everyday actions. It is also horizontally pervasive because it touches nearly all areas of life, and religion is perhaps more pervasive in this sense than one’s convictions about animals. It is complex too insofar as it includes both descriptive and normative components and concerns both first- and second-level disagreements. Unlike the disagreement about the moral status of animals, religious disagreement concerns, among other things, the very existence of (a particular) god (or gods), whereas disagreement about the moral status of animals does not concern such an ontologically laden question. Many other features differentiate the two: for instance, the fact that religious disagreement has (among other things) caused wars between states, or that certain states have subscribed to and observed a particular religion as official state doctrine. This is not (yet) the case regarding animals.

2.4 Going More Epistemic If we have thus far characterized our issue in more general and quite commonsensical terms, in this section and those that follow I want to provide the tools for an epistemological analysis of the disagreement about the treatment we owe to animals. To anticipate, I will seek to understand whether people may be epistemically justified in disagreeing over certain issues, in brief whether there can be reasonable disagreement. Before clarifying what I mean by epistemological analysis, let us start with some more preliminary considerations in respect of our case. Disagreements about what is admissible to do to animals are very common at the social and academic level. It is not uncommon to encounter a situation in which there are two persons A and B who agree on many morally relevant issues and have similar moral and cognitive capacities

2  Animal Treatment as a Matter of Reasonable Disagreement 

29

and yet still disagree with respect to the treatment owed to animals. Suppose that A is omnivorous, while B is vegan. One may think that A has fallen prey to a form of self-deception that hinders the recognition of animal rights because her moral capacity is obstructed by her love of gustatory pleasures. That is a possible response and might actually be true. But also suppose that A is in general a thoughtful and earnest person committed to social justice. For instance, suppose that she does a lot of charitable work and volunteers for an association that provides help to refugees. In sum, she is aware that doing what is right frequently demands giving priority to others’ needs and not following one’s natural inclinations, and she is prepared and motivated to do so. Similarly, we may think of A as a scientific researcher who is engaged in finding a treatment for diseases that are socially damaging. To carry out such research, she thinks it is morally acceptable to conduct research on animals. True, we may say that A is a good person in general, except the fact that she is not vegan. In that area of life, she might be completely wrong. Now suppose we are B or agree with B. What should we think of A? I mean, what should we think of A irrespective of whether we are impressed by her commitment to social justice and the common good? B’s straightforward answer to this question is that A is deeply wrong because she commits injustice to animals. But we might feel unease. Unless we think that animals are the only issue that matters, we might be reluctant to condemn A, given A’s overall moral, intellectual and existential virtues. On a different note, what should another agent C think in assessing A and B’s dispute? Suppose C does not have a personal view but is still committed to the idea that social norms ought to be appropriately justified. C may think that A and B ought to put aside their personal commitments and look at the issue from a more objective and neutral perspective. But would this be an appropriate response? Could B and her companions accept this solution? It has often been claimed that the neutralist approach fails to take deep value commitments and identity seriously. And we may simply acknowledge that we are at an impasse. At this stage we may simply point to the fact that the current picture we have been sketching is too simplistic. Indeed, it is not the case that there are supporters of the human exploitation of animals and those who want to end it. Moreover, within the camp of those who reject the exploitation of

30 

F. Zuolo

animals there is wide disagreement on what we can do to animals and why. Given this scenario of growing complexity, how should we settle the question? And before this practical question, how should we conceive of this disagreement? Before elaborating a full answer to B and her (legitimate) worries, we must better understand the inner nature of the disagreement about the moral status of animals and the treatment we owe to them. This entails providing an epistemic analysis of the reasons behind the different views that diverse parties may have on the complexity and pervasiveness of some issues about animals. In what follows I will assess the epistemic pedigree of this kind of disagreement and discuss whether it is possible to reasonably disagree, that is, whether it is possible that parties to a complex and pervasive disagreement, such as this one, are equally justified in holding their positions.

2.4.1 Epistemic Pedigree of the Disagreeing Parties First of all, one should bear in mind that we are not just considering merely verbal disagreements in which people talk past one another or use the same words to refer to different things. Moreover, we are not talking about a mere matter of taste, in which it is uncontroversial that people disagree over which flavor of ice-cream is preferable. We address issues in which there is a matter of fact and what we ought to do has wider significance in our public and private lives. This means that whatever our preferred epistemology, here relativism (diverse individuals have different epistemic norms) and contextualism (validity depends on context) hardly seem appropriate. Both relativism and contextualism might be capable of making sense of the seeming disagreement in many domains, but both fail to make sense of the idea that over certain issues (e.g. animals) people put forward claims that have a presumption of objectivity, which is overlooked by relativist and contextualist approaches (Davis 2015: 2). Given the intricate nature of the disagreement about the moral status of animals, a comparison with other types of complex disagreements with political implications may be helpful in assessing the epistemic pedigree of the diverse positions. First, consider the case of disagreement between

2  Animal Treatment as a Matter of Reasonable Disagreement 

31

evolutionism and the so-called theory of intelligent design. Here we cannot clearly consider the two parties as having more or less the same epistemic status, given the overwhelming evidence in favor of evolutionism and the dubious epistemological credentials of the theory of intelligent design. Another case has more epistemological import: namely, disagreement about climate change. There is a large majority of independent reports, proofs and forms of measurement that attribute the cause of climate change to anthropic sources, while other, very minoritarian positions trace the causes to the varying solar activity. These latter positions might be said to have better epistemic credentials than those of the theory of intelligent design insofar as such alternative explanations seek to employ some sort of scientific argument. However, in this case too we cannot consider the two positions as having more or less the same epistemic pedigree because of the overwhelming difference in independent sources of proof. In a similar vein, consider, for instance, the disagreement over the obligation to vaccinate one’s children. Opposition to vaccines has thrived on different grounds. Some oppose compulsory vaccination on purely normative grounds in virtue of their adherence to libertarian principles, according to which the state is not legitimized to impose such a treatment and advise on a specific way in which to care for one’s children. Other people refuse vaccines because they rely, as it were, on a naturalistic set of principles that prescribe alternative ways of curing people. Other people standardly reject vaccines on religious grounds. But, besides these moral or cultural reasons, many within and beyond these groups also rely on epistemic grounds for refusing vaccines: there has been a subterranean and widespread development of “epistemic enclaves” (Navin 2016), where people have simply rejected the standard scientific view on the benefits of vaccines. On this view, vaccines are to be rejected first and foremost on epistemic grounds because they are not thought to be beneficial measures, or because people distrust the official scientific view and think that “alleged” scientific tests have been manipulated to the advantage of big pharma. Although these positions are certainly relevant for public ethics and demand some appropriately justified normative solution—which may require, depending on the context, a strong enforcement of the law, the possibility of conscientious exemption or something

32 

F. Zuolo

else (Zuolo 2010)—from the epistemological point of view, not all positions deserve equal consideration. The implication of these cases (intelligent design, climate change and vaccines) is that from an epistemological point of view, we could demand that those who subscribe to certain views revise their positions and adopt more justified stances. This means that whatever we may think from a moral point of view, in certain cases we may be fully justified in considering certain positions as false, epistemically unwarranted, either totally or to a significant degree. In such cases, public authorities may opt for diverse strategies at the practical level, including allowing some accommodation for dissenting views, while still trying to convince dissenting people to change their mind and revise their convictions. In what follows, I want to inquire whether there can be cases in which it would not be obviously justified to demand that someone with which we disagree revise their position.

2.4.2 Reasonable Disagreement Unlike these cases, the type of disagreements that I want to take into account can be broadly described as disagreements in which the parties are justified in holding their positions. This does not mean that all disagreements about animals are of this sort. Rather, only some (and the important ones) of them are of such kind. Diverse labels may be employed to characterize the idea of this qualified disagreement: rational disagreement, faultless disagreement, peer disagreement and reasonable disagreement. In what follows I will start by explaining what I mean by reasonable disagreement, which I take to be the most convenient and suitable notion for our purposes here, before going on to provide some considerations to clarify the overlap and differences between the idea of reasonable disagreement and the other cognate notions. Since this is a crucial and yet abused notion in many contemporary debates, it is worth clarifying how I will understand it. Reasonableness, in a commonsensical, Rawlsian and non-Rawlsian sense, has both an ethical and an epistemic meaning. The ethical meaning will be further specified and investigated in the next chapter. Here I will simply indicate

2  Animal Treatment as a Matter of Reasonable Disagreement 

33

that my understanding of ethical reasonableness has a rather minimal sense, that is, as the willingness to find a mutually acceptable agreement with others. A clear way to characterize what we mean by reasonable disagreement in the epistemic sense is provided by Christopher McMahon: Reasonable disagreement is disagreement that survives the best efforts of a group of reasoners to answer a particular question—that is, to find a unique answer that is required by reason. … But when disagreement is reasonable, it will persist no matter how open discussion is or how long it continues. … So understood, reasonable disagreement with respect to a particular issue need not be a permanent condition. Disagreement which has been reasonable may cease to possess this character if new considerations capable of guiding all competent reasoners to a definite conclusion become available. (McMahon 2009: 2)

Political philosophers have employed the notion of reasonable disagreement more than other similar, if not equivalent, expressions. There are many reasons why this notion has been quite popular in recent decades. First, it resonates in both philosophical jargon and everyday language. Second, it plays an important role in John Rawls’s thought. Third, and more importantly, this notion seems to neatly capture two interesting features of those disagreements that are most important in our societies and yet most difficult to solve: (i) that in reasonable disagreements the parties are justified in holding their positions; and (ii) that such disagreements are pervasive and complex in the sense noted above, thus making the agreement on a common law persistently difficult. All of this seems intuitively plausible. But the discussion so far does not grant that point (i) is warranted. In other words, before scrutinizing the practical dimension (ii) in the chapters to follow, we need to say more on the epistemic dimension (i). Are we sure that there are practically interesting and important disagreements that also meet this epistemic condition? How can we not say that one of the parties in a disagreement is mistaken? Why shouldn’t at least one party revise her position? To address these kinds of problems I will go through the debates on some notions that are similar—but not equal—to reasonable disagreement: namely, faultless

34 

F. Zuolo

disagreement and peer disagreement.10 Let us see whether the insights from the conceptual debates about these notions can complement the first sketch of reasonable disagreement just provided. The subsequent step will be that of showing why at least some important dimensions of the disagreement about the moral status of animals is such a case (§2.6, §2.7). Recall that ascertaining the possibility of (i) is necessary to rebut the realist objections about the irrelevance of disagreement.

2.5 Faultless and Peer Disagreement 2.5.1 Faultless Disagreement Let us start with the idea of faultless disagreement and test whether it captures the epistemic pedigree we are seeking. Faultless disagreements are those in which two parties have opposite doxastic attitudes toward a proposition, but none seems to have committed a mistake. On the one hand, faultless disagreements seem to meet our need. Indeed, a faultless disagreement is characterized by the idea that both parties have followed a correct reasoning procedure. If we think that following a correct epistemic standard is conducive to truth, we may conclude that in a faultless disagreement both parties are equally justified in holding their positions qua true. However, this is paradoxical because it seems strange that two contradictory doxastic attitudes—say, that p and that not-p—are both justified, and hence, in our (reliabilist) assumption, true. To solve this problem one may think that it is not true that there is only a uniquely true proposition regarding a given issue, thus rejecting the so-called Uniqueness Thesis.11 However, this is quite controversial. Is it in general true or are there some issues within certain fields in which the Uniqueness  A further similar notion is that of “rational disagreement”. However, I will not discuss it in detail because the analysis of faultless disagreement and peer disagreement also seem to cover the idea of rational disagreement. A clear example of this is Bergman’s (2009) analysis of rational disagreements as cases where parties meet both the condition of peerhood and that of faultlessness. 11  The Uniqueness Thesis holds that, given the relevant evidence, for a proposition p there is only one correct doxastic attitude (believing, disbelieving, suspending judgment), while others are unjustified. 10

2  Animal Treatment as a Matter of Reasonable Disagreement 

35

Thesis is not true? Alternatively, one may hold that two opposite doxastic attitudes toward a proposition may both be true because they are true with respect to two different epistemic standards which make them true. The trouble with this solution is that it entails relativism, and many would find it worrisome to extend relativism to domains where we need generally justified beliefs. Hence, a plausible preliminary conclusion is that faultless disagreements are possible in those domains in which we find it unproblematic to have diverse and equally legitimate perspectives, hence where relativism does not seem a problem. This is the conclusion at which Kölbel (2004: 71) arrives by saying that “faultless disagreement is impossible in (the non-discretionary, objective) areas”. Discretionary areas are—he claims—matters of aesthetic, culinary and moral value, probability and others. However, holding that morality is subject to discretionary judgment in the same way as matters of taste is very difficult to swallow, at least for those who do not subscribe to a classical metaethical emotivism. Indeed, others disagree and claim that faultless disagreements are possible in morality too without falling prey to relativism. This seems possible, Hills (2013) argues, if faultlessness is determined by compliance with the epistemic norm of following one’s conscience. If individual conscience is thought to be a reliable source of guidance as regards matters of morality, but generates diverse individual responses depending on one’s conscience, it follows that there are multiple and faultless moral responses to diverse questions. Along similar lines, although for a different reason, Davis (2015) claims that faultless disagreement is possible if we subscribe to divergentism. On this view, in certain domains (mainly law, ethics and aesthetics) the discourses are truth-apt but do not refer to a completely independent matter of fact. Hence, realism does not apply because the norms of assertion at least partially constitute the truth of that domain. Given this and the partial underdeterminacy of what is assertible, people can be equally informed, and share the same epistemic standards, and yet disagree. However, as Davis (2015: 14) himself acknowledges, relativism and divergentism are not incompatible and, despite Davis’s contention that in divergentism one of the parties is wrong albeit faultless because of the indeterminacy, it turns out that in practice it is quite difficult to discern the difference between divergentism and relativism.

36 

F. Zuolo

As should be plain to see, both attempts to square faultless disagreement and morality are very controversial and the result is difficult to distinguish from relativism. More generally, the conclusion we should draw from this brief analysis is that our expectation that faultless disagreement could provide us with some reliable ground for establishing the epistemic status of reasonable disagreement is to be abandoned. Although faultlessness captures a dimension we are interested in— namely, the condition of epistemic robustness of the parties who disagree even while none has committed a mistake—the very possibility of faultless disagreement is controversial for our areas of concern or it implies relativism, which I suppose many would be wary of subscribing to. In particular, regarding the position that I will vindicate in the next chapter, relativism would be at odds with the demands of generality that I think a procedure of public justification should seek to grant.

2.5.2 Peer Disagreement Now let us focus on the notion of peer disagreement. I cannot do justice to the debate on peer disagreement because of its complexity. For the purposes of this analysis I will only focus on its main features. Recall that my aim is to check whether some disagreements in animal ethics can be disagreements in which all parties are justified in holding their beliefs. Hence, here my analysis of peer disagreement will be concerned with the applicability of this idea in animal ethics, rather than with what the parties should do in this condition—which is, though, the main concern for the epistemologists’ interest in peer disagreement. Epistemic peer disagreement is understood as a disagreement between two parties that have opposite beliefs on an issue despite being epistemic peers. Two or more individuals are epistemic peers when they have the same relevant evidence and the same cognitive capacities. How is it possible that two equally competent individuals sharing the same set of evidence disagree? Before briefly analyzing the main answers and the relevance of peer disagreement for our interests, it is worth clarifying the definition of peer disagreement itself.

2  Animal Treatment as a Matter of Reasonable Disagreement 

37

First, one may suspect that the main problem lies in the idea of equal evidence. Is it possible that two persons can share the same evidence? After all, even minor differences may justify diverse conclusions. In many cases evidence is an ambiguous concept, and diverse people may view the same set of data differently. More generally, a theory or a position is likely to be underdetermined with respect to the available evidence, broadly construed, thus allowing for more than a single epistemic attitude to be legitimate toward that theory or position (Moffett 2007: 360). Furthermore, some positions may stem from evidence that cannot be perfectly shared with others either because it is inextricably interwoven with other personal experiences and sources of evidence, and/or because the formation of a belief is the outcome of a process of collective upbringing in which testimony, perceptions and inferences are not fully communicable (Sosa 2010: 289). The notion of evidence may also apply at a meta-level, thus including what epistemic norms should be applied in a certain case.12 To face this problem, some theorists think that the condition of peerhood is possible only at a very idealized level. Against this approach and given my intention to focus on actual cases of disagreements, I think it is inevitable to accept the complexity of the notion of evidence and treat it as a slightly loose notion. Some would object that this assumption undermines the epistemic reliability of evidence. However, in nearly all practically relevant cases we have a kind of evidence that is characterized by at least some indeterminacy. Hence, either we accept some relaxed understanding of evidence or give up the possibility of yielding justified arguments in practical cases too. (More on this below.) Second, it is not clear how we should understand the condition of epistemic peerhood. This idea is usually understood as the equal likelihood to get it right, or as the equal possession of epistemic capacities or virtues relevant to the specific issue. And this would include both general

 “Two agents can have different bodies of evidence that bear on norm correctness and are relevant to the reasonability of their respective attitudes. … Where two agents are equal with respect to material evidence but differ with respect to norm evidence—though the correct norm-system stays fixed—it is legitimate for their attitudes toward a given proposition to diverge” (Goldman 2010: 208-9). 12

38 

F. Zuolo

intelligence, training and disposition to search for the truth.13 I think this second understanding is preferable to the first, because in order to assume that there is an equal likelihood to get it right, either we have to assume that we know beforehand who and what is right, and hence the very sense of peer disagreement dissolves, or we have to rely on the interpretation of peerhood in terms of capacities. In other words, to be justified in thinking that the party with whom we are disagreeing is equally likely to get it right, we must know her epistemic capacity, or her track record in being right in a certain area (for instance, in solving math problems). And hence we ought to rely on my proposed interpretation. In the face of these troubles, one might be tempted to idealize the situation in some way. One may adopt a more demanding idea of evidence or epistemic capacity, such that in ideal circumstances many disagreements would dissolve because we can prove either that one of the parties has made a mistake or that they are relying on unequal evidence. Irrespective of the merits of this strategy to address the problem of disagreement in general, here it is preferable to opt for a mildly non-ideal approach. Indeed, if we want to make sense of the idea of peer disagreement in practice, we must accept these features and understand epistemic peerhood as a realistic notion. To decide when and how real disagreement should affect real epistemic agents we need either to construe “epistemic peer” more generously or to take seriously possible as well as actual epistemic peers. Rather than introduce possible peers, I will construe “epistemic peer” more generously, so that epistemic peers are those who have pretty much the same relevant evidence, reasoning powers, training and background information. (Elgin 2010: 57).14

Moreover, if we employ a demanding and idealized sense of epistemic capacities and evidence, it is likely to be the case that we would never be  On this point I follow Kelly (2005: 174–5). I also accept Frances’s (2014: 44) idea that peerhood defined in terms of capacities should always be qualified with respect to a specific issue and domain. In other words, epistemic peers are peers about a certain issue, not in general. 14  Along similar lines, see also Matheson (2014) who outlines a model of everyday cases of peer disagreement while claiming that we should still make reference to idealized cases. 13

2  Animal Treatment as a Matter of Reasonable Disagreement 

39

able to assess whether there is any peer in practice.15 In other words, epistemic peerhood would in fact only be a hypothetical construction and never a real case. With this I do not want to discard the utility of purely abstract reasoning and idealized cases. However, we should make room for an acceptable level of approximation of actual cases to idealized ones. Building on this, we can now briefly see the main responses to cases of peer disagreement. The approaches may be roughly divided into conciliatory and non-conciliatory approaches. In a nutshell, all types of conciliatory approaches hold that, in the face of peer disagreement, the parties ought to consider the importance of disagreement. This may mean weakening the confidence in one’s position, meeting the other party halfway or giving equal weight to the other’s position. The non-conciliatory approach, by contrast, holds that in the face of peer disagreement, the parties should not change their attitude toward one’s belief. They should rather stick to their guns, as it were, and give no importance to the fact that the other disagrees. There is a sort of spectrum between conciliatory and non-conciliatory approaches, where maximum or minimum weight is given to the fact that one’s peer has an opposite epistemic attitude. On the one hand, we have the purely non-conciliatory view (the so-called Steadfast account), while on the other, we find the so-called Equal Weight View. According to the Equal Weight View, in the face of disagreement with a peer, we ought to give equal weight to our position and to the disagreeing peer’s position (Elga 2007: 478). In a sense, we should split the difference and meet halfway. From this would follow a suspension of confidence in one’s position or at least a significantly weakening thereof.16 This idea has been criticized insofar as it leads to ubiquitous skepticism and “spinelessness” (Elga 2007: 484), thereby leaving each party in a condition of incapacity to defend one’s take on an issue. By contrast, the opposite view, the Steadfast View, holds that one would be justified in  In a similar vein, Lackey (2010: 311) contends that “when the case is idealized to this extent, it becomes quite difficult to make sense of how disagreement is even possible. For if everything even remotely relevant to the topic at hand must be equal, then epistemic peers begin to sound much more like epistemic clones. It then becomes perplexing how epistemic clones relative to a question can even be engaged in a disagreement.” 16  Indeed, in cases of peer disagreement, “I should change my degree of confidence significantly toward that of my friend (and, similarly, she should change hers toward mine)” (Christensen 2007: 189). 15

40 

F. Zuolo

holding her view in the face of a disagreeing peer (Kelly 2005). But this approach neglects the fact that one may not be fully justified in holding one’s view and peer disagreement itself may be evidence to be taken into account. Nowadays, such a view has few supporters as a general thesis, that is, if it is not restricted to special cases in which it is permissible to hold two incompatible positions or in which we have a high level of confidence that we have better evidence than that of the supposed peer with whom we disagree. Most contributors to this debate think that peer disagreement has at least some epistemic import, which might simply consist in giving a reason to lower the confidence in one’s position or, minimally, in giving the other party the benefit of doubt. What should follow from this weakening of one’s confidence and how much one should weaken her confidence is a matter of further debate. Against the purest version of the Equal Weight View, it does not necessarily follow that the two parties should suspend the confidence in their doxastic attitudes, because on some views it depends on the level of the overall justification one has. It seems plausible to say that the response to be given very much depends on the type of issue we are considering or the type of justification we are confronting. In some cases, we might be justified in rejecting the uniqueness thesis and admit that there is more than one justified epistemic answer to one question. In these cases, the Steadfast View may be the correct response and we may be justified in sticking to our position. In other cases, though, abandoning the uniqueness thesis may be wrong and hence we may have reasons to weaken the confidence in our position because the disagreeing peer might be right. Thus, depending on the area over which parties disagree, the type of justified confidence they have in the truth of their position (Lackey 2010) or the overall evidence, justification and track record, we ought to more or less significantly lower our confidence and take the other party’s disagreement into account. In any case, it seems plausible to hold that peer disagreement constitutes a new piece of evidence that the parties are required to consider.17  This presentation is a bit sketchy because, for the purposes of my argument, I do not need to delve into this debate any further. It is worth mentioning, though, that some recent proposals (Palmira 2019) provide more fine-tuned responses. Palmira holds a dynamic, rather than static, account of peer disagreement. In particular, he claims that disagreeing peers ought to reopen the 17

2  Animal Treatment as a Matter of Reasonable Disagreement 

41

Hence, from these last proposals there does not seem to be an overall and general answer to the problem of peer disagreement which is fitting to all the cases (Enoch 2010: 994). But this is not bad news. Rather than dismissing the question as uninteresting, this open conclusion forces us to consider more tightly each case and investigate the type of evidence, justification and confidence that the parties have. Although we probably lack a general rule, peer disagreement seems both a theoretical and practical possibility, even in the face of difficulties in establishing when it occurs and identifying the implications for the parties involved.

2.5.3 Qualified Disagreement Peer disagreement is a more promising category than faultless disagreement for our purposes here because, if appropriately understood, it can capture a number of cases in which the parties have to take into account the fact that they disagree as an epistemically relevant fact. However, not all cases of peer disagreement are by definition relevant to our interest. To see why, we need to consider again the insight behind the notion of faultlessness: Are there disagreements in which the two parties did not commit any epistemic mistake? Epistemic peerhood does not grant, per se, rationality or being justified in holding one’s position. This remark means that we have to take into account only the disagreements between parties who are competent reasoners. If we apply this condition to the idea of peer disagreement, the result is the idea of competent peerhood. This represents a step forward in our epistemic analysis because facing peer disagreement one may say that the parties are peers, but both are epistemically wanting in their intellectual capacities or

question and engage in a deliberative activity during which the parties may suspend their judgment or hypothesize (but not revise their positions). Palmira holds that in hypothesizing, the parties may have a cognitive pro-attitude toward their position without properly asserting it. In this way they may continue the inquiry without either directly revising their position and ending up being “spineless” or sticking to their position, thus giving no weight to peer disagreement. Although Palmira’s position is not conciliatory in the traditional sense, it still demands that peers take seriously peer disagreement and engage with it in a deliberative manner.

42 

F. Zuolo

evidence.18 Henceforth, then, when I refer to peer disagreement, I will discuss cases of disagreement between competent parties, if not otherwise specified. Recall that all this epistemic analysis was driven by the need to understand whether, in the disagreement about the moral status of animals, there is a reasonable disagreement in which the parties do not commit mistakes and are justified in holding their positions. If so, their disagreement is epistemically qualified and not a mere disagreement. Accordingly, the idea of peer disagreement was meant to model a specific type of qualified disagreement where the parties are epistemic peers. Now we can focus on what I call cases of qualified disagreement to shed light on those disagreements that are sufficiently epistemically robust and arising out of epistemic peers, who persistently disagree on some issue that is relevant to their individual and public life. In the next two sections, I will discuss two paradigmatic examples from within the field of animal ethics. This will be necessary to show that the notion outlined in theory and the categories developed so far are not only consistent and interesting in general, but also relevant to my interest in the disagreement about the treatment of animals. To recap, in order to characterize the idea that people may justifiably disagree, we are using the broad notion of reasonable disagreement (in the epistemic sense). But then to focus on the idea that, in order to be justified, the parties should have not committed a mistake, we have analyzed the idea of faultless disagreement. With peer disagreement, instead, we have discussed what the parties stuck in a disagreement should do and we have discovered that disagreement itself may become epistemically relevant. But not all peer disagreements are like this; indeed, only those arising out of engagement with competent peers exhibit such a character. Hence, finally, I have introduced the idea of qualified disagreement to

 As perspicuously pointed out by Erikson and Tiozzo (2016: 1532), faultless disagreement must be distinguished from peer disagreement because the latter might result from the fact that both parties are equally likely to be mistaken, and because faultless disagreement might arise in certain domains (e.g. taste) where it would be strange to say that the two parties are epistemic “peers” in any interesting sense. 18

2  Animal Treatment as a Matter of Reasonable Disagreement 

43

Fig. 2.1  Types of disagreement: Mere disagreement includes reasonable disagreement, which in turn includes peer disagreement and faultless disagreement. The intersection between peer and faultless disagreement is qualified disagreement

characterize those reasonable disagreements in which disagreeing peers are also competent. To summarize this detour, see Fig. 2.1. Upon exploring these notions as a way of characterizing and strengthening the epistemic pedigree of reasonable disagreement, we now have to answer the following questions: If there can be disagreements among competent peers in theory, can there be real cases of competent peer disagreements? In what follows, I will show that some prominent cases of disagreement about the treatment of animals are real and telling cases of qualified disagreement—namely, cases in which competent peers disagree and it is not clear who is wrong. This will help us show that, at least in terms of some fundamental issues in animal ethics, disagreement is significant from an epistemic point of view and cannot be dismissed as a sign of error. To prevent a possible misunderstanding, it is worth restating that my claim will be that there are important cases of qualified disagreement in animal ethics, not that all issues in animal ethics present cases of qualified disagreement. In some cases, it is fairly easy to say who is right or wrong. But focusing on these important cases of qualified disagreement is fundamental in showing that disagreement may be justified, and we have to take it seriously from an epistemic point of view. As we will see in the next chapter, this calls for a solution based on public justification, not a mere practical settlement.

44 

F. Zuolo

2.6 A  First Paradigmatic Case of Qualified Disagreement: The Use of Animals in Research Laboratories19 The first case to illustrate my point is the permissibility of using animals for research purposes. This case is paradigmatic because it vividly represents all the most important dimensions of disagreements we are interested in (first- and second-level disagreements; normative and descriptive dimensions of disagreement). Hence, it is pervasive and complex. Moreover, it is paradigmatic because it is by no means unique and exceptional. Similar considerations may apply to other cognate cases in animal ethics. I will expound the case in two steps. First, I will present the arguments supporting the most important diverse positions pro, against and conditionally in favor of research on animals. Second, I will apply the notion of epistemic peerhood to show that there can be epistemic peerhood in practice and that the issue of experiments on animals is one of those domains in which there can be reasonable peer disagreement. The result will be that qualified peer disagreement may obtain within this domain.

2.6.1 D  escriptive and Normative Grounds for Disagreeing First, let us begin with the arguments backing the diverse positions. These arguments can be divided into descriptive and normative arguments. The former concern the question of whether experiments on animals are scientifically reliable and useful methods through which to achieve scientific progress and improve humans’ health. The latter concern the moral permissibility of using animals in experiments if animals are at least minimally reliable models of scientific inquiry. On the descriptive side, parties who have first-level disagreements can be put on a continuum between those who consider experiments on  In another co-authored paper, I  presented a  similar case but  with  a  view to  suggesting that the parties in a situation of disagreement have a reason to compromise (Zuolo and Bistagnino 2018). 19

2  Animal Treatment as a Matter of Reasonable Disagreement 

45

animals a reliable and very effective model for the progress of science and those who completely disagree. The former group points out that experiments are useful and conducive to many possible therapies. As one example among many, they show that had Alexander Fleming not tested penicillin on animals, we would not now have antibiotics.20 The latter group, on the other hand, highlights the problem of “false negative” and “false positive” predictors in which toxicological tests proved unreliable because, respectively, a drug was found not harmful to animals and then after its approval found to be harmful to humans, or was discarded because it was harmful to animals but later proved to be beneficial to humans (Engel 2012). To settle this disagreement, it might be possible to appeal to the second level, concerning the justification of the first-level beliefs. However, it seems there is no privileged epistemic standpoint to solve the disagreement. Indeed, the problem is that the empirical matter here under scrutiny is structurally uncertain. It is uncertain for at least two reasons. First, the same evidence about the necessity of using animals for research purposes may be interpreted differently. Supporters of research on animals may appeal to the history of science and medicine to show that animals were actually necessary. However, second, to settle such a dispute, the disagreeing parties may need to resort to facts subject to historical contingency. Would certain discoveries have been made without animals? Could we discover certain very useful therapies in the future without animals? There are relevant questions regarding possible alternative routes in past and future discoveries that do not seem easy to answer. Although experimentations have certainly contributed to many successful discoveries, it has not been definitively demonstrated that such methods were necessary qua the only possible way to make such discoveries (Garrett 2012: 6). Likewise, there seems to be no conclusive argument to show that without experiments on animals we would not discover groundbreaking cures for human beings. One may say that without animals such discoveries will certainly be postponed, but not left unknown forever.  Another important and famous case, among many, in which the contribution of animals both in the discovery of the treatment and in the production of the cure (insulin) proved central, is that of diabetes. 20

46 

F. Zuolo

That seems a plausible answer. But how much time scientists would have needed to discover cures via an alternative method is something we cannot know. But if so, what is the acceptable timeframe in which to assess the validity of this point? To reply to this point we would need moral arguments to establish how long we may accept the lack of cures for human beings given that experiments harm animals. By virtue of this structural empirical uncertainty, proving they were not necessary must appeal to counterfactual events, which can hardly be considered empirical proofs. Of course, the disagreement about the use of animals in scientific laboratories is not just a descriptive dispute; it is also, and more deeply, a normative one. However, how one assesses this matter depends on the position one takes at the descriptive level, for it would be hardly defensible to say that experiments on animals are justified even if they are not scientifically reliable. At the first level of the evaluative disagreement, we can map three main positions. The first one considers experiments on animals legitimate and holds that the benefits greatly exceed the costs because the interests of human beings matter much more than the interests of animals. The second position deems experiments admissible in principle but gives more weight to the interests of animals than the previous one and calls for radically reducing the number of experiments. The third position holds that using animals in experiments is always wrong because it is wrong per se to exploit animals. Note that all these positions are at least compatible with the most up-to-date scientific findings. Indeed, all these positions recognize the fundamental fact that animals are sentient beings that—to a varying degree—can experience pleasure and pain, but differ as to what weight we ought to attribute to this fact. As for the descriptive component, this first-level disagreement cannot be settled at the second level: the disagreement at the first level simply mirrors the disagreement between incompatible ethical views at the second level. The first position might be justified by a humanist view, according to which full moral status should be accorded only to beings (typically humans) with high levels of rationality and autonomy (Kitcher 2015; Orlans et al. 1998). If animals have interests, these are vastly discounted

2  Animal Treatment as a Matter of Reasonable Disagreement 

47

relative to human ones, or human interests are prioritized (Brody 2012). The second position may be grounded in a broad utilitarian perspective. On this view, although experiments on animals might be in principle justifiable, this would be in practice very rare (Singer 1993: 67) because we should balance the certain suffering caused to animals and the expected but uncertain benefits for human beings. That the latter outweigh the former is possible, but rather unlikely, given also the uncertainty over whether the experiments will actually lead to useful discoveries (Bass 2012). Discounting the probability of finding useful results through the certainty of harms caused to animals, the consequentialist case is considerably weakened. The third position may be justified by a rights-based view that holds that the lives of sentient animals have an intrinsic worth that should be protected by inviolable rights (Francione  2009; Regan 1983). As is easy to understand, this dispute comprehends irreducible basic moral claims and frameworks that cannot be reconciled. Indeed, it is hard to establish whether the determination of moral status depends on the intrinsic value bestowed by the fact of merely possessing sentience, or whether it depends on relations between human beings and animals, or whether it depends on the animals’ level of rationality. Although each view might show up the flaws of the others,21 there seems to be no overarching and conclusive way to say which system of beliefs underpinning first-level positions is preferable. In the end, at this stage of the argument, lacking other considerations, the justification of one’s position must appeal to intuitions, which are hardly conclusive themselves. This does not mean there is no way out of this situation. Rather, it means there seems to be no direct way to solve the issue by pointing out what is the case in a non-controversial manner.  This is particularly the case for the humanist view, against which rights-based views level the charge of speciesism. In Chap. 4, we will see why this is not necessarily so. But we may find very important flaws in the other views too. Utilitarianism fails to comply with the widely held egalitarian intuitions regarding human beings (see Zuolo 2016b on the failure of some prominent utilitarian stances to justify the prohibition of killing people). Animal-rights views must ground the ascription of rights on a basis—in Regan’s view, the property of being “subject of a life” (Regan 1983)—whose capacity to ground rights is highly disputed and whose possession by those animals who are supposed to possess it is uncertain. For a more detailed characterization of these positions, see Chap. 4. 21

48 

F. Zuolo

2.6.2 Idealized and Real Cases of Competent Peerhood Now let us employ the notion of peerhood. Recall that the conditions of peerhood we have set forth above. Besides equal evidence and equal cognitive capacities regarding a domain, here we can also add a further condition to make the case for a more epistemically robust disagreement. This further condition is that the parties have considered the evidence conscientiously and applied their capacities carefully. This is to prevent ordinary mistakes or poor cognitive performance due to lack of interest or motivation. With these assumptions we can now answer the question of whether we can find disagreeing peers and in animal ethics.22 We have two arguments to model the condition of epistemic peerhood in the domain about the admissibility of research on animals: an idealized scenario and a real experiment approximating the idealized case. Let us start with the idealized case. We can obtain a condition of peerhood by imagining the following hypothetical (but not implausible) situation. Suppose we randomly select a set of people who have the same (rather high) IQ level. Suppose they are fairly competent on many scientific, political and moral issues but are rather unaware of the issues concerning the scientific relevance of experiments on animals. Such persons are given the same relevant literature and data on the scientific efficacy and ethical assessment of animal experiments. Suppose they are given a sufficient amount of time to develop an informed belief and they have no way of interacting with each other.23 It is likely that such people, after reviewing the relevant literature, would end up developing a number of opinions.  King (2012) claims that in fact disagreeing with a real peer is a rare event in practice. This is so because (i) we never meet a person having the same evidence (in most of our disagreements we have to employ a wide understanding of evidence, including also idiosyncratic intuitions and personal experiences that cannot be equal by definition), we never find a person having (ii) the same attitude to respond rationally to the evidence and (iii) the same level of intellectual capacities. Hence, it is almost impossible to meet the conditions (evidence, disposition and capacities) of equal peerhood. By constructing the following idealized and real cases as two cases of disagreement, I think we can positively respond to King’s skepticism. Relying on a realist understanding of evidence and peerhood more generally (see §2.5), I think the following cases meet a realistic account of peerhood, one that is sufficient for our purposes. 23  This clause is necessary to avoid the problem that collective learning is skewed by the interaction between personal traits (e.g. that somebody is more charismatic, while others are shy). 22

2  Animal Treatment as a Matter of Reasonable Disagreement 

49

This is so because it is at least preliminarily plausible to suppose that such people, in examining the issue according to their intelligence and in full conscience, would fail to converge on a specific position, given the complexity of the issue at hand and their diverse epistemic standards. Although we have assumed that these people have the same IQ, it is likely for them to have diverse epistemic systems of justifications depending upon their education, values and experiences. This is likely to be so not only at low levels of competence, where people mostly rely on their mere intuitions and other non-expert testimonies, but also at higher levels of competence. Indeed, here we are not dealing with disputes where there is a position that is epistemically superior in a clear manner (like the cases of vaccines or climate change). Rather, here we are addressing a case where evidence is complex and opaque (Peter 2013). Hence, it is likely that such peers who are becoming sufficiently competent on the matter at hand place their positions in a range. We can suppose that if they are sufficiently diligent in reasoning about it, they could exclude the positions that we know to be false. But, I contend, it is much more likely for them to have diverging positions than to converge on a single stance. There is at least a statistical reason: in the absence of a ground that could impose a convergence (e.g. there is a recognized epistemic authority or a leader, or people have shared cultural patterns or epistemic norms), people are likely to distribute over a range of positions. We can put this case more clearly. Assuming they would converge on a unique and correct position is far more unlikely than assuming they would disagree. After all, statistically speaking, there are more ways to disagree than to agree. Even if they have the same evidence to learn and reflect upon, they have diverse justification systems, experiences and values, which would obviously influence the processing of such complex material. Accordingly, one who assumes they would converge on a single (and supposedly correct) position has the burden of demonstrating why this should be so and what the correct position would be. This point is corroborated by the real case. Plous and Herzog (2001) ran the following experiment: they selected a random set of universities and laboratories with an “Institutional Animal Care and Use Committee” that reviews the proposed protocols to use animals in experiments. Each unit was asked to provide the last three such reviewed protocols, which

50 

F. Zuolo

were sent to another committee among the set. Thus, all proposed protocols underwent a double level of review (the first for the “real” assessment, the second for the purpose of the survey). A significant percentage (79%) of disagreement between the first and second reviews of the same project emerged. I do not want to overstate this disagreement because this figure is very inclusive. Namely, 79% of all protocol reviews were more negative than the first reviews, and 61% were judged very negatively insofar as not understandable, unclear, poor, not convincing. Hence, not all protocols were assessed very differently; some were simply evaluated more negatively. But, still, this is significant because even within the relatively restricted community of experts, who share the relevant evidence and apply the same procedures to assess specific cases, significant disagreements are very likely to arise. Of course, in itself, this experiment does not entirely prove my point. Perhaps we would need other control cases. And more generally, we should discount the discrepancy between the two assessments by the fact that the kind of cognitive activities required of the members of the committees were different in a relevant sense: although in both cases they were assessing the protocols according to the same set of parameters, the setting was different. Hence, we might suppose that in the second experimental assessment, members of the committees knew less about the people and projects involved—as Plous and Herzog (2001: 609) remark—or did not feel the pressure to approve of them. The only dimension where there was sufficient agreement concerned the rating of the pain or stress that animals were expected to experience. This is so because regarding pain the researchers have a more objective and detailed scale of assessment (Plous and Herzog 2001: 609). However, even if we account for this and discount the percentage of variation from the two assessments, the disagreement still emerges as a significant factor. The hypothetical scenario outlined above generalizes Plous and Herzog’s findings with respect to the position regarding the justifiability and necessity of experiments on animals. One may present the following objections to the capacity of these cases to show the possibility of peer disagreement. First, one may say such disagreements arise because in both cases some parties are not as competent as the others and thus fail to consider some elements or to rationally process the information. In other

2  Animal Treatment as a Matter of Reasonable Disagreement 

51

words, a party may not meet the condition of equal epistemic capacities for peerhood. But this cannot be so in the idealized case because we assumed that the parties have the same intellectual skills, the same materials and the opportunity to develop a competent view on the matter; and it cannot be so in the real case either because one should explain why some scientists in the committees are less expert than others. After all, if we cannot apply the idea of peerhood to those who are considered experts in their field, when can we apply it? Second, one may challenge the fact that the parties in the two cases have considered the same, relevant evidence. But, as seen, in the hypothetical case we assumed this, while in the real case the committees assessed the same materials (the research protocols), which most closely resemble the evidence in a real scenario. Hence, given the way the hypothetical and real cases have been designed, there is no evident reason why we should not consider the different parties (whether hypothetical individuals or real committees) as epistemic peers. A number of different answers can be given to explain these partial conclusions. Disagreement may arise among competent peers because the issue is too complex to be judged in a fully satisfying manner also by experts (Sosa 2010). Or we may think that underlying moral concerns may allow for diverse responses because there is a situation of underdetermination of moral rules and implications given the abstract nature of moral principles. Or we may think that people are allowed to employ diverse rules of priority (Marino 2015) in judging each case according to their own values, identities, upbringing and epistemic norms. Or we may suppose that evidence cannot be fully disclosed because it is too complex and opaque, hence the disagreeing parties are justified in reaching diverse positions despite having the same evidence (Peter 2013). In sum, the case of disagreement over the permissibility of research on animals seems to be a case where people can reasonably disagree. First, by reviewing the main arguments supporting the diverse positions, we have seen that there does not seem to be a decisive argument for or against the main descriptive and normative positions. Second, real or idealized epistemic peers are likely to have opposing views on this issue without any of them having seemingly committed a mistake or lacking relevant evidence.

52 

F. Zuolo

2.7 A  Further Paradigmatic Case: The Weight of Suffering One may suspect that the above result depends on how the case has been fashioned both in terms of its epistemic features and in terms of the nature of the disagreeing parties. That might be true. After all, this case has a specific dimension and all that it might demonstrate, if anything, is that the case of animals for scientific research is very complicated. Although I have already provided some reasons for why this case is not idiosyncratic, but rather paradigmatic, I do not want to dismiss this objection. Rather, I prefer discussing another case of qualified disagreement. As anticipated, appealing to these cases does not provide a conclusive proof that in all cases it is reasonable to disagree over the moral status of animals and the treatment we owe to them. Rather, it will suffice to show that, in some very important matters, qualified disagreement is possible, and the parties are justified in holding their positions. To construct a telling case which lends support to my claim, we cannot pick out obvious examples of disagreement between—say—a vegan and a meat producer. Such cases are obviously very important and socially widespread, but they may not non-controversially show that all the parties at stake are justified in holding their positions. Instead, to make our case interesting and telling, we have to demonstrate that there is sufficient room for disagreement even among people who have common values and are committed to finding a good solution. Hence, I shall present a hypothetical dialogue between two parties regarding the ethical assessment of animal suffering. The dialogue will be fictitious but sufficiently representative of a possible actual dialogue that respects some good practices. To do so, I will assume the following: (i) that the parties have some common starting points regarding what is valuable and how we should recognize a good argument; (ii) that the parties have a commitment to a honest exchange of reasons, which means that the parties are willing to recognize when the other party has a good case; and (iii) that the parties are seeking the best response they can, and not just a settlement. More particularly, regarding (i), I assume that the parties share the idea that animals morally matter in some sense, that discrimination between equally moral cases is

2  Animal Treatment as a Matter of Reasonable Disagreement 

53

unjustifiable, and that scientific knowledge is the ultimate source of reliable evidence. In the course of the dialogue I will comment on the argument (see footnotes in italics) and signal that the parties are complying with these principles, and that they are reasoning in an appropriate manner according to the available arguments and evidence.24 Let us call these two parties Anthropophilous (A) and Zoophilous (Z). A: I heard you saying that animals morally matter and that the earnest recognition of this principle would compel us to change our way of living. I agree that animals matter from a moral point of view. However, I think that we ought to give priority to human beings. Z: But this is speciesism! Species belonging is a morally irrelevant feature. It is equivalent to saying that certain human races are superior to others, or that women are inferior to men.25 A: I think my position does not depend on favoritism toward the human species as a species. Rather, I think that we ought to recognize what is most valuable in human beings, that is, rationality, our moral feelings, our achievements, in sum our superior capacities. Z: Ok, I agree that certain capacities are superior to others. But not all human beings have the capacities you value most. And besides this, there is the notorious problem of why we think that human beings are equal even though the valuable capacities are typically possessed with such a great variability. Hence, if you think that what counts is—say—a certain level of rationality, you have to exclude certain human beings from the domain of moral considerability, or treat them as you treat the animals.26 A: Oh well, the problem of human marginal cases27 again! What’s so problematic about this? Yes, I cannot say that human beings ought to be  Of course, in real case scenarios, parties to a disagreement rarely meet these conditions. This fact is often appealed to by animal-rights campaigners to argue that those who reject rights for animals are not epistemic peers and their position is inadmissible. However, it is an open question in real case scenarios who is more (or less) expert and should (not) revise her position. 25  Here Z is probably overreacting. However, this would be the typical response that not only laypeople but also competent experts on the matter (e.g. famous philosophers) would give on A’s statement. After all, A’s stance has been traditionally backed by speciesist sorts of arguments. 26  For an extensive analysis of the purchase, different versions and implications of this argument, see Dombrowski (1997). 27  Out of the dialogic context I will refer to this problem as the “argument from species overlap”, as it has recently been reformulated by Horta (2014). In this fictitious dialogue I employ the tradi24

54 

F. Zuolo

treated equally and conferred fundamental moral rights because and only because they are humans. Perhaps, that is not an explanation. But we have special relations with them, and they need us in a sense that animals do not.28 Z: How can you justify such a disparity of treatment on the grounds of mere relations? Relations are idiosyncratic and structurally unique. I owe something to you because you are my friend. I owe special care to my children because they are my children, but not to others. How can you grant the fundamental moral demands of equality and impartiality, if you ground the moral worth of human marginal cases on the special relation we have with them?29 A: I didn’t mean to say this; I didn’t want to defend an overall relational ethical perspective. It just seems to me that there is a structural dependence of so-called human marginal cases on us, while animals are not structurally dependent as such, and this means that we have duties toward them.30 Human marginal cases’ structural dependence and fragility triggers our responsibility and special care. Z: But some animals too are structurally dependent on us.31 Consider domesticated animals. They can no longer live in the wild because their current genetic make-up is the result of multiple selective breeding practices so as to satisfy human needs. We owe to them something we do not owe to other animals, for instance wild animals, which can live alone.32 tional terminology because it seems more apt to represent a sort of linguistic exchange that may plausibly occur and because the dialogue addresses the problem of so-called human marginal cases. 28  A seems somewhat compelled to recognize that speciesism cannot be a valid argument in its purest form. However, she is ready to bite the bullet and follow the relation-based argument, which is probably the strongest argument in favor of a preference for our co-specifics. 29  For the argument against the idea that special relations could justify the discrimination between animals and human marginal cases with respect to the recognition of fundamental rights, see McMahan (2005). 30  See Scanlon (1998: 195) for a sketch of the idea of structural dependence. 31  Here Z is partially accepting the validity of the relation-based argument, but she decides to use it against A in order to show that it can be applied to (certain) animals and does not necessarily grant specialty to humans. 32  Donaldson and Kymlicka (2011: chap. 4 and 5) have argued that the history and outcome of domestication makes the case for extensive recognition of positive rights (of inclusion in the citizenship and of special assistance and care) because of domesticated animals’ relation of mutual dependence on human beings and their incapacity to live in the wild.

2  Animal Treatment as a Matter of Reasonable Disagreement 

55

A: But that is not the same kind of dependence. We can do without breeding new domesticated animals, while we cannot prevent there being human marginal cases in the future, unless we decide to impose infanticide for babies with permanent and significant defects. Which is something, I suppose we agree, we don’t want to implement for many reasons. Moreover, this would still leave on the table the problem of human beings who become marginal cases in the course of their lives as a result of accidents or degenerative diseases. Z: Well, I think we should discuss the case of infanticide for babies with permanent and significant defects, as you call them, as well as the case of human beings who become marginal cases in the course of their lives. By the way, calling them ‘marginal cases’ presupposes a standard that reeks of anthropocentrism, which is precisely what are arguing about. A: Possibly. But, these are different cases because the relation of dependency is different, and we have different sorts of responsibilities toward these cases. Z: My position is just a straightforward application of the principle of non-discrimination between morally equivalent cases. But I acknowledge that we structurally disagree on what dependency is and what it entails. A, Z: Ok, let’s start again.33 Z: Let me turn things the other way around. If you say that animals morally matter but maintain what you’ve said, how can you say so? What is the basis of their moral considerability given that you value more typical human capacities? A: Well, animals can feel pain. It’s quite obvious that causing a being to suffer is a moral bad. Z: Finally, here we go! I totally agree. Moreover, science has demonstrated that there are common evolutionary patterns and physiological structures between animals and human beings that show the similarity of

 Here the parties agree to disagree. The divergence on the question of structural dependency is cast in retrospective terms by Z (we are responsible toward domesticated animals because we have selected and bred them in such a way that now they are no longer capable of living in the wild). A acknowledges this responsibility and admits that we may decide not to breed them any longer, but the same cannot be said of human marginal cases unless we opt for an ethically repugnant solution (infanticide) on which both agree. 33

56 

F. Zuolo

animals and human beings. That is true in general, and even truer as regards suffering. A: Ok. Fine. But what is the implication of all of this? Z: Well, given that you agree with me on the assumption that suffering matters and that animals have similar structures, further things follow. Building on this, it seems obvious that we ought to consider the suffering of animals on a par with that of human beings. This means that any use of animals against their nature is to be considered a form of exploitation and ought to be banned. A: Well, I do not want to violate the principle that similar cases should be treated alike and any discrimination ought to be appropriately justified. But I’m not sure I understand and can accept the full implications of this principle. At least not how you understand them.34 Z: This is so because you either underestimate animal suffering or surreptitiously think that human activities that make animals suffer are justified in virtue of the benefit they produce to humans. A: Frankly, I must admit, you are probably right on this. In principle, we ought to adopt a common measure to assess the wrongness of a situation. But how can we do so? Z: Well, given that human beings and animals have similar sensory organs and functioning, and you recognize the disvalue of suffering, we can think that similar experiences should have the same moral weight. For instance, you know or can imagine what it means to be deprived of food or space to move. Or you know what it means to experience an intense pain.35 If so, you can think that an animal undergoing the same kind of experience is going to feel similar sensations. Hence, we ought to morally assess this fact on a par with human experiences thereof.

 A and Z agree on the general principle of non-discrimination, but start to disagree on its interpretation. 35  As is widely known, Peter Singer, among others, has most forcefully argued that pain has disvalue independently of whether it occurs in a human being or in an animal. Only its intensity and duration count. This “principle says that the ultimate moral reason for relieving pain is simply the undesirability of pain as such, and not the undesirability of X’s pain, which might be different from the undesirability of Y’s pain. Of course, X’s pain might be more undesirable than Y’s pain because it is more painful, and then the principle of equal consideration would give greater weight to the relief of X’s pain” (Singer 1993: 21). 34

2  Animal Treatment as a Matter of Reasonable Disagreement 

57

A: But how can we presuppose this? For the sake of simplicity, I’m not asking you what kind of animals you have in mind. All sentient animals? Only a subclass? Does this include reptiles and fish too? Or invertebrates? Even if we suppose that what bestows (dis)value lies only in experiences (assume for the sake of the argument that this is so), there seems to me to be a doubly unwarranted presumption: first, we presume that the same event is causing the same experience in different beings, and, second, that the same kind of experience in different beings has the same (dis)value. After all, we don’t know whether the same kind of event (starving or having a broken leg) causes the same painful experience in two beings. Maybe this is not even so if we consider two human beings. But in this case, we can at least ask them. We would need a measure of the relevant experiences (of pain in particular). That is not unthinkable, but even so we must presuppose that the amount of pain is measurable like the amount of a certain substance. In principle we could measure whether the two experiences of pain of two individuals involve the same quantity of chemical elements (for instance, cortisol) that are correlated to the experience of pain. But even this would not be sufficient, because we know that pain is a totally subjective experience. Z: You do not seem to be very cooperative and you are making things unrealistically complicated to assess.36 A: OK, but think about your own experience: think of how your perception of pain depends on other factors (your expectations, the environment, whether you are alone or not, whether experiencing pain is necessary to achieve something else or not). All of this is obviously very relevant and is a part of common experience. Why shouldn’t it be so in general? You seem to presuppose that even if you rely on a subjective account of the value or disvalue of pain, experiences must be the same. Z: Well, but you are confusing an epistemic problem with a metaphysical problem. Maybe you’re right in thinking that now we cannot access and measure the kind of experience that constitutes pain (epistemic problem). But this does not mean that we cannot presuppose that  At first glance, A may seem to be making things too complicated. However, he mentions but does not use the variety of animal species as an argument against equal consideration, which could have been an easy critique, and rather prefers to employ the most general but also the most difficult argument concerning the epistemic inaccessibility of pain given its private nature (Aydede 2013). 36

58 

F. Zuolo

this measuring is feasible because there is a common measure based on a unique feature of reality (metaphysical problem). Perhaps it will be feasible in the future. And this does not prevent us from supposing that these experiences have the same (dis)value.37 A: Yes, but here we must have a reliable measure to presume that this is the case, otherwise how can we presume so? How can you overcome the problem that experience, and in particular pain, is a private question? This is particularly so given that animals cannot share their feelings with humans through a public language.38 Z: But then how can you not pose the same problem for human beings? A: Yes, there is a similar problem but it is attenuated and at least restricted by the greater physical similarity among human beings and by the possibility of asking people and to make descriptions of inner experiences. Building on this, putting oneself in another’s shoes does not demand unrealistic imaginative strains. (Or do you have an idea of what it is like to be a bat?) On this basis, we can at least presume that similar experiences have a similar weight. Z: Well, but given the huge variability among human beings, why couldn’t it be the case that one has more similar experiences with certain animals than with human beings? A: Well, it might be the case, but how can we know? Z: I’m not completely convinced by your argument and skepticism, but I understand that there is an epistemic problem in the comparative measuring. Given this, why should we stick to a cardinal measure of pain (or weight of interests) and not switch to an ordinal system? That would go as follows. Instead of presupposing an absolute amount of value or disvalue—which is perhaps impossible to measure—to be attached to certain experiences (in particular, pain), why should we not be satisfied with an ordinal measure? For instance, let’s start with human beings.  Here Z is using a fine distinction. Indeed, if we subscribe to an account of pain where pain is like other external perceptions, its perceptual basis is the tissue damage one feels through the nociceptors. In this case pain can in principle be reducible to physiological events (e.g. the alteration of equilibrium in a tissue) but, besides the difficulty in accessing these physical data, we should not assume that equal nociceptive events (the physiological basis) translate into equal conscious experiences of pain. 38  Here A accepts the position to focus only on the epistemic problem of pain, but decides to bite the bullet regarding its communicability. 37

2  Animal Treatment as a Matter of Reasonable Disagreement 

59

Maybe we don’t know what the experience of having one’s leg broken amounts to in absolute terms, what its score in an absolute scale of (dis) value is. But we can order different types of pain according to their intensity and expected duration. The more intense and durable, the weightier and hence worse.39 A: That’s interesting and feasible. But I don’t understand how it can solve our problem. Maybe a single person can make an ordering within her life experience in terms of what is worse and what is better. And let’s concede for the sake of discussion that diverse people can find an agreement on this ordering (let’s leave aside the many difficulties and possible sources of incoherence that studies in social theory and preference aggregation have found). Still the question remains on the table: How can you presume that there will be the same orderings among different beings, and animals in particular, if you have epistemic problems in accessing the pain or other cardinally measured experiences? Z: Well, you consider the preferences. Just as you can see that animals prefer one kind of food over another, and tend to eschew certain things, so you can make an ordering among their preferences by observing their behavior.40 A: This might be useful in terms of prediction, but how can it give us a reliable benchmark to assess the diverse values at stake? And the different weights of the experiences? If we assume this preference-based measure of the (dis)value of experiences, how can it be the case that the same ordering has the same importance? For instance, suppose that we find a rough but minimally plausible ordering among preferences regarding the suffering caused by the following harmful events: terminal cancer < amputation of a limb < broken leg (where < means less preferable or more painful). Even if this ordering is correct for all those beings that are capable of undergoing these experiences, as it probably is, how can it serve as a comparative procedure to establish the relative weight of, for instance, similar events of a human being and a mouse? If we assume that they have  Switching to an ordinal rather than cardinal account is a good move because it seems to avoid the epistemic and metaphysical problems that we have encountered. 40  Here Z takes the easiest path: observing individuals may allow us to rank their orderings of preferences without delving into complicated epistemic and metaphysical issues. 39

60 

F. Zuolo

the same disvalue, we suppose that the physiological events are the same and translate into similar conscious experiences. Which is not granted given the differences between these beings and the private character of the experience of pain. Unless we assume that there is something objectively and equally wrong in undergoing these kinds of experiences, we cannot easily and standardly presume that they are equal.41 But such an objective approach would be strange, because pain is a bad thing to the extent that it is experienced. It is not a bad irrespective of whether and how individuals experience it. Z: OK, but you are making things too difficult. A: Well, not really.42 Bear in mind that I have not used the extreme but relevant argument of the phantom limb pain—namely, the experience of perceiving pain as if it were still present in a limb that has been amputated. More generally, it seems to me that you are confusing pain with physical injury. There can be an injury without pain, pain without the unpleasant experience (pain asymbolia), or pain without apparent injury (if it has a psychosomatic cause). Pain is a matter of individual conscience (usually but not always perceived upon a physical basis). Z: Well, OK, but we could retort with the same kinds of objections to human beings. Maybe you have a point, although I am not convinced. So, let me take this step towards your position. It seems plausible at least to restrict the comparability and similarity of value among similar kinds of beings. For instance, we may suppose that similar values apply among higher mammals because there is a range of similarity.43 Hence, egalitarian considerations apply to restricted ranges of similarity of (human and non-human) individuals having similar morally relevant features. And that would be interspecifically so. In other words, in these classes of

 A is arguing that Z’s move from a cardinal to ordinal measure will not suffice because even if we agree that the ordering is the same, such orderings might be on diverse scales of weight. In other words, the pain suffered from terminal cancer might be, ex hypothesis, the worst pain for all sentient beings that can have cancer. But assuming that it is equally bad for all seems to beg the question. 42  Z seems right in protesting against A’s insistence which seems to violate the commitment to cooperation. However, A has another point to reaffirm the elusiveness of pain as a private experience. 43  Z is showing her commitment to being cooperative by not pressing the point any further. However, she decides to focus on a restricted and apparently more robust basis for equal consideration across species. 41

2  Animal Treatment as a Matter of Reasonable Disagreement 

61

similarity we may find individuals of different species (including the human species).44 A: OK, but how wide is this variety? And again, if you introduce this approach, how can you avoid the idea that equal consideration is restricted only to sets of individuals that are very similar but too narrow for your purposes? Following your claim, I can easily argue that equality is restricted to individuals capable of moral agency, thus excluding animals. Moreover, the risk is that, if we accept this approach, what counts are the moral status and the level of development of a being. Z: What is wrong with this? Wouldn’t you agree? A: Yes, I would, but we would be back to the priority given to human beings because justifying equality would be very difficult in this case.45 Indeed, we would, first, have the problem of finding the appropriate class of similar (human or non-human) individuals among which we can apply the expectation of equal weight. But how can we determine this class? Upon which trait?46 Intelligence or level of sentience? Wouldn’t we be driven back to the standard ways of categorizing the differences between human beings and non-human animals? Z: No, because these ways of drawing the lines would cut across the human species and put aside (probably in a lower category) the set of human marginal cases. A: Yes, OK, that’s true. But this would not solve our problem because we would not have a common measure of comparison and animals’ weight of suffering would be in any case discounted with respect to the persons’ weight of suffering.47 Discussion ends. ….  This is roughly McMahan’s (2002) idea of the Intrinsic Potential Account. The level of moral considerability of a being depends on its or her capacity to achieve higher or lower levels of well-­ being. This capacity is what determines the level of moral status. 45  Here A is clearly making the case for her point. However, she makes it by showing that her conclusion follows from Z’s last claim. 46  I have discussed the problems of identifying the relevant classes of comparison in an individualist and non-speciesist perspective (McMahan’s) in Zuolo (2016a). 47  At this point A and Z agree that equal consideration may be applied to restricted sets of individuals having similar morally relevant features. However, for Z this may still count as a non-speciesist move, while for A this lends support to a form of human-preference. Some progress has been made and agreement found, but we are led back to the grounds of moral status. 44

62 

F. Zuolo

In presenting this case, I hope to have, as promised, provided the best case for each party at every stage of discussion in terms of what each party could justifiably believe given her overall epistemic and substantive commitments. As to the appropriate attitudes on the part of each, depending on the argumentative stage, A and Z have adopted a wide array of different responses to the relevance, if any, of disagreement. They have revised their position, weakened the confidence or stuck to their view. One might dispute specific parts of the argumentative strategy I have chosen or the type of attitudinal responses that A and Z have given. And there might be a point in this objection. However, the overall flow of the argument seems to comply with the epistemic desiderata (i–iii) put forward at the beginning of this section, as the parties have employed a succinct and nontechnical version of the best arguments that are available in the relevant literature. Hence, they have acted as stylized but realistic actors employing the best available arguments. That should be enough for the epistemic relevance of this case.

2.8 B  eing Justified in Disagreeing About Animals As a minimally charitable—but not necessarily already persuaded— reader may see, there seems to be no compelling case for thinking that there is a fully convincing argument for one of the above-mentioned positions on animal research and the weight of animal suffering. There does not seem to be any epistemically superior, even if not fully justified, position. This is not warranted by the fact that I have set up the argument in a self-serving manner because they are two cases of qualified peer disagreement.

2.8.1 The Burdens of Judgment As the reader might have noticed, in presenting the two cases I have not appealed to the famous Rawlsian notion of the burdens of judgment. As is known, the burdens of judgment refer to a set of features of the

2  Animal Treatment as a Matter of Reasonable Disagreement 

63

production, distribution and use of knowledge that make the case for allowing that, over a number of issues, the occurrence of disagreement should not be a surprise but the outcome of the free use of reason. In brief, the burdens of judgment are the following: The (i) complexity of evidence; (ii) the different orderings and priorities in moral and factual statements; (iii) the vagueness of all concepts, and in particular the moral ones; (iv) the path dependency of our assessments depending on our personal stories and social roles; (v) possible indeterminacies and (vi) the difficulty of taking decisions and making orderings given the limited practical possibilities we have (Rawls 1996: 56–7). On Rawls’s view, these are non-transient features of societies characterized by liberty and plurality of values. On Rawls’s thought, the burdens of justice constitute one of the most important grounds for providing political, and not metaphysical, solutions to the fact of reasonable disagreement.48 In this sense, the idea of the burdens of judgment expresses in Rawls’s thought both a meta-­sociological thesis and an epistemic thesis. As a meta-sociological thesis the idea of burdens of judgment expresses the thought that modern societies are by nature characterized by an unavoidable variety of perspectives and views which are the manifestation of freedom of thought. Hence, despite their being a social and historical idea, the burdens of judgment are a permanent and necessary feature of our societies. But the idea of the burdens of judgment is also an epistemic thesis meaning that, over a number of collectively relevant issues, the complexity, ambiguity and legitimate diversity in individual perspectives mean that people are likely to disagree in a justified way. The two cases I have presented above—regarding experiments on animals and the weight of animal suffering—may seem two clear cases of burdens of judgment. After all, it seems obvious that the matter is characterized by its complexity, diverse priorities of moral and factual  It bears reminding and emphasizing that the sense of reasonable disagreement I am employing here is different from the Rawlsian one and much less demanding. It does not include, among other things, the idea that reasonable parties are committed to the recognition of the burdens of judgment or to the idea of a society as a fair cooperative scheme of equal and free individuals. It simply means being justified in holding one’s position. In the next chapters, we will discuss the other dimensions of reasonableness too. 48

64 

F. Zuolo

considerations, vagueness, path and role dependency and practical constraints. But one may question that the burdens of judgment are, all things considered, legitimate epistemic considerations that make the case for accepting different positions of diverse parties.49 Irrespective of this, I have not appealed to the burdens of judgment and the conclusions I have arrived at in the two cases at stake also hold true independently of whether we subscribe to the validity of the burdens of judgment in general.

2.8.2 The Epistemic Purchase of This Argument As I have tried to show above, my claims do not depend on controversial theses about the nature of disagreement in general or the Rawlsian burdens of judgment. Rather, the idea has been to show that, at least in these cases, there seems to be a situation in which parties disagree and yet nobody seems to lack evidence or have made any errors. In the first case of experiments on animals, these two conditions (equal evidence and the same epistemic capacities) were modeled as an explicit case of peer disagreement. In the second case about the weight of animal suffering, this condition of peerhood was not thematized and assumed, but rather shown through the development of the argument itself. In other words, the dialogue has tried to reconstruct plausible good arguments at the different stages of the discourse, so as to demonstrate that there was no clear reason tilting in favor of either side. The way I have constructed the two cases helps us answer a concern that is common in the literature of peer disagreement. Elga (2007: 492) claims that the Equal Weight View does not lead to spinelessness, and thus suspension of judgment in too many cases, because in real life, when we confront people disagreeing with us on intricate matters that are related to many others, we tend not to consider as peers those with whom we disagree. In a sense, I have tried to make the case for considering other (epistemically qualified) people holding different views as epistemic peers despite the fact that, facing disagreement in hard and real-life cases, one is often led not to consider the  For a critique of the epistemological pedigree of the burdens of judgment and their relevance for the underpinning of political liberalism, see Enoch (2015, 2017). 49

2  Animal Treatment as a Matter of Reasonable Disagreement 

65

dissenting party as a peer. I have not provided general reasons for why we ought to do so in all cases. Rather, the strategy I have employed has been, so to speak, that of pointing at two possible cases of reasonable disagreement without assuming ex-ante that they are the result of the burdens of judgment. Moreover, I have strengthened the epistemic status (qualified disagreement) of these cases by showing the competence of the parties. However, to repeat, my thesis is a sort of specific and provisional one; it is not general and unconditional. Indeed, it might be the case that, in future, scientific progress renders experimenting on animals unnecessary because other more reliable models have become available. In sum, I have not shown that in respect of animal experimentations and the weight of animal suffering, there can absolutely be no conclusive solution, and I do not want to suggest this either. To argue for this idea, I would have to demonstrate that these issues are necessarily indeterminate or structurally characterized by legitimate multiple answers, or that this is the nature of other similar cases of disagreement. But this is not what I want to suggest. However, I have tried to show that we cannot reach a conclusive position with the available evidence and with the current best moral arguments at our disposal. Despite initial appearances to the contrary, my conclusion is not so limited because, as I have suggested, these two cases are particularly representative of a number of diverse issues in animal ethics. They are very complex, in that they combine diverse levels of disagreement, both normative and descriptive disagreement, metaphysical issues and scientific knowledge that may be interpreted in diverse ways. But they are in no sense unique and the type of general problems they present also pervade other domains of animal ethics (as well as other cognate ethical areas regarding the definition of moral status, the interplay between science and morality, the measurement of value and so on). Moreover, it seems unlikely that disagreement over these issues is likely to disappear or shrink any time soon. On the contrary, although scientific progress rules out certain positions (e.g. the case of Cartesianism on animals—see Chap. 4), new positions are available, and diverse normative stances are compatible with scientific evidence. In a sense, there is a proliferation rather than a diminution of diverse positions compatible with science.

66 

F. Zuolo

2.9 Conclusion To approach the conclusion of this chapter, there is a good case for thinking that at least in these areas people reasonably disagree in a qualified manner, namely, that they have good reasons for holding their views and that all else being equal we do not have a reason to ask them to revise their views. One might rebut the generality of this conclusion and say that it does not threaten the validity of the main objections (from first-­ order moral theory and metaethical realism). All my argument shows— so this objection goes—is that our current scientific and moral knowledge does not grant us access to the relevant moral facts, whose objective truth is, though, not undermined. Building on this we have two avenues available to rebut this critique. The first, and minimal, one is that of saying that accepting my limited and provisional argument at least shifts the burdens of proof onto the other camp. As a consequence, on the one hand, the first-order moral theorist should demonstrate what is wrong in my argument, and/or who is right/wrong in the debates among competent peers I have outlined. On the other hand, the metaethical realists should explain why we have reason to believe that these disagreements are epistemically irrelevant, despite the fact that the parties seem to employ the best available evidence and arguments. Or they might simply say that lacking access to the objective truth, we should suspend our judgment until we have better evidence. But that would be a strange and unwelcome move for a realist.50 In sum, we have two kinds of implications from our discussion so far. The first implication concerns how we should assess the epistemic pedigree of the parties in a qualified disagreement. From the discussion of peer disagreement, we have concluded that whatever the most justifiable solution to peer disagreement is, the parties have at least a reason for taking the disagreement into account. Whether this means that they should lower their confidence in their position, respect the position of the other party or simply give the benefit of the doubt is an issue we cannot settle  A realist could bite the bullet and claim that at best the argument from disagreement does not grant the non-existence of objective moral facts, but only our structural epistemic incapacity to access them. For an overall response to this quite limiting and defensive strategy, see Tersman (2006, chap. 4). 50

2  Animal Treatment as a Matter of Reasonable Disagreement 

67

here. Suffice it here to say that the parties seem justified in holding their views. Thus, disagreement is not a sign of epistemic or moral error. The second implication regards the response that the public institutions should give to qualified disagreements characterized by high levels of complexity and pervasiveness. So far, we have addressed the nature and problem of disagreement from an internal perspective, that is, the perspective of the parties to the disagreement. But consider what public institutions should do when facing these kinds of disagreement. The response very much depends on what kind of public institutions we are considering. Some institutions might side with one of the parties insofar as they endorse a specific position on the grounds of—say—religious or cultural commitments. In that case, public institutions would seek to dissolve or redress the disagreement by imposing a specific position or at least enforcing laws based on that presupposition. However, if we are facing real qualified disagreement, such a response seems unwarranted because the available evidence, the best arguments and the epistemic capacities of competent peers do not seem to yield conclusive grounds and disagreeing seems a wholly justified condition. Besides this epistemic ground, we have a further reason for thinking that the previous solution of imposing a position based on religious or cultural grounds is mistaken. This reason appeals to the liberal principle of legitimacy: all coercive laws must in principle be justifiable to all those who are subjected to it (Waldron 1987; Larmore 1990, among others). If we think this principle is sound, what should public institutions do when confronted with the kind of disagreement we have considered in the last sections? The remainder of the book will try to provide a response to this question. To anticipate it, the response will be based on the idea of public justification. In sum, given the epistemic limitations that we have, public justification is the best available response in order to guarantee the liberal principle of legitimacy. My overall argument is analogous to Peter’s (2013) case for public justification, given the opacity of evidence and our limited epistemic capacities. She outlines a general thesis about the source and nature of disagreement—the Opacity View of reasonable disagreement— namely, the idea that evidence cannot be fully disclosed and as such disagreeing peers are justified in interpreting their evidence according to diverse epistemic standards. My strategy does not depend on a general

68 

F. Zuolo

thesis about reasonable disagreement; rather, it relies on two cases of qualified disagreement where a first-level epistemic response is not available. Accordingly, we need a second-level epistemic resource, namely, a procedure of public justification.

References Aydede, M. (2013), “Pain”, Stanford Encyclopedia of Philosophy, ed. by E. N. Zalta, http://plato.stanford.edu/archives/spr2013/entries/pain/, accessed on 19 March 2016. Bass, R. (2012), “Lives in the Balance: Utilitarianism and Animal Research”, in J. R. Garrett (ed.), The Ethics of Animal Research. Exploring the Controversy (Cambridge, MA: MIT Press), pp. 81–105. Bergman, M. (2009), “Rational Disagreement after Full Disclosure”, Episteme 6, pp. 336–353. Brody, B. (2012), “Defending Animal Research: An International Perspective”, in J. R. Garrett (ed), The Ethics of Animal Research. Exploring the Controversy (Cambridge, MA: MIT Press), pp. 53–66. Ceva, E. (2016), Interactive Justice: A Proceduralist Approach to Value Conflicts in Politics (New York: Routledge). Christensen, D. (2007), “Epistemology of Disagreement: The Good News”, Philosophical Review 116(2), pp. 1–22. Davis, J. K. (2015), “Faultless disagreement, cognitive command, and epistemic peers”, Synthese 192, pp. 1–24. Dombrowski, D.  A. (1997), Babies and Beasts. The Argument from Marginal Cases (Urbana and Chicago: University of Illinois Press). Donaldson, S. and Kymlicka, W. (2011), “Zoopolis”, A Political Theory of Animal Rights (Oxford and New York: Oxford University Press). Elga, A. (2007), “Reflection and Disagreement”, Noûs 41(3), pp. 478–502. Elgin, C.  Z. (2010), “Persistent Disagreement”, in Feldman and Warfield (2010), pp. 53–68. Engel, M.  Jr. (2012), “The Commonsense Case against Anismal Experimentation”, in J.  R. Garrett (ed.), The Ethics of Animal Research. Exploring the Controversy (Cambridge, MA: MIT Press), pp. 215–36. Enoch, D. (2010), “Not Just a Truthometer: Taking Oneself Seriously (but not Too Seriously) in Cases of Peer Disagreement”, Mind 119(476), pp. 953–997.

2  Animal Treatment as a Matter of Reasonable Disagreement 

69

Enoch, D. (2015), “Against Public Reason”, in D. Sobel, P. Vallentyne, S. Wall, Oxford Studies in Political Philosophy (Oxford: Oxford University Press), pp. 112–142. Enoch, D. (2017), “Political Philosophy and Epistemology: The Case of Public Reason”, in D.  Sobel, P.  Vallentyne, S.  Wall, Oxford Studies in Political Philosophy III, (Oxford: Oxford University Press), pp. 132–165. Erikson, J. and Tiozzo, M. (2016), “Matters of ambiguity: faultless disagreement, relativism and realism”, Philosophical Studies 173, pp. 1517–1536. Feldman, R. and Warfield, T. A. (eds.) (2010), Disagreement (Oxford: Oxford University Press). Ferretti, M. P. (2018), The Public Perspective. Public Justification and the Ethics of Belief (London: Rowman and Littlefield). Forst, R. (2011), The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press). Frances, B. (2014), Disagreement (Cambridge: Polity). Francione, G. L. (2009), Animals as Persons. Essays on the Abolition of Animal Exploitation (New York: Columbia University Press). Garrett, J. R. (ed.) (2012), The Ethics of Animal Research: Exploring the Controversy (Cambridge, MA: MIT Press) Gaus, G. (1996), Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford: Oxford University Press). Goldman, A. I. (2010), “Epistemic Relativism and Reasonable Disagreement”, in Feldman and Warfield (2010), pp. 187–215. Gruen, L. (2011), Ethics and Animals: An Introduction (Cambridge: Cambridge University Press). Habermas, J. (1990), Moral Consciousness and Communicative Action (Cambridge: The MIT Press). Hadley, J. (2009), “Animal Rights Extremism and the Terrorism Question”, Journal of Social Philosophy 40(3), pp. 363–378. Hills, A. (2013), “Faultless Moral Disagreement”, Ratio 26, pp. 410–427. Horta, O. (2014), “The Scope of the Argument from Species Overlap”, Journal of Applied Philosophy, 31(2), pp. 142–154. Kelly, T. (2005), “The epistemic significance of disagreement”, in T. S. Gendler and J.  Hawthorne (eds.), Oxford Studies in Epistemology vol. 1 (Oxford: Oxford University Press), pp. 167–196. King, N. L. (2012), “Peer Disagreement: What’s the Problem? Or A Good Peer is Hard to Find”, Philosophy and Phenomenological Research 84(2), pp. 249–272.

70 

F. Zuolo

Kitcher, P. (2015), “Experimental Animals”, Philosophy & Public Affairs 43(4), pp. 287–311. Kölbel, M. (2004), “Faultlesss Disagreement”, Proceedings of the Aristotelian Society 104, pp. 53–73. Lackey, J. (2010), “A Justificationist View of Disagreement’s Epistemic Significance”, in A.  Haddock, A.  Millar, D.  Pritchard (eds.), Social Epistemology (Oxford: Oxford University Press), pp. 298–325. Larmore, C. (1990), “Political Liberalism”, Political Theory 18(3), pp. 339–360. Marino, P. (2015), Moral Reasoning in a Pluralistic World (Montreal & Kingston: McGill-Queen’s University Press). Matheson, J. (2014), “Disagreement: Idealized and Everyday”, in J. Matheson and R.  Vitz (eds.), The Ethics of Belief: Individual and Social (New York: Oxford University Press), pp. 315–330. McMahan, J. (2002), The Ethics of Killing. Problems at the Margins of Life (Oxford: Oxford University Press). McMahan, J. (2005), “Our Fellow Creatures”, The Journal of Ethics 9(3–4), pp. 353–380. McMahan, J. (2016), “The Moral Problem of Predation”, in A.  Chignell, T.  Cuneo, M.  C. Halteman (eds.), Philosophy comes to dinner. Arguments about the ethics of eating (New York: Routledge), pp. 268–293. McMahon, C. (2009), Reasonable Disagreement. A Theory of Political Morality (Cambridge: Cambridge University Press). Milburn, J. (2015), “Not Only Humans Eat Meat: Companions, Sentience, and Vegan Politics”, Journal of Social Philosophy 46(4), pp. 449–462. Milligan, T. (2013), Civil Disobedience: Protest, Justification and the Law (London and New York: Bloomsbury). Moffett, M. (2007), “Reasonable Disagreement and Rational Group Inquiry”, Episteme 4(3), pp. 352–357. Navin, M. (2016), Values and Vaccine Refusal: Hard Questions in Epistemology, Ethics and Health Care (New York: Routledge). Nussbaum, M. (2006), Frontiers of Justice. Disability, Nationality, Species Membership (Cambridge, Mass: The Belknap Press of the Harvard University Press). Orlans, B., Beauchamp, T. L., Dresser, R., Morton, D. B., Gluck, J. P. (1998), The Human Use of Animals. Case Studies in Ethical Choice (New York & Oxford: Oxford University Press). Palmira, M. (2019), “How to solve the puzzle of peer disagreement”, American Philosophical Quarterly 56(1), pp. 83–96. Peter, F. (2013), “Epistemic Foundations of Political Liberalism”, Journal of Moral Philosophy 10(5), pp. 598–620.

2  Animal Treatment as a Matter of Reasonable Disagreement 

71

Plous, S. and Herzog, H. (2001), ANIMAL RESEARCH: Reliability of Protocol Reviews for Animal Research. Science 293(5530), pp. 608–609. Quong, J. (2011), Liberalism without Perfection (Oxford: Oxford University Press, 2011). Rachels, J. (1990), Created from Animals. The Moral Implications of Darwinism (Oxford & New York: Oxford University Press). Rawls, J. (1996), Political Liberalism (New York: Columbia University Press). Regan, T. (1983), The Case for Animal Rights (London: Routledge & Kegan). Scanlon, T. M. (1998), What We Owe to Each Other (Cambridge, Mass.: The Belknap Press of the Harvard University Press). Singer, P. (1975), Animal Liberation (New York: Avon Books). Singer, P. (1993), Practical Ethics, 2nd edition (Cambridge: Cambridge University Press). Sosa, E. (2010), “The Epistemology of Disagreement”, in A. Haddock, A. Millar, D.  Pritchard (eds.), Social Epistemology (Oxford: Oxford University Press), pp. 278–297. Tersman, F. (2006), Moral Disagreement (Cambridge: Cambridge University Press). Waldron, J. (1987), “Theoretical Foundations of Liberalism”, The Philosophical Quarterly 37(147), pp. 127–150. Zuolo, F. (2010), “Conscientious Objection in Italy: The Favored Way of Handling Irreducible Conflicting Values?”, in G. Calder and E. Ceva (eds.), Diversity in Europe. Dilemmas of differential treatment in theory and practice (London: Routledge), pp. 111–125. Zuolo, F. (2016a), “Individuals, Species and Equality. A Critique of McMahan’s Intrinsic Potential Account”, The Journal of Value Inquiry 50(3), pp. 573–592. Zuolo, F. (2016b), “What’s the Point of Self-consciousness? A Critique of Singer’s Arguments against Killing (Human or Non-human) Self-conscious Animals”, Utilitas 28(4), pp. 465–487. Zuolo, F. and Bistagnino, G. (2018), “Disagreement, Peerhood and Compromise”, Social Theory and Practice 25(2), pp. 170–188.

3 Public Justification and the Disagreement on Animals

3.1 Why Public Justification? As anticipated in the introduction and the previous chapter, the disagreement about the moral status of animals calls for a solution based on a public justification procedure. The basic idea of public justification is that what we ought to do is the result of an agreement by the parties concerning the matter at stake. In post-Rawlsian literature, saying this usually goes along with maintaining that the solution is not dependent upon the existence of metaphysical facts. Hence, the argument goes, public justification dispenses with truth in a metaphysically and philosophically thick sense. We will return to this argument below. But before proceeding, I want to emphasize that my account of public justification is not committed to “epistemic abstinence” or to the dismissal of philosophically thick notions. Hence, the procedure I will outline in this chapter will clearly embed two criteria of epistemic correctness (formal validity and compatibility with the findings of science). To anticipate a little further, it will be a sort of hybrid between consensual (Rawls-style) and convergentist (Gaus-style) procedure. It will start from some moral assumptions on personhood and reasonableness (§3.2). © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_3

73

74 

F. Zuolo

Then, I will expound the epistemic constraints that the admissible views on the moral status of animals have to pass (§3.3). Next, I will clarify the content of the procedure (§3.4 and 3.5). This will allow me to explain how the procedure of public justification I propose is immune from the critiques of moral realism (§3.6). I will conclude by clarifying what kind of agreement the parties will have reason to strike (§3.7). At this point, it is worth clarifying the relation between public justification and the argument from peerhood I have developed in the previous chapter. The argument from peerhood, the reader may recall, was meant to provide a strong basis for the idea that at least some important disagreements about the moral status of animals are epistemically qualified disagreements, in which the parties are justified in holding their views. As such, some of the positions in these disagreements cannot be nonchalantly dismissed as evidently mistaken. Building upon this, I argue, we need a procedure in which the correct solution is determined by the result of public justification. But this does not mean that the parties in the public justification procedure will be assumed to be epistemic peers. As we will see in this and the next chapter, the parties in the public justification procedure regarding the treatment of animals will be people who are minimally reasonable and hold a publicly acceptable view on animals (§4.3). These views will be shown to pass a requirement of public acceptability consisting in two epistemic desiderata (§3.3). But they need not be epistemic peers. Needless to say, assuming that the parties are epistemically peers would risk hugely restricting the constituency of the members. Before outlining my proposed account of public justification, it might be helpful to respond to three very general and external objections that pose some preliminary fundamental challenges. As the main premise of my argument is based on the qualified form of disagreement noted in the previous chapter, one might not be convinced by my epistemic argument, and rather think that we can use the political power to (justifiedly?) impose a certain (supposedly) correct view on animals. Disagreement could certainly be “solved” by adopting a specific substantive position by public authorities. However, merely imposed solutions come at a price. Not only is dissent likely to increase, but also those who do not disagree with the imposed solution need a ground to back their support for or

3  Public Justification and the Disagreement on Animals 

75

non-dissent toward that solution. And the search for a ground necessarily entails a debate about whether and how such a solution may be justified to those who are subject to it. But here we should confront a further critique by those who are committed to animal rights and oppose the status quo. This critique holds that even if one were to accept the principle of public justification, one should not accept the status quo because the current situation is marred with implicit or explicit controversial views on the moral status of animals. Such views are a mixture of speciesism and personism1 according to which, even when animals are not considered morally irrelevant, their interests are almost always heavily discounted. Even the so-called welfarism fails prey to these problems.2 This objection probably has a point. And it is true that many current laws on animals and social practices are based on controversial assumptions. But, in fact, this does not trouble my proposal because public justification does not collapse into acceptance of the status quo. A second preliminary objection rests on a worry about the compatibility between public justification and real politics. Along this line of thought, one may challenge not the theoretical tenability of public justification, but its practical feasibility. In particular, this critique might claim that we do not need a demanding and complicated procedure aiming at public justification, because this issue can legitimately be settled by (majoritarian) democratic procedures alone, as is currently the case in our societies.3 However, as we will see below, given the profound forms of disagreement and the ubiquity and importance of the issue of animal treatment, we need an agreement that can be as inclusive of all views as possible and grounded on publicly defensible reasons. If, instead, we decided to leave the selection of the basic principles ruling this domain to the democratic choice of alternating majority voting, we would risk  By personism, I understand the view that confers full moral status only to persons. For a defense of this view, see Kagan (2016). 2  Here I follow Robert Garner in defining animal welfare ethics as a position that recognizes the moral standing of animals but greatly discounts their interests because human moral status is by and large superior (Garner 2013, chap. 5). 3  I specify majoritarian democratic procedures because democratic procedures bound to deliver unanimous outcomes are likely to have the same (alleged) problems as my account of public justification. 1

76 

F. Zuolo

creating disaffection among permanent minorities that are regularly outvoted. Leaving the decision of the principles ruling the treatment of animals merely and exclusively to democratic procedures is—more or less—the actual situation. The various forms of radical protest, including direct actions to save animals, breaking into private animal farms or scientific laboratories, speak to the lack of public consensus in this domain (see Chap. 6). These facts show that some people do not consider the status quo arrived at through a democratic procedure to be legitimate. However, with this I do not intend to suggest that (majoritarian) democratic procedures should not be employed; rather, there is a point at which the recourse to democratic procedures is unavoidable in order to reach a decision if the public justification procedure is inconclusive. A third preliminary objection claims that public justification cannot deal with such controversial questions as the treatment of animals because this issue does not concern the fundamental rights of persons, or Rawls’s constitutional essentials. Hence, in order to address this topic, we necessarily have to rely on substantive comprehensive views. Kent Greenawalt lists the issue of animal rights, as well as other issues regarding the borderline of moral status (abortion), as a typical case where public reasons are indeterminate because diverse and conflicting positions may be equally justified (Greenawalt 1988: 147–8). Similarly, David Reidy thinks that the question of animal rights (in the wild) is a clear example of issues where public reason alone is inconclusive and needs a grounding from comprehensive doctrines. Whether animals have rights which might limit or preclude humans having a property interest in animals depends largely on how animals are viewed in moral and political terms in the wild. And on this issue public reason is inconclusive. While many citizens view animals in the wild as something like the common property of humans who have collective dominion over them, this view cannot be justified without appeal to non-­ public reasons. (Reidy 2000: 69)

The standard answer to this challenge consists in taking a stance about the scope of public reason. Rawls restricted the scope of public reason to the constitutional essentials and basic justice, although it is not clear

3  Public Justification and the Disagreement on Animals 

77

whether further extensions of public reason are somewhat possible.4 Indeed, the environment and nature, including animals, do not directly concern the constitutional essentials and the idea of society as a cooperative enterprise between free and equal persons; thus the solution to these issues seems to require the appeal to a comprehensive view. But, as Bell (2002) has argued, a Rawlsian version of public reason can provide us with such reasons as sustainability—which is a public reason insofar as it is related to the circumstances of justice—that may inform environmental policies. In an analogous, but broader, manner, Quong (2011: 286) claims that “public reason ought to be applied, whenever possible, to all political decisions where citizens exercise political power over one another”.5 We will return to these problems and to the charge that public reason may be indeterminate, inconclusive and incomplete. However, in reply to the overall challenge of the impossibility of applying public reason to issues outside the Rawlsian constitutional essentials, I can simply say that, although these questions are relevant for my theory, they do not pose a particular threat to my account. Indeed, in what follows I will outline an account of public justification that will include some Rawlsian elements but without some of their assumptions and strictures. Such a reformulation is precisely meant to make it possible for some sort of public justification to be applied to issues beyond the constitutional essentials. Hence, as in the previous chapter, hereafter I will mainly employ the notion of public justification, and not that of public reason. I understand public justification to be a more general idea than public reason, which is a specific form of public justification with some demanding requirements, particularly in its Rawlsian fashion. I understand public justification along the lines of a broader strain, including the views of  The case of “what we owe to animals and the rest of nature” is specifically mentioned by Rawls (1996: 21) as one of the most pressing instances where it is not clear whether an extension of the scope of justice as fairness (and hence of public reason) is possible given that it touches the fundamental assumptions of public reason regarding persons. 5  Starting from similar concerns, Badano (2013) argues that public reason cannot be extended so as to include the disabled because the very grounding assumptions of Rawls’s liberalism (the idea of society as a cooperative and reciprocal enterprise made of persons defined by the two moral powers) are at odds with them. To remedy this exclusion, Badano argues, it is necessary to revise these assumptions and define persons as those individuals possessing minimal moral powers, thus including at least most people with disabilities. 4

78 

F. Zuolo

Habermas, Forst, Gaus, Vallier, instead of following the Rawlsian account in which public justification is understood as the complete result of the public use of reason by all citizens (Rawls 1996: 386–8). Having noted these preliminary general replies to my attempt to use public justification to address the disagreement about the treatment of animals, I can now begin to outline my own account of public justification.

3.2 The Premises of Public Justification Any account of public justification requires that the public decisions be the outcome of a collective procedure, and not the object of some form of scientific discovery, moral intuition or god’s message to humanity. Hence, public justification entails that validity is not granted by some external fact, but, rather, by people’s (real or idealized) acceptance. However, public justification is not free-floating and must rest on some fixed points that form the bedrock of the procedure itself. In my account, these two fixed points are the idea of personhood and reasonableness. Public justification is not a mechanism through which we can process any input and whose output is necessarily validated as good. Some normative and methodological premises are to be assumed and explained in order to have a public justification that properly addresses the problems for which it is needed. In sum, public justification is not an uncontroversial method that makes it possible to avoid controversial issues. It is, rather, a procedure that starts from some substantive positions (see below) and that chooses a range of issues over which it is neutral. The difficult thing, as it were, is to convincingly defend the substantive position from which it starts, and to choose an appropriate range of issues over which it aims at neutrality. There are at least two ways to dismiss this approach. First, one could reject the premises or the range over which the method is neutral, but then the critique has the burden of saying what is substantively wrong. Or, second, one could say that the method of starting from the relevance of disagreement is itself a matter of disagreement. In reply, we may say that, indeed, the normative and epistemic relevance of disagreement is itself a matter of disagreement. But, in the previous chapter, I have

3  Public Justification and the Disagreement on Animals 

79

extensively argued why and how some issues in animal ethics seem unavoidably doomed to end up in controversies between epistemic peers. In the face of this, the critique must either show what position is right (or wrong) or reject the implication that we should use a method based on public justification to solve these controversies. But in this last case, the critique would have to face the (desired?) implication of departing from the liberal principle of legitimacy.

3.2.1 Personhood It might seem strange to start with such a substantive idea as the notion of personhood. This move seems to contradict the fundamental idea of public justification that seeks to avoid controversial assumptions like such metaphysically laden notions as that of moral status. However, it is not, so to say, free-floating. Even a neutralist approach must rely on some normative starting points. Rawls starts from the idea that persons have two moral powers (the capacity for a sense of justice and the capacity for a conception of the good) and the idea of society as a fair cooperative scheme (Rawls 1996: 103–4). Accordingly, “not everything, then, is constructed; we must have some material, as it were, from which to begin” (Rawls 1996: 104). In a similar way, following a broad Kantian inspiration, Gaus assumes the idea of free and equal persons as the bedrock of his normative framework (2011: 14–22). As my first fixed point concerns the moral status of persons, not animals, in what follows, I will not directly discuss what kind of moral status non-human animals have. I will simply start from the widely recognized assumption that human persons have a moral status, where by “human persons” I mean human beings possessing the capacities for moral agency. What constitutes the capacities for moral agency varies according to the underlying theory of moral personhood. They can be a certain level of rationality, autonomy, self-reflexivity, a high degree of sentience or, most likely, a combination thereof. As my discourse rests at the purely political level, I need not specify which, if any, theory of moral personhood is most convincing. Here it is sufficient to admit that whatever theory of moral personhood we adopt, it is uncontroversial to assume that at least

80 

F. Zuolo

(but not necessarily only) human persons, in virtue of their possession of such relevant (levels of ) capacities, possess moral rights. This assumption does not exclude non-persons, whether human or non-human, from being attributed rights or another type of moral considerability in their own right. Rather, it aims at building on the least controversial idea, that we should begin with the moral recognition of persons, without implying that this non-controversial assumption is exclusionary and denies a relevant status to all other entities. But starting from this assumption is not just the easiest way; it is also the approach most coherent with the liberal commitment to agnosticism regarding the basis of moral status. Indeed, if possible, political liberalism requires of us to find principles acceptable to all without delving into metaphysical issues. This is also coherent with the liberal idea that rightness depends on public justifiability. But for there to be a public to which justification is addressed we need a set of individuals capable of receiving and elaborating such justifications, that is, a public of (human) persons. Justifications cannot be delivered to animals because we lack a shared form of communication, independently of whether they would be capable of understanding the concepts we want to convey. And this incontrovertible fact excludes animals from the constituency of possible members of the public. There is nothing mysterious and biased in this move. Even other approaches more inclusive of animals, such as animal-rights theories, provide justifications to those addressees who can understand them (human persons).6 But, unlike liberal theories, these other approaches do not take the fact that the public is made up only of humans seriously enough, because justifying a view to other persons in a condition of deep disagreement places certain constraints on the type of reasons we can employ. In sum, I begin with the assumption that justification needs participants endowed with a set of basic rights (equal consideration, liberty, life,  It might be objected that this assumption is biased toward the status quo and unduly restricts public justification to those subjects who currently have the capacities to engage with public justification. Thus, it excludes intelligent extraterrestrial beings and animals that in future might benefit from some cognitive enhancement techniques. My answer to this challenge is that were extraterrestrial beings and enhanced animals to appear, we should probably include them in the public justification procedure. 6

3  Public Justification and the Disagreement on Animals 

81

etc.), because without them the parties could not be concerned with justification. From this it follows that justification should be given to human persons, because our way of justifying is necessarily tied to persons in terms of shared language and concepts. Hence, I assume that persons are owed moral rights. But this assumption does not preclude that other entities (whether human or non-human) may be rights-holders. Some might object to my decision to focus on this and press me with the argument from species overlap (Horta 2014). As is known, the choice of any property—beyond mere membership in the human species—for the attribution of moral status (whether rationality, sentience or any other sensible criterion) is not species-specific and many non-human animals have a level of the morally relevant property that is at least equal to that of so-called human marginal cases.7 Hence, this argument goes, human marginal cases and non-human animals with the same level of morally relevant features ought to be treated alike in terms of their fundamental moral status and recognition of rights. Since most people would reject the idea that we ought to treat human marginal cases as animals, the implication is that the treatment of animals ought to be lifted up to the level of human marginal cases. Although this is one of the fundamental issues in animal ethics and there is wide debate on the consequences of this idea, I will not discuss it here. This restriction does not entail an unjustified discrimination and is grounded on the following considerations. Dealing with the issue of the moral equality between non-human animals and human marginal cases with the same level of psychic development presupposes subscribing to a certain theory of moral status and personhood in respect of which I want to be neutral. One may retort that, in fact, I am not neutral because I attribute fundamental moral rights to human persons and not to animals. But, as said, this choice does not preclude that animals too should be attributed rights. What I want to be neutral about is the famous thesis of the moral equivalence of individuals belonging to diverse species but  The argument from marginal cases—now called the argument from species overlap (Horta 2014)—has been employed by almost all theorists in animal ethics (Dombrowski 1997; McMahan 2002; Regan 1983; Singer 1975, 1993) with the notable exception of Garner (2013) who thinks that this argument is divisive and counterproductive if we want to improve the condition of animals in a non-ideal situation. 7

82 

F. Zuolo

having similar morally relevant capacities. This thesis might be true, but it entails a commitment to a set of substantive views over which I want to remain neutral. In particular, it relies on the idea that fundamental moral rights merely derive from the possession of morally relevant natural properties alone (sentience, etc.). I agree that the possession of such properties is a necessary condition, but I remain neutral as to whether the possession of morally relevant properties is sufficient to generate moral rights. Further conditions might be necessary, such as the idea that the attribution of rights should be the result of a mutual recognition. However, the intuition at the core of the thesis of moral equivalence of animals and human marginal cases includes an important moral concern—the idea that mere species belonging is not per se a good grounding of our moral treatment and that moral discriminations must be appropriately justified—which I want to take somewhat on board. Indeed, I will include in my analysis a sort of meta-normative principle that might allay the anti-speciesists’ worries. This will be the condition of formal epistemic norm (see §3.3) for the acceptability in the procedure of public justification. It entails a principle of non-discrimination requiring that similar cases be treated alike, or that a good ground be given to justify such a discrimination. This principle is compatible with the argument from species overlap. Employing this principle as a condition that all views must pass in order to enter the public justification procedure might address some of the anti-speciesists’ concerns without taking a substantive stance on whether human marginal cases and animals of a similar mental capacity should be treated equally. Even though my position is not anti-speciesist all the way down, as it is commonly understood, it requires robust grounds to admit discrimination.

3.2.2 Reasonableness Now let us discuss the second premise of my account of public justification: the idea of reasonableness. Reasonableness is a multifaceted notion. For the purposes of this analysis it is sufficient to distinguish between an epistemic and an attitudinal sense of reasonableness. The epistemic sense of reasonableness applies to beliefs, doctrines or views and embodies the

3  Public Justification and the Disagreement on Animals 

83

idea that holding a certain belief, doctrine or view is epistemically legitimate.8 By the attitudinal sense of reasonableness I understand the disposition toward some form of cooperation. Reasonable people are those who seek to find a form of agreement with other disagreeing people. What this implies may vary from context to context.9 But in its minimal sense it means that reasonable people seek to discuss with other people a possible common solution when necessary, and do not try to impose their views on others. We cannot say in advance whether reasonable people will find an agreement in the face of disagreement. The sense of reasonable I employ here means that reasonable people would at least try to find an agreement with disagreeing people. Whether this agreement-­ seeking attitude implies only a disposition to discuss, or also a disposition to suspend one’s view, or compromise with others is something we can bracket for the time being. This understanding of reasonableness is rather in line with the commonsensical understanding of the idea, and somewhat differs from that of Rawls’s. To clarify the differences between my understanding of reasonableness and Rawls’s one, I will focus only on the attitudinal sense of reasonableness, and not on the first epistemic sense.10 Following James Boettcher’s formulation, reasonableness consists in the willingness to propose and honor fair terms of cooperation, to treat others as free and equal citizens capable of and interested in exercising the moral powers, and to recognize the burdens of judgment …: it is an attitude, a way of taking or treating something or someone, which a citizen has a characteristic tendency to hold and express in political judgment and action. Reasonable persons take others to be politically free and equal and deserving of fair terms of social cooperation. In attributing freedom, equality and the basic moral powers to others, a  In what follows, I will mostly use the notion of “view” to indicate complex systems of beliefs and convictions. This idea is close to the Rawlsian idea of doctrines. See §4.1 for some further points of clarification. 9  I leave aside the question of whether reasonable people necessarily hold reasonable views. They often do, but since my understanding of reasonableness in the attitudinal sense is more relaxed than Rawls’s, I am not committed to saying that reasonable persons necessarily hold reasonable views. 10  According to Jønch-Clausen and Kappel (2016: 120), the Rawlsian idea of reasonableness is mostly a moral idea having little epistemic content. 8

84 

F. Zuolo

reasonable citizen thereby takes on a series of commitments. She commits herself to beliefs and actions compatible with a respect for the other’s basic moral powers. (Boettcher 2004: 606)

If this is a plausible interpretation of Rawls’s account of reasonableness, as it seems to be, my understanding of reasonableness is much less demanding. Like Rawls’s it is to be understood as a disposition to cooperate with others. But unlike Rawls’s account, it does not necessarily demand the acceptance of the burdens of judgment and the whole idea of society as a fair cooperative enterprise made by free and equal persons.11 Clearly, my understanding of reasonableness is not incompatible with these further normative implications. However, the Rawlsian idea of reasonableness has been considered exclusive (see §2.6.1), while my account of public justification is more committed to inclusiveness. Hence, to respond to these worries, in what follows I will understand the idea of reasonableness as a disposition to find a common solution that would be acceptable to all. Clearly, this idea is not so minimal as to be devoid of normative commitments. But it does not require one to subscribe to a specific idea of society, nor does it demand the full acceptance of the burdens of judgment. With respect to the other component of the Rawlsian reasonableness—namely how people ought to see and treat each other—my account is close to the Rawlsian one: I subscribe to the idea that participants in the public justification procedure are not only cooperative but also engaged in providing a justification to others. To do this, one needs to see others as worthy of receiving a justification. This implies seeing others as equal and free agents, whom cannot be coerced without proper reason. The specification of the sense of reasonableness I employ is of the utmost importance because the procedure of public justification will only include reasonable people having attitude-reasonableness. Put simply, the procedure of public justification includes only reasonable people because reasonable people are defined as those willing to find a common solution which is acceptable to all (those that are willing to do so). Hence, the  In this sense my use of reasonableness as referring to people is close to Wenar’s (1995: 38) “limited conception of the reasonable”, which does not include acknowledgment of “the burdens of judgment, the reasonable moral psychology, or the credentials of objectivity”. 11

3  Public Justification and the Disagreement on Animals 

85

unreasonable are those that refuse to enter the procedure of public justification because they try to impose their views on others, do not have a cooperative attitude or do not accept that the solution should be found in a common reason-giving enterprise. In Chap. 6, we will focus on some instances of unreasonableness entailing violations of the law. For the moment, in this chapter and in Chaps. 4 and 5, simply bear in mind that the participants in the public justification procedure are the reasonable, defined as those who are willing to find a common solution acceptable to all, and who accept the reason-giving activity in which the procedure of public justification consists. As is known, critiques of public justification think that the restriction of the constituency of public justification is deeply at odds with the very principle of liberal public justification which aims to be inclusive. I share these concerns. I will provide a response and a defense of my restriction below (§3.6.1).

3.3 Epistemic Constraints In Chap. 2, we saw that not all instances of disagreement matter. Only qualified disagreements ought to be taken into account. Before delving into the structure of the procedure of public justification, we should set the stage and see how we can guarantee that the disagreement about animals meets an epistemic desideratum that reflects the kind of qualification we need. This is necessary because people have diverse views on animals. However, not all views about the moral status of animals should be admitted to the public justification procedure. Of course, they are the expression of freedom of thought and people cannot be coerced not to hold them. Yet, not all views and reasons behind them are publicly admissible, and there must be some limits. Such limits consist in criteria that are epistemic in kind because, independently of the variability of the diverse views on the moral status of animals, there are uncontroversial epistemic constraints that any view must accept in order to qualify as publicly admissible. This is so because we may reasonably disagree over whether, for instance, a utilitarian (§4.3.2) or feminist (§4.3.3) perspective is preferable, but we cannot accept views that do not respect basic logical and

86 

F. Zuolo

epistemic desiderata. I remain agnostic as to which epistemology is in general preferable, but with these clarifications in mind I simply want to point out that in accepting the possibility of disagreeing I am not compelled to commit myself to a relativistic position, nor, obviously, to the idea that we can dispense with generally valid criteria of reasoning. These considerations may seem obvious and hence superfluous. But we will see in the next chapter how some views on animals do not meet them. It would be utterly pointless to discuss with people putting forward views that do not respect basic logical principles of coherence, that adopt purely idiosyncratic ideas of what renders a bit of information as evidence in support of a thesis, or that simply rely on obviously false pictures of reality. This restriction to publicly admissible views is necessary to guarantee some common reasoning standard despite the epistemic and moral variability of the views. Indeed, each view about the moral status of animals has a diverse set of epistemic norms to determine the validity of arguments, the priority to be given to certain kinds of evidence over others, the way normative arguments are to be combined with factual arguments and so on. However, not all epistemic norms can be internal to the diverse views. There must be a set of facts and methodological principles held as uncontroversially true by the parties. Although it is unrealistic to assume that the views will share the whole epistemic terrain (without hugely restricting the number of views, thus dissolving disagreement), we must assume that there is at least some common terrain for the views to be understandable to each other, and to have a minimal common ground of epistemic exchange. Without this assumption it is unclear how dissenting parties could even participate in a discussion and in a reason-giving enterprise because they would not have the epistemic framework to exchange reasons. But all of this still seems rather banal and perhaps inconclusive. Still, finding an agreement on these epistemic standards might seem a daunting prospect for the same reasons that determine the existence of reasonable pluralism: people are likely to disagree on epistemic standards (recall that we

3  Public Justification and the Disagreement on Animals 

87

have characterized the complexity of disagreement both in terms of first-­ level substantive positions and in terms of second-level positions).12 How do we get out of this unsettling situation? I think there is a feasible alternative that consists in putting forward some epistemic desiderata that exclude those positions that are clearly and most likely false, even though there is no full agreement on what the proper and full epistemic standards are regarding what is a (good) reason and what is a (good) proof. That might seem to beg the question because in order to agree on what is false, one ought to agree on what is true. But since I am not putting forward an epistemological theory that aims to be valid in general, I will show why it seems plausible that some positions are clearly false even if the parties to a reasonable disagreement are not likely to find an agreement on the epistemic norms to determine the truth (or the validity of arguments). Recall the examples we set out in §2.3 regarding the debates over the theory of intelligent design and the denial of vaccines. In these cases, we have a set of scientific evidence that clearly shows how and why intelligent design and vaccine denialism are false according to some widely held epistemic standards. Such views are, though, publicly aired by their proponents and public institutions might also partially accommodate the proponents’ requests on some grounds (as a matter of toleration of minority views or as a matter of respect for people’s freedom of conscience). But we would (rightly) consider public institutions insane if such views were taken as a basis to inform rulings for all insofar as they rely on an epistemically reliable content. With animals we face a similar challenge because some views of animals are clearly false and proven false by science. In the next chapter I will discuss some of them (§4.5). Here I want only to explain what a public justification procedure can do in light of such false views and how it can discriminate between false views and views over which it is reasonable to disagree.  My claim here is similar to that of Bellolio Badiola (2018). Although he works within a strictly Rawlsian account, from which I am partly departing, I agree with the overall conclusion that scientific conclusion and method are the quintessential example of public reason because they display and embed common ways of inquiring that represent common methods of reasoning, albeit in a more sophisticated manner than common-sense correct ways of reasoning. On this see also Badano and Bonotti (2020). 12

88 

F. Zuolo

Now let me just suggest the epistemic conditions necessary to discriminate between publicly acceptable views (when it is reasonable to disagree) and publicly non-acceptable views.13 Formal Epistemic Norm (FEN): a view of animals ought not to violate basic laws of logic (in particular that of non-contradiction), and ought to comply with the principle that any discrimination in treatment ought to be appropriately justified (similar cases should be treated alike). Substantive Epistemic Norm (SEN): a view of animals ought to be compatible with the findings of science, in particular with the findings of evolutionism and modern biology. As I will show in the next chapter, there are at least five main views (§4.3) on the moral status of animals that are perfectly compatible with SEN and FEN, and hence form the domain of qualified disagreement.14 Other views (Cartesianism, popular sentimentalism, some religious views on animals, §4.5) instead do not meet these two conditions and hence are to be rejected from the set of publicly acceptable views. But how does the inclusion of these epistemic requirements fare in a public justification account that is committed to epistemic agnosticism? First of all, the inclusion of this scientific requirement in my account of public justification is immune from Jønch-Clausen and Kappel’s (2016) critique against the inclusion in Rawlsian public reason of what they call the “scientific standard stricture”. On Rawls’s view, this stricture demands that in public reason the reasoning ought to appeal only to conclusions of science that are not controversial. Jønch-Clausen and Kappel argue  I say here publicly acceptable views because a person might still have a reason to subscribe to a certain view despite its epistemic untenability, because, for instance, it is helpful to her psychological well-being or for some other private and idiosyncratic reason. For instance, being only concerned with tender and cuddling animals might be wrong from a public point of view because there is no morally relevant difference between tender animals and repugnant/ugly animals having the same level of morally relevant features. However, this view might be justified from a personal point of view because being concerned with tender animals might benefit and foster the need for a person’s caring relations. 14  I broadly draw the idea of FEN and SEN from Jønch-Clausen and Kappel’s (2015: 380) idea of formal and substantive epistemic norms. However, in my account, FEN and SEN are meant to provide more specific epistemic guidance than the epistemic norms discussed by Jønch-Clausen and Kappel, which remain at a high level of abstraction. 13

3  Public Justification and the Disagreement on Animals 

89

that despite its overall plausibility, Rawls’s account cannot properly justify this stricture. In my account, instead, this does not seem problematic for two reasons. First, my account is not hostile to the notion of truth which should not be dispensed with in public justification (§3.6.2). Second, as seen above, some restriction on the type of views allowed in the public justification is necessary to make it possible that the participants in the public justification procedure are actually capable of exchanging reasons. And embedding a requirement of consistency with the findings of science seems the least controversial method we can carry on board. Now, let us consider some possible critiques of FEN and SEN. First, one may say that both conditions are very commonsensical, too commonsensical and perhaps banal. But, as we will see, they are sufficiently capable of excluding some widely held views (§4.5). Second, one may argue that they are somewhat indeterminate because what correct logical rules and science demand is itself a matter of disagreement. That is possibly true, but in due course we will see how we can draw more specific features from these conditions (§4.2). Third, one may argue that in general these two conditions, in fact, do not dodge the epistemological challenge we have seen above. Indeed, FEN and SEN in fact form in nuce an epistemological position, which is, however, too weak or unsatisfactory. Such a position may be called a form of folk epistemology. In reply to this worry, I can say that in a sense FEN and SEN form a sort of folk epistemology because these norms are meant to be accessible and actually held by the parties to the constituency of public justification procedure. As we will see in the next chapter, all these parties hold views that are at least compatible with FEN and SEN or are explicitly committed to them. However, FEN and SEN are not folk epistemology if we take folk epistemology to be an empirical and descriptive analysis of the epistemic commitments of ordinary people. Rather, FEN and SEN actually are two normative criteria that rule out some quite popular views as epistemically unjustified (§4.5). Hence, although FEN and SEN are folk insofar as

90 

F. Zuolo

they are non-systematic, they certainly serve the purpose of outlining some minimally acceptable test of epistemic tenability.15 Upon explaining the normative assumptions (reasonableness and personhood) and characterizing the epistemic constraints that the views admissible to the public justification procedure should pass, we can now outline the structure of the procedure.

3.4 A Hybrid Theory Typically, liberal theories of public justification in a situation of disagreement have two main strategies available: they may try to find a consensus on shared principles, or they may seek to reach convergence from diverse views.16 Approaches aiming at consensus seek to find common reasons for people to agree on a set of principles. Approaches aiming at convergence claim that in a liberal democracy the only method which is respectful of real disagreement should seek to find principles that can be agreed upon by different parties according to their internal reasons. As to our concern here, the most important difference rests on the kind of reasons employed by the two approaches. Consensus-based approaches rely on reasons that should be acceptable by all, namely public reasons that are independent of the substantive and controversial views that make up the pluralistic disagreement. Convergence-based views hold that we should rely only on reasons internal to each view. Before explaining why my account is a hybrid of consensus and convergence, it bears clarifying what is to be justified by the appropriate reasons. In my account, the object of public justification is constituted by  For this reason, there is a difference between FEN-SEN and the folk epistemology employed by Robert Talisse to ground his epistemic defense of democracy (Talisse 2009, chap. 3). FEN and SEN are quite inclusive of different views but much less inclusive than Talisse’s norms of folk epistemology. The latter seem to tilt more to the descriptive side of folk epistemology than to the normative side. Moreover, his norms actually seem to be a description of people’s epistemic (implicit) commitments regarding their beliefs, rather than epistemic norms regarding what it is justified to believe. 16  In drawing this distinction, I follow the standard categories outlined by D’Agostino (1996). The paradigmatic examples of the consensus view are Boettcher (2015), Habermas (1990), Quong (2011), Rawls (1996). For the convergence view, see Billingham (2016), Gaus (1996, 2011), Vallier (2011, 2014). 15

3  Public Justification and the Disagreement on Animals 

91

principles. Principles are to be understood quite broadly as general normative directives guiding public actions, including laws and any kind of public decision. I prefer to concentrate on principles, rather than on laws or public decisions themselves in order to focus on the normative core of what is at stake. Examples of principles are the following: “animal suffering is justified only if necessary to pursue an important human goal”; “animal freedom and ethological needs in the wild ought to be respected”; “animals have an interest in continuing their life that ought to be respected”, and so on and so forth. Now let me anticipate the main two conditions of my account of public justification. They concern the type of reasons that may be advanced to support a certain principle that could justify a public decision. The conditions are neutrality and inclusiveness. In the procedure of public justification, we will see (neutrality) whether a principle can be justified by reasons that are independent of the comprehensive views on the moral status of animals, and (inclusiveness) whether a principle can gain the support of comprehensive reasons, which are internal to the views on the moral status of animals. In other words, a principle successfully passes the procedure of public justification if it meets both conditions, namely if it can be justified by reasons that are independent of the comprehensive views on animals and by reasons internal to these views. To give just a quick and easy example of how I understand neutrality and inclusiveness, suppose we have to justify the principle that people’s religious freedom should not be constrained. First, we have to check whether there are neutral reasons supporting or rejecting it. A neutral reason in favor could be that such a right is one of the fundamental expressions of human freedom of conscience and thought, and as such a fundamental right of persons. Next, we should see whether this principle is acceptable to the comprehensive doctrines. Suppose there are only two comprehensive doctrines (A and B). Doctrine A supports any kind of individual search for the truth, as a part of the human need to make sense of one’s life. Doctrine B is a form of theism holding that there is only one true religious set of beliefs, but people cannot be compelled to embrace

92 

F. Zuolo

it. A would support freedom of religion as a part of individuals’ right to experiment with diversity in life and different forms of existential meaning. B would accept freedom of religion because people cannot be compelled to believe in true religion which demands sincerity, hence other forms of belief ought to be at least tolerated. Needless to say, this picture is overly simplistic and we know reality to be far more complex.

3.4.1 Neutral Reasons (nRs) In my account, neutral reasons are those kinds of reasons that can hardly be considered controversial in a liberal society because they are widely accepted and independent of the varying comprehensive views forming the pluralistic scenario. They can be moral principles concerning, for instance, fundamental human rights, but also some general knowledge concerning, for instance, fundamental economic principles or scientific evidence. In this sense, a neutral reason can be both the principle that all human beings ought not to be discriminated against on the basis of race; and that all else being equal, an increase in the demand of a scarce good determines an increase in its price. Determining what constitutes these uncontroversial principles and empirical laws is not a task that I can take up here. And, obviously, a controversy over what is (un)controversial is very likely to occur in practice. Here I can just give a sketchy rule of thumb and provide a couple of examples of the two ends of a spectrum between hardly controversial and very controversial tenets.17 The law of diminishing marginal returns is most likely an uncontroversial law. The monetarist theory holding that, roughly, inflation is only a monetary phenomenon, because it is simply produced by an increase in the supply of money that is greater than the increase in GDP, is most likely not that kind of uncontroversial law. Laffer’s curve is even less likely to be an uncontroversial economic principle. Similarly, the idea that any person is entitled to human rights is probably uncontroversial, at least in liberal  Here I follow a Rawlsian brief suggestion. “[I]n discussing constitutional essentials and matters of basic justice we are not to appeal to comprehensive religious and philosophical doctrines—to what we as individuals or members of associations see as the whole truth—nor to elaborate economic theories of general equilibrium, say, if these are in dispute” (Rawls 1996: 224–5). 17

3  Public Justification and the Disagreement on Animals 

93

societies, while the idea that equal moral status of persons demands equal incomes is probably very controversial. The overall character of neutral reasons is their generality. They can be reasons stemming from scientific truth or widely accepted principles. Generality ought to be understood simply as the claim that a certain principle holds true across diverse contexts and for individuals subscribing to diverse perspectives despite the fact that there might not be a substantive overlap among the core of these perspectives. The more it holds true across contexts and perspectives, the more it is general. I formulate this idea as a matter of degrees, because generality does not necessarily mean universality. Unlike other approaches in public justification aiming at consensus, I am not committed to saying that neutral reasons are stronger or more justifying than others. Although nRs are not to be understood as universal, their generality as robustness across variable contexts means that they are likely to have a good epistemic pedigree. Neutral Reason: In a given domain, where individuals have diverse substantive views (SV1-n), whose core contents may have no overlap, a reason R is neutral (nR) if it is a reason for accepting a principle P for every individual I holding any SVi. Examples of nRs regarding principles to regulate the treatment of animals are that animals are sentient beings or that their exploitation has a considerable environmental impact, or that wild animals are a necessary component of ecosystems. We will see below what nRs can do in my account and how we can establish the neutralist acceptability criteria for views (§3.5).

3.4.2 Internal Reasons Unlike neutral reasons, the overall character of internal reasons is their being dependent on the specific views present in a society. Hence, they have a high degree of relativity with respect to the doxastic context of the views. Indeed, by internal reasons I understand those reasons that are epistemically and practically authoritative only for those who subscribe

94 

F. Zuolo

to a certain view.18 This does not mean that people subscribing to different views cannot in principle understand their meaning or admit that they might be authoritative for other people, although in many cases they would actually not understand or appreciate them. It means that only the adherents to that view can fully appreciate the validity of that reason in virtue of its being in a web of other beliefs and conceptual tools that form the comprehensive view. There is no mysterious property of such reasons, nor problems of radical non-translatability. Our cultural, religious, ethical and personal worldviews form highly interconnected sets of beliefs and principles. From the outside other views may be hard to understand because other views differ not only in beliefs but also in the standards by which these beliefs are assessed (first- and second-level disagreements, see §2.3). However, this diversity is a gradual one because the views are not totally disconnected and monadic sets of beliefs with no interconnection. True, above I defined neutral reasons as those that are valid even when there is no overlap between the diverse views, but I specified that there need not be any overlap of the core content of the views. What do I mean by the core content of a view? By this I understand the irreducible part of a view without which such a view cannot exist as a distinct view. For instance, we may think that the most important monotheistic religions (Christianity, Judaism and Islam) share some overall fundamental features—the uniqueness of god, his supernaturality and the reliance on sacred texts—but differ as to the name of the deity, its power and relation with humanity, the content of the sacred texts and so on. The irreducibility of the core content of a view, for instance of a religion, does not prevent the possibility of admitting that there can be some overlap among the views regarding, for instance, some similar cultural practices (e.g. ritual slaughter in Islam and Hebraism), the ordinary meaning of the concepts and words, some standard social practices, the use and understanding of technology. Radical difference making it  It is worth specifying that here internal reasons are not the opposite of external reasons as is the case in the standard debates in epistemology. To be sure, in my account internal reasons (iRs) are also internal reasons in the standard epistemological sense insofar as they are not independent of the doxastic set of an individual. However, the sense of iRs I want to emphasize is their relativity to internal standards of individuals, with respect to the independence of neutral reasons from these internal standards. 18

3  Public Justification and the Disagreement on Animals 

95

impossible to understand other views is a possibility but not a frequent necessity. Maybe, according to some findings of ethno-anthropology, we truly cannot understand the views embedded in a culture of some groups of natives or aboriginal peoples. But in most cases relevant to our societies, we can at least partially understand what a certain view involves. This is even more so because, even if we find the core content of a view obscure, still there are many other factors that we can grasp. That the diversity of views should not be seen as a set of monads with no interconnections is also proven by the fact that there are many intermediate positions in between the views regarding animals and virtually any issue over which there is controversy. Moreover, it is a fact of the world that people change their views, their religion and their positions regarding animals, and come to fully appreciate why a certain reason is authoritative in a given view, while such reason did not seem authoritative beforehand.19 Internal Reason: A reason R is internal (iR) to a substantive view (SV) if it holds true and is a justifying reason for all those individuals i1-n subscribing to SVi. An objection may immediately arise. This principle may seem to disallow reasons being internal to more than one view, which is implausible because, for instance regarding animals, most views hold that we ought not to inflict pain for fun. In reply, we can say that not all iRs are valid only for a certain SV. This would be unduly restrictive. It is a fact of the world that some reasons are partially shared by diverse views, but not all, thus remaining iRs and not nRs. Hence, iRs are to be seen as reasons on a spectrum of sharedness, with the possibility that a reason may be valid only for one SV. If a reason is valid for more than one SV, we have few problems of understanding its groundedness. But how can others appreciate the fact that it is a reason for somebody if it is valid only for a single SV?  I stress the issue of the authoritativeness of reason to emphasize the following distinction. If I tell you “I believe that p because p is written in the Bible”, and you are an atheist, you understand that in my view the-fact-of-being-in-the-Bible is my ground for believing p, although you think my grounding is faulty. If you experience an illumination and become a fervent Christian, you come to appreciate the-fact-of-being-in-the-Bible as having an epistemic authority over you. 19

96 

F. Zuolo

I submit that in many cases, although perhaps not in all cases, iRs may be understood as reasons for all i1-n also by other individuals who subscribe to other views. What these latter cannot accept is that iRsi are authoritative, not that they can be held as possible reasons. In saying so, I rely on a quasi-Gausian idea of the relativity of evaluative standards. A plausible conception of evaluative pluralism must accept what we might call “mutually intelligible evaluative pluralism” at the level of Members of the Public. Our deliberators see themselves as deeply disagreeing about the basis for evaluating proposed moral rules but acknowledge that the basis of others’ evaluation is intelligible and is relevant to the justificatory problem. (Gaus 2011: 279)

However, unlike Gaus’s idea, the range of intelligibility and admissibility as reasons for others is, in my account, restricted by more substantive epistemic considerations (§3.3), such that they limit the admissible relativism. In brief, we will see that we have independent reasons not to accept as publicly admissible the reasons of those subscribing to anti-­ scientific or irrational views about animals. To see my point, let us offer some examples of acceptable iRs regarding animals. For instance, one may consider animals as morally worthy in virtue of their belonging to natural species and ecosystems, or in virtue of their being capable of having relations with persons. Supporters of the idea that animals have intrinsic value disagree, but still can understand that being part of ecosystems and relations can be reasons for others. The careful reader might have noticed that I have yet to mention the debate about the nature of reasons that are at stake in public justification. The traditional view has it that consensus approaches favor shareable reasons, while convergence approaches vindicate intelligible reasons. To resume this debate quickly, the proponents of the shareable reasons approach hold that to make sense of the idea of public justification, the reasons to be employed must be shareable or acceptable to all. Otherwise, if we were to employ our private reasons in the public arena, we would fail to respect other people (Larmore 2008: 143). The point of public reason lies in urging that over certain issues we must employ a special kind of reasons (the public ones), in virtue of the principle that they

3  Public Justification and the Disagreement on Animals 

97

would be acceptable to all, because other non-public reasons would betray the plurality of cultural and religious commitments of the people.20 Instead, the supporters of the intelligible reasons approach (mainly Jerry Gaus and Kevin Vallier) maintain that in public debate we may allow private reasons to enter too—provided that such reasons may be understood as reasons according to the diverse epistemic standards— because allowing only public reasons constitutes an unacceptable restriction in the face of pluralism. In Vallier’s words, A’s reason RA is intelligible for member of the public P if and only if P regards A as epistemically entitled to affirm RA according to A’s evaluative standards. … To qualify as justificatory, intelligible reasons need only be those that members of the public can see as reasons for those who advance or rely upon them, as opposed to mere utterances and expressions of irrational bias. (Vallier 2016: 596–7)

If this has been the traditional understanding of the debate, Kevin Vallier has proposed a more nuanced account in which consensus approaches do not employ only shareable reasons but also accessible reasons. Unlike shareability, “accessibility requires that common evaluative standards ratify justificatory reasons, rather than reasonable but distinctive evaluative standards. While accessibility permits reasons to differ, it requires that they be evaluated as reasons according to evaluative standards that are shared” (Vallier 2014: 108). This means that in an accessibility-­consensus approach for a reason to be justificatory it is sufficient that such a reason be justified according to common evaluative standards without it being shared by all the participants in the public justification procedure. The distinction between shareability and accessibility helpfully clarifies a difference in consensus approaches (including Rawls’s) that had been previously gone unnoticed.

 Here I do not discuss in detail the differences between accounts based on shared reasons, shareable reasons, accessible reasons and acceptable reasons. I simply focus on the main differences between approaches broadly based on some understanding of public reasons and approaches allowing private reasons. For a detailed discussion of these differences, see Bohman and Richardson (2009), Vallier (2016). 20

98 

F. Zuolo

How does my account fit into this debate? Since my account is hybrid (more on this below), it certainly is not a purely convergence approach based on intelligible reasons. However, it provides much more leeway and diversity of reasons to be acceptable and is more inclusive toward internal reasons than standard consensus approaches. Moreover, my account fully recognizes the epistemic and moral authority of internal reasons and admits that public (neutral) reasons are likely to be inconclusive on the issue of animals. But the range of admissible internal reasons is restricted according to some epistemic requirements of FEN and SEN in order to make sense of the idea that holders of any view should understand why an iR of another view may be a reason that has some epistemic pedigree for somebody, even though the parties disagree on its epistemic and moral authority. Hence, my account probably goes in the direction of the accessibility approach, although it is not an accessibility approach as characterized by Vallier insofar as mine is not a pure consensus-based perspective. However, it is close to the spirit of Badano and Bonotti’s (2020) accessibility proposal because, as in their account, in my view scientific findings and method are the paramount examples of accessible standards, as I argue with regard to SEN. Building on these considerations, I can now spell out my proposed procedure of public justification, which consists of two tests. (PJP) A principle P is publicly justified if it passes the test of neutral and internal reasons, whereby (N) on balance nRs, that are acceptable to all reasonable individuals and independent of publicly admissible SV1−n, support P; and (I) on balance iRs support P for all the publicly admissible SV1−n. Hence, PJP includes two stages—Neutrality (N) and Inclusiveness (I). Meeting both stages’ requirements means being justified by the balance of nRs and iRs. Such balance is passed when a P is significantly more supported by nRs or iRs than by negative considerations of nRs or iRs. Now the crucial question concerns what I mean by “significantly more supported”. A fuller answer to this question will be provided in Chap. 5. To

3  Public Justification and the Disagreement on Animals 

99

anticipate a little bit: as (N) will mainly work as a filter because in this domain neutral reasons are likely not to yield conclusive results, I do not have to specify how much nRs in favor of a P should outweigh nRs against such a P. It will suffice that nRs in favor of a P outweigh possible nRs against it. Regarding the inclusiveness test, the epistemic criteria depend on each view; hence, such criteria cannot be explained in the abstract. We will present these views in Chap. 4 and see how it works in Chap. 5.

3.4.3 T  his Account of Public Justification Vis-à-Vis Rawls’s and Gaus’s Accounts At this point, I need to clarify the relation between the proposed account of public justification and the two main models: Rawlsian public reason and Gaus’s account. Regarding Rawls I will focus in particular on the freestanding stage and compare it with my neutrality test. Like the idea of freestandingness, the device of justification I propose assesses whether a position can be grounded on reasons independent of comprehensive views. But unlike it, the idea of society as a fair cooperative system and the principle of treating individuals as free and equal have little, if anything, to say about the treatment of animals. My test of neutrality does not hinge on those Rawlsian principles. However, as in the Rawlsian case, neutral reasons are likely to be indeterminate on animals. Although I place great emphasis on neutral reasons, we should not take for granted that neutral grounds are also, all things considered, convincing regarding animals. Asking the holders of comprehensive views to forfeit their final authority to assess the issue of the treatment of animals might be considered illiberal, because such views are legitimately thought to have ultimate authority over issues of fundamental importance for the lives of individuals who freely subscribe to them. Hence, the holders of a comprehensive view have an interest in rejecting those principles which could be endorsed only by another comprehensive view and in taking into account those principles which might be grounded in nRs. But they also have a corresponding interest in assessing the latter according to the reasons internal to their view. Building on this, we have to ensure that the justificatory device honors the principle of inclusiveness, which requires

100 

F. Zuolo

that what has been shown to be independent of comprehensive views is also justified according to the internal reasons of the comprehensive views. Hence, with respect to Rawls’s public reason, in my account of public justification there is no priority of the first neutralist stage. As is known, it is unclear whether in Rawls’s the overlapping consensus grants only stability21 or is necessary for full justification.22 If the former, the role of the overlapping consensus would be unclear given that the argument from freestanding reasons should be sufficient; if the latter, the first stage’s capacity to ground justification would be undermined. The equal importance of the two stages in my account may avoid the ambiguity of Rawls’s take on this because I am not committed to the justificatory priority of nRs.23 Now it is time to clarify the relation between my procedure of public justification and Gaus’s account. I accept his characterization of justification in terms of the tripartite division between victorious, non-victorious but undefeated, and defeated justification (Gaus 1996: 144–58), and follow his idea of open justification.24 Moreover, I take on the idea that a good deal of public reasoning is often actually inconclusive, although not necessarily indeterminate (Schwartzman 2004). As we will see in the rest of this chapter and in the fifth chapter, the test of neutrality in many cases does not yield conclusive justification; however, it is fundamental because it rules out non-acceptable principles, thus restricting the set of publicly admissible although non-victorious principles. As should be clear by now,  Rawls (1996: 140–4).  “[F]ull justification is carried out by an individual citizen as a member of civil society. … In this case, the citizen accepts a political conception and fills out its justification by embedding it in some way into the citizen’s comprehensive doctrine” (Rawls 1996: 386). 23  These clarifications also forestall the critique that my account is not hybrid between Rawls and Gaus insofar as the convergentist dimension is present in Rawls too (overlapping consensus). Hence, the argument goes, my account would be entirely Rawlsian. It should be sufficient to note the differences of the role of the freestanding (neutral) reasons to demonstrate how this critique does not apply. 24  Gaus (1996: 138–41) distinguishes between closed justification and open justification. In the former, something can be justified or rejected by an individual solely on her current set of reasons. In the latter, justification and the set of reasons are open to be revised upon critical scrutiny and dialogue, so that an individual may come to accept something which she had previously rejected because such a rejection was, for instance, due to a mistake in inferences or an improper understanding of her own doxastic commitments. 21 22

3  Public Justification and the Disagreement on Animals 

101

my hybrid account of public justification gives equal weight to iRs and nRs because nRs are typically inconclusive over animals. Hence, my account includes significant convergentist elements. Despite this, it departs from a thoroughly Gausian approach in some important respects. First, I depart from Gaus’s account because his model is hardly applicable to the case of animals. Indeed, framing the issue in Gausian terms, we would have to justify state intervention to coerce people’s freedom regarding animals. However, starting from people’s presumed liberties regarding animals is itself already very controversial because it entails the idea that for many people animals are serviceable and usable as means, which is what many animal-rights defenders reject. Hence, we cannot use the status quo as the baseline of uncoerced liberties from which we should start. Second, and more generally, I do not accept the idea that only coercive laws challenging the liberty of the parties in the status quo are in need of justification. This idea, frequently referred to as the priority of liberty account, is somewhat misleading. True, insofar as I subscribe to the tenets of political liberalism, I agree that there is a priority of liberty in the normative sense. However, what is to be justified may be the status quo itself and people’s current exercise of their (presumptively justified) liberties. State coercion is not necessarily more coercive than people’s use of their liberties. Following Lister, there are many good grounds for overcoming the idea that only coercion is to be justified. First, there is no uncontroversial way to measure coercion so as to establish whether a certain law is more coercive than another (Lister 2013: 99) because different people might have diverse opinions on this matter or might be diversely affected. Second, there is a problem in forming the set of coercive alternatives that are to be justified. Depending on how we establish the pair of alternative laws from which we have to choose, we may more or less easily justify coercion. This is the problem of what constitutes the appropriate level of bundling. In Lister’s words, there are different ways to divide up policies, and so, different ways to specify the inactive or non-coercive baseline. When the qualified acceptability requirement is applied at a disaggregated level to separate choices between action and inaction—zoomed in, as it were—the principle has libertarian consequences. Conversely, it seems possible to legitimize a lot of

102 

F. Zuolo

very coercive state action by “zooming out”, applying the unanimity criterion at a higher level of aggregation. (Lister 2013: 89)

Depending on the level of detail in which we formulate the alternatives, it might be more or less difficult to overcome the requirement that any coercion should be justified to all. There is no natural way to establish whether we have to justify the system of private property versus the state of nature, or the system of private property plus redistribution versus the state of nature. Such an objection might sound specious or self-serving because, whether we are talking about coercive laws, any public decision or principles, there is no natural way to establish once and for all how we ought to formulate the set of options to which we ought to apply the public justification. And this objection applies to any theory in which we have to compare alternative policies. But it is more troublesome for Gaus’s account than for others because Gaus’s account relies on the idea of a baseline of uncoerced individuals from which we must not move in case no agreement is reached. If we have to justify state coercion by making it acceptable to all, or else we ought simply not to coerce people and leave them at the default baseline condition, then not having an independent and uncontroversial measure of coercion and not having a system to decide how to form the bundles of choices are two fatal problems. Finally, my account differs from Gaus’s because neutral reasons here play a more important role than in Gaus’s theory. True, as hinted at above, in Gaus’s account too neutral reasons—the first stage of public justification which yields the abstract rights of not being unjustifiedly coerced and of freedom of conscience and thought (Gaus 2011: 341–56)—are part of the public justification. However, he gives too weak a justificatory role to this step by claiming that all neutral reasoning is in fact always inconclusive because the variety of evaluative standards of the parties would interpret the principles differently. In my account, the test of neutrality grants the generality of the outcome by making it not purely dependent on iRs. The importance of neutral reasons and in general of a neutralist concern is strengthened by the idea that not all views on the moral status of animals will be admissible in the procedure of public justification (§4.5). Unlike Gaus’s account, here I will restrict the range of

3  Public Justification and the Disagreement on Animals 

103

admissible views on the basis of epistemic considerations, thus limiting the variability of evaluative standards.

3.4.4 Why Hybrid? At this point one may be suspicious about the hybrid nature of my form of public justification because it might seem ad hoc. Indeed, one may think that it is applicable only to the specific topic of the treatment of animals. Along this line of thought, a critic might argue that I have built an account whose sense is only that of reaching a certain desired outcome on this issue. In this sense, this proposed form of public justification would not be a real procedure whose value rests on the validity of its form independently of its outcome. In answer to these critiques, my proposed form of public justification is, indeed, ad hoc in some sense because it is tailored to address a specific domain and problem. Accordingly, it must meet relevant desiderata in order to respond to certain problems in a way that makes it possible for the parties to reach an agreement. However, it is not ad hoc in the sense of being construed so as to reach a pre-established result. Indeed, as we will see, the outcome of the procedure of public justification will be partial because only in a certain domain (animal welfare) could we reach a conclusive result, whereas in other domains (animal liberty and life) the results will be inconclusive, thus calling for a democratic decision. Acknowledging this limited role of public justification seems to me sufficient proof that the procedure is not self-serving and devised to yield a pre-established outcome. Moreover, the procedure of public justification I propose is ad hoc in the sense that it responds to the specific problems posed by the treatment of animals in our contemporary democratic and liberal societies. However, the way in which this procedure of public justification tries to solve these problems employs principles that are typically appealed to in any liberal theory. To briefly recap my argument thus far, this issue is characterized by a pervasive disagreement regarding whether or not the treatment of animals is an issue of justice, and regarding how this disagreement is to be solved. Thus the disagreement concerns the nature of the problem, the

104 

F. Zuolo

way to solve it in procedural terms (if any) and the best substantive solution. Finally, this disagreement is characterized by the radicalism and sometimes violence of some parties. In the light of these features, it seems plausible to suppose that (i) a solution purely based on democratic majoritarian procedures will not do because it cannot provide a stable and principled solution that is acceptable to all concerned parties; (ii) to be stable the solution must be robust and not simply dependent on specific and ephemeral positions actually held in society; (iii) the solution must be acceptable by the widest constituency so as to make it socially stable. To respond to (i) we need a proper procedure of public justification, and to address needs (ii) and (iii) such a procedure should include the conditions of neutrality and inclusiveness. At this point a further concern may arise as to the factual plausibility of my proposal. Even if this is convincing at the normative level, in practice radical conflicts over specific issues or challenges to the order can only be solved, when they can, by a wide democratic debate in which the opposing party becomes part of the public culture and changes it. And this evolution may take a long time. Hence, a proposal that aims to be normatively fitting to reality should in some sense make room for these social dynamics. The account proposed here, the objection goes, does not mirror these, factually true, dimensions. How can my proposal be practical if it does not seem to reflect these facts about social dynamics? My reply is that thinking in terms of public justification does not obliterate the temporal and cultural dimensions of solving deep conflicts. Rather, it is simply a form of modeling correct and acceptable reasoning, which is here represented in a sort of simplified and synchronic manner, while in practice, when arguments are employed in public and there is an actual debate, things happen diachronically. Ideally, actual participants in the debate and policymakers may pick out parts of the public justification procedure for the sake of putting in practice, at least partially, this form of partially idealized debate.

3  Public Justification and the Disagreement on Animals 

105

3.5 More on Neutrality and Inclusiveness Neutral reasons have traditionally been the hallmark of theories of public justification. However, recently, they have come under fire not only from convergentist approaches in public justification, but also from some deliberative accounts, otherwise sympathetic to the neutralist aims. Consider in particular the critical argument leveled by James Bohman and Henry Richardson (2009) to the “reasons that all can accept” (RACA). With this expression, they aim to cover all accounts of neutral, shared, shareable and public reason which should be acceptable by all and independently of their comprehensive views. On their view, RACA make no compelling justificatory work in theories of public reason or deliberative democracy. This is so because RACA are to be interpreted in two senses. They can be empirically acceptable, insofar as they are reasons that all might de facto accept at least in certain circumstances. But if so, it is not granted that they could have sufficient normative force to override other reasons and/or induce people to recognize their authority. Hence, the empirical interpretation of RACA does not secure their justifying power. Alternatively, they can be normatively characterized as determined by other values, such as being respectful, revisable, open to all. In this case RACA may have some powerful justificatory force, but they end up having nothing to do with the demand of acceptability. Why do revisability, openness, respectfulness have anything to do with acceptability? In both cases RACA are incapable of granting the justificatory capacity they are supposed to have. My idea of neutral reasons does not suffer from this kind of problem because neutral reasons do not discharge the full justificatory work. Rather, meeting the test of neutrality grants generality and prevents the publicly justified principles from being too bound to specific contexts. Against this statement, one might press again the charge of redundancy or superfluity. In other words, one might object to this justificatory apparatus, asking why both conditions are necessary. In response, both are necessary because if we had a justification of a set of principles satisfying only the condition of neutrality, there might be the risk that each view would not consider what meets the condition of neutrality as justified

106 

F. Zuolo

according to their internal standards. On the other hand, if we only had the condition of inclusiveness, that is, views accepting a set of principles for different reasons without a common and independent standard, such an agreement would risk being sociologically limited and biased by the actual diffusion of certain views. Although any kind of agreement is by definition limited by the type of parties at stake, the condition of neutrality makes the agreement more likely to also be accepted by other potential parties, thus meeting the desideratum of generality. To fully appreciate this point, consider the following case. Suppose in a given society there are three views on the moral status of animals. The first view is a traditional Christian view according to which animals are part of God’s creation and can be used under the responsibility of humankind provided that they do not undergo unnecessary suffering. The second view is a form of Cartesianism, according to which animals are mere machines without minds, which can be disposed of by human beings in any manner. The third view is a form of Sentimentalism according to which animals have moral considerability only to the extent that some human beings care for and have an affective relation with them. In this stylized society, which, though, is not far from the standard situation until the rise of utilitarianism and the birth of the Darwinian revolution, animals do not have moral considerability per se and their interests are always outweighed by human interests (except in the rare cases when the human interest entails unnecessary cruelty). Suppose we employ a procedure of public justification which only complies with the requirement of inclusiveness and not neutrality. The principle resulting from public justification in this society is that animals may be used for whatever purpose and in whatever way, and unnecessary cruelty is not legally sanctioned but only considered a misdemeanor—as it were—meriting a raised eyebrow but no sanction. The fact that this principle passes the test of public justification is quite unsatisfactory if we care about the idea that public justification ought to have some robustness over varying contexts (generality). Indeed, being tied to such specific views, the result of this public justification would not be acceptable if we introduced the following changes. Suppose that in this society a very minimal Utilitarian view arises. On this view, animals ought to be included in the utilitarian calculus because

3  Public Justification and the Disagreement on Animals 

107

they can feel pleasure and pain, although their interests are far less weighty than human interests. This view would not accept the principle accepted by the other views, and would be at odds with the Cartesian account. Hence, even if such a view is very timid and minimal, there would probably be no agreement. On a different note, suppose that there is neither the Utilitarian nor the Christian view. In this very simplified society, we only have Cartesians and Sentimentalists about animals. This society would accept a principle even less supportive of animal interests, which means that animals could be treated in any way and made to suffer on whatever grounds, except when they are companion animals. These two examples show that by merely relying on the requirement of inclusiveness, the outcome of public justification is likely to swiftly change once we introduce or eliminate some element. If we understand the criterion of generality as the capacity to withstand some variation in time given the diversity of contexts, this means that these public justifications do not meet the demand of generality. Hence, a public justification procedure, which does not include the neutrality requirement and only relies on the inclusiveness requirement, is very unstable and liable to the charge of being merely a contextual and relativistic justification, incapable of finding a shared outcome once we slightly change the setting. Just to anticipate what we will see in the next chapter, my account of public justification would prevent this outcome by screening a richer and larger set of views, and demanding that the publicly admissible views be more epistemically robust. To prevent a possible worry, it is worth clarifying that generality of nRs does not mean universality and comes in degrees. What we now widely share about morality and matters of fact are principles that have been discovered at a certain point or widely recognized as right.25 Hence here requirements of generality are expressed in terms of major or minor robustness with respect to different challenges of new views. The more a principle or view is acceptable while changing the set of views present in a society, the more its content is generally acceptable, insofar as it is widely shared. I have provided a small example with the Christian view, Cartesianism, Sentimentalism and Utilitarianism, which partly models 25

 In a Rawlsian account too, public reason is historical and can evolve (Flanders 2012).

108 

F. Zuolo

what has happened in the last two centuries. It is more difficult to understand what the demand of generality would imply for the future. This is a genuinely important question which I cannot address here. Suffice it here to say that the views we will see in the next chapter are sufficiently general to address possible changes in our technological capacities insofar as they deal with abstract properties (sentience, subjectivity, relations, etc.) that are partly independent of the current concrete instances through which they are expressed. Despite the possible inconclusiveness of nRs, it is worth emphasizing that checking whether a certain principle can be upheld on neutral grounds is fundamental to provide reasons for the acceptance of the principle to those who do not have any specific position regarding the moral status of animals. Such a group may include both people subscribing to an agnostic stance, according to which there cannot be a conclusive position on animals because solving this matter is too complicated, and those who simply have not formed an autonomous view. Although such stances may not voice their ideas in the public debate, either because they have not formed one or because they are not fully confident in their position, we are obligated to provide reasons to them too. Indeed, the domain concerning the treatment of animals also affects the life of these groups who seem not to have proper views. With respect to these groups, the only type of reasons that might be authoritative are the neutral reasons. This means, here, in particular reasons stemming from the findings of science or arguments concerning what we owe to each other in a condition of pluralism. There is a final general worry regarding the hybrid nature of my procedure of public justification. Recall that this proposed procedure aims to avoid the risk of excluding too many people (a problem in a consensus approach) and becoming hostage to the idiosyncratic features of the specific views, thereby risking a sort of context dependency that cannot aim at generality (a problem in the convergence approach). One may object that my own procedure is hybrid in the worst sense, namely that it is a sort of middle ground that tries to eschew the problems of the two diverse models without sufficiently avoiding the pitfalls of both. As a general rejoinder, I can say that, in fact, many theories of public justification are of a hybrid nature, and at least the most important ones

3  Public Justification and the Disagreement on Animals 

109

are certainly hybrid. Indeed, both Rawls’s and Gaus’s theories of public justification are hybrid in some sense. As is known, Rawls’s theory includes not only the consensus dimension (represented by the argument under the veil of ignorance where people do not know their actual conditions and diverse views, and by the political conception of justice), but also the stage of overlapping consensus, where reasonable views are to recognize justice as fairness according to their own internal standards (Rawls 1996, lecture 4). Gaus, instead, himself includes a sort of consensus stage which he calls the “argument from abstraction” (Gaus 2011: 334–70). According to this argument, all reasonable parties recognize the fundamental idea that all are equal and free agents, but this is only an abstract principle. Because of the huge relativity of evaluative standards, the members of the public are very likely to disagree on the priorities to be given to diverse values, on how to interpret the abstract set of rights and on what rules to follow. Hence, even if all agree on an abstract idea of rights deriving from agency, this is indeterminate and this sort of consensus argument should give way to a convergence test according to the diverse standards of each view.26 Hence, the diversity of the two main approaches rests on the choice of what kind of reasons does the most important justificatory work. The shared or accessible, public reasons in the consensus approach; the diverse reasons coming from the different evaluative standards in the convergence approach. But we can say that once the kind of justificatory work of the diverse types of reasons is vindicated, we can safely employ a hybrid approach. At this point one might press me further and ask what kind of reasons does the proper justificatory work—the neutral or the internal reasons. My reply is that both are necessary and neither alone is sufficient because, as we have seen, if we had a principle endorsed only by one type of reason, we would miss something. Indeed, the need to have a double set of reasons to reach proper justification is responsive to the idea that to constitute a public justification we must embed the criteria of generality with  It is worth remarking that Gaus acknowledges the hybrid nature of his theory (which also includes an abstract argument relying on consensus) and the hybrid nature of Rawls’s theory too (which also includes the necessity of recognizing the diversity of evaluative standards to have full recognition thanks to the overlapping consensus). See among many instances Gaus (2011: 336). 26

110 

F. Zuolo

respect to the varying conditions and inclusion of the diverse views. In sum, we may say that public justification has a sort of double nature and Janus face, which tilts in favor of a consensus or convergence view depending on the theorist. Public justification is a form of rational justification, in the sense that it must include a set of reasons and procedures that are epistemically valid and rationally defensible against others. But public justification is also public, in the sense that it has a public of individuals. Building on this and summing up my account, neutrality grants generality, which is fundamental to the idea of public justification because for something to be justified it must have a set of robust and non-­ idiosyncratic reasons backing it; while inclusiveness guarantees the idea that justification is always a justification to somebody. Hence, justification must be sensitive to the reasons that are acceptable to those to whom the justification is due. In Chap. 5, we will see in detail how neutrality and inclusiveness work with respect to the diverse theories, but let me anticipate some other features to help elucidate my proposal. A reason R can justify, defeat or be indeterminate with respect to a certain principle. For the sake of simplicity, I will not consider here possible indeterminate reasons, namely those reasons that count neither in favor of nor against a principle. A R may count in favor of or against a P but the extent to which it does so and whether it justifies or defeats a P cannot be ascertained in the abstract and independently of other considerations. Indeed, in practice, the justificatory capacity of an R depends on the strength of the other relevant types of Rs at stake. I have already anticipated that nRs will tell us very little regarding what we have ultimately to support. This is so for the following grounds. Typically, neutral reasons regarding fundamental human rights, facts established by natural sciences or economics or general public knowledge reject Ps that can be grounded only on iRs of a certain view and not on others. But with respect to the capacity to positively justify a P nRs are likely to be inconclusive. To appreciate this point, consider the following example. Suppose we have a set of choices regarding the public education system to be discussed by the proposed public justification procedure. S1 is built on the traditional humanistic ideal according to which public universal education should aim at fostering a liberal education, including the

3  Public Justification and the Disagreement on Animals 

111

knowledge of classics and humanities. S2 aims to create productive citizens by privileging the teaching of scientific and technical matters. S3 provides education informed by a religious doctrine (be it Roman Catholic, Jewish or Muslim). All systems are somewhat based on substantive doctrines whose grounding iRs are the following. S1 is based upon the idea that humanities are a constitutive part of human flourishing; S2 upon the technocratic ideal of promoting efficiency and economic output as the primary social aim; S3 upon the promotion of the true religion. Despite S1–3 being informed by comprehensive doctrines, S1 and S2 may also be supported by nRs, while S3 may not. Indeed, S3 affirms as true only the preferred religion and promotes it as a public end. Hence it is directly rejectable in the test of neutrality because it cannot be justified in another fashion. Instead, S1 may be grounded in the idea that to promote an equal and informed citizenship, the public education system ought also to teach arts and humanities as universally valid means to foster critical capacities. S2 may be grounded in the idea that society is a cooperative system to produce social goods, among which the advancement of science and technology are non-controversially goals to be promoted. Thus reformulated both S1 and S2 may be endorsed by nRs and compatible with the requirement of neutrality. However, at this stage, unless we make some normative assumption about the kind of social cooperation of this society, whether aiming at the promotion of autonomy or economic well-being, it is not clear whether we ought to prefer S1 or S2. Hence, the neutrality test, while telling us to discard S3, is inconclusive because it cannot give us conclusive reasons to prefer S1 over S2. One may conjecture that S1 is to be preferred insofar as it is more open-­ ended than S2: people having an education from S1 can, if they want, become efficient and productive as requested by S2, while the opposite is more unlikely. However, this consideration is largely conjectural and, hence, inconclusive. This is why I say that in my account the neutrality test will work as a filter to rule out positions that cannot be upheld on neutral grounds. But it will not be a mere filter, because the condition for a principle of animal treatment to be supported by a neutral reason makes it possible that such a principle may also be generally upheld. The possible inconclusiveness of nRs and their role as a filter can be further appreciated with regard to the treatment of animals. Consider the

112 

F. Zuolo

idea that animals are sentient beings. This certainly provides a neutral reason, because it is scientifically non-controversial. Building on this, it usually follows that animal suffering matters from a moral point of view. From this idea we can reject those principles that are in contrast with it—views denying that animals may have experiences of pain—but diverse principles may be equally justified. For instance, it can equally justify the principle of minimizing animal suffering, the principle of seeking to prevent any suffering or only unnecessary suffering. This inconclusiveness depends on the fact that the idea of sentience does not tell us how much animal suffering weighs with respect to other competing interests. In other cases, a neutral reason can clearly support a certain principle but with an insufficient strength to overcome or counterbalance another reason backing a competing principle.27 For instance, the idea that mass consumption of meat damages the environment because it demands many resources (crops, water) and is highly polluting is a neutral reason. But it does not provide a decisive ground to ban the rearing of animals for human nourishment (§5.3). In sum, nRs will act as defeaters of controversial Ps and as inconclusive justifying reasons to uphold Ps that pass the neutrality test. This is why I say that the neutrality test functions as a filter. With respect to the condition of inclusiveness, here I can only say that iRs will work both as justifying reasons and as defeaters. Here I cannot say more because in order to answer the question of whether and how much a certain principle is supported or rejected by iRs, we need to know the content of the views. And this will be the task of the next two chapters. As the whole argument of these first chapters pass through several steps, an overall summary may be in order (see Fig. 3.1). Not all forms of disagreement are relevant; only the qualified ones. Hence, we need to introduce some epistemic requirement (criteria FEN and SEN) that can filter the views about animals in the public justification procedure. The  From these considerations, it might seem that I subscribe to an asymmetric perspective in public justification. Following Boettcher (2015: 200), asymmetric perspectives “assign different degrees of weight to nonpublic reasons [internal reasons] depending on whether they are being used as justifiers or defeaters”. In my account it is not necessarily so. My point is that in most cases regarding the treatment of animals, nRs are de facto inconclusive to support a P, but they may be strong defeaters (as a filter) to reject another P. 27

3  Public Justification and the Disagreement on Animals 

113

Fig. 3.1  The structure of the public justification procedure (PJP)

admissible views constitute—so to speak—the subject of public justification. Having settled the terrain, we need normative assumptions to clarify why public justification is owed to certain individuals (liberal principle of legitimacy) and who these parties are (reasonable persons). Building on this, the structure of public justification is constituted by two steps: neutrality and inclusiveness. The former guarantees that the possible outcome of the procedure has some general validity; the second that all the relevant parties are taken into consideration.

3.6 The Challenge of Moral Realism Upon outlining the general features of my procedure of public justification and seeing what kind of reasons are at stake, and before applying it to the case of the treatment of animals, there are some formidable critiques that have to be addressed. In particular, in this section I will reply to the charge that public justification theories idealize too much and/or exclude too many people (§3.6.1), and to the critique of epistemic abstinence, namely the idea that public justification cannot do without truth (§3.6.2). These two sets of critiques have been leveled by diverse authors

114 

F. Zuolo

who are either harshly critical of public reason (Enoch, Raz and Wall) or more sympathetic to Rawls’s enterprise (for instance, Wenar 1995). But to tie up and synthesize my responses, I will follow the most recent and starkest version of them, formalized by David Enoch’s radical rebuttal of public reason.28

3.6.1 Why Idealize and Exclude Public justification is, by definition, a justification to somebody. The set of individuals to whom justification is in principle due is composed of all those who are subject to the laws and public actions for which justification is necessary. Accordingly, public justification seems to require unanimous acceptance in order for laws or public decisions to be legitimate. However, it is a rational expectation and common experience that unanimity is nearly impossible to achieve in any field. Hence, if the legitimacy of a government or of a certain ruling over a specific subject is bound to the (unanimous) justifiability requirement, we are never likely to satisfy it because it is certain that somebody will oppose it. Following Enoch’s take on this, public reason theorists (and in this respect, more broadly, public justification theorists too) are trapped in a sort of double bind or vicious circle. On the one hand, they are committed to providing acceptable reasons to all people; on the other hand, such a justification is unlikely to be accepted by real people. As a way out of this dead end, public reason and justification theorists have two strategies available. They may restrict the constituency by including only reasonable people, and/or assume hypothetical idealized agents that are likely to accept the reasons provided. The critics that I discuss in this section hold that the previous move is faulty insofar as it is not respectful of the very principle of inclusiveness that lies at the base of any public justification account,  As the careful reader might recall, my theory of public justification differs in relevant respects from what is usually understood as public reason. However, I take up the challenge of responding to these critiques because in some cases such critiques also concern my account of public justification, while in other cases the responses I provide will give me the opportunity to further specify the difference between my account of public justification and the most important theories of public reason (in particular, in its Rawlsian fashion). 28

3  Public Justification and the Disagreement on Animals 

115

while the second is faulty because idealizing the agents does not provide reasons for real agents to accept the justification provided (Enoch 2015). The first move available to the theorists of public justification is that of restricting the constituency to only the reasonable. Enoch formulates the charge against this move in its starkest form: the exclusion of the unreasonable is too far-fetched because it would leave out too many subjects. Indeed, it is not just Nazis and psychopaths who are to be excluded qua unreasonable; many other individuals will be too because they do not subscribe to some tenets of public reason (for instance, Rawls’s theory of the burdens of judgment) or because they are utilitarian or perfectionists and so on (Enoch 2015: 121–2). To respond to this charge, it bears recalling that my understanding of reasonableness significantly differs from that of Rawls’s. Indeed, regarding the epistemic sense of reasonableness, I have shown under what conditions there can be qualified disagreement, without assuming that the parties ought to accept the burdens of judgment. Regarding the attitudinal sense of reasonableness, I simply assume that the participants in the public justification procedure are those who are willing to find a common solution that is acceptable to all. Agreements are to be found with those who are willing to find them. This seems almost a platitude. Clearly, this general principle ought not to be surreptitiously distorted in such a way that a default condition of seeming openness actually turns out to be quite restrictive and biased against unwelcome participants. However, I do not see how and why my account of public justification might fall prey to this problem. Regarding the second charge of idealizing the agents, and hence not providing reasons acceptable to real agents, Enoch’s argument is that public justification misses the target it sets for itself. He claims that in certain cases idealizing the conditions may be an epistemically valid move. Namely, if we want to be sure that the procedure to reach an answer is correct, we need to idealize, for instance, by requiring that the agents’ cognitive capacities not be obfuscated by illness or psychotropic substances. More generally, Enoch argues that an idealization is legitimate (in ethics, political philosophy and epistemology) to the extent that it is well grounded and it serves the purposes for which it is intended (Enoch 2005). But this move is not available to public justification

116 

F. Zuolo

theorists because the purpose of justification is not that of finding the correct response independently of how people would accept or find it; rather, its task is precisely that of delivering reasons that are acceptable to the people (Enoch 2015). Hence, on Enoch’s view, in public reason theories, idealizing the agents misses the point because the idealized agents are not supposed to find an independent truth; rather, public justification is valid to the extent that it is acceptable by the agents who are the parties in public justification. But if such agents are idealized, why should the idealization have any bearing on real agents? I am not sure whether Enoch’s reading is a fair reconstruction of what is at stake and whether he is right in general. Irrespective of this, let me just explain why I think that his charge does not apply to my account, or, if it does apply, it only does so in a diluted form. Besides the requirement of attitudinal reasonableness, I make an idealization by assuming that the views to be discussed in the public justification procedure comply with some minimal epistemic desiderata (FEN and SEN). This is a filter on the kind of reasons and argumentative practices that can be pursued. Hence, what I idealize here are not the people, but rather the views that the people can employ. This is a simplification to handle the matter more easily. But behind the reasons and views there can be real people. The justification for this idealization is quite simple. Given the situation of qualified disagreement we have seen, and the lack of public agreement on a (true, if any) solution, we want to grant that the kind of possible agreement respects some epistemic desiderata that exclude plain false and wrong outcomes. In a slogan, even if we don’t know what the truth is, we can still with a reasonable degree of certainty exclude some positions that are very likely to be wrong. Such positions are those that are in contrast with the findings of science and that do not comply with some minimal logical requirements (non-inconsistency, lack of explanation for why similar cases are not treated alike). I do not think it necessary to commit myself to a specific epistemology to defend the necessity of these two requirements. Moreover, Enoch should favor this idealization because it is epistemic in kind. Hence, the idealization on the content of the views that can legitimately be included in the public justification procedure has some clear justification respecting Enoch’s desideratum— that the idealization serves the purpose for which it is set and not be

3  Public Justification and the Disagreement on Animals 

117

incapable of addressing real agents. It seems very plausible to assume that whatever the solution (if any), it is consistent with FEN and SEN. Furthermore, one may say that my proposed procedure makes two further idealizations. First, it idealizes the presentation of the arguments by trying to avoid mistakes or correcting possible faulty reasoning. But I do not understand how that could be a problem. Amending mistakes and proposing a correct form of the arguments is just what philosophy and theorizing about something consists in. After all, here we are addressing how the disagreement about the moral status of animals ought to be treated and understood, not how such a disagreement actually is. We are doing philosophy with clearly normative import, not sociology or zooanthropology, namely the analysis of what people actually think about animals or how people actually behave with animals (§4.5.3). Second, one may argue that my approach unduly idealizes by discussing the reasons in favor of or against a certain principle without directly engaging the parties in a face-to-face defense of their views. In this sense, my approach differs from other accounts of public justification—notably Gaus (1996) and Ackerman (1980)—that present public justification as a dialogue between two or more disagreeing parties. Instead, I discuss the justifiability of the principles at stake from a sort of third-personal perspective. In response, I do not understand why this would be a problem for the critique of idealization. That is a choice of clarity and simplicity. Indeed, although I will not present the public justification procedure as a face-to-­ face dialogue between disagreeing parties, the kind of arguments that I will address are those that individuals in face-to-face debates can actually employ. Hence, the idealization I employ does not seem to suffer from the troubles mentioned by Enoch.

3.6.2 Moral Facts, No Bullshit! With the previous considerations, I think I have, at least partially, addressed the famous charge that Joseph Raz levels against Rawls, namely that of epistemic abstinence. Raz (1990: 15) claims that to “recommend one as a theory of justice for our societies is to recommend it as a just theory of justice, that is as a true, or reasonable, or valid theory of

118 

F. Zuolo

justice. … There can be no justice without truth.” In other words, Raz famously holds that validity is nothing but the truth of a certain position, while Rawls has eschewed any epistemic commitment and argues that validity consists in the acceptance of the theory by the constituency of the reasonable. But on Raz’s view, this is a mistake because, in order to be tenable, Rawls’s position must rely on a substantive and true theory. As we have seen throughout this and the previous chapter, my account of public justification has some epistemic commitments and, hence, seems immune to Raz’s attack against Rawls’s public reason. However, the supporters of this critical argument are likely to further press my account by claiming that it is “metaethically floppy” because it does not address moral facts, for it rather simply rests at the level of people’s convictions. But, as Enoch puts it (2015), reasons for acting or believing are not provided by what people think of a certain issue, for it is rather the facts that provide reasons. In other words, it is because we implicitly or explicitly think that a certain set of moral or epistemic stances is true, insofar as it points to relevant facts, that we can consider ourselves justified in thinking it is the case or in acting according to valid moral principles. I do not want to defend a specific metaethical account about reasons, the nature of moral facts, if any, and their relevance for politics. But I must say something about Enoch’s argument and the possibility of reaching valid moral conclusions from an epistemically neutral procedure of public justification. The arguments I will propose in this section are in part a response to the overall critique of public justification theories, and in part specific arguments that are valid for my case concerning animals. This should be sufficient because my account of public justification appeals to generally valid principles; still, I am not claiming that it is necessarily valid and applicable to other cases. It might be, but it is not the task of this volume to demonstrate why and when this is so. The first response to Raz and Enoch’s challenge is quite simple and goes like this. Even if there were a set of moral facts establishing the truth about the moral status of animals, still we might need public justification. First, to know what set of moral facts is the true one, it is likely that we would need some (long) time to reach it. Given the wide disagreement and people’s apparent incapacity to access true moral facts even when they are available, it is likely that the existence of such moral facts would

3  Public Justification and the Disagreement on Animals 

119

not grant our capacity to reach them. This is not an argument against moral realism. Rather, it is an argument for seeking another approach to establish what we ought to do in waiting for the knowledge of moral facts to become available. And it seems plausible that in the absence of such knowledge, the most appropriate procedure could be some form of public justification. Public reason theorists, following Rawls and others, think that normative theorizing and political philosophy in particular have a practical aim, namely that of solving disputes and providing grounds for a decent common living. They do not aim to find the ultimate moral truth, if any. Clearly, establishing good terms to live together may not be disconnected from moral facts; but in the absence of access to such facts, the practical purpose of political philosophy urges the theorist to find a solution that can be acceptable, given the problems and knowledge that we have, to the people who live in this world and their convictions. Moreover, even if Enoch, as well as Raz, were right to say that we ought to target moral facts, not people’s convictions, still people’s convictions are important insofar as they are epistemic proxies, in the sense that they may help us track some morally valid positions. As Peter (2019) claims, our political disagreements are frequently characterized by the impossibility of reaching a justification in terms of objective reasons. Given this structural epistemic limitation, the only kind of justification available to us is a justification to other people through people’s convictions (or subjective reasons, as Peter calls them) rather than a justification simpliciter. Needless to say, if we believe that there is only one set of true moral facts, within the range of disagreeing people there will be somebody who is right and somebody who is wrong (or both wrong!). So, convictions are not per se conducive to truth. But in the absence of access to moral facts, we have to start from something to search for them, and starting from people’s considered convictions seems the only available avenue. One may be unsatisfied with this argument because it seems to ultimately admit of the provisionality of public justification. On this critical view, public justification is necessary to the extent that we do not have access to moral facts, but it will disappear as soon as we do have access to moral facts. In reply, there is, finally, a more substantial and robust

120 

F. Zuolo

argument in favor of public justification against the unavoidability of moral facts. In the previous chapter we have seen that at least some kinds of convictions, in particular those expressed by (competent) peers who reasonably disagree, have a considerable epistemic status. If the available evidence and the best arguments do not tilt in favor of any party, these diverging convictions do not seem mere opinions. Rather, they reflect the best of what we know. This argument allows me to address a further element of the critique that Enoch levels at public reason theorists. Enoch (2017) argues that reasonable people committed to a substantive doctrine (in his example, Catholicism) cannot accept that other people who subscribe to other doctrines are justified in holding such views. In brief, Enoch claims, the assumption that reasonable people accept the burdens of judgment is epistemically untenable because, by accepting it, reasonable people committed to a comprehensive doctrine would have to either rely on some weird epistemic account, or diminish the epistemic commitment to the belief in their favorite doctrine. In both cases, the epistemic plausibility of public reason in the face of disagreement is undermined, either insofar as it relies on a controversial epistemology, or because public reason is admissible only to the extent that people do not actually uphold the validity and truth of their comprehensive doctrine, but merely have a preference for them. Again, this critique does not apply to my account because my account does not rely on the burdens of judgment (§2.8.1). Rather, I have employed the available evidence and best arguments to show why, at least under certain conditions, such a disagreement is epistemically justified. Hence, the burden of proof is on those who argue against it. These considerations give me the opportunity to go back to the findings of the previous chapter regarding reasonable peer disagreements, epistemic peers and the overall purchase of this argument. Steven Wall supposes that such disagreements lead to tragic conflicts because, although one of the conflicting parties is right, both are subjectively justified in holding their views. It should be clear that a tragic conflict is not a conflict between people who hold different equally correct views on a political issue on which there is no

3  Public Justification and the Disagreement on Animals 

121

uniquely correct answer. Such a conflict might arise because incommensurable values are at stake. … These points need stressing so that we are not led to exaggerate the prevalence of tragic conflicts. If such conflicts exist, they are not the stuff of everyday politics. (Wall 1998: 102)

In the previous chapter, I hope to have demonstrated that this is not so, and that such kinds of conflicts are in many cases the stuff of everyday politics, although not all everyday politics is made of these kinds of conflicts. Moreover, even if the majority of current controversies is not publicly presented in a manner that respects the idea of competent peer disagreement, still my argument has shown that it can be formulated with a robust epistemic pedigree. This is sufficient to demonstrate the pragmatic and epistemic relevance of such disagreements. My thesis is existential, not categorical. I am not committed to demonstrating that all conflicts in politics have the features of pervasiveness and complexity, and of epistemic reasonableness. Rather, it is sufficient for my argument to acknowledge that at least one case, the one regarding the moral status of animals, has such features. And that is sufficient to cast some doubts on the realists’ attack against public justification and insulate my account from these critiques.

3.7 What Should the Disagreeing Parties Do? Having outlined the structure and motivations behind this procedure of public justification, one may ask: What should we expect from it? Should we expect that the parties will strike an agreement? These questions are somewhat covered by an ambiguity stemming from the meaning of “expect”. As is known, the term “expect” can be understood either as a descriptive notion, namely as a forecast of future states of affairs, or as a normative notion. In what follows I will mostly understand expectations in the latter sense, namely as to what the parties should do. However, in trying to answer the normative question, we should not forget the descriptive question and, hence, the normative expectation should in some way be connected with how things may work in practice. This means answering the question of whether the parties will have sufficiently strong

122 

F. Zuolo

reasons to agree on a common solution. A full answer will be given only in Chap. 5 (and somewhat in Chap. 6 too). Although I do not take it for granted that such an agreement will occur in practice, I will try to show that the parties will have sufficient reasons to agree on something. But before seeing this, we may try to answer a different but related question: What should the parties do in the face of disagreement? The reader may recall that we have already analyzed this question when addressing the issue of peer disagreement (§2.5.2). However, the general analysis of peer disagreement and the two examples of peer disagreement about the moral status of animals did not mean to claim that peer disagreement is the standard setting of disagreement regarding animals. On the contrary, we can say that many positions are false or that the agents have considerably different epistemic capacities. Instead, the analysis of peer disagreement sought to show that there is a genuine case for disagreeing (qualified disagreement) because even competent and equal parties cannot solve their disagreement on some fundamental issues in animal ethics. But then, to restate the question again: What should the parties do in the face of disagreement? The answer simply depends on the kind of issue they are considering or on the epistemic level of the party they are facing. If it is a setting of peer disagreement, the standard considerations apply. But peer disagreement is actually very difficult to find in practice because people differ as to their intellectual capacities and access to evidence. The idea of public justification stems from the principle of political liberalism, which requires that people treat each other as equals. But this equality should be understood as a moral or political notion: namely, it concerns the status of people as equal persons, as having the same set of rights and liberties. But it does not concern their epistemic status. Unlike the possession of moral equality, I think we do not have reasons to assume that people have the same epistemic capacities. They in fact do not have them, and we do not have independent reasons to hold that people are equally capable of understanding matters or equal sources of cognitively reliable stances. It is both epistemically false and normatively unnecessary. These considerations are necessary in order to clarify a thorny and yet fundamental ambiguity in theories of public justification. Political liberalism, and indeed liberalism more generally, is deeply committed to the

3  Public Justification and the Disagreement on Animals 

123

moral equality of persons; public justification theories hold that to attend to this moral equality we should provide epistemically sound reasons to people. As a consequence, we encounter the tension between the moral equality of people and their epistemic standing. Although this is a major question which I cannot fully address here, I have provided these clarifications in order to address a critique put forward by Han van Wietmarschen (2018).29 He holds that there is an inescapable incoherence in political liberalism, which lies precisely in the tension between equality and the epistemic status of the beliefs of reasonable citizens. Since political liberalism assumes the duty to respect all individuals and the duty of reciprocity in justification, what should reasonable people do toward the beliefs of other reasonable people? It seems that respecting other people entails assuming the validity of their beliefs. But if they assume the validity of the beliefs of the other people with whom they disagree, how can they still consider their beliefs fully justified? If you are a reasonable citizen who holds a set of religious, moral or philosophical beliefs, then either your belief that these beliefs are subject to peer disagreement is unjustified, or your religious, moral, or philosophical beliefs are themselves unjustified. (van Wietmarschen 2018: 487)

This is so, the argument goes, because political liberalism implies reasonable disagreement about sectarian views at all level of competence. Even extremely competent people are subject to peer disagreement. But in the face of peer disagreement, reasonable people are supposed to hold a conciliatory view, and hence suspend their judgments on their very sectarian views. As a result, “[j]ustificatory incoherence tells us that citizens cannot coherently hold a set of sectarian beliefs and, at the same time, believe that those sectarian beliefs are subject to peer disagreement” (van Wietmarschen 2018: 501). As I have sought to argue in these opening two chapters, the procedure of public justification I have in mind complies with the principle of political liberalism and is also committed to some epistemic requirements. But it does not rely on the burdens of judgment, nor does it depend on 29

 A first version of this argument was already outlined in Leland and van Wietmarschen (2012).

124 

F. Zuolo

the assumption that the parties are epistemic peers. I do not take an overall stance regarding what attitude the reasonable people in political liberalism should have with regard to the disagreeing parties. I only point out that with respect to the qualified disagreement regarding the moral status of animals, the parties will have reasons to consider them minimally acceptable. Although each supporter of a certain view will be committed to her view in virtue of her balancing of reasons, personal experience and value commitments, if she is reasonable, she should recognize that the other positions are not utterly unjustified insofar as they are compatible with the findings of science and not incoherent (because they pass FEN and SEN). In sum, my argument holds that the reasonable parties should see the other parties having qualified positions as reasoning permissibly, although probably as having positions that are not fully justified. Indeed, as we will see in the next chapter, the admissible views that participate in the public justification procedure pass the epistemic test (FEN and SEN) and hence share with each other a set of scientific data and reasoning criteria. Building on this, it does not seem to me implausible to claim that the reasonable parties, without considering each other as epistemic peers, consider the other views as ultimately wrong but hold that they are somewhat publicly defensible and not utterly wrong. Hence, while I have not defended political liberalism from van Wietmarschen’s argument that points to the incoherence of political liberalism, I have at least insulated my argument from it. Finally, to answer the question with which we began this section, in this situation the parties will have reasons not to discard the other parties’ position as unacceptable, but they will legitimately seek to convince them to change their view. In sum, given that the parties may share some epistemic premises, while disagreeing, they all may have an open exchange of reasons where diverse parties challenge one another. To conclude, let me briefly recap the whole thread of the argument of this chapter. In virtue of the epistemically qualified form of disagreement about some important issues in animal ethics, we need a procedure of public justification to establish the right solution acceptable by all. The parties that can participate in this procedure are those who are attitudinally reasonable to participate, namely those who are committed to finding a common solution. The kind of views that can be discussed in the

3  Public Justification and the Disagreement on Animals 

125

procedure are only those that pass two minimal epistemic conditions (FEN and SEN), a limitation that is necessary to grant a common set of grounds and reasoning without which there could be no proper public justification. Next, I have illustrated the hybrid nature of my account of public justification that shares some features of the two main approaches (consensus-based and convergentist) but strengthens its epistemic desiderata and aims at both generality and inclusiveness. Finally, I have shown why my account is not liable to some standard critiques against public reason (exclusivity and epistemic shallowness) and what the parties should do from an epistemic point of view when facing disagreement.

References Ackerman, B. (1980), Social Justice in the Liberal State (New Haven: Yale University Press). Badano, G. (2013), “Political Liberalism and the Justice Claims of the Disabled: A Reconciliation”, Critical Review of International, Social and Political Philosophy 17(4), pp. 401–422. Badano, G. and Bonotti, M. (2020), “Rescuing Public Reason Liberalism’s Accessibility Requirement”, Law and Philosophy 39(1), pp. 35–65. Bell, D. (2002), “How can Political Liberals be Environmentalists?”, Political Studies 50(4), pp. 703–724. Bellolio Badiola, C. (2018), “Science as Public Reason: A Restatement”, Res Publica 24, pp. 415–432. Billingham, P. (2016), “Convergence Justifications Within Political Liberalism: A Defence”, Res Publica 22 (2), pp. 135–153. Boettcher, J. (2004), “What is Reasonableness?”, Philosophy and Social Criticism 30(5-6), pp. 597–621. Boettcher, J. (2015), “Against the Asymmetric Convergence Model of Public Justification”, Ethical Theory and Moral Practice 18, pp. 191–208. Bohman, J. and Richardson, H. S. (2009), “Liberalism, Deliberative Democracy, and “Reasons that All Can Accept””, The Journal of Political Philosophy 17(3), pp. 253–274. D’Agostino, F. (1996), Free Public Reason. Making It up as We Go (Oxford: Oxford University Press). Dombrowski, D.  A. (1997), Babies and Beasts. The Argument from Marginal Cases (Urbana and Chicago: University of Illinois Press).

126 

F. Zuolo

Enoch, D. (2005), “Why Idealize?”, Ethics 115, pp. 317–345. Enoch, D. (2015), “Against Public Reason”, in D. Sobel, P. Vallentyne, S. Wall, Oxford Studies in Political Philosophy (Oxford: Oxford University Press), pp. 112–142. Enoch, D. (2017), “Political Philosophy and Epistemology: The Case of Public Reason”, in D.  Sobel, P.  Vallentyne, S.  Wall, Oxford Studies in Political Philosophy III, (Oxford: Oxford University Press), pp. 132–165. Flanders, C. (2012), “The Mutability of Public Reason”, Ratio Juris 25(2), pp. 180–205. Garner, R. (2013), A Theory of Justice for Animals. Animal Rights in a Nonideal World (Oxford, Oxford University Press). Gaus, G. (1996), Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford: Oxford University Press). Gaus, G. (2011), The Order of Public Reason. A Theory of Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press). Greenawalt, K. (1988), Religious Convictions and Political Choice (New York and Oxford: Oxford University Press). Habermas, J. (1990), Moral Consciousness and Communicative Action (Cambridge: The MIT Press). Horta, O. (2014), “The Scope of the Argument from Species Overlap”, Journal of Applied Philosophy, 31(2), pp. 142–154. Jønch-Clausen, K. and Kappel, K. (2015), “Social Epistemic Liberalism and the Problem of Deep Epistemic Disagreements”, Ethical Theory and Moral Practice 18, pp. 371–384. Jønch-Clausen, K. and Kappel, K. (2016), “Scientific Facts and Methods in Public Reason”, Res Publica 22, pp. 117–133. Kagan, S. (2016), “What’s Wrong with Speciesism? (Society for Applied Philosophy Annual Lecture 2015)”, Journal of Applied Philosophy 33(1), pp. 1–21. Larmore, C. (2008), The Autonomy of Morality (Cambridge: Cambridge University Press). Leland, R. J. and van Wietmarschen, H. (2012), “Reasonableness, Intellectual Modesty, and Reciprocity in Political Justification”, Ethics 122, pp. 721–747. Lister, A. (2013), Public Reason and Political Community (London: Bloomsbury). McMahan, J. (2002), The Ethics of Killing. Problems at the Margins of Life (Oxford: Oxford University Press). Peter, F. (2019), “Political Legitimacy under Epistemic Constraints: Why Public Reasons Matter”, in M. Schwartzberg and J. Knight (eds.), Political Legitimacy, NOMOS LX (61) (New York: New York University Press), pp. 147–173.

3  Public Justification and the Disagreement on Animals 

127

Quong, J. (2011), Liberalism without Perfection (Oxford: Oxford University Press, 2011). Rawls, J. (1996), Political Liberalism (New York: Columbia University Press). Raz, J. (1990), “Facing Diversity: The Case of Epistemic Abstinence”, Philosophy and Public Affairs 19, pp. 3–46. Regan, T. (1983), The Case for Animal Rights (London: Routledge & Kegan). Reidy, D. A. (2000), “Rawls’s Wide View of Public Reason: not Wide Enough”, Res Publica 6, pp. 49–72. Schwartzman, M. (2004), “The Completeness of Public Reason”, Politics, Philosophy and Economics 3(2), pp. 191–220. Singer, P. (1975), Animal Liberation (New York: Avon Books). Singer, P. (1993), Practical Ethics, 2nd edition (Cambridge: Cambridge University Press). Talisse, R. B. (2009), Democracy and Moral Conflicts (Cambridge: Cambridge University Press) Vallier, K. (2011), “Convergence and Consensus in Public Reason”, Public Affairs Quarterly 25(4), pp. 261–279. Vallier, K. (2014), Liberal Politics and Public Faith. Beyond Separation (New York and London: Routledge). Vallier, K. (2016), “In Defence of Intelligible Reasons in Public Justification”, The Philosophical Quarterly 66, pp. 596–616. van Wietmarschen, H. (2018), “Reasonable Citizens and Epistemic Peers: A Skeptical Problem for Political Liberalism”, The Journal of Political Philosophy 26(4), pp. 486–507. Wall, S. (1998), Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press). Wenar, L. (1995), “Political Liberalism: An Internal Critique”, Ethics 106, pp. 32–62.

4 Views on the Moral Status of Animals

In this chapter, we will encounter some of the main views in relation to the moral status of animals. This analysis is presented somewhat belatedly insofar as much has already been said on these views. However, before presenting them we needed to understand the nature of disagreement and public justification. Despite its late arrival, this analysis is necessary now because in the next chapter we will discuss which principles for the treatment of animals these views will have reasons to accept. The chapter will proceed as follows. In the first section, I will discuss the very idea of a view and compare it with the Rawlsian notion of comprehensive doctrine. In the second section, I will discuss in detail what the epistemic norms FEN and SEN (Sect. 4.2) consist in, especially with respect to the substantive requirement of compatibility with the findings of science. Next, we will see the publicly admissible views and why these five constitute a complete and representative set (Sect. 4.3). They will be ordered starting from the most favorable to the interest of animals to the least: Animal Subjectivism (Sect. 4.3.1), Pathocentrism (Sect. 4.3.2), Relationalism (Sect. 4.3.3), Environmentalism (Sect. 4.3.4) and Humanism (Sect. 4.3.5). Some space will also be devoted to the mixed views, which may easily be included in this set, and some borderline cases © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_4

129

130 

F. Zuolo

(Sect. 3.4). The fifth section is devoted to the main views that do not meet the epistemic norms and therefore are not publicly admissible in the procedure of public justification. The presentation of these views will be divided into philosophical views (Sect. 4.5.1), religious views (Sect. 4.5.2) and widely shared societal views (Sect. 4.5.3). I will conclude the chapter by showing how and why people who hold publicly non-admissible views may have some reasons to accept the outcome of the procedure of public justification (Sect. 4.6).

4.1 What Is a View? If the objects of public justification are the principles to regulate the treatment of animals, the “subjects”—as it were—of this procedure are the views. Needless to say, the views cannot be subjects qua agents of any procedure or discussion because, of course, the individual persons are the actual agents. However, the views are a sort of mediator between individuals and principles because the views are the overall doxastic and sometimes existential frameworks to which individuals are committed, thus providing internal reasons for or against the principles. This clarification is important because in the next chapter we will discuss whether a certain view has a reason to accept or reject a principle. This formulation will be a shortcut to say that people holding these views have a reason to accept or reject a principle. It will also be an easier way to focus on the epistemic dimension of what people are justified to believe. Before proceeding, it is worth clarifying what I mean by a “view” about the moral status of animals. The idea of a view about the moral status of animals is modeled after Rawls’s idea of comprehensive doctrine. However, I prefer to use the term “view” rather than “doctrine”, so as to specify that here we will only discuss issues about animals, not overall doctrines about justice. True, Rawls’s jargon distinguishes between fully comprehensive doctrines and partially comprehensive doctrines. In a sense, the views about animals I discuss are all “partially comprehensive doctrines”. Rawls characterizes the difference between fully and partially comprehensive doctrines as a matter of degree along the following dimensions: scope, articulation and controversiality. The wider the scope, the

4  Views on the Moral Status of Animals 

131

more articulated, and the more controversial a doctrine is, the more it is a fully comprehensive doctrine (Wall 1998: 46–7). I have no objection against this characterization. But I prefer employing the jargon of “views” in order to denote that here we will only discuss a sort of doctrine that has a specific concern (the nature of animals and their relation with human beings). Hence, the views we will discuss may have a low score in terms of scope, because they may have nothing to say about other issues, although in many cases they are related. But they score highly regarding the dimensions of articulation (such views may entail a very complex system of justification including original accounts of morality and factual understanding of animals) and controversiality (in many cases such views demand deep revisions of ordinary judgments, see in particular Animal Subjectivism Sect. 4.3.1 and Pathocentrism Sect. 4.3.2). In other respects, the views we will consider are similar to the Rawlsian comprehensive doctrines. Indeed, views about the moral status of animals are those conceptions of the nature and worth of animals that include an original and autonomous account of the matter at stake that guide the lives of those who subscribe to a view in respect of what one ought to think and what one ought to do. In a sense, each individual has a different way of conceiving of animals and of relating to them. However, the choice of focusing on a set of views as the subject of public justification, rather than presenting individuals per se, entails that we will avoid discussing purely idiosyncratic views. This is so for two reasons. First, as a matter of feasibility, we must put together similar, albeit not identical, views in order to discuss with some ease those that share some common features. Second, the kind of views to be discussed in public should be understood by others, even if not agreed on by them. Hence, the views must show some epistemic virtues that make them coherent and capable of being seen as having some level of generality, at least within a set of people, which purely idiosyncratic views cannot have.

132 

F. Zuolo

4.2 SEN More in Detail Before proceeding to provide an outline of the views, we have to respond to the critique of scientific naiveté. One might argue, indeed, that the distinction between publicly admissible and non-admissible views is untenable because the two epistemic criteria I have put forward in the previous chapter (Sect. 3.3), and in particular the SEN, presuppose an ingenuous understanding of science. These norms, indeed, seem to overlook the fact that science is not a monolithic entity in which all the experts agree on an uncontroversial and unique understanding of science. Rather, there are diverse—but not unlimited—legitimate interpretations of evolutionism and of scientific data in general. If so, how can we use SEN as a criterion to assess the public acceptability of a view? A full response to this question would require a thorough and proper analysis of the implications of modern evolutionism which is beyond the reach of this work. As a general rejoinder to this objection, I can say that the use of “compatibility with the findings of science” and other similar expressions do not want to hide an ingenuous (or positivistic) understanding of science. Rather, these expressions seem to me appropriate to the level of discussion necessary for this analysis on animal ethics. Sometimes more detail is needed, but not always. For our analysis suffices—as it were—a coarse-grained understanding of science because most of the concepts I employ are higher-level notions that may be compatible with different, more fine-grained reconstructions of their natural bases. The following considerations aim to shed light on some controversies beneath the surface of a couple of coarse-grained notions I use, in particular with regard to: (i) the natural dimension of morally relevant features; and (ii) the nature and reach of science. (i) Throughout this volume we have been and will be mentioning the notion of morally relevant features that determine the moral status of individuals. These are natural features that, according to diverse theories, may have a moral value. However, such features as sentience, intelligence, linguistic capacity, empathy and so on are notoriously possessed in a gradual manner across different species and

4  Views on the Moral Status of Animals 

133

within the same species as well. With the exception of some radical forms of egalitarianism (e.g. that of P.  W. Taylor, see Sect. 4.3.3), which attribute moral status to the mere fact of being alive, most theories rely on some idea of higher/lower levels of morally relevant properties. This is necessary to differentiate between the treatment— say—of an ape and a sea slug. However, this ranking consists in a theoretical simplification, based on the assumption that we may meaningfully order the possession of the morally relevant capacity in an increasing or decreasing manner. This seems intuitively plausible and somewhat scientifically attestable. For instance, it is easy to say that under all accounts of morally relevant features, the capacities of a shrimp are far less developed than those of a mammal. However, taking this idea seriously would require of us to make comparative judgments on the higher/lower level of animals’ different capacities. If so, how are we to compare, say, a bird’s capacity to fly, or a bat’s echolocation, with respect to a dog’s olfaction? Are these capacities at the same level or on diverse moral levels? Answering these questions seems hard in practice and one may even doubt that we could pose these questions from an axiological point of view. Some monistic accounts (in particular McMahan 2002) hold that we may rank all individuals on the basis of their diverse potentials for well-being. Higher cognitive capacities give an individual a higher potential for well-being, which is the unique source of value to which all other values may be reduced. However, even granting that this is so in theory, it is unclear how we may translate this into practice and identify levels of potential for well-being in specific individuals (Zuolo 2016a). In general, even if we admit that some scalar consideration of morally relevant capacities makes sense, outlining a unique and monotonic ranking that associates a certain level of development of morally relevant capacities to a correspondent type of animals (or individuals) seems theoretically controversial and impossible to do in practice. Irrespective of McMahan’s controversial idea, in general, there is no great chain of beings that includes all animals and shows their different level of development with respect to the perfection of the creation and the superiority of human beings. There is no such ranking because even if we think that there

134 

F. Zuolo

is a unique measure of the morally relevant capacities, translating the diverse capacities into this unique measure may be impossible or at least very difficult to be done in detail. True, if we subscribe to a conception in which moral status depends on cognitive capacities, we would uncontroversially say that a mammal is superior to a shellfish. But more fine-grained assessments may be not so easy to make. We might be tempted to make such assessment on the basis of the evolution tree. Given that current species differentiation derives from common ancestors, and that despite this differentiation we share many organs and physiological functioning with our older ancestors, we might think that the more an animal can be posited in a recent branch of the tree, the more developed it is from the point of view of morally relevant capacities. That is probably correct if we compare again shellfish and mammals, in that the former are “older” and less developed from the point of view of any morally relevant capacities, while the latter are more recent and more developed. In general, vertebrates display higher complexity and capacities than non-vertebrates. However, this is not always the case. The most striking but not unique example of this issue is represented by octopi, which despite being invertebrates display impressive amounts of capacities and learning skills (Varner 1998: 49–51). This means that we may nevertheless continue to talk about higher or lower levels of morally relevant features, determining higher or lower levels of moral status, if appropriate, but we ought to take this discourse with a pinch of salt. This caution is even more necessary if we consider that the morally relevant features have been developed as capacities to survive or increase the evolutionary fit according to the evolutionary principles. Intelligence, the willingness to cooperate with other co-specific individuals, or sentience, are all capacities that make individuals (and species) more successful in surviving and transmitting their genes. But attaching the discourse of higher/lower capacities to a naturalistic analysis poses some problems. First, one may object that by doing so we are judging the whole natural world from the human point of view, thus falling prey to anthropocentrism. In reply, the activity of establishing rankings is necessarily human and we shouldn’t be worried about this. M ­ oreover,

4  Views on the Moral Status of Animals 

135

in these contexts, the qualifications of higher or lower are usually used as synonyms of more or less complex. Terms which do not bear normativity per se. The second general worry about the attribution of value of natural features (higher/lower morally relevant capacities) concerns the problem of naturalistic fallacy. In other words, one may object that this discourse extracts moral value from natural features, which do not have moral value per se, but rather only an evolutionary functional value with respect to a certain ecological niche. Needless to say, it is not these features that are valuable per se. Rather, it is us conferring value upon these features.1 Of course, we need good and independent reasons to attach moral value to natural capacities. And this depends on the kinds of capacity we may consider. What these morally relevant features are depends on the views about the moral status of animals, which we will see in the sections to come. But, first, we have to clarify the role of science in this discourse because it seems of the utmost importance in establishing the truth about the functioning of morally relevant features and ascertaining which animals possess them. In light of this, what is the role of science with respect to morality? Does science only provide brute data? Or does it consist in a limitation to moral discourse? These are very thorny questions that I cannot address here. Let me just put forward some clarifications on the idea of science that I am using. (ii) In general, science should not be spelled with a capital letter. Not only are there diverse sciences and disciplines, but there are also diverse and legitimate interpretations of the same findings and principles. As is known, science makes progress and paradigms change the scientifically correct picture of reality. But this does not necessarily mean that really anything goes. Practices of epistemological correctness have some invariance and at least define a range of admissible answers. Consider for instance contemporary evolutionist theory. The Modern Synthesis has been the standard formulation of the  Building on the same premise, Rodd (1990: 2) draws diverse conclusions: “we have to admit that some kinds of fact necessarily include a notion of value: notably facts about mental states. The fact that a mental state is an unpleasant mental state also implies that the state is a bad and undesirable one.” 1

136 

F. Zuolo

Darwinian legacy as applied to the study of populations and the laws of genetic inheritance. Its fundamental tenets (random genetic variation, gradualism, focus on genes, natural selection as the most important factors) have been variously discussed. These epistemological debates gave rise to uncertainty regarding, for instance, the attribution of a class of beings to a certain species, the definition of a species itself (whether it is a class of individuals or a collective individual itself ), the pace of evolution (whether it is gradual or has some accelerations), the subject of selection (whether it concerns genes, traits or individual organisms), the causal chain (whether there is a genetic determinism) and numerous other issues. Among many other disputes, let us take the most recent attempt at reformulating some basic tenets of evolutionism (namely, the so-­ called Modern Synthesis). A strand of researchers has proposed a new approach called the Extended Evolutionary Synthesis. Without putting in question the basic validity of evolutionism, this view challenges some of its fundamental features: it claims that there is no unidirectional causation from genes to traits in the first place, next to individuals and to populations, but there are also developmental features, niches and acquired traits that influence the determination of genes; evolutionary change happens in variable rates (for instance, with thresholds); the environmental niche should not be seen only as a pre-established constraint putting selective pressure because there is a co-evolution of environmental niches and the organisms populating them (Laland et al. 2015). Although this approach presents itself not as a new revolutionary paradigm, but rather as a reformulation and advancement of some classical evolutionary tenets, it is obviously partly controversial in challenging some tenets of evolutionism. What does this challenge and other controversies mean for our discourse on science? I do not wish to assess the scientific plausibility of these proposals. My point, here, is simply that of noting that scientifically valid theories may clash. The coarse-grained level of our analysis should help us to avoid stumbling upon such controversies. Indeed, when appealing to “the findings of science” I will refer to what is uncontroversially accepted, notwithstanding the diverse interpretations and possible doctrinal variability.

4  Views on the Moral Status of Animals 

137

(iii) Besides being characterized by some internal controversies, science is also externally limited. Even when there is some wide consensus on scientific principles, laws, findings and their meaning, science is not necessarily committed to providing all kinds of answers. This seems a platitude. But it bears recalling that despite the variability among diverse disciplines and methods, still science differs from other forms of thought because it is limited to those findings that can be in some way empirically proved. To be true, there are some laws or hypotheses that are still to be empirically confirmed, and there is controversy over what counts as a proof. However, this marks a difference between what is still a scientific hypothesis not confirmed empirically, and ideas that perhaps cannot be proved true or false by science. For instance, consider the question of whether the universe has been created by a God. Most scientists are probably suspicious of this idea insofar as it introduces a non-natural entity having supernatural capacities. However, it is hard to say that scientific theories in physics and astrophysics have demonstrated that God is non-existent. Simply put, this seems beyond the proper reach of science. This does not mean that science cannot demonstrate the falsity of many religious tenets. On the contrary, even if science cannot exclude the possibility that there is a super-natural entity, we can safely say among many things that the Bible’s story of the creation of the world is certainly false. These considerations are admittedly sketchy. However, they perhaps suggest to us that SEN should be somewhat reconsidered. SEN reads that “a view of animals ought to be compatible with the findings of science, in particular with the findings of evolutionism and modern biology” (Sect. 4.3). However, given the ambiguity of views and of “what science says”, dividing the views between those that are compatible and those that are incompatible with science would probably be too clear-­cut a divide. Indeed, there are perhaps diverse degrees of compatibility with science, and hence diverse degrees of (non-)admissibility in the public justification. To establish this ranking would be, again, a daunting enterprise which I cannot do here. All we can do here is admit some leeway in the (in)compatibility with science, and try not to fully exclude from the procedure of

138 

F. Zuolo

public justification all those views that do not pass SEN. What follows from this? It follows that those views that are patently noncompatible with science ought to be excluded from the procedure of public justification. Instead, those views that are probably false but not proven false deserve perhaps some form of inclusion. The reasons grounding these views (for instance, the view about transmigration of souls or about the existence of noumenal entities in the sphere of morality) cannot be accepted as reasons in the public justification procedure. However, it might be worth checking whether those who hold these views have internal reasons to recognize themselves (at least partially) in the admissible views and accept the outcome of the procedure of public justification.

4.3 W  hat Views Are Publicly Admissible and Why? Now let us outline five views on the moral status of animals: (1) Animal Subjectivism, (2) Pathocentrism, (3) Relationalism, (4) Environmentalism and (5) Humanism. Before going into the detail of each view, it is worth explaining the rationale behind the choice of these views. The idea is to single out the most prominent and defensible expressions of the stances on the moral status of animals that respect FEN and SEN. Such views can be put on a continuum ranging from the one according the greatest value to animals’ status to that giving structural priority to the status of human beings. Indeed, in Animal Subjectivism animals are attributed autonomous (and equal) moral status as separate individuals; Pathocentrism holds that we have direct duties toward animals in virtue of their interests but individuals are not recognized as having any irreducible worth as such; Relationalism rejects the jargon of rights and intrinsic worth independently of one’s relation with animals; Environmentalism values collective entities (species and ecosystems), not only individuals; Humanism holds that we have only a duty of benevolence and humanity toward animals, but not duties of justice.

4  Views on the Moral Status of Animals 

139

Let me also forestall a couple of general objections. One may object that this list is not complete because there are many other important theories in animal ethics, and that this list is not representative because there are also many other popular views held in society. Regarding the first objection, it is true that there are other theories. However, I submit that most of them can be reduced to the fundamental types because many of them are a combination of the pure types (more on this below, see Sect. 4.4). As to the second objection, one might argue that if we want to find an agreement that is feasible and inclusive, we should engage directly with socially widespread positions and religions which are in some cases far more socially weighty than some of the following five views. I will show that the main five publicly admissible views also represent many other socially held views, some of which are less coherent and well-­ structured, while others are not compatible with the epistemic desiderata (see Sects. 4.5 and 4.6). Moreover, the representativeness of these views is wider than it first seems because they are not to be thought of as pure philosophical theories. Although I will use widely known theories to expound the views, the latter are more inclusive than the proper philosophical theories insofar as they can also be held by people who are not fully aware of the corresponding philosophical theories. For instance, one need not have read Peter Singer’s theory to subscribe to the view that what ultimately matters for animals is preference satisfaction and utility (Sect. 4.3.2). Likewise, one need not have read feminist theorists to think that empathy is our guide for treating animals (Sect. 4.3.3). Hence, the proper philosophical theories will be used to represent the views at their most coherent and sophisticated level. But the number of people who subscribe to the basic tenets of the five main views (and of their mixed versions) is far greater than those who have read and subscribe to the corresponding philosophical theories. For this reason, we may think that the main publicly acceptable views are supported by a large number of people in current societies and are not merely a matter for professional philosophers.

140 

F. Zuolo

4.3.1 Animal Subjectivism This view holds that animals have a fully autonomous moral status. On this view, the ascription of rights and full moral status to animals (at least to a qualified class of them) depends on their possession of some form of subjectivity. By subjectivity here we broadly mean a capacity for inner experience—including memory, sense of continuity from past to the future, expectations and a certain form of individual character—which (some) animals share with human beings. Coupled with subjectivity is, obviously enough, some level of intelligence, understood as a capacity of problem-solving. The specificity of this view is the claim that subjectivity deserves proper defense per se. For this reason, Animal Subjectivism is typically represented by deontological accounts that posit rights as side constraints to the admissible actions toward animals. The most famous formulation of this position is outlined by Thomas Regan (1983) in the form of his idea of subject-of-a-life, which bestows on animals a form of status that carries with it inherent value and is analogous to the moral personhood of human beings. Animals’ possession of inherent value is generated by their having a fundamental property, the capacity to have experiences, which makes them worthy of direct and autonomous moral concern. Other views (see in particular Pathocentrism) may argue for a similar treatment of animals. However, Animal Subjectivism is different because it recognizes value to subjectivity pretty much as we do for humans, who are worthy of dignity and recognition besides their being receptacles of good or bad experiences. Common features between animals and human beings justify the recognition of moral entitlements to animals, namely fundamental rights in the same way as we ground human rights to human beings. What these rights are varies depending on the specific Animal Subjectivism account we consider. However, in general they include a right not to be killed, not to suffer, to have a flourishing life, to move freely and not to be exploited for human purposes. In general, this entails a deontological theory of animal rights, according to which killing animals for meat production and scientific research is morally wrong. Other typical human practices, such as industrial

4  Views on the Moral Status of Animals 

141

farming and exploitation of animals, should equally be outlawed. Such a perspective may require the full liberation of animals from human domination (Francione 2009) or the inclusion of animals in human political communities (Donaldson and Kymlicka 2011). These moral implications stem from a full recognition of animals as separate and irreducible individuals, that have, in Regan’s jargon, inherent value in virtue of their having the same fundamental capacities as persons. Some ethologists (Bekoff and Pierce 2009) and theorists go even further and claim that many animals also have some moral capacities— such as the capacity to reciprocate, willingness to behave altruistically and the capacity to follow a rule. This amounts to the recognition of a (minimal) form of moral agency to animals. This appreciation for individuality is the most important feature that distinguishes Animal Subjectivism from other views, which can in some cases recognize similar moral entailments to animals. Despite the commonalities of Animal Subjectivism, different theorists hold diverse versions of Animal Subjectivism. Unlike Regan’s mainstream view, Nussbaum (2006) upholds a form of it which makes an important reference to species properties. Regan, instead, subscribes to the principle that species belonging is irrelevant from a moral point of view and that only subjective features are what counts. Nussbaum, by contrast, claims that reference to species is necessary to understand how an animal can flourish and lead a good life. The capacity to have a natural and flourishing life is, on Nussbaum’s view, what confers dignity (i.e. intrinsic value) and rights to animals. Gary Francione (2009), instead, grounds a deontological theory of animal rights on the mere possession of sentience. Although his theory has much in common with Regan’s perspective, he departs from it because he thinks that requiring that an animal be subject-­ of-­a-life or have higher mental capacities consists in the imposition of a typical human characteristic which is disrespectful of animals’ nature. Now let us briefly discuss some of the most pressing problems of Animal Subjectivism. This view is the fullest recognition of animals’ moral status and includes some egalitarian commitment. However, this causes some troubles. If there is a clear commitment to equality of status based on the possession of a property (being subject-of-a-life) that only some animals possess, it is less clear what we ought to do toward animals

142 

F. Zuolo

that do not possess it. Regan claims that presumptively we ought to apply this consideration to other similar animals even if we are not sure whether they are subjects-of-a-life (e.g. mammals at their earliest stage of their life, or non-mammals that, though, have higher capacities like birds and octopi) (Regan 1983: 391). But if so, we still leave out many animals, and the extension of this rights-based coverage has a weaker grounding. If, instead, equality is simply predicated upon a variable property, like sentience for Francione and mere animality for Nussbaum, it is unclear what the ground for equality is (see Zuolo 2016c, 2017, 2019). I do not want to expound all the merits and limits of this view, which is not the point of this analysis. Rather, suffice it here to show how this view seems the fullest publicly acceptable recognition of animals as subjective entities having moral claims. Whatever we think of the plausibility of this view, we must recognize that it is entirely compatible with FEN and SEN, and it is important because it captures the idea that at least some animals have an irreducibly individual nature, which deserves protection.

4.3.2 Pathocentrism The basic tenet of Pathocentrism is that animals, like humans, are sentient beings. Therefore, animal welfare should be included in our moral consideration. On the Pathocentric view, what morally counts is a matter of degree because whether and to what extent something affects the welfare of a being, and how much it should be morally considered is a matter of degree. Hence, the coherent moral methodology of this view is some form of consequentialism, which markedly differentiates Pathocentrism from Animal Subjectivism. The most prominent expression of this view is utilitarianism. Notwithstanding the seeming straightforwardness of utilitarianism, it provides different responses to the status of animals. Classical utilitarianism considers animals only as receptacles of pleasure and pain. Accordingly, it holds that their life can be taken, provided that their suffering is included in the overall calculation. Although classical utilitarianism, in particular in Bentham (1995), holds some principle of equal consideration, it does not imply a right to life for animals.

4  Views on the Moral Status of Animals 

143

Furthermore, in the Millian version, it explicitly assigns a lower capacity for happiness to animals in virtue of the human capacity for superior pleasures, and declares that no human would opt for the life of an animal (Mill 2003: II, 6). Irrespective of these differences, classical utilitarianism does not give specific consideration to animals’ individuality, if any. A similar approach may also be traced in a popular view which draws on Pathocentrism: animal welfarism. This view inspires many laws on animals, regarding for instance the duty to stun animals before slaughter, the improvement in their condition in farms, and the 3Rs principle in scientific research. Indeed, in many current laws, the moral considerability of animals is formulated only as a matter of welfare and in particular as an interest in not suffering. It is a sort of popularization of Pathocentrism because the only thing that counts is animal welfare and in particular suffering. However, unlike traditional utilitarianism, this view is only mildly inclusive of animals’ interest and does not necessarily require that their welfare be included in the overall consequentialist calculus. In contrast to traditional utilitarianism and welfarism, contemporary utilitarianism embraces more clearly some form of egalitarianism and overcomes the idea of animals (and human beings!) as mere receptacles of utility. Indeed, Singer’s preference utilitarianism distinguishes conscious animals from self-conscious animals (Singer 1993). The former are limited to the experience of suffering and enjoyment, while the latter also have a sense of the future and more complex preferences. While this distinction makes the utilitarian perspective more sophisticated, it does not change the fundamental idea that there is only a single measure of moral concern determined by well-being. Accordingly, the moral status is simply determined by (the level of ) sentience. With respect to this, however, utilitarianism tends to be interspecifically egalitarian. Singer’s idea of interspecific equality of interests makes the case for an egalitarian moral concern when it is the case. From this it follows that animal suffering is admissible only if outweighed by human gains, which, though, should count on an equal footing. Hence, all practices incompatible with animals’ ethological needs (such as industrial farming) should be abolished. Despite its radical potentiality, utilitarianism has varying responses to the admissibility of animal killing. In principle, it may be admitted if justified on overall utilitarian grounds. Classical

144 

F. Zuolo

utilitarianism admits of it provided that it is done with the least suffering caused to animals. In Singer’s perspective, however, it all depends on whether an animal is conscious—thus merely feeling pleasure and pain and responding to stimuli—or self-conscious—thus also capable of more complex desires and expectations about the future. In this latter case, killing, for reasons that are not grounded on pure necessity—for example self-defense or lack of alternative food—is not permitted.2 Pathocentrism is a very popular view on animals. Indeed, its two fundamental features (concern for welfare and consequentialism) may also be welcomed by those who do not share egalitarian concerns for animals. Nozick nicely summarized this idea when he mentioned the slogan “utilitarianism for animals, Kantianism for people” (Nozick 1974: 41). Needless to say, this would not be a coherent utilitarian account, which cannot be confined to animals alone. However, this idea certainly captures the pathocentric intuition of many people who seem committed to taking into account animals from a moral point of view, without being willing to guarantee rights as constraints. The main problem of Pathocentrism is that by placing value on the experiences rather than on individuals it might be open to trade-offs among individuals. In its utilitarian version, by placing value on welfare and not on individuality, it can justify very unequal treatments among animals (and human beings as well), if this increases overall utility. But Pathocentrism is a very important view because it captures the widespread idea that whatever one thinks about animals, still their welfare matters. To conclude, Pathocentrism certainly meets FEN and SEN because it is impartial and universalistic, and based on the scientific commonalities between animals and human beings.

4.3.3 Relationalism Animals are living entities with which human beings entertain diverse forms of relations. This means that they are capable not only of suffering but also of interacting with human beings. On this view, the moral  On the difficulty of this distinction, see Zuolo (2016b).

2

4  Views on the Moral Status of Animals 

145

standing of animals may easily be tracked by empathy: given that human beings care for animal welfare, interact and sympathize with them, human beings have a responsibility toward animals according to the type of relations they have with them. In Relationalism, what we ought to do depends on actual or potential relations with an individual, and as such it cannot be determined in the abstract. Within the vast relational family, we may distinguish between two main different approaches depending on the type of relation at stake: personal relations or impersonal relations. Personal Relationalism holds that the moral significance of animals depends on how we as individuals may come to develop a relation with a specific animal. Diverse theories are included in this approach. What they have in common is the idea that morality, in general, is a matter of extension of our natural attitudes toward the other beings. Personal Relationalism can be further divided into sentimental approaches and feminist approaches. Sentimental approaches, represented by Mary Midgley’s (1983) theory, draw on a sympathy-based conception of morality which has its origin in Hume’s moral theory. According to this account, our moral attitudes depend on the development of our capacity to put ourselves in others’ shoes (sympathy). This capacity, starting from the inner circle of family and close acquaintances, can be extended to include all human beings and animals too. This is a natural tendency because we have daily relations with animals and can extend such relations to all animals in virtue of their being sentient creatures as we are. On this perspective, traditional forms of relation with companion and working animals may be acceptable to the extent that they respect animals’ nature. On Midgley’s view, speciesism is not per se a defective attitude because it is rooted in our innate sympathy toward our fellows (Midgley 1983: 104–8). Having a special relation toward our co-fellows does not entail the legitimation of animals’ exploitation. Rather, it ought to be thought of as constitutive of different forms of relation with different species, all forming a mixed community of human beings and animals. In an analogous but distinct manner, feminist approaches put at the basis of the ethical attitude toward the world the relation of care toward a being. This fact is constitutive of our relations with all human beings, although it finds its inmost source in maternal care. Despite it being a relation structurally characterized by asymmetry and inequality, care

146 

F. Zuolo

should not be dismissed as a defective form of relation from the moral point of view, because it is the adequate response to the fact of fragility of a needy being. And on a feminist view, all individuals are fragile needy beings. Unlike the masculine idea of morality based on autonomy, impartiality and rationality, which neglect the true reality of our moral relations, life is structurally constituted by relations of care, help and empathy which start from maternal care and extend to all human beings and animals too (Adams and Donovan 1995). Unlike rights-theory, personal Relationalism, whether in its feminist or sentimentalist version, is grounded in the relations between humans and animals, and the attitudes of the former toward the latter. Therefore, it does not require a full liberation of animals, because non-exploitative relations between human beings and animals are not just possible but commendable. But this view, depending on personal relations and rejecting impartiality, is ambiguous on the issue of the killing of animals (George 1994, 2000). Consider the following feminist diverging accounts. Nel Noddings proposes a full-blown theory of special relations of caring, in which the killing of animals is admitted if there is no special relation with them (Noddings 1984: 159). Josephine Donovan, instead, claims that care feminist theory would not allow even compassionate slaughter of animals because an empathic communication with animals would clearly result in saying that “no animal would opt for the slaughterhouse” (Donovan 2006: 310; and see also Donovan 1996). Impersonal Relationalists, instead, are not interested in the morality stemming from personal attitudes. They rather hold that duties of justice are generated by special kinds of impersonal relations, namely the diverse forms of contribution to social cooperation (Coeckelbergh 2009; Kitcher 2015; Niesen 2014; Valentini 2014). Building on associative theories of justice, where justice is a matter of distributing to those who cooperate socially produced goods in virtue of the principle of fairness, they take the Rawlsian idea of justice seriously and apply it to human-animal cooperation. Indeed, animals do contribute to the cooperative production of social goods insofar as they are reared for nourishment, scientific research, assistance to human beings (e.g. guide and guard dogs) (Zuolo 2020). To the extent that they contribute to all these tasks, we owe to them the inclusion in the domain of justice (Coeckelbergh 2009), a fairer share of

4  Views on the Moral Status of Animals 

147

the production of social goods and better conditions of life (Kitcher 2015; Niesen 2014), or special rights and inclusion in society in virtue of their long-standing relation of mutual domestication (see in particular for the case of dogs, Valentini 2014). What we owe to wild animals or to animals not contributing to the production of social goods is left outside of this relational theory. To conclude this brief summary of a multifaceted relational family, it is worth mentioning Clare Palmer’s (2010) theory since it combines a personal and impersonal approach to Relationalism. Palmer wants to make sense of the idea that we have multiple and different duties to animals in virtue of the diverse relations we have with them. If there is a general duty not to cause suffering, it does not follow that we ought to alleviate animal suffering in case we are not responsible of it. This means that we ought not to intervene in and moralize the life of wild animals. But apart from this we have different relations with animals that call for different moral responses. Indeed, not only are we responsible toward domesticated animals; we are also responsible toward all those animals whose life we influence in a number of ways when we change their habitat. In sum, the types of morally significant relations that we have with animals are not limited to those of affection, companionship and domestication, but also include a number of causal relations that affect the lives of animals even if we are not usually aware of it. The merit of Relationalism is that of showing the richness of our life with animals, which cannot be reduced to a simplistic set of duties and rights generated by animals’ morally relevant capacities (as in Animal Subjectivity and Pathocentrism). Its phenomenological faithfulness notwithstanding, Relationalism has some weaknesses. First, it is not always clear how we can generalize the import of our relations of care and sympathy with others. If some partiality in some relations is justified (with friends, family and companion animals), and even if we concede that morality is not all about impartiality (as it is in utilitarianism), still how can we be sure that, by following our natural attitudes of care and sympathy, we can avoid all typical forms of wrongful discrimination? Second, although Relationalism starts from a critique of abstract and simplistic moral accounts, it is not clear whether Relationalism can really dispense with the grounding of the account it criticizes. Can Relationalism really

148 

F. Zuolo

do without presupposing morally relevant capacities as markers of moral considerability? How can we know whether a relation of care or sympathy toward a being is correct or misplaced if we do not rely on the morally relevant capacities of that individual? Can Relationalism be a thoroughly freestanding account? Some feminists think so, but others wisely doubt it, and conceive of Relationalism as a completion of a rights-based theory (Palmer 2010: 164). Despite these weaknesses Relationalism is consistent with SEN and has the advantage of reconciling the moral question of animal treatment with the reality of human daily life, without sanctioning the legitimacy of the status quo. Moreover, it does so by providing a ground for asymmetries and partiality (the fact that relations are variable and depend on the mutable role of the moral agent), thus meeting FEN.

4.3.4 Environmentalism Environmentalism holds that nature has some sort of intrinsic value and deserves protection. Therefore, animals have a worth in virtue of their being natural entities and accordingly ought to be protected. There can be two main approaches in Environmentalism: individualism and holism.3 Individualist Environmentalism places value in all individual forms of life, both sentient and non-sentient. The value of any biological entity rests with its being capable of self-reproducing and self-developing. By being autonomous teleological centers of growth, reproduction and life, all biological entities have a good of their own because they have needs and a life. Building on this premise, Taylor (1986) grounds an egalitarian theory, where all living entities have some minimal equal inherent worth. Differences in worth depend on the imposition of human perspectives of merit which do not recognize the irreducible autonomy of the good of any entity. From the same premise, however, Varner (1998) derives a non-egalitarian account because we can easily trace a hierarchy of importance of the interests of the diverse individuals. All biological  This distinction at the core is inclusive of and crosscuts other distinctions such as that between “shallow” and “deep ecology” (Naess 1993). 3

4  Views on the Moral Status of Animals 

149

entities have interests, if appropriately reconstructed, but the interests of superior entities (animals, and humans in particular) count more. Both perspectives do not ban all forms of use and consumption of animals, including eating them, if this is necessary, although a vegetarian diet would usually be more in line with the principle of individualistic Environmentalism. Holistic Environmentalism holds that animals may have a moral worth qua individuals, but that we should also and more importantly consider their worth qua members of species that are part of natural habitats (Leopold 1966; Callicott 1989). On this view, we should focus our moral attention on collective entities (species and ecosystems), not on individuals per se. This is so because the moral imperative is the safeguard of natural ecological equilibria. Therefore, coherent Environmentalism does not prohibit per se the rearing and killing of animals, but only to the extent that it is detrimental to the maintenance of ecosystems.4 Environmentalism might even require the killing of animals which threaten to exceed the ecological equilibrium of a zone. However, certain situations, such as the domestication of wild animals and in general the lack of an appropriately ethological environment for animals, may be considered wrong from an environmental perspective. Concern for such collective entities as ecosystems has been looked on with suspicion by many, insofar as they seem to overcome the nearly universally accepted principle that what ultimately counts is individuals. However, there is a plausible interpretation of this principle which does not boil down to denying the value of individuals. The appropriate unit of moral concern is the fundamental unit of development and survival. Loving lions and hating jungles is misplaced affection. An ecologically informed society must love lions-in-jungles, organisms-in-­ ecosystems. … After one has discarded category mistakes and associated prejudices for skin-in cooperation, centeredness, and so forth, there seems little reason to count one pattern (the organism) as real and another (the ecosystem) as unreal. (Rolston III 1987: 258, 262)  For this reason, Sagoff (1993) has appropriately pointed out that, despite the common social origin, Environmentalism and Animalism—a label including more or less all the three previous views—have been developed in contrasting, if not incompatible, ways. 4

150 

F. Zuolo

Besides this possible trouble, Environmentalism raises some doubts. On the one hand, the individualist approach is at pains to justify the idea that every living organism has value in itself, to the extent that such a value might be so minimal that it has very little—if any—implications in practice. This is so because it does not generate a prima facie injunction to respect all forms of life, as in the case of Jainism (Sect. 4.5.2), but only some minimal concern for all natural entities. Egalitarian Environmentalism (Taylor) has a further problem because it seems to clash with the obvious differences between—say—trees, mollusks, mammals and humans, such that equal inherent value disappears with respect to the other morally relevant features. However, of course, not all living entities should be treated equally. On the other hand, the holist approach struggles to defend the autonomous worth placed on collective entities independently of their individual parts, without the unpalatable implication that individual parts may be always sacrificed for the sake of the collective entity. More anthropocentric environmental ethics seem content to solve these troubles by justifying the value of nature within a human perspective. However, in that case, this perspective might be better understood under the category of Humanism (see the next section). Irrespective of these problems, Environmentalism is compatible with our epistemic principles (indeed, sometimes it conceives of itself as a true understanding of Darwinism, because it takes all types of life seriously), and represents the intuition that life is somewhat important in both its individual forms and its collective forms.

4.3.5 Humanism Humanists hold that only persons are part of the domain of justice which arises from reciprocity and equality-based duties. This conception of practical normativity is grounded on the idea that only persons can understand and follow moral principles in virtue of their possession of moral agency. On this view, however, animals are owed certain direct duties of humanity and benevolence requiring, in particular, that their suffering be taken into account (Barry 1995; Rawls 1999; Scanlon 1998).

4  Views on the Moral Status of Animals 

151

Special moral consideration is given to moral agents because morality is a matter of principles and rules, which can be understood and followed only by moral agents. As a consequence, moral patients, and in particular animals, are owed only certain duties, viz. regarding their welfare, but not an unconditional recognition of rights. By including Humanism in the domain of publicly admissible views, we must face the standard objection of speciesism insofar as Humanism allegedly attributes full moral status only to human beings in virtue of a morally irrelevant feature (species membership). However, the irrelevance of species belonging is not so uncontroversial and other views, acceptable for other reasons, might have a different take on this (see Environmentalism and Relationalism). But irrespective of this, this objection has a point, as we have seen in various parts of this book. Hence, here I present a version of Humanism that is immune to this charge. First, this is so because the treatment granted to marginal human beings is not merely dependent on species membership. Rather, it depends on the special relations we have with marginal human beings who, unlike animals, structurally depend on persons to survive.5 Second, unlike some indirect views (see Sect. 4.5.1), on the humanistic view animals are not morally indifferent per se. Rather, we have duties toward animals that are not duties of justice. Many theories in animal ethics have denounced the untenability of all views giving priority to human beings per se. Attacking this point has been seen as a way to attack the more sophisticated version of prejudices embedded in majoritarian philosophical, cultural and religious views in our societies. But, as said, the distinction between human beings and animals need not be unjustified, and the practices it accepts need not boil down to the status quo. The duties of humanity toward animals that follow from this view require further specification. In general, Humanism recognizes the importance of animal welfare and of human relations with animals, but it also accepts many possible forms of cooperation and uses of animals, provided that they are compatible with animal welfare. This view gives a  “The beings in question here are ones who are born to us or to others to whom we are bound by the requirements of justifiability. This tie of birth gives us good reason to want to treat them ‘as human’ despite their limited capacities” (Scanlon 1998: 184). 5

152 

F. Zuolo

justification for the different moral status accorded to animals and not marginal human beings. Moreover, there is not a disproportionate treatment of the two categories such that members of the latter have a full moral standing, whereas members of the former have none. Hence, this view seems to meet FEN, because it provides a ground for possible discrimination, and SEN because it fully recognizes animal sentience.

4.4 Mixed Views and Borderline Cases Like all sorts of “taxonomies”, the one I propose here seems to rule out some views and theories. But we have to distinguish between what seems excluded from this taxonomy because it is a mixed expression of the five main types, and what is excluded because it does not pass FEN and SEN. Before seeing what views should be left out of the domain of public admissibility (Sect. 4.5), it is worth briefly dwelling on some mixed theories, which corroborate rather than question the representativeness of my taxonomy. The first and perhaps most important example of a mixed view is Donaldson and Kymlicka’s (2011) theory of animal citizenship. Their theory is grounded on Animal Subjectivism but significantly draws on Relationalism too. Indeed, they subscribe to a standard animal-rights view (à la Regan) regarding the fundamental moral rights to life, non-­ suffering, ethological needs.6 However, they are not committed to a liberationist ideal because many animals are domesticated and cannot be liberated, and the relations that we can have with them may be rectified so as to follow appropriate principles of relational justice. Hence, domesticated animals can be included in our human communities as proper citizens, and granted a set of positive rights in virtue of their contribution to human societies and long-standing relations of membership and companionship.

 The attribution of fundamental (negative) rights (to life, not to suffer from pain or deprivation and so on) rests on “the fact that they [animals] have a subjective experience of the world” (Donaldson and Kymlicka 2011: 31). 6

4  Views on the Moral Status of Animals 

153

Another important example of a mixed view is the theory proposed by Alasdair Cochrane (2012). Cochrane subscribes to an interest-based account of rights, where rights are entitlements to protect very important animal interests. Unlike other theories (namely those of Francione and Regan), Cochrane does not think that animals have an interest in, nor a right to, liberty. Hence, they ought to be protected from human exploitation and harm, but not liberated. In addition, his theory is a more moderate form of Animal Subjectivism, and one close to Pathocentrism since Cochrane does not ground the possession of rights on the pure subjective status. Rather, rights ought to be recognized in virtue of the possession of fundamental interests that generate duties on the part of moral agents. Such interests are more often than not also accompanied by a form of subjectivity, but Cochrane, unlike Francione and Regan, is ready to admit the variability and differences in weight of these interests. Hence his theory of rights is not egalitarian. In a similar vein, David DeGrazia (1996) and Jeff McMahan (2002) outline non-egalitarian views of animal moral status which are very close to Pathocentrism’s consequentialism. What counts in their view is the weight of animals’ interest and the principle that similar interests of animals ought to be weighed on a par with similar interests of human beings (as Singer claims). Moreover, both uphold a welfarist value theory, whereby what ultimately counts is the type of experiences of well-being that an individual can have. However, both are ready to combine sensitivity to consequences and a concern for animals’ individuality without being committed to equality of status. Although their account is very pathocentric in its grounding, they are less willing to disregard individuality than standard pathocentric approaches. It is also worth briefly mentioning the case of ecofeminism which somewhat lies in between Feminist Relationalism and Environmentalism. On the ecofeminist view (in particular, see Warren 1990), patriarchal domination is based on the understanding of nature as a mere thing which can be disposed of without any limitation. If the aim is the overcoming of this wrongful attitude, it follows that ecofeminism should include nature. Hence, relations of care and sympathy can be extended beyond the realm of sentient beings, so as to include also non-sentient natural entities.

154 

F. Zuolo

Another interesting mixed case is that between Humanism and Relationalism, as represented by Chappel (2011), Diamond (1991) and Williams (2006). Despite outlining diverse theories, they all subscribe to a form of Humanism because, in their view, humans are granted superior prerogatives and species-talk is admissible. Indeed, according to this approach, it is not only inevitable but also justified to appeal to the preference for our species. The formation of moral ideas, indeed, stems from our species’ need to survive and progress. Hence, taking a totally impartial point of view—as it were, “the point of view of the universe”—is misleading if not presumptuous because morality is a normative activity whose axiology is inevitably human because it is made by and for humans. These thinkers are, though, also Relationalists in that the source of value cannot be extracted—as it were—from the mere natural properties of humans and animals. The moral sense of the distinction between humans and animals lies precisely in the human practices that structurally constitute the sense and value of human moral notions. To complete this picture, we should also mention other theories, whose public acceptability is unclear. Among these, perhaps the most important one is the traditionalist view outlined by Scruton (2000). On his view, all traditional practices involving animals, including hunting, races and so on, are justified as long-standing practices in which human (and animal) virtues are put in practice. Although massive animal farming is wrong, this is so not because animal suffering is morally wrong per se, but rather because it is a purely instrumental practice fostering no good attitudes in human beings. Furthermore, animals are to be distinguished in virtue of the relation they have with human beings (companion animals, farmed/ working animals, wild animals). Diverse types of relations generate differential forms of human responsibility. This view may, in turn, be somewhat represented by a combination of Humanism and Relationalism. Unlike previous cases that mix Humanism and Relationalism, it is dubious, however, whether this grounding on good or bad virtues is fully publicly acceptable. This is particularly the case because this insistence on virtues as the measure for the legitimacy of our treatment of animals comes very close to the indirect views (see Sect. 4.5.1) which are publicly non-acceptable. Perhaps the criteria I have proposed cannot fully assess

4  Views on the Moral Status of Animals 

155

Fig. 4.1  Chart of publicly admissible views. (Horizontal degree of normative support for animals (max. on the left, min. on the right); Vertical degree of recognition of animal subjectivity (from low to high). This diagrammatic example charts only philosophical theories. The same could be done for other socially held views (including religions))

the specificity of this issue. But that should be seen as a minor problem. Other criteria may be used as well. As a way of capturing in a snapshot the views and theories we have encountered here, I have represented them in a map (Fig. 4.1). A final worry regarding the completeness of my proposed list of families is that it does not take into account some hard cases that might occur in future or that are already looming at the edge of some practices and techniques. These cases might seem to present new problems beyond paradigmatic cases upon which the main views rely. First, consider the question of the enhancement of animals’ morally relevant features via genetic engineering. Suppose that we could engineer animals in such a way that some of them reach a level of intelligence as high as a normal adult human being. This explanation is admittedly simplistic in that the relation between genes and intelligence is still unclear. At the moment, genetic engineering of animals targets specific genes in order to make animal experimental models closer to human beings, or in order to make them carriers of organs for xenotransplantation that are

156 

F. Zuolo

not rejected by human recipients. However, we might easily imagine that enhancing techniques become available in the future and that animals may be considered feasible and appropriate models to test the practicability of these techniques for human beings too. In that case, supposing that we have a technique that can raise the intelligence of some species up to the average human level, would this fact change the appropriateness of the list of five? I do not think so, because all the views may be easily reformulated, if necessary, to include other new species that present certain morally relevant features. Perhaps only the Environmentalists would find it hard to square their account of moral considerability with these new animals. But that is not necessarily the case because the enhancement might be seen as a sort of extreme implication of domestication which is per se compatible with Environmentalism. Now, consider the issue of the moral status of some forms of artificial intelligence. According to some accounts, in order to be a moral agent, it is sufficient that an entity only be interactive, autonomous (i.e. capable of behaving in a way that is not fully determined by the environment) and adaptable. On this account, some forms of artificial intelligence meet these criteria and hence are moral agents (Floridi and Sanders 2004). Again, this should not be a problem to the extent that a view focuses on morally relevant features and not others. Given the importance of sentience as a threshold for moral considerability, the inclusion of artificial intelligence in our discourse is conditional on a form of artificial intelligence being capable of sentience (see also the Introduction). However, some of the views above can accommodate the idea that we have duties toward non-sentient entities, while others (e.g. Environmentalism) might simply remain silent on this issue. Finally, consider the case of extraterrestrial beings. Some have used the example of ETs as an argument against the tenability of the idea that mentally superior entities have the right to subjugate and exploit those having inferior capacities (Rachels 1990: 183–4). If this principle were valid, we could be enslaved by mentally superior extraterrestrial beings. But, given that we would reject this implication, it follows that we are not entitled to exploit beings with inferior capacities (animals) either. Would this demand some change to our views? Perhaps the only view that might be affected is Humanism, given its reliance on human personhood. Must

4  Views on the Moral Status of Animals 

157

Humanism be committed to this? Not necessarily, because it is not necessarily committed to holding that only human persons can be persons. Furthermore, Humanism is not committed to the idea that individuals having a superior moral status can freely dispose of and exploit inferior entities. Rather, persons have duties toward non-persons. In sum, the cases of enhancement, artificial intelligence and extraterrestrial beings do not put in question the overall tenability and completeness of the five views.

4.5 Publicly Non-admissible Views Now we may see what views do not properly meet the epistemic criteria. My presentation of these views will proceed in the following order: I will begin with the views of some philosophers (Sect. 4.5.1), then I will analyze the views of some religious traditions (Sect. 4.5.2), before finally looking at some very popular positions held at the societal level (Sect. 4.5.3).

4.5.1 N  on-admissible Philosophical Views: Cartesianism and Indirect Views In this section I will analyze in some detail only two prominent philosophical theories about the moral status of animals that turn out to be publicly non-admissible: Cartesianism and Kantianism about animals. Obviously enough, there are many other philosophical theories. Consider, for instance, Aristotelianism about animals and empiricism. Aristotle famously attributed rationality only to human beings, thus giving rise to the radical distinction between human beings and animals. However, in his account of the soul as a tripartite set of functional activities (vegetative function, appetitive and perceptual function, and rationality), human beings share the first two functions with animals. Hence, Aristotle mixes a sort of continuity view between animals and human beings, and a detachment of the latter. Despite the importance and interesting ambiguity of Aristotle I will not further analyze his thought. This restriction is

158 

F. Zuolo

not self-serving because my interest is not historical, and I need to restrict my attention to those views that are still widely debated. For opposite reasons, I will not discuss the empiricists’ view on animals (in particular that of Locke and Hume). Insofar as they greatly contributed to a modern understanding of animals by affirming the continuity that humans and animals have regarding their emotional and cognitive capacities (Steiner 2005: 159–60), parts of their theories on animals (the communality between animals and humans, the role of empathy) have been included either in the utilitarian view of animals (Sect. 4.3.2) or in the relational one (Sect. 4.3.3). Other philosophical accounts have either been included in or been discussed with reference to more famous theories about animals. For instance, Schopenhauer’s insistence on compassion as the basis of morality derives from his interest in Buddhism and Hinduism (see Sect. 4.5.2) and may be echoed by a relational understanding of animals. Or the Stoics’ sharp separation between animals and human beings in respect of their nature and mental capacities is echoed in the views of Descartes and Kant. Hence, the purpose of this section is not that of presenting a brief summary of philosophers’ main positions on animals,7 but rather that of discussing a couple of prominent theories that do not meet the epistemic norms. Hence, I will focus only on Descartes and Kant because of their influence on later thought about animals. A very important and philosophically robust theory which can be ruled out is Cartesianism because it violates the requirement of SEN. Indeed, according to Cartesianism, animals are bereft of minds, as they are like machines whose functioning may be purely explained in mechanistic terms. First, animals cannot properly use language. Even when they seem to use a language, they do so in the guise of a machine whose utterings flow not from an understanding of the issue, but rather from mere mechanical changes in the animal’s organs. Lacking rationality, even the capacities in which animals excel are merely natural capacities, a matter of instinct we would say, or internal dispositions of organs, as Descartes would say.  For a complete historical reconstruction of philosophers’ views on animals, see Cochrane (2010); Sorabji (1993); Steiner (2005). 7

4  Views on the Moral Status of Animals 

159

[T]he fact that they [animals] do something better than we do does not prove that they have any intelligence, for, were that the case, they would have more of it than any of us and would excel us in everything. But rather it proves that they have no intelligence at all, and that it is nature that acts in them, according to the disposition of their organs just as we see that a clock composed exclusively of wheels and springs can count the hours and measure time more accurately than we can with all our carefulness. (Descartes 1637/1998: 33)

However, the findings of biology and other related sciences now attest that human beings and animals share many evolutionary patterns and that rationality, the capacity to learn and other mental skills once thought to be pure human endowments are to a varying extent shared by many animals. This is particularly true of mammals, but recent studies have shown also complex mental abilities in birds and other “lower” animals (including such invertebrates as octopi). Certainly, average human mental capacities are higher than those of most of animals, but this is sufficient to show the wrongness of Cartesianism because it does not meet SEN. Although this theory is now outdated, its exclusion is important so as to make it clear that any theory that divides human beings from non-­ human animals on the basis of such a scientific cleavage cannot hold true. It is now time to discuss the indirect views on the moral status of animals and assess whether they can be included in the public justification procedure. According to indirect views, we have duties regarding animals, in particular regarding their suffering not in virtue of their autonomous moral standing, but rather in virtue of the respect we owe to moral agents. On this view, championed by Kant (1997), animals do not possess an autonomous moral status because they are not rational moral agents.8 However, we ought not to inflict unjustified suffering on them, because doing so would consist in a failure to respect the moral law and humanity. Making sentient beings unnecessarily suffer is also conducive to a vicious attitude fostering the same behavior toward human beings. In sum, these indirect views hold that animals are simply the beneficiaries— but not the addressees—of duties we have toward humanity because only  What follows is valid also for such other indirect accounts as St. Thomas’s and Carruthers’s (1992).

8

160 

F. Zuolo

humanity has intrinsic moral worth and abusing animals disrespects the duty of humanity or is conducive to committing such abuses also toward human beings. I claim that these indirect views cannot be included in the list of the publicly admissible views because they fail to meet FEN. On the very influential Kantian version of indirect views, the moral status depends on the possession of personhood and such a notion is a normative property ascribed to all human beings. On this view there seems to be an ambiguity in the idea that animals have no autonomous moral status, and hence in maltreating them we do not wrong them, for we rather wrong other humans or humanity. However, this view distinguishes between mere things and animals. In the words of Paola Cavalieri, we may say that Kant, while locating nonhumans and stones in the same category, that of things, does not urge us not to maltreat stones lest this might damage our humanity toward “mankind”. Hence, there are two alternatives: either “animal nature has analogies to human nature” in a morally relevant sense, and the risk of passing from cruelty toward nonhumans to cruelty toward humans arises from the fact that in the former case as well we violate direct duties, although perhaps less stringent; or nonhumans, as mere means, have no moral weight, and then there is no ground—in their case as in the case of stones—for the fear that a certain kind of behavior could rebound upon the behavior toward the only beings that matter morally, namely, the ends in themselves. (Cavalieri 2001: 50)

This means that Kant and others adopting this approach are probably speciesist in the sense that the ascription of moral status is grounded on the basis that the mere fact of being members of the human species entitles one to possession of the morally relevant feature of personhood. However, such a move is unacceptable insofar as it does not provide a solid ground for discrimination, thus failing to pass FEN. Indeed, here what are taken to be equal cases (inanimate beings and animals) are unjustifiedly treated differently. Hence, either they are not to be considered equal cases, thus moving animals out of the category of things, or we should coherently not make animals the recipients of a duty of humane treatment and admit that it is permissible to treat animals like stones.

4  Views on the Moral Status of Animals 

161

Needless to say, this latter option is only theoretically possible, and even from a Kantian perspective it is hardly acceptable from a moral point of view. In sum, both of those views, denying sentience to animals (Descartes) and indirect views (Kant), seem to fail the epistemic norms and hence are not publicly admissible.

4.5.2 R  eligions: Christianism, Hebraism, Islam, Hinduism, Buddhism, Animism In this section I will analyze the issue of religious views about animals. That seems a daunting enterprise for two reasons. First, there are dozens of religions and it is not always clear what a religion is—for instance, consider the problem of establishing whether Pastafarianism is a religion. Second, even within the realm of established religions, we should consider a very complex set of views and traditional stances that in many cases hold different, if not incompatible, positions. Consider for instance St. Francis’s famous love toward animals and nature. Although his view was probably not an intrinsic appreciation of animals and nature outside their being God’s creation, his stance was certainly original and minoritarian in the history of Christianity. In a similar vein, we could point to many other examples of heretical views in nearly all religions, which make it practically impossible to represent religions as having coherent and unique voices. In order to handle this complex matter, I will try to find out the most representative positions within the most important religious traditions, without claiming that such positions are the only ones. Their importance will be determined by their contribution to the mainstream expression of a religion and their presence in liberal societies. Indeed, it is worth recalling that my point here is not that of providing a complete reconstruction of diverse positions about animals held by philosophers, theologians or laypeople. Rather, my intention is to discuss the public admissibility of some important views against the epistemic criteria we have seen. Hence, the aim here is normative rather than descriptive. In particular, it is an evaluative analysis of actual positions held by important theologians and lay figures. For this reason, it differs from the

162 

F. Zuolo

proposals put forward by a number of scholars of religious phenomena or animal activists with a penchant for religion. Some have tried to trace the religious basis for an improvement in the treatment of animals by rehabilitating some (minority) religious figures or doctrines that traditionally have not represented the official or standard version of such a religion. Examples abound. The most famous case of this rehabilitation and animal-­friendly reading of Christianity is provided by Linzey (2013). Other attempts have been made by Lisa Kemmerer regarding the main Eastern and Western religions (Kemmerer 2011). It must be said, though, that these attempts also seem to be motivated by an independent moral concern for animals which these theorists struggle to make compatible with their favorite religions. Hence, although these proposals are not negligible, they cannot be considered representative of religious positions on animals, and can be dispensed within this analysis.

4.5.2.1  Monotheistic Religions: Christianism, Judaism, Islam All traditional monotheistic religions (including Judaism and Islam) share some common patterns regarding the status of animals in the divine creation and human beings’ appropriate treatment toward them.9 Hence, in what follows I will address them jointly. The common basis of these views is that animals do not have immortal souls and hence have an inferior moral status with respect to human beings. However, both human beings and animals are part of the creation. Humans have some duties toward animals in virtue of their common condition and as part of the human duties toward the creation (including possibly nature).10  For a short but comprehensive account of the main Christian views on the treatment of animals, see Passmore (1975). He explains how the main views in Christianity ranged from an attitude of neglect of animal sensitivity (Augustine and St. Thomas) to the idea that animals foreshadow human beings (Maritain). What unites these different positions is the idea that only human beings have full moral considerability and that the only actions that are forbidden to animals are due to cruelty. 10  More specifically, Linzey and Cohn-Sherbok (1997: 1–16) single out the following common features among Judaism and Christianity. First, animals are thought to be at humans’ disposal; second, some animals are unclean or inferior; third, sacrifice is sometimes required; and, fourth, animals have no rational soul. 9

4  Views on the Moral Status of Animals 

163

If this is true for Christianity in general, in a similar manner Jewish thought emphasizes the right to human dominion over animals. This, however, “implies stewardship. Although animals can be eaten and used for sacrifice, the Bible insists on humane and compassionate concern for all God’s creatures” (Cohn-Sherbok 2006: 82). Such concern applies to the traditional procedures of slaughtering which were meant to kill and slaughter the animal in a way that was the least painful method known at the time of the Holy Scripture. To make a long story short, considerations similar to the other two main monotheistic religions, in particular regarding the hierarchical conception of the world, the special place given to human beings, the humane attitude required toward animals and the performance of particular methods of slaughter can be found in the Islamic tradition too. However, unlike Christianity, in Islam animals have souls (Folz 2006: 151). Now, let us specifically focus on the Catholic view. Such attention is due to the fact that, unlike other religions, it is easier to outline a single Catholic position on animals thanks to there being the authoritative source in the form of the Catholic Catechism. 2415 The seventh commandment enjoins respect for the integrity of creation. Animals, like plants and inanimate beings, are by nature destined for the common good of past, present, and future humanity 2416 Animals are God’s creatures. He surrounds them with his providential care 2417 God entrusted animals to the stewardship of those whom he created in his own image. Hence it is legitimate to use animals for food and clothing 2418 It is contrary to human dignity to cause animals to suffer or die needlessly. … One can love animals; one should not direct to them the affection due only to persons. (Cathechism of the Catholic Church (1993) part III, section 2, chapter 2, art. 7, Respect for Persons and their Goods)11

In sum, animals may be used instrumentally provided that the human purposes are legitimate and sufficiently important, and that animals are employed with kindness and humanity. Use of animals for nutrition and 11

 Similar positions have also been reaffirmed in such other official statements as papal Encyclicals.

164 

F. Zuolo

research is admitted but unnecessary suffering is immoral. Besides establishing lower limits to admissible uses of animals, this doctrine also poses some upper limits to the value that humans may grant to animals, because the affection directed toward them cannot substitute the love owed to human beings.12 Hence, all these monotheistic religions justify the consumption and use of animals for human purposes with some restrictions regarding the types of animals involved and the way of appropriately consuming them. The duties that believers have are duties of humane treatment, kindness, which may be summarized under the principle of not making animals suffer unnecessarily. Such duties are based on the recognition of animals as part of God’s creation and human responsibility toward them in virtue of humans’ superior status and capacities (stewardship). Unsurprisingly, the practical implications of the recommendation of the monotheistic religions do not differ greatly from the traditional principles widely held in Western societies because social attitudes have long reflected religious views. Rather, we may reliably say that monotheistic religions’ takes on animals have widely informed the majoritarian view in the corresponding societies. However, our interest here is not sociological, but normative. In this respect it must be said that these religious views themselves cannot directly enter the procedure of public justification because the grounding of these views rests on dubious ideas that may hardly be accepted by science, thus being at odds with SEN. True, one may say that in the end science does not disprove the possibility that God had created the universe because it is beyond the reach of science (Sect. 4.2). However, even admitting that this is a possibility, the kind of reasons upholding it would be hardly acceptable as grounds for public justification.

4.5.2.2  Hinduism and Buddhism A similar situation pertains to other popular religious views on animals. In what follows I will briefly present the case of animals in Hinduism and Buddhism. This analysis is extremely complicated because there are many  It is also significant that the treatment of animals is discussed in a section concerning the issue of respecting persons and their goods. This means that the concern we owe to them is somewhat derivate via the concern we owe to persons. 12

4  Views on the Moral Status of Animals 

165

diverse positions and nuances from a theological, social and historical point of view. Hence, I will outline Hinduism and Buddhism in an admittedly sketchy manner. And here I will limit myself to some general considerations. Such generalizing should not prove to be a problem in respect of the main analysis, however, because of the lesser and more recent importance of these religious views in liberal societies. It is well known that in Hinduism and Buddhism the issue of suffering of animals (and of all creatures) is a prominent tenet grounding many theological positions, as well as the practice of laypeople. This position is built upon the belief in reincarnation after death. The spiritual self (Atman) is identical in all beings, and each individual might reincarnate herself in a human being or animal depending on her behavior (karma). This means that there is a unique substance that binds together all living beings. However, this does not mean that all creatures are equal. Rather, they are ordered on a scale of purity from the lowest and most impure beings to Gods (Harris 2006). From an ethical point of view, from this principle of spiritual unity the principle of non-violence (ahimsa) follows. This principle recommends the avoidance of any form of violence toward all beings. Hence, vegetarianism and careful attention to the life of all creatures seem to follow. However, this principle does not recommend a universal duty upon all individuals, at least not in the standard majoritarian versions of Hinduism and Buddhism. It is particularly incumbent upon the members of those who are committed to the ascetic renunciation (Nelson 2006: 182), to the monks and to the members of the caste of Brahmins. Indeed, the perception of inner connection of all living beings is not the starting point of such practices, but rather the end point where the practice means liberation and the individual becomes bodhisattva. Such a universal prescription is, instead, what characterizes Jainism’s way of life. However, even in Jainism, avoidance of causing suffering to animals seems to be ultimately grounded on the idea of perfecting one’s karma, rather than on duties toward animals, which are—as in other religions—inferior forms of beings (Chapple 2006). Hence, the principle of non-violence and the call for compassion toward all living beings have an ambiguous, although important and omnipresent, nature in these religions. The appeal of this principle cannot be underestimated insofar as it may be easily translated as a practical

166 

F. Zuolo

precept without being committed to all the religious tenets. And the concern for suffering seems equally so. However, what underpins this concern and principle is irredeemably fraught with a clear religious and metaphysical view which cannot provide any publicly acceptable grounds.13 For instance, consider the Buddhist view of transmigration, according to which an individual depending on her karma may become an animal in another life. This view seems clearly to run against the basic principles of science. What is its epistemic status? On what basis can other views exchange reasons with those who sincerely believe in this idea? And how can we accept that this view has the same epistemic status of being prima facie reasonable and plausible as the other views I have sketched out above?

4.5.2.3  Animism Needless to say, many other religious views may be mentioned. Consider, for instance, what we may roughly define as the animist perspectives of many indigenous communities. Although this is a very complex notion, defining, as it were, a worldview rather than a religion in the strict sense, and its reach and reliability are hotly contested within the anthropological field, for our purposes we can safely maintain the following: Animist theories generally assume that animals are considered to be humans or that animals consider themselves to be humans. Humans and animals form part of a shared relational frame of interaction. Thus in animic ontologies relations and interactions with these persons are maintained through communication, mutual understanding and the possibility of transforming into and becoming the Other. (Halbmeyer 2012: 12)

This is a rather capacious definition including diverse cultures in different parts of the world. In these animistic views we may encounter both a sense of commonality of all natural entities and the need to hunt or  For this reason, it is baffling that Mark Rowlands (2009: 159–62) considers the possibility of reincarnation in animals as a ground for including animals in a Kantian reformulation of Rawls’s original position under the veil of ignorance. 13

4  Views on the Moral Status of Animals 

167

sacrifice animals. For our present purposes, all these views which we include under the umbrella term of “animism” should be discussed and taken into account only to the extent that they are actually believed by people in our societies or constitute an issue in the public debate. That has been the case of the religion Santeria. Santeria is a syncretic cult, including Catholic and animist elements, brought to the US (mainly Florida) by Cuban migrants. It became a public issue because of the incompatibility between its particularly cruel practice of ritual sacrifice and the laws against animal cruelty (Casal 2003). These sacrifices to the orishas (living spirits) require the employ of animals in order to heal people or seek guidance in life. Needless to say, the underpinning and content of such beliefs and practices hardly seem acceptable from a public point of view. To conclude, despite the huge variability of religious views on animals—ranging from very advanced forms of recognition of animals’ worth (Buddhism and Jainism) to the justification of animals’ instrumental function for humans (Catholicism), and including views that are currently minoritarian at least in Western societies—we can say that none of them can be properly included in the procedure of public justification as an admissible view because the grounds of these views are clearly incompatible with the findings of science. Hence, they do not meet SEN because the idea that animals have (or do not have) souls, have atman or are part of God’s creation cannot be accepted as reasons by the other views. However, religious views include principles and ideas that are part of our cultures and have been later secularized. Hence, they cannot be merely swept away. This is not just because this would exclude many people; it is also because some elements may be made compatible with the requirements of public justification. Hence, as we will see in the final section and in the next chapter, religious views may be indirectly included in the procedure of public justification because religious believers may find their positions partially represented in the procedure by the main views above, and they may have reasons to accept the outcome of the public justification procedure.

168 

F. Zuolo

4.5.3 Popular Societal Views Finally, it is worth analyzing some views that are widely held at the societal level. In most cases, these views are not a fully-fledged set of beliefs within comprehensive conceptions of the good life. Hence, unlike religious and philosophical views these views are not like the others, and certainly not like Rawlsian comprehensive doctrines. However, it may be worth mentioning them because of their wide diffusion among a considerable amount of people. What these societal “views” have in common is a set of (unreflected) attitudes, rather than a set of well-structured beliefs. Accordingly, henceforth I will refer to them as “attitude-views”. For this reason, they may be partially “represented” by Relationalism. As these views form a multifaceted family of attitudes with unclear boundaries and official versions, my analysis will be unavoidably rough. A thorough investigation of this field is the task of disciplines called zooanthropology, anthrozoology or animal studies. Here I will simply mention some particularly telling examples. As a preliminary remark, we should say that many people simply do not have a view on animals. People might be likely to follow conventional rules regarding appropriate behavior or attitudes toward animals—for instance, being seemingly affectionate with friends’ pets, abstractly concerned with the treatment of animals, worried for the fate of panda bears and untouched by the condition of broiler chickens—without adopting the principles, if any, underlying these thoughts. We do not know how many people in our societies have a proper view and how many simply follow some conventions without conviction. What I want to stress is simply that a part of what people think about animals may be somewhat represented by the publicly acceptable and non-acceptable views we have seen—without these people fully subscribing to these views—while what other people think about animals may be covered by the following alternatives. Most recent surveys by zooanthropologists on people’s widespread attitudes toward animals have shown the intricate set of inconsistencies that constitutes the most typical societal attitude toward animals. In particular, Hal Herzog has analyzed how individuals hold a number of

4  Views on the Moral Status of Animals 

169

inconsistent ideas and attitudes toward animals depending on whether an animal is a pet or is not in a relation with humans, whether it is a socially admissible source of food or whether it is rightly or wrongly considered dangerous. For instance, why should I consider my rodent pet intrinsically morally valuable if I am not prepared to give equal moral consideration to mice in laboratories (Herzog 2011: 222)? Herzog shows that in ordinary life our judgments and attitudes depend on contexts and relations with animals which cut across the usual moral criteria like the level of rationality, sentience and consciousness. Clearly, relations and contexts matter, but can they justify the huge difference between the full care of a pet and the total neglect of a similar animal? Another form of possible inconsistency is the one that has been called a cognitive dissonance regarding animals’ minds. This dissonance consists in denying or neutralizing the fact of animal consciousness. This denial is operated by those people who have to cope with their appreciation of meat and their acknowledgment that animals have minds and the capacity to suffer. As a result, many people tend to think that edible animals have less developed minds than other non-edible animals (for instance, dogs as having more a developed mind than cows). Such unconscious and mistaken mental operations are meant to reduce the cognitive dissonance and allow one to enjoy consuming meat, which would otherwise be disturbed by the awareness of an animal’s suffering and mental development (Bastian et al. 2012). This patchy image of contradictory pieces of reality should not worry us too much about the overall tenability of the main views. Indeed, it is not a specific feature of this field. In almost any domain of reality, what people actually think or how they actually behave is only imperfectly represented by official and standardized views and ideologies. Few people perfectly embed the coherent set of views, attitudes and behavior of a political ideology, religion or a secular philosophical view. This is why my proposed set of views may be considered representative even though there is no perfect correspondence between ideas and social behavior. Of course, societal views and attitudes toward animals may be explained as social constructions that have specific causes. Consider, for instance,

170 

F. Zuolo

how much certain animals are used for children’s education. Animal toys and tales featuring animals often serve to embody some cherished virtues in things that children usually like. On a different level, disgust for rats and other pests is reminiscent of times when they posed a real and continuous threat to human health. Appreciation for horses is the legacy of horses’ long-standing service to human mobility. Interest in some “exotic” animals may be explained by the apparent surprising capacities that they possess. At a more general level, De Mello (2012: 52–3) talks of a “sociozoologic scale” featuring certain charismatic animals (koalas, panda bears, harp seals, dolphins, tigers and lions) at the top of the scale, with insects at the bottom. On this scale, chickens score pretty low, while dogs score very highly. This ranking depends on people’s appreciation for furry and tender animals or for animals with spectacular capacities. In particular, consider the attitude-view of the “priority to tender baby animals”. The trouble with this attitude-view is that it tends to overlook other morally equivalent animals. For instance, people having this attitude-view might be outraged by the fact that lambs are slaughtered for Easter meals but do not feel equally concerned with the fate of cows, turkeys and so on, or even with the fate of adult lambs, that is sheep. Examples of this attitude abound in our daily life (especially on social media). It is clear that, here, similar cases (of a lamb and a sheep) receive a different sort of concern without justification. It goes without saying that this attitude-view fails to meet with FEN. Other attitude-views may be mentioned. Consider, for instance, the concern that people have for certain individual animals when their life is endangered. From time to time, such cases are sparked and nurtured by the media (the reader might recall the case of Knut the bear in Berlin Zoo, or Paul the octopus, among many others that have captured the public’s attention at certain times). Or on a more serious note, consider the issue of recurrent yet fleeting popular concern for the fate of endangered species (e.g. Panda bears and elephants). This concern has more serious grounds than the previous one, because it is based on the safeguarding of the environment of which species are an important part. However, it is episodic, and likely to be strong only if the survival of very fancy animals is at stake.

4  Views on the Moral Status of Animals 

171

More generally, societal attitude-views make the type of treatment owed to an animal totally dependent on the kind of relation at stake without subscribing to a coherent relational view. Hence, a rabbit may be a pet, a subject of experimentation or food. Of course, relations matter for the individuals involved in relations and for others too, and Relationalism provides a comprehensive view for this attitude. Moreover, protecting the relations that people have with animals may also be defended by people who are not concerned for animals or who do not have relations with animals because they recognize how important relations with animals are for many people.14 However, the weight to be given to these actual relations cannot justify a complete disregard for those animals with which humans do not relate. Unlike Relationalism, these attitude-views are committed to the value of relations only regarding animals in certain circumstances without accepting the full logic of Relationalism. This is possible because popular attitude-views on animals depend on the impact that animals may have on people’s sensitivity. In some cases, people’s sensitivity has been targeted as the proper object of legal safeguard. For instance, parts of current and most past laws on animal protection in Italy are based on the safeguarding of people’s sensitivity regarding animal suffering. Indeed, the prohibition of abandoning animals features in part of the Italian Penal Code (art. 727)—which is devoted to the protection of human sensitivity and sense of decorum— banning among other things blasphemy, gambling and so on. More recently, animal interests were recognized as meriting direct recognition (Law 20 July 2004, no. 189, art. 544 and following articles), thus overcoming the traditional idea of protecting animals by safeguarding human sensitivity. Developments in jurisprudence, popular conscience and knowledge of animals, though, have shown the implausibility of only defending people’s feelings toward animals rather than animals themselves. In a nutshell, why should we care for and legally protect people’s feelings regarding animals if we do not think that the object of people’s feelings is worthy of protection in itself?  For an argument supporting the political and liberal protection of human-animal relations, see Smith (2012). 14

172 

F. Zuolo

In general, a view purely based on human sensitivity toward animals hardly seems tenable. True, it would be a combination of a relational approach (Sect. 4.3.3) and an indirect one (Sect. 4.5.1). However, if we are to protect animals only to the extent that human sensitivity might be affected by animal suffering, without holding that animals should be protected in themselves, there would be little difference between the protection of animals and the protection of works of art or landscapes. Works of arts and landscapes too can move people’s sensitivity. However, they move it through the sense of admiration, awe, pleasurable experience and so on. People are moved by animal suffering on the basis of people’s capacity to empathize with animals’ suffering. But if we recognize this, there is little sense in safeguarding people’s sensitivity alone, rather than considering the real source of their sensitivity, that is animals’ suffering. Hence, this sensitivity view, although grounded on a human good, seems difficult to accept in general insofar as it fails to explicitly recognize the real source of what is to be protected (animals’ sentience). True, sensitivity is an important social phenomenon, but it seems inadequate as a public grounding for a further reason. Even though we acknowledge the importance of sensitivity to suffering, insofar as it is an emotional reaction, it is a private event which may occur or not occur depending on people’s attitudes. Hence, it is idiosyncratic and dependent upon the agent’s particular disposition. Some people may be affected by the occurrence of animal suffering, while others may not. Why should we protect animals generally if people’s response to animal suffering varies? It is a remarkable sign of this variability that some rulings (see the case of the Italian Penal code) prohibited the public display of animal suffering as an offense to public sensitivity. The implicit, albeit not fully drawn out, implication of this idea is that, according to this line of thought, private animal suffering may be admissible to the extent that it is not publicly displayed. As is plain to see, revealing the full implication of this idea shows its implausibility, not only with respect to the lack of recognition of the animals’ autonomous standing, but also with respect to the incoherent variability of its application. In sum, all these attitude-views are a mixture of selective concerns for animals in virtue of their capacity to impact on the sensitivity of the

4  Views on the Moral Status of Animals 

173

people. They are not admissible in the public justification procedure because even though they might comply with SEN—they do acknowledge the fact that animals suffer like us!—they may be incoherent with FEN insofar as they unjustifiedly privilege some types of animals (or animals of some age) over other types of animals (or of a different age) that have the same morally relevant features. Other aspects are difficult to justify too. For instance, these societal views include a host of anthropomorphization where animals are treated like children or where preference for them is justified on purely idiosyncratic and human needs and similarities. The history of domestication has privileged some traits (animals with tender fur, docility, etc.) which trigger humans’ affection. That is an important feeling for many people, but it is hardly acceptable as a ground for a principled distinction from similar animals.15 In conclusion, these attitude-views are hardly acceptable as a basis for public decision and hence are to be rejected from the procedure of public justification. This is so because they too irrationally privilege some sort of animals over others, they are based on idiosyncratic relations and they seem to rely on overly emotional forms of anthropocentrism. While some level of anthropocentrism is perhaps unavoidable as a part of our private and social behavior, it can hardly withstand full public scrutiny. In sum, there is nothing strange or worrisome in people’s inconsistent attitudes toward animals or incoherent preferences—after all, everybody has the right to have preferences in life. It is quite another thing, though, to make such preferences the grounds for public discussion and ruling. Societal views may appeal to the value of relations, thus falling under a form of Relationalism. But what is normal and justified in one’s life may become less acceptable in public.

 This does not mean that human relations of affection with companion animals are negligible or unimportant at the public level. Of course, they are so to the extent that they matter to people and they involve the life of animals that are deeply entrenched with humans. What I want to emphasize here is simply the idea that the above-mentioned attitude-views provide a flimsy ground for justifying the complex set of rules and principles that should govern our relations with animals. Clearly relations and attitudes may be relevant and can be the ground of a publicly acceptable view (Relationalism). However, they can be so, to the extent that they form a coherent view or are attached to further sets of principles and autonomous grounds. 15

174 

F. Zuolo

4.6 C  onclusion: How to Include Persons While Filtering Their Views Before concluding, let me further expand on the sense of this investigation about these attitude-views at the societal level, as well as religious views. Although I have criticized them, my aim is not to suggest that people abandon them, in order to subscribe to the views I have proposed that express more coherent approaches to animals. My account is liberal and thus grounded on the priority of people’s liberties, first of all to believe what they prefer. It is also based on disagreement and pluralism; hence, it is committed to the inclusion of as many perspectives as possible. For these reasons, I do not want to condemn these views, as well as I have not condemned the religious views. I want simply to argue that both religious views and societal attitude-views cannot be the subject of public justification because of their epistemic weakness. They are based on unscientific reasons, are often incoherent and are often the mere expression of whimsical emotions and feelings. They cannot aspire to provide grounds for public acceptability, even when they are consciously or unconsciously upheld by many people. This does not mean that people should not be considered not only free to subscribe to them, but also often personally justified in doing so. It is not just a matter of protecting everybody’s right to freedom of thought and liberty to follow diverse lifestyles. In many cases, people may have good personal reasons to believe in something that is false, incoherent or publicly unacceptable. For instance, people might be justified in being mostly concerned with tender and furry animals because that makes feel them better. From a personal standpoint one may legitimately only care about lambs and not about sheep because—say—this kind of idiosyncratic preference fosters good feelings and attitudes that are beneficial to that person. Yet it is quite another thing to ground such preferences in a manner that could be acceptable to others. These considerations allow me to recap some features of the procedure of public justification that I propose here, and to clarify why it should not be thought of as a restrictive approach. Indeed, one may suspect that by introducing FEN and SEN’s epistemic constraints, the excluded

4  Views on the Moral Status of Animals 

175

philosophical, religious and societal views would make my approach exclusive of most of what people actually think about animals. We have already encountered this problem in the previous chapter (Sect. 3.6.1) when discussing the pitfalls of reasonableness and Enoch’s critique of public reason. With respect to what I have already said in response to these critiques, here I might add that the exclusion from the procedure of public justification of the views discussed in the previous section does not undermine my account, for two reasons. First, as already anticipated, the exclusion of some philosophical, religious and societal views from the procedure of public justification concerns the reasons pinpointing these views, not the persons holding these views. Indeed, SEN’s and FEN’s epistemic filter applies to the reasons that are admissible at the public level insofar as they can be intelligibly considered as proper reasons even by those who disagree with them. Views on animals based on the idea of the reincarnation of souls or on idiosyncratic and incoherent preferences are hardly acceptable as proper reasons by those who do not subscribe to the views employing them. However, one may protest that this is a hypocritical exclusion, which conceals the exclusion of people through the exclusion of reasons grounding a view. How else could people participate in the procedure of public justification if not by using their own views? To respond to this criticism and present the second reason for not considering my account to be overly exclusive, it is worth recalling that people, whatever their allegiance to a specific view, can always make use of neutral reasons, even if they might be inconclusive. The second motive for not considering my account too exclusive is that all the excluded views may be, at least to a certain extent, “represented” by the publicly acceptable views. Indeed, in many cases the latter reformulate in an epistemically acceptable manner what in the former is confusedly or unscientifically held. For instance, most societal attitude-­ views may be represented by relational views by making the idea of giving priority to relation with animals the ground for a non-incoherent overall view. This means that holders of societal attitude-views may recognize the authority of Relationalism, even though such holders do not subscribe to it as their preferred view in their private lives. Hence, although these views may be thought of as a popular version of Relationalism, as they partially are, the way they present themselves in daily interactions and

176 

F. Zuolo

societal spheres is impossible to be translated in laws or public reasons. For instance, suppose we wanted to grant special protection to pets, as happens in many countries. According to some popular views, we may say that we want to protect cats because they are cute furry animals. My point is that this way of grounding the protection of cats fails to comply with the minimal criteria of public acceptability because what is cute is deeply subjective (and indeed used by other people to characterize completely different animals). Another more plausible way to defend the special protection of cats would be to say that we have a structural special relation with them which stems from millennia of co-evolution. Unlike the property of being cute, relations are objectively ascertainable, notwithstanding the fact that the existence and value of relations is agent-dependent. In other cases, religious and societal views may be accounted for and represented by the main views above. Indeed, the status of animals in Christian views may be captured by a combination of Humanism and Relationalism in virtue of the idea that human superiority justifies both the permissibility of human use of animals but also humans’ responsibility toward animals as fellow creatures. Hence, although the Christian views cannot be reduced to Humanism and Relationalism, their main normative principles on what is permissible and impermissible to do to animals can nevertheless be represented by other publicly acceptable views. Or consider Buddhism. Despite the great differences in the theoretical assumptions and understanding of the world, Buddhism’s view on animals may be represented by a minimal understanding of Pathocentrism. If we focus only on suffering and its avoidance, both Buddhism and Pathocentrism recommend the avoidance of causing suffering to other beings, compassion and a sort of impartiality toward oneself and others. This reasoning also applies to the excluded philosophical views. Indeed, indirect views may in some sense be included in and have reasons to accept my account because they could certainly consider neutral reasons as valid ones. Perhaps only Cartesianism is called on to change its account of animals qua certainly false. In sum, I claim that all the philosophical, religious and societal views, which cannot properly enter into the public justification procedure as providers of reasons to be discussed, can nevertheless be indirectly

4  Views on the Moral Status of Animals 

177

processed in the procedure. Indeed, they can be represented by other views, and the people who hold them may not feel totally disconnected with the views that may be legitimately publicly aired. Furthermore, as we will see in greater detail in the next chapter (Sect. 5.6), they may have reasons to accept the outcome of the procedure of public justification. The proposed procedure of public justification excludes some views from providing reasons as inputs of the procedure, but somewhat re-includes them through the representation of the admissible views and the possibility that the excluded views accept the outcome of the procedure. The indirect inclusion of these non-publicly admissible views, though, does not grant them a veto power on the outcome of the procedure of public justification. Insofar as these views cannot propose to other views reasons that can be considered as such, their internal reasons cannot have the same power as the reasons of publicly acceptable views (see the next chapter).

References Adams, C.  J. and Donovan, J. (eds.) (1995), Animals and Women. Feminist Theoretical Explorations (Durham and London: Duke University Press). Barry, B. (1995), Justice as Impartiality (Oxford: Oxford University Press). Bastian, B., Loughnan, S., Haslam, N., Radke, H. R. M. (2012), “Don’t Mind Meat? The Denial of Mind to Animals Used for Human Consumption”, Personality and Social Psychology Bulletin 38(2), pp. 247–256. Bekoff, M. and Pierce, J. (2009), Wild Justice. The Moral Lives of Animals (Chicago: The University of Chicago Press). Bentham, J. (1995), An Introduction to the Principles of Morals and Legislation, ed. by J. H. Burns and H. L. A. Hart (Oxford: Clarendon). Callicott, B.  J. (1989), In Defense of the Land Ethic. Essays in Environmental Philosophy (New York: State University of New York Press). Carruthers, P. (1992), The Animals Issue: Moral Theory and Practice (Cambridge: Cambridge University Press). Casal, P. (2003), “Is Multiculturalism Bad for Animals?”, The Journal of Political Philosophy, 11(1), pp. 1–22. Cathechism of the Catholic Church (1993), (Vatican City: Libreria Editrice Vaticana).

178 

F. Zuolo

Cavalieri, P. (2001), The Animal Question. Why Nonhuman Animals Deserve Human Rights (New York: Oxford University Press). Chappel, T. (2011), “On the very Idea of Criteria for Personhood”, The Southern Journal of Philosophy, 49(1), pp. 1–27. Chapple, C. (2006), “Inherent Value without Nostalgia. Animals in the Jaina Tradition”, in Waldau and Patton (eds.), A Communion of Subjects: Animals in Religion, Science and Ethics (New York: Columbia University Press), pp. 241–249. Cochrane, A. (2010), An Introduction to Animals and Political Theory (Basingstoke: Palgrave Macmillan) Cochrane, A. (2012), Animal Rights without Liberation (New York: Columbia University Press). Coeckelbergh, M. (2009), “Distributive Justice and Co-Operation in a World of Humans and Non-Humans: A Contractarian Argument for Drawing Non-­ Humans into the Sphere of Justice”, Res Publica 5, pp. 67–84. Cohn-Sherbok, D. (2006), “Hope for the Animal Kingdom. A Jewish Vision”, in Waldau and Patton (2006), A Communion of Subjects: Animals in Religion, Science and Ethics (New York: Columbia University Press), pp. 81–90. DeGrazia, D. (1996), Taking Animals Seriously. Mental Life and Moral Status (Cambridge: Cambridge University Press). De Mello, M. (2012), Animals and Society. An Introduction to Human-Animal Studies (New York: Columbia University Press). Descartes, R. (1637/1998), Discourse on Method and Meditations on First Philosophy, trans. by D. A. Cress (Indianapolis/Cambridge: Hackett) Diamond, C. (1991), “The Importance of Being Human”, Royal Institute of Philosophy Supplement, 29, pp. 35–62 Donaldson, S. and Kymlicka, W. (2011), Zoopolis. A Political Theory of Animal Rights (Oxford and New York, Oxford University Press). Donovan, J. (1996), “Animal Rights and Feminist Theory”, Journal of Social Philosophy 27, pp. 81–102. Donovan, J. (2006), “Feminism and the Treatment of Animals: From Care to Dialogue”, Signs: Journal of Women in Culture and Society, 31(2), pp. 305–328. Floridi, L. and Sanders, J. W. (2004), “On the Morality of Artificial Agents”, Minds and Machines 14, pp. 349–379. Folz, R. (2006), “‘This she-camel of God is a sign to you’. Dimensions of Animals in Islamic Tradition and Muslim Culture”, in Waldau and Patton (eds.) (2006), A Communion of Subjects: Animals in Religion, Science and Ethics (New York: Columbia University Press), pp. 149–159.

4  Views on the Moral Status of Animals 

179

Francione, G. L. (2009), Animals as Persons. Essays on the Abolition of Animal Exploitation (New York: Columbia University Press). George, K.  P. (1994), “Should Feminists Be Vegetarians?”, Signs: Journal of Women in Culture and Society 19, pp. 405–434. George, K. P. (2000), Animal, Vegetable, or Woman? A Feminist Critique of Ethical Vegetarianism (New York: State University of New York Press). Halbmeyer, E. (2012), “Debating animism, perspectivism and the construction of ontologies”, Indiana 29, pp. 9–23. Harris, (2006), “‘A vast unsupervised recycling plant’. Animals in the Buddhist cosmos”, in Waldau and Patton (eds.), A Communion of Subjects: Animals in Religion, Science and Ethics (New York: Columbia University Press), pp. 207–217. Herzog, H. (2011), Some we love, some we hate, some we eat (New York: HarperCollins). Kant, I. (1997), Lectures on Ethics, P.  Heath and J.  B. Schneewind (eds.), (Cambridge: Cambridge University Press, 1997). Kemmerer, L. (2011), Animals and Worlds Religions (Oxford: Oxford University Press). Kitcher, P. (2015), “Experimental Animals”, Philosophy and Public Affairs 43, 287–311. Laland, K.N., Uller, T., Feldman, M. W., Sterelny, K., Müller, G. B., Moczek, A., Jablonka, E., Odling-Smee, J., (2015), “The extended evolutionary synthesis: its structure, assumptions and predictions”, Proceedings of the Royal Society B., 282, pp. 1–14. Leopold, A. (1966), A Sand County Almanac. With Essays on Conservation from Round River (New York: Ballantine Books). Linzey, A. (2013), Why Animal Suffering Matters. Philosophy, Theology and Practical Ethics (Oxford: Oxford University Press). Linzey, A. and Cohn-Sherbok, D. (1997), After Noah: Animals and the Liberation of Theology (London: Mowbray). McMahan, J. (2002), The Ethics of Killing. Problems at the Margins of Life (Oxford: Oxford University Press). Midgley, M. (1983), Animals and Why They Matter (Athens: The University of Georgia Press). Mill, J. S. (2003), Utilitarianism and on Liberty (Oxford: Blackwell) Naess, A. (1993), “The Deep Ecological Movement: Some Philosophical Aspects”, Philosophical Inquiry 8(1/2), pp. 10–31.

180 

F. Zuolo

Nelson, L. (2006), “Cows, Elephants, Dogs, and Other Lesser Embodiments of Ātman. Reflections on Hindu Attitudes Toward Nonhuman Animals”, in Waldau and Patton (eds.), A Communion of Subjects: Animals in Religion, Science and Ethics (New York: Columbia University Press), pp. 179–193. Niesen, P. (2014), “Kooperation und Unterwerfung. Vorüberlegungen zu einer politischen Theorie des Mensch-Tier-Verhältnisses”, Mittelweg 36, pp. 45–59. Noddings, N. (1984), Caring: A Feminine Approach to Ethics and Moral Education (Berkeley and Los Angeles: University of California Press) Nozick, R. (1974), Anarchy, State and Utopia (Oxford: Basic Blackwell). Nussbaum, M. (2006), Frontiers of Justice. Disability, Nationality, Species Membership (Cambridge, Mass: The Belknap Press of the Harvard University Press). Palmer, C. (2010), Animal Ethics in Context (New York: Columbia University Press). Passmore, J. (1975), “The Treatment of Animals”, Journal of the History of Ideas 36(2), pp. 195–218. Rachels, J. (1990), Created from Animals. The Moral Implications of Darwinism (Oxford & New York: Oxford University Press). Rawls, J. (1999), A Theory of Justice. Revised Edition (Cambridge, Mass: The Belknap Press of the Harvard University Press). Regan, T. (1983), The Case for Animal Rights (London: Routledge & Kegan). Rodd, R. (1990), Biology, Ethics and Animals (Clarendon: Oxford). Rolston, H.  III (1987), “Duties to Ecosystems”, in J.  B. Callicott (ed.), pp. 246–274. Rowlands, M. (2009), Animal Rights. Moral Theory and Practice (New York: Palgrave Macmillan). Sagoff, M. (1993), “Animal Liberation and Environmental Ethics: Bad Marriage, Quick Divorce”, in Zimmerman (ed.), Environmental Philosophy. From Animal Rights to Radical Philosophy (Prentice Hall: Englewood Cliffs), pp. 84–94. Scanlon, T. M. (1998), What We Owe to Each Other (Cambridge, Mass.: The Belknap Press of the Harvard University Press). Scruton, R. (2000), Animal Rights and Wrongs (London: Metro). Singer, P. (1993), Practical Ethics, 2nd edition (Cambridge: Cambridge University Press). Smith, K. (2012), Governing Animals. Animal Welfare and the Liberal State (Oxford and New York: Oxford University Press).

4  Views on the Moral Status of Animals 

181

Sorabji, R. (1993), Animal Minds and Human Morals: The Origins of the Western Debate (London: Duckworth). Steiner, G. (2005), Anthropocentrism and Its Discontents. The Moral Status of Animals in the History of Western Philosophy (University of Pittsburgh Press: Pittsburgh). Taylor, P.  W. (1986), Respect for Nature: A Theory of Environmental Ethics (Princeton: Princeton University Press). Valentini, L. (2014), “Canine Justice: An Associative Account”, Political Studies 62(1), pp. 37–52. Varner, G.  L. (1998), In Nature’s Interest? Interests, Animal Rights, and Environmental Ethics (New York & Oxford: Oxford University Press). Wall, S. (1998), Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press). Warren, K.  J. (1990), “The Power and Promise of Ecological Feminism”, Environmental Ethics 12(3), pp. 125–146. Williams, B. (2006), “The Human Prejudice”, in Id., Philosophy as a Humanistic Discipline (Princeton: Princeton University Press), pp. 135–152. Zuolo, F. (2016a), “Individuals, Species and Equality. A Critique of McMahan’s Intrinsic Potential Account”, The Journal of Value Inquiry 50, pp. 573–592. Zuolo, F. (2016b), “What’s the point of self-consciousness? A critique of Singer’s argument against killing (human or non-human) self-conscious animals”, Utilitas 28(4), pp. 465–487. Zuolo, F. (2016c), “Dignity and Animals. Does it make sense to apply the concept of dignity to all sentient beings?”, Ethical Theory and Moral Practice 19, pp. 1117–1130. Zuolo, F. (2017), “Equality, its Basis and Moral Status. Challenging the Principle of Equal Consideration of Interests”, International Journal of Philosophical Studies 25(2), pp. 170–188. Zuolo, F. (2019), “Misadventures of Sentience: Animals and the Basis of Equality”, Animals 9(12) 1044, pp. 1–13. Zuolo, F. (2020), “Cooperation with Animals? What Is and What Is Not”, Journal of Agricultural and Environmental Ethics 33(2), pp. 315–335.

5 Applying Public Justification: Interests, Principles and Competing Reasons

In a situation of disagreement such as this, we need not evaluate the merits and limits of each view. To do so, we would need to rely on a substantive account of human and animal natures, which goes beyond what can be done publicly according to the spirit of political liberalism. Instead, we now have to see whether there can be public support for a solution acceptable by the different views. To show how the procedure of public justification works I will proceed as follows. I will put forward a set of principles regarding three main interests of animals: in liberty, in life and in welfare. Within each family of interests, I will spell out substantive deontic principles specifying what is morally obligatory or permissible to do with respect to such an interest. Then, I will check whether each principle passes the neutrality and inclusiveness test in turn. To anticipate, the outcome of this procedure will be conclusive only regarding the principles regulating animals’ interest in welfare. As to the principles regulating animals’ interests in life and liberty, the result will be inconclusive. To handle this, I will appeal to the idea of nested inconclusiveness and rely on democratic procedures. Then, I will show that publicly non-acceptable views will have some reasons to support the outcome of the procedure. Finally, I will conclude by clarifying the kind(s) of agreement that the parties may © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_5

183

184 

F. Zuolo

strike. I will argue that reasonable parties holding acceptable views will have reasons to find a full consensus, while other parties may still strike a compromise on pragmatic grounds.

5.1 Animal Interests and Normative Principles As I have anticipated, the objects of public justification are the principles for the treatment of animals, while the subjects of public justification are the views. Before beginning we should keep in mind the distinction between the views and the principles. The latter are purely normative statements regarding what is permissible, impermissible or morally obligatory to do toward certain beings. The former, by contrast, are fundamental accounts on the moral status of animals and include an overall conception of the nature and worth of animals. From the views, a set of principles usually follows, but the specificity of the views is that they provide an overall justification for the normative principles, whereas the reverse is not true. Hence, the following principles are presented independently of the views so as to understand which views may support them. A clarification on the relation between interests and principles is in order. As said, a principle is a normative injunction prescribing a certain behavior. Principles protect, promote or honor the interests at stake. Hence, what are the interests? Defining what interests are might seem a daunting enterprise. The notion of interest is one of the most important and primitive ideas of all ethical theories. Hence, it is difficult to define it on pain of circularity. However, we may simply say that an interest is a state of affairs that matters to somebody. I have an interest in moving freely because freedom of movement matters to me, and I might have an interest in watching the football match tonight because it matters to me. The former is an obvious example of a fundamental interest, the latter perhaps an instance of an overall interest in enjoying leisure. What “mattering for somebody” means depends on the theory of value to which one subscribes. It may be a matter of satisfying preferences that an individual consciously expresses or of fulfilling objective goods even though an

5  Applying Public Justification 

185

individual is unaware of them. It may also refer to intrinsic values that have little to do with welfare, such as the fundamental value of dignity, moral agency and so on. This is to say that here I understand interests in a very broad manner, thus including both welfarist accounts and non-­ welfarist accounts. But mattering to somebody does not entail having a right to that which matters. This means that interests can be more or less weighty (and more or less specific) and may give rise to a right only if they are sufficiently weighty. In what follows, for the sake of generality, I will only discuss (putative) important interests, at least those interests that are taken to be important by some proponents. I say “putative” interests because whether they are interests at all and how much they matter is precisely what is contested. Some interests will be widely agreed upon as being actual interests by most or all views, while others will be disputed. For instance, whether and to what extent animals have an interest in liberty is a matter of dispute among the main views, while all agree that animals have an interest in not suffering. This is of the utmost importance because in asking whether (certain) animals have an interest in something we ask whether that interest is morally relevant, namely whether it ought to be protected by a right, whether it generates a prima facie duty, or simply whether it ought to be included within the overall balance of what is morally required to do. In other words, establishing that animals have a certain interest in something is a reason for protecting, promoting, not infringing that state of affairs in which animals have an interest. This is so because I take interests to be a primitive normative term, which calls for a normative response. How much such an interest matters and whether it is capable of issuing an all-things-considered normative conclusion cannot be established in advance. But interests are taken to be reasons for acting or evaluating a state of affairs. As to the level of discourse, I will discuss only general interests. This means that I will discuss the (putative) interest in animals’ moving freely, not moving in any specific way, or animals’ interest in eating regularly, not a specific animal’s interest in eating a particular kind of food. This is necessary to ensure the appropriate level of generality to my discourse, which, recall, aims at public justification. Whether more specific (putative) interests may be processed through the same procedure is an issue I

186 

F. Zuolo

cannot discuss here. My hunch is that they could, provided that the procedure is reformulated contextually and indexed to the specific individuals and interests at stake. But one may object that my account is not fully neutral because it assumes that animals have interests. In response, I can confirm that the following discussion of animal interests is not completely neutral because it excludes those views that deny that animals have interests. These are the views that we have excluded in the previous chapter (Cartesianism and indirect theories). All the publicly admissible views—even Humanism— hold that animals have some interests. What interests animals have, how much they weigh and what follows for moral agents are matters of dispute, but the notion that animals can be autonomous bearers of interests is not a controversial one. In other words, having subjective interests means that what we do to animals matters to them, irrespective of whether it also matters to moral agents (for instance, to the owner or human companion). A further caveat before beginning. As we have started with the assumption that sentience is the criterion of moral considerability and that many animals are sentient, this inquiry on interests seems either redundant, because many theorists (and activists) hold that the empirical and normative assumption of sentience is sufficient to draw conclusive obligations, or seems to reopen the basic question from which we begun. But, as said, assuming that animals have interests does not tell us how much these interests are important with respect to the interests of others. Moreover, it does not establish whether animals’ interests provide conclusive reasons for action, or whether the putative interests are real ones. But even when the ascription of an interest is uncontroversial, it is still open the question of how much such an interest weighs. Therefore, what follows will be an inquiry that will ask whether the interests that some theories and principles attribute to animals are uncontroversial interests, and how much these interests weigh with respect to other considerations. I divide the main animal interests into three families: liberty-related, life-related and welfare-related interests. They more or less encompass the vast majority of (putative) interests. Indeed, liberty-related interests include all interests of animals in not being constrained to do what they do not want to do. Life-related interests concern whether, how much and

5  Applying Public Justification 

187

on what grounds animals’ lives have a moral value, and what kinds of moral implications this value has on moral agents. Welfare-related interests concern the value that all animals’ experiences may have. These may include suffering and pain, joy and positive feelings, health and bodily integrity. Of course, some theories may claim that animals also have other types of interests. For instance, Donaldson and Kymlicka claim that domesticated animals also have a right to be included in human communities. Hence, we may suppose that domesticated animals also have an interest in being included and represented in human communities. However, that is highly controversial and even if it were true, such an interest would have an instrumental nature in that domesticated animals have an interest in being included in human communities only as a means to protect more specific interests in liberty, life and welfare. The intrinsic value of being included as citizens in human communities could be defensible only on symbolic grounds, namely as a way not to be treated as inferior entities. However, no account of animal interest, not even the most egalitarian ones, would hold that animals have such an interest. Human beings caring for animals may want to see them not demeaned. But then this would amount to protecting a human interest in animals, not animals’ interests in being included equally in human communities. Hence, such a controversial interest would be easily reducible to the more fundamental intrinsic interests which it is meant to protect. There are probably other interests and principles worth discussing, and certainly there are interests in between the main ones that express more fine-grained dimensions of value. However, the following should suffice to show how the procedure of public justification I have defended in the previous chapter works for the most important interests and principles. Of course, the interests in liberty, life and welfare often affect each other. For instance, an individual whose liberty is violently constrained also experiences the feeling of suffering (thus affecting the welfare interest in not suffering). Despite these obvious and important mutual interconnections between the interests, I keep their analysis distinct because only if we keep them analytically separate can we properly understand whether an interest generates a specific duty on the part of moral agents. In other words, if we keep their analysis separate, we can understand the source of

188 

F. Zuolo

value (liberty, life or welfare) and trace a possible duty, even though there is a factual connection between them. After presenting the main interests and principles, I will discuss, in turn, whether each principle can be accepted and upheld on neutral grounds (neutrality condition), and whether it can be supported by the internal reasons of each of the five main publicly admissibly views (inclusiveness condition). This will be in practice the procedure of public justification.

5.2 Liberty-Related Interests and Principles Let us begin with the liberty-related interests. Here liberty must be understood as the set of possibilities of performing unconstrained actions. In particular, as constraints here I consider only the constraints posed by human actions and relations because it would be pointless to consider the limitations posed to animal liberty by the natural environment and by the behavior of other animals. Of course, other animals’ behavior as well as natural limitations constrains the liberty of animals and of human beings in a descriptive manner. However, given the account of interests I have sketched above, here we are asking what kinds of limitations to bare possibilities have a moral significance, thus generating reasons for action (or normative evaluation) on the part of moral agents. Since we usually think that physical limitations or the limitations posed by non-moral entities are not morally blameworthy, they should not be blameworthy when they occur to animals. For instance, we do not usually complain about the sheer fact that other people occupy portions of space or consume resources, even though in doing so they constrain our possible actions. We complain about such things only to the extent that they do not have an entitlement to do so or when they violate our rights. Analogously, we cannot moralize the mere general fact that, for instance, wild animals live in environments characterized by a scarcity of resources, limited space and competition for survival with other animals. Instead, we can pass a moral judgment and perhaps ground a reason for acting on our part if we are responsible for a depletion of such natural resources.

5  Applying Public Justification 

189

Hence, for our concerns, animal liberty should be understood primarily and almost exclusively as a matter of liberty to move and display an ethologically appropriate behavior. This means that from a normative point of view, the interest in liberty includes both the issue of physical constraints to animals and the admissibility for human beings to have diverse forms of relations with animals (companionship, non-exploitative use, cooperation and exploitation). Both issues concern the interest in liberty because in many cases humans’ higher capacities can create, train and manipulate animals’ behavior, thus hindering or at least affecting their potential liberty, without recurring only to physical constraints. As such, animal interests in liberty concern the problem of animal liberation, as well as the legitimacy of human relations with animals, and finally the possibility of human use of animals. At this point, we can present the main principles summarizing the deontic situations in this area from the most radical to the most conservative, bearing in mind that other intermediate positions can be taken. A.1: We ought to liberate animals from human domination and not interfere with any of their activities. A.2: It is permissible to entertain only certain relations with animals, namely mutually beneficial relations that provide animals with good life chances. A.3: It is permissible to use animals upon respecting certain constraints regarding their nature and welfare. A.4: It is permissible to use and confine animals in any way according to human needs. Now we will discuss how each principle fares in the public justification procedure with regard to the nRs (neutrality) and iRs (inclusiveness). A.1: We ought to liberate animals from human domination and not interfere with any of their activities. A.1 expresses the liberationist ideal championed most vividly by Regan (1983) and Francione (2009). This principle holds that animals’ nature as moral agents grounds their interest in being free from any human interference. The assumption is that liberty is necessary because any relation

190 

F. Zuolo

with human beings tends to become wrongful in virtue of the human tendency to exploit animals. It follows that not only are such traditional practices as experiments on animals and the use of animals in farms exploitative, but other uses may also be wrong and should be banned. There are different expressions of this ideal, but its clearest version demands an end to all the ordinarily instrumental relations between humans and animals. Another implication, beyond the cessation of these activities, is the possibility that domesticated animals, after a period in which they have been liberated but are helped by humans to continue their lives outside human exploitation, fail to survive and reproduce without human assistance, thus entailing potential extinction of the species. Can this principle be endorsed on neutral reasons? The promotion of liberty is usually thought to be a public and non-controversial principle, but the standard view holds that only persons have a normatively relevant interest in liberty in virtue of persons’ capacity to have life plans and autonomous choices. Still, even if animals do not have life plans and autonomy, liberty is necessary to satisfy their choices. By contrast, there are public grounds to reject this principle because it might restrain persons’ liberty to entertain admissible relations with animals. Which relations may be admissible is another matter, but saying that there cannot be non-exploitative human-animal relations is a position that has a bigger burden of proof than the opposite idea. (See A.2). Hence, there is a situation of inconclusiveness regarding neutral reasons. As to the reasons internal to each view, A.1 can be endorsed only by Animal Subjectivism. All the other views oppose this principle on diverse grounds. Pathocentrism does not reject the notion that, in principle, there could be mutually beneficial relations that are conducive to a greater overall well-being. Relationalism rejects the very idea of liberationism because relations are the locus of moral life and there can (and must) be meaningful and non-exploitative relations. Environmentalism and Humanism reject the liberationist ideal because relations of mutual dependence have become part of the nature of many animals and the correct response is not to put an end to such relations, but instead to rule them in an environmentally sustainable or humane manner.

5  Applying Public Justification 

191

In sum, A.1 fails to meet the inclusiveness condition and the neutrality test is inconclusive. As a consequence, A.1 does not pass the test of public justification. A.2: It is permissible to entertain only certain relations with animals, namely mutually beneficial relations that provide animals with good life chances. A.2 hinges on the idea that relations that are mutually beneficial—that is, both to animals and to human beings—are not just possible but commendable. Holders of this view note that most of the animals with which we entertain a relation are domesticated animals which could not live without some interaction with human beings because domesticated animals need human beings. Furthermore, with many non-domesticated animals too we can have non-exploitative relations. The types of mutually beneficial relations may certainly include relations of companionship, but also some forms of cooperation where the task required of the animal is compatible with its nature. This may include, for instance, the activity of dogs guarding, or free-range hens laying eggs. However, such cooperative relations, according to this principle, must not harm the animals (for instance, there cannot be a cooperative relation with laying hens if such hens are debeaked or further harmed). A possible concrete example could be the no-kill farms, where animal products (e.g. eggs or milk) are produced by animals that are not killed when they are no longer productive. At this level of discourse, it is difficult to further specify which relations are cooperative and non-exploitative because to do so we would need to rely on a view and consider the specific activities (Zuolo 2020). For the plausibility of this principle, it is sufficient to admit that there are such relations. As to the neutral reasons backing this principle, we may say that A.2 appeals to the idea of cooperative relations. The idea that cooperation should be promoted in appropriate ways is certainly a public value. There seem to be no neutral reasons against this principle. Regarding the internal reasons, only some instances within Animal Subjectivism may object to this principle, in particular Francione who has most forcefully outlined the liberationist agenda, but perhaps not all. For instance, Donaldson and Kymlicka (2011) have argued for

192 

F. Zuolo

something along the lines of a radical interpretation of A.2 in order to include animals in the citizenship. Cochrane (2012) holds that animals do not have an interest in or a right to liberty. Even some traditional (and often exploitative) practices, such as raising laying hens, may be acceptable if hens live in a free environment and die naturally. Both Pathocentrism and Relationalism would endorse A.2 because a mutually beneficial cooperation may certainly increase the overall welfare and establishing sound relations is the primary aim of Relationalism. Environmentalism does not seem to have objections against this principle. Humanism may accept A.2 to the extent that the understanding of “cooperative relations” is sufficiently broad so as to also include some uses (see the next principle A.3) of animals. But a restricted understanding of “cooperative relations” would be rejected by Humanism. Hence, this principle passes the test of neutrality and receives a fairly broad, but not complete, support of diverse views. Only some radical versions of Animal Subjectivism may reject it and it may be accepted also by Humanism depending on the way it is applied in practice. How much it can be acceptable in practice also depends on how we specify the possible kinds of cooperative relations. A.3: It is permissible to use animals upon respecting certain constraints regarding their nature. A.3 is more permissive than A.2 because it allows types of interactions that, although being compatible with animal nature, are not as mutually beneficial. However, A.3 restricts the range of permissibility to those kinds of uses that somewhat respect animals’ basic ethological needs and their welfare. For instance, this principle may allow the rearing of animals in natural conditions, but for the sake of obtaining an output that is purely in the interest of humans. An example of this may be the practice of free pasturing of cows for the production of milk or meat. This is more permissive than A.2, because A.2 is likely not to allow these practices as cooperative insofar as they entail the killing of animals, while it is more restrictive than A.4 (see below) because it would not accept industrial animal farming.

5  Applying Public Justification 

193

The neutral reasons grounding this principle appeal to the value of human liberty to take advantage of natural endowments and to the idea that this principle maximizes the social output of the use of animals in a way that is compatible with their basic needs. However, these two reasons seem weak and inconclusive insofar as they hinge on a mere human liberty and on the idea of efficiency which may be counterbalanced by other considerations. There seems to be no neutral reason to reject this principle because if we use animals in ways that are not clearly harmful and compatible with animals’ features, the objection that such use entails a purely instrumental and degrading attitude loses its bite. Hence, this principle is not rejected on neutral grounds, but seems inconclusively justified. As to the reasons internal to each view, Animal Subjectivism would reject this principle insofar as it allows forms of relations deemed to be exploitative. Pathocentrism may admit of it provided that the overall welfare (of animals and humans) is increased. This is so to the extent that animals used in permissible ways are better treated by humans than in comparable other conditions and do not have an intrinsic interest in liberty (both conditions are easily met in Pathocentrism). Relationalism may conditionally accept it insofar as respecting the natural features of a being is a good way to establish caring relations. Environmentalism would certainly support it because it embeds the value of respect for natural characteristics of beings. Humanism would also endorse it because to respect the nature of a being is a form of showing humanity. In sum, this principle is not rejected at the neutrality test and would gain a rather broad support from the views. Compared to principle A.2 it receives more or less the same support and the same rejection, depending on how strictly we interpret the cooperative condition of A.2. A.4: It is permissible to use and confine animals in any way according to human needs. A.4 represents the traditional way of treating animals. Until a few decades ago, this was the standard approach and some persons, who consider animals as property which can be used without restrictions, still rely

194 

F. Zuolo

upon it. This principle licenses any human action to animals provided that there is some reason to do so. And where there is no such reason, inflicting suffering upon animals may just be considered a misdemeanor or act of cruelty which, however, pertains only to one’s private morality and is of little public concern. The neutral value on which A.4 hinges is the human liberty to freely dispose of one’s property without any restriction concerning the nature of property itself. However, such a grounding is put in question by the (hidden) premise that animals can be assimilated to other types of property, which is in turn dependent on the idea that animals are things. We have already rejected this idea (Cartesianism) insofar as it fails to meet the condition of external consistency. Hence, A.4 is rejected by neutral reasons. As to the views 1–5, there seems to be no internal reason to ground this principle. Even the views recommending indirect duties to animals (Kantianism), which we have characterized as not fully acceptable in the public justification procedure, would not necessarily endorse this principle. To conclude this section, the procedure of public justification rules out A.1 and A.4 insofar as they fail to be supported by a broad range of views and do not seem to fare much better with neutral reasons. How can we decide between A.2 and A.3? With respect to the neutral reasons, both have reasons supporting them, and no reason rejecting them. In both cases, the neutral reasons are grounded on the value of human freedom to have relations with animals, but such freedom in A.2 is restricted to few types of relations, in A.3 to a broader set of relations. Likewise, we have seen that they also receive similar support on the basis of internal views. The only relevant difference is that Animal Subjectivism would preferably support A.2 rather than A.3. But Humanism would prefer A.3 to A.2 if A.2 were understood in a restrictive manner. It seems we are confronting a case of inconclusiveness. A pair of principles are not defeated on public grounds, but are not victorious over all the internal reasons. We will see at the end of this section how to handle cases like this.

5  Applying Public Justification 

195

Matrix 1: Public reasons and animals’ interests in liberty

Public reason in favor A.1 Maximizing liberty for all? A.2 The value of cooperation A.3 Respecting nature while promoting human liberty A.4 Maximizing human liberty

Public reason against

Rejected (✘), accepted (✓), inconclusive (□), unclear (?)

Restricts human liberty

□

?

✓

?

□

Grounded on a false view of animals (Cartesianism)

✘

Matrix 2: Internal reasons and animal liberty—rejected ( ), accepted (✓), inconclusive (□), unclear (?) Views/ principles

1. Animal 2. Pathocent- 3.Relational- 4.Environment- 5. subjectivism rism ism alism Humanism

A.1 A.2 A.3 A.4

✓ □ ✘ ✘

✘ ✓ ✓ ✘

✘ ✓ □ ✘

✘ ✓ ✓ ✘

✘ □ ✓ ✘

5.3 Life-Related Interests and Principles Life-related interests concern the intrinsic interest that animals might have regarding their staying alive. Here, by “intrinsic interest” in one’s life I mean the interest that pertains to the individual at stake, irrespective of whether such an interest is an absolute interest in life, whatever such a life is, or whether this interest depends on the prospects and experiences that such a life may include. This assumption is necessary because there are diverse theories regarding the value of life per se, and it is not clear on what grounds individuals—be they humans or animals—have a right to life, whether on the basis of an intrinsic property, the value of the

196 

F. Zuolo

experiences one might have in future, the level of psychological connectedness or a combination of these features (McMahan 2002). This is perhaps the most contentious kind of interest because it touches upon the human permissibility of disposing of animals’ life for the sake of producing meat or using them in scientific research. The relevant principles that cover a range of diverse interests in life are the following: B.1: We ought to preserve animals’ life whenever possible, even when endangered by other animals or by natural phenomena. B.2: We ought not to kill animals for any purpose. B.3: It is permissible to kill animals only for important human purposes (nutrition and research). B.4: It is permissible to dispose of animal life for any human purpose, including non-fundamental ones (fun, sport, etc.). B.1: We ought to preserve animals’ life whenever possible, even when endangered by other animals or by natural phenomena. B.1 places an intrinsic and high value on animals’ life irrespective of whether animals’ life is endangered by human beings or by other animals or natural events. It demands that moral agents be concerned with and take positive measures to defend the life of animals living in contact with human beings as well as in the wild. The assumption is that death is a non-conditional moral bad, independently of whether it is caused by a human action. This entails a duty not to kill animals for human purposes. As this principle is very demanding for moral agents, let us analyze the reasons in favor of or against it, independently of the consideration of feasibility. It is unclear whether there could be a neutral reason backing or rejecting this principle. Needless to say, respect for life might be a non-­ controversial value but the definition of the scope of the subjects that have morally relevant “lives” or that have lives worthy of being lived is a matter of deep controversy. Such a controversy is not only restricted to the domain of non-human animals, but also touches upon some human beings whose prospects of life are very dim. The neutral reason against this principle is that it seems to unreasonably limit human liberty against

5  Applying Public Justification 

197

the uncertain scope of its application, and demands of persons overly burdensome duties and actions. Hence, this principle does not seem to pass the neutrality test. Regarding the support of the diverse views, this principle is very controversial and may be upheld only by some (and not all) versions of Animal Subjectivism. Most prominently Nussbaum (2006: 370–1) has put forward the idea that whenever possible we ought to remedy the “problem” of natural predation by creating places where natural predators are provided with alternatives to hunting both with respect to nourishment and the need to exercise their predatory capacities (fake prey). However, this moralization of nature and this meddling with natural processes is rejected by nearly all views, including important instances of Animal Subjectivism (see Regan 1983: 357). Other views reject this because it is unclear whether the balance of utility would be improved (Pathocentrism), our duties to save animals’ lives depends on whether we are responsible for them (Relationalism and Humanism), and we ought not to intervene in natural processes thus disturbing ecological equilibria (Environmentalism). In sum, A.1 is to be rejected according to both neutrality and inclusiveness tests. B.2: We ought not to kill animals for any purpose. B.2 assigns to moral agents a duty not to kill animals, but it does not demand that moral agents be concerned with the value of life when animals are threatened only by natural events. Of course, as a matter of benevolence and empathy if one finds herself in a situation where only her action can save the life of an animal, there should be a reason to save that animal. However, unlike B.1 this principle does not generate an overall duty to be concerned with the life of animals tout court. Hence, this principle is certainly less demanding than B.1. We may think that this principle may be supported by the idea that we ought to respect life in any of its forms and we should not kill a living entity. However, as in the previous case, from a public perspective, it is not clear which subjects should be included in the scope of this principle. Even if we admitted on public grounds that we should be concerned with animals’ life per se, it is

198 

F. Zuolo

still arguable how much it should morally matter. The first problem is to establish what counts as a morally relevant life. Put this way it might include any form of living being. More precisely, we should ask what individuals have an interest in life. There are diverse accounts on whether and which animals have an interest in continuing to live. As is known, Singer claims that only self-conscious animals have such an interest (Singer 1993: 125). Other accounts (Cavalieri 2001; Francione 2009) include more types of animals (all those that are sentient). Besides this difficulty in establishing the scope of this principle, there is the problem of measuring the moral importance of (the diverse types of ) animals’ interest in life. In other words, if at least certain types of animals have an interest in life, we should establish the weight of this interest and compare it to other competing interests. Many theorists in animal ethics claim that humans’ interests in taking animals’ life (scientific research and nourishment, among others) cannot suffice to ground humans’ right to kill animals. This may be true, but it is unclear on what neutral grounds we may say so. A defender of this principle may point out that the overall plausibility of this principle from a neutral ground is that it is focused on the prohibition of human killing of animals, not on the worth of animals’ life per se. Hence, prohibiting a possible killing is at least right from a precautionary point of view, even if we do not agree on the worth of animals. But that seems an uncertain argument from a neutralist point of view because it would require of us to either ban any action that might endanger any kind of life (thus turning out to be close to Jainism) or, again, to seek a measure of worth of lives, thus relinquishing the neutralist approach. Furthermore, we may ask whether this principle thwarts or is neutral with respect to human liberty. On the one hand, it certainly restricts the human liberty to kill animals. On the other hand, one may ask whether this liberty is a justified one. Hence, because of the uncertainty in establishing the scope of morally considerable lives and their respective weight, we do not have conclusive public grounds to establish the impermissibility of killing animals for any human purpose. Regarding the admissibility of this principle for each view, it may be supported by Animal Subjectivism because the right to life is certainly the first and most important entitlement of animals in this perspective.

5  Applying Public Justification 

199

Pathocentrism cannot place an unconditional value on animal life independently of the kind of consequences. It is true that in some recent and radical versions of it, most notably that of Singer, at least self-conscious animals (most mammals and probably birds) have an interest in continuing to live and killing them for human purposes is prima facie wrong. However, classical utilitarian accounts (Mill, Sidgwick) do not place value on animals’ life per se. So, the position of this view on the value of animals’ life is variable.1 Diverse forms of Relationalism, in virtue of their reliance on concrete relationships for the ascription of moral status and duties, seem unlikely to issue general prescriptions to undifferentiated categories of living beings, independently of the individualized relations. On this point there is a deep controversy in feminist theorists between those who seek to issue a general prescription not to kill animals and those who stick to a purely relational and contextual approach. If Donovan (1996) and others lean toward a vegan ideal, Noddings (1984) holds that there can be genuine relations with animals that are raised and cared for becoming food, while George (2000) endorses semivegetarianism because the vegan ideal is not applicable to some categories (children, pregnant women, other people with special needs). Moreover, impersonal relationalists do not issue an all-covering ban on the killing of animals. Finally, Environmentalism and Humanism cannot uphold this principle because the value of animal life is not unconditional on these views. Indeed, environmentalism might accept the consumption of animals as resources, provided that it is not detrimental to environmental sustainability. And Humanism holds that animals may be used and killed provided that this is done humanely. Hence, this principle does not pass the test of inclusiveness and yields an inconclusive result in the neutrality test. B.3: It is permissible to kill animals only for important human purposes (e.g. nutrition and research).

 Furthermore, the capacity of Singer’s account to justify the impermissibility of killing self-­ conscious animals is dubious, as I have argued in Zuolo (2016). 1

200 

F. Zuolo

B.3 holds that animals have a prima facie interest in living which can only be outweighed by some important human interests. Here, for the sake of presenting and discussing the most important version of this principle, I am supposing that nutrition and scientific research are two important human purposes that make the balance of interests tilt in favor of humans. Of course, this assumption may be challenged. But if nutrition and research are not those kinds of important human needs, then there are unlikely to be any. The public grounds supporting this principle are, as in other cases, the interest of human beings in liberty, and human interests in scientific research and a complete nutrition. But this does not seem sufficient to establish whether B.3 passes the neutrality test because we have to check whether there are reasons against it. As this is a very important principle, since most standard human uses of animals rely on it, to assess the plausibility of its grounds let us distinguish between the human interest in killing animals for nutrition and for research. Let us start with the nutritional basis for killing animals. Provided that, as seen earlier, an outright and absolute ban on the killing of animals may be justified only on the basis of a comprehensive and controversial account of the moral status of animals, the debate concerns whether the purchase of food is a sufficient and all-things-considered justified reason for killing animals. But if we accept this, we have moved to a level of discourse in which we adjudicate on the relative admissibility of alternative courses of action which do not touch upon the more fundamental non-inadmissibility of the killing and use of animals. Thus, if killing animals is publicly non-inadmissible, other types of public reasons should be employed to weigh the merits of B.3. These reasons may be environmental sustainability, public health, nutritional freedom, safeguarding of cultural identities, economic costs and fairness. First, consider that one may appeal to the environmental unsustainability of animal farming, or to the idea that a reduction in animal farming may free crops and resources to provide cheaper food to the world’s poor. Arguments derived from environmental sustainability and global fairness are independent of all views, and hence seem acceptable— although maybe not fully convincing—to all. However, such arguments seem capable of justifying (major or minor) changes in degree, not a complete prohibition of the use of meat.

5  Applying Public Justification 

201

Second, consider the issue of public health. An advocate of the moral impermissibility of killing animals for dietary purposes might argue that, even if we cannot justify an absolute ban on the killing of animals, because there might be conditions in which the survival of human persons might require the killing of animals for food,2 the standard dietary purpose is nevertheless too weak a ground to justify the ordinary practice of raising and slaughtering animals. After all, at least in rich countries there are many healthy alternatives to provide humans with the necessary proteins. Hence, the assumption that the need for proteins should be unquestionably and generally satisfied by animal proteins seems unwarranted. A defender of omnivorism might counter this by saying that human populations have always eaten meat and that compelling all humans to abandon meat might be a risky move because we do not know if it would be suitable for the health of all. However, with respect to the dietary use of animals we seem to have no clear reason to conclude that, on public grounds, eating meat is per se morally wrong or admissible. Third, consider the question of nutritional freedom. The idea behind this is that the state (as well as other people) is not entitled to infringe our right to cater for ourselves as we please. However, this freedom is obviously limited by others’ rights and other specific regulations. There are a number of legitimate restrictions on how we may feed ourselves. For instance, one cannot eat corpses, even though corpses no longer have interests. Rather, this freedom should be understood as a right not to be forced to eat what others want us to eat. Hence, from this idea we cannot draw a public reason to vindicate B.3. Fourth, consider the interest that people have in defending their cultural identities, which in many cases require the consumption of certain food, in particular meat, as a part of collective rituals and way of life. It is an undeniable fact that most cultures have placed a high value on the consumption of meat, or at least a certain consumption of meat. However, cultural identities are not per se a reason to condone any practice. Think of the case of arranged marriages, among others. Moreover, cultures evolve and tend to adapt themselves to new contexts.  The paradigmatic case is that of Eskimos and other indigenous populations. Even on Singer’s view, it might be justifiable for them to kill animals for their survival. See Singer (1993: 62). 2

202 

F. Zuolo

Finally, one may say that the most neutral argument is that of economic costs. And changing an entire way of producing, as required, for instance, by B.1 and B.2, would impose heavy costs on our economic systems. However, economic systems and what is efficient or affordable change depending on changes in taste, technological progress and moral development. So, why should it be any different with food? In sum, with respect to the most important available neutral reasons, there seems to be no conclusive argument for definitely endorsing or rejecting B.3. By contrast B.3 seems to fare better with respect to the issue of research on animals. Indeed, official medicine rejects the idea that using animals is unnecessary and has generally established that in many areas there is no reliable substitute to tests on animals. Animal righters’ proposal of, among other things, tests on tissues rather than on living animals does not seem to provide an alternative solution because tests on tissues are already included in standard protocols. Even if scientific research in most Western countries has adopted the “three Rs rule” (replace, reduce and refine the use of animals in laboratories), many current (and future) life-­ saving or quality-of-life-enhancing drugs have been (and probably will be) developed through tests on animals. Tests on animals that are proven to be necessary to scientific development seem to be justified on the ground of the promotion of human health. Hence, there seems to be a strong neutral (scientific) reason to support B.3. There are two main strategies to rebut this standard scientific view. The first strategy challenges the factual efficacy of animal models in experiments (in particular, in toxicology). This strategy points to the many “false negatives” and “false positives” predictors in animal testing which have resulted in either the adoption of drugs that are harmful to humans or the discarding of drugs harmful to animals but not to humans. However, this does not lend support to the idea that we ought to abandon experimentation on animals; rather it calls for a deeper scrutiny of the reliability of the animal model. The second strategy challenges the very normative admissibility of employing animals in scientific research. Francione (2007) argues that even in those (very few) cases in which research on animals is really necessary, employing animals is unjustified because in laboratories we treat animals as mere resources. As there is no way to morally justify humans’

5  Applying Public Justification 

203

preeminence and superiority with respect to animals, we cannot use animals as resources if we are committed to the principle that unwilling human persons cannot be used as resources. Despite its seeming straightforwardness, however, such an argument rests on a comprehensive view based on interspecific radical egalitarianism that requires to treat all sentient beings as ends in themselves. Hence, the idea that even necessary research on animals is wrong does not seem to pass the test of independency from comprehensive views. Neither the efficacy-based nor the normative argument succeeds in providing a publicly convincing argument against experiments on animals. Taking both seriously may demand a large reduction in the number of experiments but not their ban. In sum, the idea that animals can at least be used for some appropriately justified scientific research is defensible on grounds independent of comprehensive views, whereas the opposite is not. From the viewpoint of neutral reasons, conversely, we have no clear conclusion about meat eating. These considerations concern only the neutral grounds to support B.3. With respect to the reasons internal to each view, it is easy to see that Animal Subjectivism cannot accept B.3 because it seems to clash with the idea that animals have a right to life. Pathocentrism can conditionally accept B.3 provided that the advantages outweigh the costs in terms of animal suffering. Instead, on Singer’s view, the standard use of animals in meat production should be banned and can be admissible only for merely conscious animals that are replaceable. But, on Singer’s view, research on animals may be justified depending on the expected results it may produce. Some Relational accounts can accept B.3 (Noddings 1984) but many others (Donovan 1996) cannot because empathy demands putting oneself in another’s shoes and cannot accept killing. Environmentalism and Humanism, instead, have reasons to accept B.3. In sum, B.3 does not gain the support of all the views and can be defended on public grounds only as far as scientific research is concerned. However, B.3 gains some broad, although not complete, support from the views. B.4: It is permissible to dispose of animal life for any human purpose, including non-fundamental ones (fun, sport, etc.).

204 

F. Zuolo

B.4 holds that animal life has no value or that the value of animals’ life is always outweighed by human interests, including the interests in performing such non-fundamental activities as sports, hunting and so on. This principle may only sanction the killing of animals if done for some immoral ground, for example if done for the sake of expressing one’s cruelty. It is worth pointing out that B.4 is a very important principle because it has been the standard norm in most societies and indeed remains so in many cases. Recently, some democratic states have outlawed the unjustified killing of animals, but still admit such practices as traditional rituals, recreational hunting and so on. B.4 may be publicly supported by the principle of human liberty which may be restricted only for the purpose of guaranteeing the liberty of other (human) individuals. However, the applicability of this support is dubious because, to hold B.4, one must subscribe to the idea that animals’ life is not worthy of moral concern, either because it has no moral value or because its value is so weak that it always loses with respect to human interests. Such a view seems, in fact, a controversial one, namely one that considers animals as machines (Descartes’s view) or slightly more important than plants. Hence, B.4 does not pass the test of neutral reasons because it has a reason in favor which rests on a wrong and controversial ground. Moreover, this principle cannot be supported by Animal Subjectivism, Pathocentrism and Relationalism. Environmentalism has an unclear answer on this point. It is unclear if even Humanism, putting the emphasis on human liberty to pursue human interests, could accept B.4 because in this principle human liberty and interests are unconstrained and this is an unfair balance. Hence, B.4 is not publicly acceptable insofar as it is rejected by both neutrality and inclusiveness tests. In sum, regarding animals’ interest in life, we must conclude that B.1 and B.4 should be excluded insofar as they cannot be endorsed on neutral grounds and cannot be accepted by most views. Regarding B.2 and B.3, we have a situation of inconclusiveness: they cannot be ruled out, yet nor can they be fully endorsed on neutral grounds. However, regarding the test of inclusiveness, they find support from many (but not all) views.

5  Applying Public Justification 

205

Matrix 3: Public reasons and principles regarding animals’ interests in life

Public reason in favor B.1

Respect and defend any kind of life? B.2 Respect any kind of life? B.3 (food) (F) Human dietary liberty and need for animal protein (R) Promotion of B.3 human health (research) B.4

Maximizing human liberty

Public reason against Thwarts human liberty? Thwarts human liberty? (F) Other sources of proteins are available (R) Availability of other research techniques? Grounded on a false view of animals (Cartesianism)

Rejected (✘), accepted (✓), inconclusive (□), unclear (?) □ □ (F) □ (R) ✓

✘

Matrix 4: Internal reasons and animal life (Rejected ( ), accepted (✓), inconclusive (□), unclear (?)) 4. Views/ 1. Animal 2. Pathocen- 3.Relational- Environment- 5. alism Humanism principles subjectivism trism ism B.1 B.2 B.3 B.4

✓ ✓ ✘ ✘

□ □ ✓ ✘

✘ □ □ ✘

✘ ✘ ✓ ?

✘ ✘ ✓ □

5.4 Welfare-Related Interests and Principles Welfare is an ambiguous and multipurpose notion. In legal and practical documents (e.g. guidelines for animals in laboratories), it refers to issues regarding the health of an animal, the appropriate space it has, for instance, in a farm or a laboratory. This understanding of welfare relies on

206 

F. Zuolo

objective criteria for measuring whether the life of animals is overall acceptable. Donald Broom (2014: 27) has generally defined welfare as follows: “the welfare of an individual is its state as regards its attempts to cope with its environment”. When coping is unsuccessful, welfare will be poor; when successful, welfare will be good. This definition of welfare is all-encompassing because it includes all the dimensions in which an animal’s life may fare well or badly. An important part of welfare is constituted by feelings and subjective experiences. Feelings, as Broom remarks, are coping mechanisms (2014: 29), among others, namely a conscious response to the environmental challenges that signal to the animal the goodness or badness of one’s condition. In what follows I will focus in particular on the subjective experiences without claiming that welfare is only about experiences, and not about the other dimensions outlined by Broom. In this sense my focus is both more specific and broader than the overall understanding proposed by Broom and by all objective accounts. On the one hand, it is more specific because it does not directly concern the dimensions already touched on by interests related to liberty and life. Evidently, the liberty to move and live according to one’s ethological features also has an impact on an animal’s welfare. On the other hand, it is broader because it concerns the dimension of subjective experiences that bear on negative and positive states of affairs. Clearly, the objective conditions employed by the aforementioned understanding of animal welfare do matter for the subjective experiences. If an animal has health problems or its ethological dispositions are hindered, it usually experiences feelings of distress and suffering. However, I prefer to address only the subjective experiences because they are certainly sources of value. By focusing on them, we can identify a set of interests that has not been included in the previous two dimensions (liberty-related and life-related interests). In light of this, by welfare-related interests I mean all those subjective states of affairs which concern the negative and positive experiences that animals subjectively live. In order to have an experience, an animal must have some sufficiently developed nervous system. As such, experiences are greatly variable because we are considering a huge diversity of animals and nervous systems. Despite this, the typical kind of subjective experiences that should concern us are the positive ones (pleasure, joy) or

5  Applying Public Justification 

207

negative ones (pain, distress). This is so because they are the most uncontroversial normative goods and bads that animals can experience. As with the other interests, here I focus on the source of value that may generate and justify normative principles. Accordingly, in welfare-related interests what generates the principles is the idea that animals’ positive experiences should be promoted or not hindered, while negative experiences are prima facie to be prevented. In general, being healthy and having possibilities of movement that closely align with typical ethological features is likely to cause positive consequences for animals’ welfare. Moreover, in measuring the possible increase or decrease of an animal’s welfare, one has to also rely on objective criteria, as well as on physiological proxies measuring the feeling (e.g. high heart rate as an indicator of suffering). But specifying what is conducive to positive/negative states of affairs cannot be done at this level of abstraction. Therefore, for the sake of simplicity we will mostly, albeit not only, consider pleasure and pain as positive or negative experiences per se, and as indicators of states of affairs that express an increase or decrease of animal welfare. Accordingly, the main animal welfare-related principles are the following: C.1: We ought to promote animal welfare. C.2: We ought to minimize animal suffering in interactions with human beings as much as reasonably possible. C.3: We ought not to cause unnecessary suffering to animals. C.4: It is permissible to disregard animal welfare. C.1: We ought to promote animal welfare. C.1 demands that animal welfare be promoted in general even when the causes of animal distress or lack of well-being do not stem from human actions. This principle hinges on the idea that we ought to be impartial as regards animal welfare. The further premise is that animal welfare should be taken into account on a par with human welfare. This principle rests on the idea that any failure to reach the full well-being of an existing individual is a moral bad independently of whether such a failure has been caused by moral agents. This implies a number of

208 

F. Zuolo

negative prescriptions (not to cause suffering to animals), but also a number of positive prescriptions regarding both animals with which we may have admissible relations and wild animals, whose welfare should be taken into account even if their distress has been caused, for instance, by predation or starvation in the wild. If conjoined with A.1 and B.1, C.1 implies a duty to promote the whole flourishing of animals. C.1 should not be seen as a weird and ad hoc position that I have outlined for the sake of expressing the most radical position in this domain. Rather, such a position has been expressed by Jeff McMahan (2016), who holds that if we take the problem of suffering impartially there should be no moral reason not to consider predation a moral problem. Although this does not mean that we should and could intervene in order to stop it, the suffering caused by predation should receive the same consideration as other types of suffering. What neutral reasons might be given to support this principle? The idea that, other things being equal, enjoying pleasant experiences is good and that having painful experiences is bad seems hardly controversial. Certainly, a moral agent may freely decide to undergo painful experiences, but this is not the case with animals. From an impartial point of view, a world with less suffering is preferable to a world with more suffering. Hence, there seems to be a neutral ground to support C.1. However, things are not so easy because there might be several reasons that put in question C.1. First, one may contest that from a neutral point of view impartiality toward suffering implies equal consideration of animal suffering on a par with human beings. There is an epistemic difficulty in establishing how much suffering an animal is experiencing. Moreover, there is an axiological uncertainty in the weight to be given to a good or bad experience (Sect. 2.7). Singer, as is known, solves the problem by claiming that we ought to adopt the principle of equal consideration of interests. This principle requires that we treat equally similar interests, not individuals. This principle has a great appeal because it seems to cut across many other disputes. But what is its scope? Are a snake’s interests on a par with mine? We may suppose that at least for animals having a similar level of psychological development the interests in being fed or in not suffering are equally important (insofar as they are experienced equally from a

5  Applying Public Justification 

209

psychological point of view). This might be true, but it relies on two controversial assumptions: that we may use the level of “psychological development” to compare different beings of different species, and that the experiences in these two beings are of equal nature. Other methods may be employed to measure animal suffering (behavioral measures based on the reactions of animals toward negative stimuli; or biomedical methods relying on such indicators as the level of cortisol). While such methods might be quite reliable, they do not answer the axiological question of whether similar events generate the same experience and whether a certain sensation has the same (dis)value in humans and animals.3 Second, one may reject the fundamental assumption that the badness of suffering or the goodness of pleasure generates duties to prevent the former and promote the latter independently of the relation that a moral agent has with a moral patient. In other words, even if we admitted that suffering is unconditionally wrong and pleasure is unconditionally good, it does not follow that I have a duty to prevent the latter and promote the former if the occurrence of the former or the latter does not directly depend on me. This is not only a matter of feasibility or demandingness. This objection, indeed, is grounded on the idea that duties may arise only in interactions with other moral agents and that I do not have a duty of justice to be concerned with the welfare of a being with whom I have no relations. Such a duty may only be a supererogatory one. If so, the promotion of animal welfare could not be considered a duty independently of one’s relation with these animals. Third, to promote animal welfare we may have to adopt patronizing actions to bring about what we presume the best animal life consists in. But, in doing so, we would risk infringing animals’ liberty (A.1) because in many cases the promotion of animal welfare is best pursued in sanctuaries or other spaces under humans’ control, and not in the wild. Moreover, we need to know what constitutes the best animal life. And this is troublesome for several reasons. In general, it is epistemically difficult to presume that we can know what the best animal life is, and putting this presumption in practice in many cases might be correctly accused  I have rebutted the plausibility of the principle of equal consideration of interests as a basis of equality in Zuolo (2017). 3

210 

F. Zuolo

of being an anthropocentric and patronizing action since we would simply impose on animals our conception of good animal life. In sum, the promotion of animal welfare might severely encroach on animals’ autonomous and natural life from a normative and epistemic point of view. Finally, there is a further worry regarding the public acceptability of this principle. We may argue (as in the case of B.1) that demanding that we also be concerned with the welfare of wild animals might require of us the performance of a number of actions that intervene in and disturb the natural phenomena which are characterized, in some cases, by predation or the natural death and suffering of animals without which there could not be a natural equilibrium. Meddling in natural processes might be more counterproductive than leaving them untouched. Hence, this principle does not pass the neutrality test because the reason in support of it is counterbalanced by other critical considerations. Regarding the reasons internal to each view, this principle can be certainly supported by Animal Subjectivism because promoting the welfare of a being is a way to respect its moral nature. And it might certainly be supported by Pathocentrism because the impartial consideration of interests is a fundamental tenet of consequentialism and in particular of utilitarianism. Whether or not it is mandatory depends on the actual utilitarian calculus; it might turn out that a massive intervention in natural processes is not conducive to the highest overall welfare. However, promoting animal welfare is certainly one of the clearest implications of all consequentialist and welfare-based ethics. Moreover, C.1 can be supported by Relationalism because being concerned with the welfare and in particular suffering of a being is the most important dimension of a caring relation. It cannot be accepted by Environmentalism because C.1 demands some “unnatural” actions—such as changing the ecological equilibria between predators and prey—and Environmentalism admits that certain painful experiences are part of natural phenomena and should not be prevented. And it cannot be supported by Humanism because C.1 demands that animal welfare be considered on a par with human welfare, which is rejected by Humanism’s priority to human persons. In sum, this principle cannot certainly meet the inclusiveness condition.

5  Applying Public Justification 

211

C.2: We ought to minimize animal suffering in interactions with human beings as much as reasonably possible. C.2 demands that in interactions with human beings, the suffering of animals be minimized as far as is reasonably possible in a given interaction. This presupposes that the kind of interaction at stake is admissible. Obviously, the admissibility of a relation makes reference to what has been discussed regarding the liberty-related interests. With respect to the previous principle (C.1), C.2 is far less demanding and intrusive because it concerns only the welfare-related dimension regarding the situations in which animals and persons relate to each other. It is also less demanding since it concerns only the negative dimension of welfare, that is suffering.4 It is worth pointing out that the first and obvious non-controversial reason in favor of C.2 is the idea that, in a given relation, causing a being to suffer is, other things being equal, morally wrong. Unlike the argument in favor of C.1, this idea is hardly deniable because it does not demand of us to be practically concerned with the suffering (and/or lack of well-being) in the world, independently of our responsibility and position regarding that suffering; rather, it simply demands to act in such a way that, in a given relation, we cause the least suffering that is reasonably possible. Such an idea is hardly controversial and compatible with virtually any metaethical position. But is this argument sufficient to show that the idea of minimizing animal suffering meets the condition of neutrality? This question is not so banal because the idea of “minimizing animal suffering” seems to be close to the tenets of Animal Subjectivism and Pathocentrism. Is C.2 dependent upon controversial stances? To respond to this question, we must go back to the formal conditions of admissibility of the most important views. Although such conditions were put in place in order to check the admissibility of the views, we may ask whether we can draw something more substantial regarding the public admissibility of the normative  C.2 is not alien to reality. Consider the famous 3-Rs principle in research on animals. If experiments on animals are deemed admissible uses of animals, a radical interpretation of the 3-Rs principle may be close to what C.2 demands. 4

212 

F. Zuolo

principles. Recall the first condition of FEN, and in particular the idea that equal cases should be treated alike, and the condition of SEN. If we apply these conditions to this principle, we may easily see that this principle meets both conditions. Drawing on the principle of internal consistency, the idea that equal cases should be treated alike is a principle of non-discrimination. But it is unclear what is to be counted equally or how wide the scope of animals’ interests is. As said at the beginning, it is undoubtedly true that animals can suffer, and as a normative consequence it follows that suffering morally counts. But it is unclear how much animal suffering should be weighed, in particular when we have to compare competing interests. Demanding that animal suffering be minimized, by contrast, is a prescription which can be applied without assuming any controversial stance on the relative weight to be given to animal welfare. Hence, C.2 does not violate the principle of neutrality. Now, it is time to ask what kind of public reasons might be given to argue against this principle. It may be contested insofar as it represents a limitation to human liberty. But it is not clear how C.2 might be considered a limitation to human liberty. The constraint it poses seems reasonable insofar as it is sufficiently open to contextual interpretation. One may rebut this claim by saying that ensuring a real and vast minimization of suffering in the admissible practices including animals may be very costly, and thus detrimental to the interests pursued through these practices. However, this is not necessarily so given C.2’s sensitivity to contexts. What “minimizing suffering as much as reasonably possible” means depends on the following additional considerations. First, the reach of minimization depends on what is technologically possible given a standard social practice. Second, the minimization of suffering is an important, albeit not unique, normative goal; hence, its pursuit should be balanced with other, more or less important goals. Hence, the minimization of animal suffering is not too demanding a principle and is not per se incompatible with the pursuit of the legitimate uses of animals. But is all of this sufficient to issue a positive public prescription to minimize animal suffering? Such a worry may be justified only to the extent that one subscribes to the idea that prohibitions are less

5  Applying Public Justification 

213

demanding than positive prescriptions. But this is not necessarily so. Then the question is: what real neutral reason counts against C.2? Possible problems of cost should not be considered as valid reasons at this stage of reasoning, and, as seen, the clause of “reasonable possibility” limits the extent to which the pursuit of C.2 may be too burdensome with respect to the attainment of other legitimate goals. Hence, we may ask: what reasons would people have not to accept C.2? Even those who do not subscribe to an animal-based doctrine have no reasonable reasons to reject it. Only a sadist, whose conception of the good is that of causing as much pain as possible to animals, would find the principle of minimizing animal suffering detrimental to her interests. Needless to say, however, the interests of the sadist seem hardly eligible for public consideration. Given these general considerations, the moral importance of animal suffering can also be expressed in a way that is independent of any specific view. To say that, all other things being equal, causing the suffering to a being that is capable of suffering is a moral bad is certainly a publicly defensible principle that cannot be rejected on public grounds. Hence, C.2 passes the neutrality test because the reasons that support it are not dependent upon specific views and there are no neutral reasons against it. Now we can ask what kind of internal reasons the views might have to support or reject C.2. At face value, no view seems to have any reason to reject C.2. Animal Subjectivism can certainly endorse C.2 because being concerned with the suffering of animals is a way to show respect toward them. To be sure, it all depends on the context in which animal suffering is sought to be minimized, whether or not in an admissible situation and/ or relation. And all of this should be decided by the other principles discussed above (liberty-related principles in particular). But, per se, this principle can be endorsed by Animal Subjectivism. C.2 would in particular be endorsed by Pathocentrism in virtue of its seeming consequentialist concern with the minimization of the negative dimension of welfare (suffering). And Relationalism would accept C.2 insofar as minimizing suffering is what empathy-based concerns and cooperative duties should be mostly about. Regarding Environmentalism, at first glance, it is not obvious why it should endorse C.2. After all, many environmentalists would regard suffering as an unavoidable phenomenon, qua part of natural life,

214 

F. Zuolo

thus not subject to our normative prescriptions. However, this is not really so because one of the basic tenets of Environmentalism is the distinction between natural and anthropically caused phenomena. If animal suffering in the wild is an ineradicable fact of nature, suffering caused by activities planned and sustained by human beings receives an altogether different moral assessment. Human beings, indeed, must be held responsible for such actions. Thus, Environmentalism has the resources to endorse C.2. Finally, Humanism certainly has reasons to support C.2 because minimizing suffering is a plausible way to interpret the duty to treat animals humanely. In sum, C.2 passes both the test of neutrality and inclusiveness. Hence, there are conclusive reasons to regard C.2 as not reasonably rejectable. C.3: We ought not to cause unnecessary suffering to animals. C.3 holds that only unnecessary suffering ought not to be caused to animals, while there might be other types of suffering which might be justified by the activity in which animals are involved. For instance, at least in certain cases this principle might accept a significant amount of suffering of animals if it is shown to be necessary for such a fundamental and justified human activity as scientific research. Obviously, what necessary means is controversial. Despite its vagueness, however, this principle is important because it seems to be widely shared by many persons holding a standard and minimal concern for animals, and it is also somewhat included in many laws ruling on animal treatment, for instance in research (a mild interpretation of the 3-Rs rule). This principle is not completely biased toward the status quo because it can certainly rule out some practices. For instance, even if we admitted that meat is necessary to the correct nutrition of human beings, an idea over which there is a wide dispute, it is certainly not necessary that animals live in such terrible conditions as those characterizing industrial farming. Hence, some improvements of the status quo can certainly be derived from this principle, as has actually occurred in recent decades in many countries.

5  Applying Public Justification 

215

Before proceeding, it is worth better clarifying a point. One may ask what the difference between C.2 and C.3 is given that, at least in some interpretations, the clause of “reasonableness” in C.2 and that of “unnecessary” in C.3 tend to generate similar results. In some situations, that might be true. However, C.2 and C.3 have different normative structures. Indeed, C.3 establishes the priority of human interests over animal interests in welfare unless it can be shown that the suffering caused to animals is unnecessary. Moreover, the “necessity” clause is usually included in an instrumental relation whereby some suffering is deemed necessary, for instance, to decrease the costs of experimenting or increase the production of milk. Hence, the necessary clause is usually employed to defend human interests, unless it is proven that such interests are negligible or that another solution, which makes animals suffer less, is equally available. In this sense, C.3 imposes a burden of proof on the defender of animals’ interests, while C.2 does not include such an automatic privileging of human interests. To be sure, the clause of reasonableness gives some contextual variability that may advantage humans; however, C.2 simply demands a direct duty and does not per se privilege humans. The neutral ground supporting C.3 is certainly the idea that only uncontroversial concerns may limit human liberty, and the clause of unnecessary suffering seems to be an uncontroversial kind of constraint. However, this idea faces two challenges. First, there is the aforementioned problem of establishing what is “unnecessary”. For instance, how can we know in advance that treating animals in a certain manner is necessary for the discovery of an important therapy? Second, this principle seems to rely on the idea that animals have some interests, but the weight to be given to such interests is weak and is usually outweighed by human interests. Only futile or easily preventable sufferings should be unquestionably avoided. But otherwise any suffering, even a terrible one, can be justified if it is necessary for some human purpose. Can this assumption be defended on neutral grounds? It is unclear how it can be because it seems to rely on an unfair balance of interests. In sum, although this principle is not rebutted at this level, it cannot be settled on neutral grounds. In terms of reasons internal to the diverse views, C.3 can easily win the support of Environmentalism and Humanism because these views may

216 

F. Zuolo

accept, to some extent, a priority given to human interests. Animal Subjectivism cannot accept C.3 insofar as it seems discriminatory because animal interests in welfare should count equally. Pathocentrism may accept C.3 only under certain assumptions, according to which it is not a violation of impartiality that human interests usually outweigh animal interests in welfare. Relationalism can hardly accept C.3 because it may imply a demeaning of animals’ standing with respect to humans, thus producing only exploitative relations. Perhaps only Environmentalism and Humanism can accept C.3. In sum, it is doubtful whether this principle can pass the neutrality test, but we cannot exclude it altogether, whereas it certainly does not pass the inclusiveness test, although it receives a somewhat large degree of support with the exception of view 1 which rejects it outright. C.4: It is permissible to disregard animal welfare. C.4 is the principle that underpinned most past practices of animal exploitation until only a few decades ago. Following this principle, animals can legitimately be used as mere resources. Qua mere resources, animals are inputs in a process whose output should be maximized, as it is, for instance, in animal farming to produce food. Regarding the public reasons in favor of this principle, we may think that the maximization of human liberty and matters of economic efficiency may be the reasons underpinning it. However, it is doubtful whether a public and neutral ground may support such an unconstrained and unbalanced liberty. This is particularly the case because this principle seems to be grounded on the idea that animals are not capable of having valuable experiences, which is, again, a form of Cartesianism. Hence, C.4 may be rebutted on neutral grounds because the reasons in favor of it stem from a false and controversial view. As to the test of inclusiveness, there are no admissible views that may have reasons to accept this principle insofar it says that we have no direct duties regarding animal welfare. Hence, this principle fails both the neutrality and inclusiveness tests.

5  Applying Public Justification 

217

Matrix 5: Public reason and animals’ interests in welfare

Public reason in favor C.1 Suffering is always a bad and pleasure always a good C.2 Causing a being to suffer is wrong C.3 Reasonable limitation of human liberty to pursue one’s own ends C.4 Maximizing human liberty

Rejected (✘), accepted (✓), inconclusive (□), unclear (?)

Public reason against Unclear how to weigh welfare; risk of meddling in nature ?

□

Vagueness of what counts as necessary, and unfairness toward animals Grounded on a false view of animals (Cartesianism)

□

✓

✘

Matrix 6: Internal reasons and animal welfare (Rejected ( ), accepted (✓), inconclusive (□), unclear (?)) Views/ 1. Animal 2. Pathocent- 3.Relationa- 4.Environment- 5. principles subjectivism rism lism alism Humanism C.1 C.2 C.3 C.4

✓ ✓ ✘ ✘

□ ✓ □ ✘

✓ ✓ □ ✘

✘ ✓ ✓ ✘

✘ ✓ ✓ ✘

To conclude this lengthy section, we can say that the probable result of this public justification procedure is that we have two inconclusive outcomes regarding the liberty-related interests and the life-related interests, and a fully justified—that is, non-reasonably rejectable—conclusion in the family of welfare-related interests (C.2). Hence, the outcome is that only a specific prescription regarding animal welfare may be non-­ reasonably rejected, whereas regarding life and liberty we have a sort of nested inconclusiveness.

218 

F. Zuolo

5.5 Inconclusiveness and Democratic Outcomes What should we do with regard to the areas in which the public justification procedure has reached a situation of inconclusiveness? Does it mean that no legitimate decision can be reached? To find a way out of this problem, I draw on the Gausian idea of “nested inconclusiveness” and propose to use democratic procedures for adopting a commonly accepted solution. As seen in the first chapters, a justification is inconclusive when something is undefeated but does not have sufficient ground for being fully acceptable. Or as Gaus himself puts it: The justification for accepting (or rejecting) a belief is inconclusive if the justification meets the minimum standard of proof for acceptance (rejection) but falls short of some high standard of proof for conclusiveness, certainty, knowledge, and so on. Gaus (1996: 153)

In other words, for there to be inconclusiveness, first, a principle (or more generally a position) must not be rejectable either because the reasons supporting it are falsified (undermined), or because competing considerations support another conclusion (rebutted). Second, inconclusiveness obtains when the reasons supporting a principle (or position) are put in question by other considerations and they are not strong enough to overcome all doubts. As said, typically inconclusiveness obtains at the neutrality level. For instance, in the case of C.1 there was a plausible prima facie reason in favor of it (a state of affairs with more positive experiences is impartially preferable to a state of affairs with fewer positive experiences). But some doubts put in question its convincingness: Is animal welfare to be counted on a par with human beings’ welfare? Do we have duties to promote welfare even though we are not responsible for lacks thereof? Is it permissible to meddle in nature? All of these questions do not undermine the reasoning in favor of C.1 and do not rebut it in favor of another principle; rather they weaken its convincingness and as such determine a situation of inconclusiveness.

5  Applying Public Justification 

219

If the justification is specifically inconclusive at the level of neutral reason, at the level of internal reasons, namely the inclusiveness test, something different happens. Indeed, the inconclusiveness at the neutrality test should be distinguished from the case of almost unanimous or very wide but not full acceptance at the level of internal reasons. Consider the case of A.2 (It is permissible to entertain only certain relations with animals, namely mutually beneficial relations that provide animals with good life chances). Only some radical versions of Animal Subjectivism oppose it (e.g. Francione), while other positions in Animal Subjectivism accept it (e.g. Cochrane), and all other views endorse this principle (although a restrictive interpretation of C.2 may be at odds with Humanism). There is a difference between undefeated but not fully victorious justification (inconclusiveness in the proper sense) and very wide but not unanimous acceptance by internal reasons of all the views. However, these two types of lack of full justification have in common that in both cases there is a position (or principle) that has many reasons in favor and receives a strong support which is, however, not fully victorious against other neutral reasons or against some minority positions of internal reasons. Although in these cases we do not have a full justification, we should treat differently principles that are rejected by nRs and iRs from principles that are not fully accepted by diverse views. Hence, if a principle is inconclusively justified and/or widely but not fully supported by the diverse views, we should have a tool to distinguish it from other cases of lack of justification so as to weigh its stronger level of support. This seems an obvious consideration. But the bare principle of unanimity embedded in the idea of public justification makes it difficult to properly appreciate the relative acceptability of inconclusively justified positions. What implications do these considerations have for our public justification procedure? How should we treat those cases in which the justification is inconclusive but there are still significant considerations in favor of a principle? To handle the matter, let me draw on the idea of “nested inconclusiveness” to make a step forward. Following Andrew Lister’s interpretation of Gaus,

220 

F. Zuolo

some of our reasonable disagreements about policy may be “nested” by a reasonable consensus on the preferability of having some common policy, as opposed to leaving individuals free to decide for themselves. … The inconclusiveness of public reason about nuclear weapons and the death penalty is nested by the conclusive case for having a common policy, as against the alternative of private militias (some nuclear equipped) and private policy (some applying the death penalty). (Lister 2010: 154)

For the purposes of this analysis I understand nested inconclusiveness in a slightly modified manner. Nested inconclusiveness occurs when a set of principles is inconclusively justified at the neutral level and receives broad but not full support by the reasons internal to the diverse views, while other principles are rebutted at the diverse levels. The preferable principles are inconclusively justified but they are strongly preferable to the others, hence nested. In my case the nested principles are not preferable to doing nothing (in Gaus’s account no state action and status quo with pure individual liberties); rather they are preferable to other worse alternatives. This is the case of principles A.2 and A.3 with respect to A.1 and A.4, of principles B.2 and B.3 with respect to B.1 and B.4. In both pairs there is a sort of nested inconclusiveness because we do not have conclusive solutions, yet both pairs are strongly preferable to the other alternatives. Gaus’s proposal suggests that a situation of nested inconclusiveness is not a threat to the overall workability of the enterprise of public justification and may even strengthen it. “Although state action must be conclusively justified (that is, not reasonably rejectable), we may choose democratically between actions inconclusively justified against each other, but conclusively justified against state inaction” (Lister 2010: 152). But how are we to choose among the inconclusively justified but preferable principles? My proposal, again following Gaus and Lister, is that reasonable parties have reasons to decide over these issues with legitimate democratic procedures. In brief, insofar as we have conclusive reasons to prefer democratic procedures over other, non-democratic procedures, we can employ them to decide among inconclusively justified principles which are preferable to the alternatives and to no decision at all. Which

5  Applying Public Justification 

221

principle we should prefer between A.2 and A.3, and B.2 and B.3 should, then, be left to the decision of democratic procedures. At this point one may object that the kind of agreement reached regarding welfare is not properly workable until we have more specific conclusions regarding the other two domains (life and liberty). Indeed, establishing what minimizing animal suffering means is at least in part dependent upon the establishment of what type of relations and situations are admissible, which in turn depends on the correct response to the life- and liberty-related interests. As I have already admitted, this is probably true. However, the possibility of finding a solution through democratic procedures may help us to overcome the stalemate. The question, then, is: How can individuals, who are strongly committed to a view, for instance the radical version of Animal Subjectivism, be willing to accept the outcomes of democratic procedures regarding what is admissible about animal liberty and life if such individuals are fairly confident that the outcome would be against their view? They certainly have reasons to accept C.2 but would they have equally good reasons to accept a democratic decision regarding the life and liberty of animals? It is difficult to provide a response to this question in theory because we cannot know in advance what the outcome of democratic procedures will be. Outcomes of democratic procedures are variable in time and space. There would certainly be some variations among countries depending on the values and beliefs of the constituency. And we cannot even be sure that such an outcome would be reached because, depending on the composition of the constituency and on a number of contingencies, it might be the case that no solution is reached among those that have been considered admissible by the public justification procedure. This gives a reason to those who are dissatisfied with the outcome of a decision for hoping that it will be overturned in the next round. To repeat the fundamental question: Can people who are sincerely and thoroughly committed to, for instance, the ideals of Animal Subjectivism accept the legitimacy of the outcomes when they are in contrast with the tenets of their view? The answer to this question is conditional. If supporters of Animal Subjectivism are reasonable, they will be willing to find commonly acceptable solutions via cooperative means, which in practice means not imposing one’s own view, discussing with others, seeking to

222 

F. Zuolo

find an agreement and so on. In theory, this means participating in and accepting the outcomes of the democratic procedures, as well as contributing to public justification. Hence, reasonable people have reasons to accept democratic procedures qua standard means to settle questions at the public level. Of course, there are reasons to accept democratic procedures only if such procedures have proved legitimate and functional. This conclusion should not be seen as hopelessly unrealistic because in this idea of public justification procedure, there is also some space for realistic traits, namely for compromise. But before seeing how these realist worries may be met (Sect. 5.7), we should first respond to the objection that this procedure is exclusive. Why should people who believe in views that have been excluded from the “constituency” of public justification accept its outcome?

5.6 W  hy Publicly Non-acceptable Views May Endorse These Results Before providing a general answer to this question, it is worth setting out the specific take of diverse views. I will first consider the philosophical indirect views, then the religious views, and finally the societal attitude-­ views. Indirect views on the moral status of animals (Sect. 4.5.1) have two types of reasons to accept C.2. The first one is internal and claims that causing suffering to a being, even if such a being does not merit direct moral consideration, is a form of cruelty or at least fosters cruelty. The second reason appeals to public values which can be particularly acceptable to holders of indirect views. One of the fundamental liberal principles says that people cannot be compelled to respect laws which they could not reasonably accept. But people morally committed to the value of animal welfare are compelled to live in states whose rules affect animal welfare. Enforcing the principle of minimizing animal welfare is a way to respect the moral power of forming and pursuing the conception of the good of those who are committed to the promotion of animal welfare. This is an indirect way of protecting animals because their protection is grounded on the concern for humans. Hence, the

5  Applying Public Justification 

223

minimization of animal suffering may also be grounded in and required by an indirect approach which respects the principle of neutrality. Nearly all the religions discussed in the previous chapter (Sect. 4.5.2) have reasons to accept C.2. This is clearly the case for Buddhism and Hinduism because not causing suffering to beings is one of their most fundamental tenets, although there is likely to be divergence on the scope of application of this principle (namely on whether all living creatures or only sentient animals are the targeted kinds of beings). Monotheistic religions too may accept C.2: a sensible way of being responsible toward the life of inferior creatures is to take care of their welfare, without, however, putting them at the same level as humans. C.2 is also acceptable to what I have called the societal attitude-views (Sect. 4.5.3). These attitude-views have in common some empathy or concern for animals, which is unreflectively and selectively addressed to only a few animals (tender animals, puppies, endangered species, companions or spectacular animals). C.2 as a generally acceptable principle simply calls for people having attitude-­ views to be concerned with suffering in general. This does not mean, though, that to accept the outcome of the public justification procedure, people need to revise their attitude-views and embrace one of the main publicly acceptable views. It simply means that even from within attitude-­ views, there may be conclusive reasons to endorse C.2. These considerations are meant to show how the procedure of public justification, notwithstanding the restriction of views imposed by FEN and SEN, may be inclusive of a wider set of views, thus not betraying the liberal ideal of respect and inclusion of diversity. However, we should not overstate this inclusiveness and pretend that it is an easy form of universal acceptance. Indeed, it is worth recalling that public justification has a limited reach and is conditional. It cannot include views that are clearly irrational or untenable, and it cannot include people who do not want to cooperate with others either. Public justification, even in a non-Rawlsian version as proposed here, is demanding and somewhat restrictive for diverse reasons. It is demanding because it requires that people accept the possible outcome for certain reasons, and not for others; namely, for principled reasons whether they are neutral reasons or internal reasons, and not for pragmatic reasons. It is also demanding because in principle it calls for a unanimous

224 

F. Zuolo

acceptability of the possible solution. That is certainly true. But from this we should not infer that public justification is by definition an idealistic device that cannot be implemented in practice. First, we have seen that its limited outcome is not a weakness but rather a strength: by admitting that the procedure cannot produce a conclusive outcome in all areas, but only in a significant area, we can test the realistic conditions of its application and thereby avoid excessive expectations. Second, we have seen that people holding views that are not publicly acceptable may still have good reasons to endorse the outcome of the procedure of public justification. In sum, despite being quite demanding and not delivering results in all the relevant areas, the procedure of public justification may be applicable and provide actual results, if the appropriate conditions apply. A further look into the reasons for agreement that the parties have will finally clarify the practical import of the procedure we have outlined.

5.7 What Kind of Agreement? We have seen the publicly acceptable and non-acceptable views, and the balance of reasons that people have. But we have not yet specified whether the parties will agree on a consensual form of agreement or whether they will compromise on the outcome of public justification. At this point we should better clarify the difference between consensus and compromise. The former means that the parties accept the proposed solution, in our case the principle for the treatment of animals, as the best option. Compromise instead is to be understood as a sort of second best. Asking whether the parties will have reasons to strike a consensus-agreement or a compromise-agreement is not an otiose question. Although the vast majority of approaches in theories of public justification and public reason drop the option of compromise, if we really want to understand the purchase of my perspective in practice, we cannot discard by default the possibility of compromise. Accordingly, the tone of this section will be mildly realist because I will try to envisage how the outcome of public justification may actually work in practice. Compromise is almost a ubiquitous notion in politics and in our daily life. In many cases, compromise is understood as a defective form of

5  Applying Public Justification 

225

practical arrangement in that it refers to the idea that one should accept a lesser realization of one’s position and concede something to the other parties for the sake of reaching an agreement. Compromise in this sense has a disappointing tone. Even further down to the negative sense of compromise, the expression “being compromised” refers to the problem of failing to comply with moral principles or one’s ideal in the pursuit of an agreement. In general, people characterize the moral pedigree of a compromise by distinguishing, at least but not only, between rotten compromises, merely pragmatic compromises, and principled compromises. Rotten compromises are struck for immoral reasons, pragmatic compromises for mere reasons of practical convenience and principled compromises for moral and good reasons.5 Upon clarifying this point, we have now to distinguish compromise from other types of agreements. Indeed, in many ordinary usages, compromise simply means that the parties find an agreement. I presented my theory of public justification as a hybrid between the two ideal types of convergence and consensus. However, despite the differences between convergence and consensus, these two methods of solving disagreements have something in common and aim at a condition in which “the parties agree that the position agreed upon is superior to the one they held at the outset”. Whereas a “compromise is a position that, with respect to the issue at hand, is from the point of view of parties locked in the debate or negotiation inferior to the positions that both (or all) bring to a decision-making process […], but which have reason to accept instead of the position they favor” (Weinstock 2013: 539). Building upon the analysis of reasons at stake, I argue that the parties holding a publicly admissible view and committed to finding an agreement—in short: the reasonable parties—will have reasons to fully agree on the principles that pass the procedure of public justification. Then, the parties that are committed to finding an agreement (reasonable in an attitudinal sense) but hold publicly non-acceptable views will have reasons to accept the outcome despite their views not being included in the public justification procedure. A clear example of this can be found in the religious views mentioned previously (Sect. 4.6). Instead, the parties that  For a more complete classification of the types of compromises, see Wendt (2016, chap. 5).

5

226 

F. Zuolo

are not committed to finding a common solution (unreasonable in the attitudinal sense) may have reasons to accept the outcome of the public justification, in the form of a pragmatic compromise. One may be suspicious that the reasonable parties would be really willing to accept a full agreement, namely accept the principle at stake as the best solution and not the second-best option (compromise). Although in my account reasonableness is a less demanding and more inclusive notion than in standard accounts of public reason, still it seems difficult to imagine that people so deeply divided on issues regarding animals would magically accept an agreement. Yet we should not underestimate the force of the disagreement at stake, nor should we overestimate the kind of agreement that the parties ought to strike in this public justification procedure. Indeed, the parties are not supposed to agree on the basic institutions and rules governing the whole society; rather the content of the agreement concerns a set of principles to rule the treatment of animals. Of course, this is not an insignificant question, and it is not so particularly for those who are more morally concerned for animals. However, my point is simply that with regard to the domain over which there is agreement (animal welfare) all the mentioned parties have reasons to accept the outcome of public justification as a fully justified and not second-best solution. If we want to assess the feasibility of my account, we should acknowledge that the kind of public justification proposed here is less demanding than others. First, its objects are specific principles, not a whole political conception of justice as in the Rawlsian case. Principles are smaller entities than conceptions of justice. They are sort of modules that may be acceptable for diverse reasons and includable in different world views. Expecting (in a descriptive sense) that there will be parties having good reasons to accept such principles does not seem overtly unrealistic. Of course, it all depends on there being reasonable people who are willing to find a common solution. This condition, again, does not seem so improbable. True, not all people are reasonable, but we should not underestimate their number just because they are less vociferous than the unreasonable. We have seen that the outcome of this procedure may also be supported by those whose views are publicly non-acceptable. What kind of support will it be? Of course, for instance, a person who believes in a

5  Applying Public Justification 

227

religion (e.g. Catholicism) and recognizes the value of C.2 has a different kind of support than, say, one who subscribes to Animal Subjectivism or Pathocentrism. The latter have internal reasons to fully subscribe to C.2, while the former also has a reason but part of her justificatory apparatus is at odds with the public justification procedure (e.g. the idea that an immortal soul confers full moral status). Hence, even though the Catholic may accept C.2, C.2 is not affirmed publicly in her most favored fashion (namely according to a religious outlook). Does this mean that the Catholic believer is striking a compromise when accepting C.2? It would be a compromise only if we understand compromise in a very loose sense. In the sense adopted here, the believer should be simply capable of accepting a normative principle (C.2) for some reason internal to her view, even though the justificatory apparatus to arrive at C.2 does not include the reasons favored by the believer. Hence, the believer would be required to somewhat privatize her acceptance, a situation which may not be ideal to her, but which is very common in our liberal societies. There is a further aspect in which the idea of compromise may play an important role in my account of public justification. In case of inconclusive results, the reasonable parties have a reason to accept that the ruling over these issues is decided by (majoritarian) democratic procedures. In these cases of nested inconclusiveness, the parties can accept the validity of the democratic decision only to the extent that they are in some sense open to compromise. The outcome is likely not to be coincident with their ideal preferences. Still, the fact of it being the outcome of a legitimate procedure is a good reason to accept it. Finally, compromise will have some role with regard to the unreasonable parties. Like reasonableness, unreasonableness is a scalar property, and depending on the level of unreasonableness some parties may be willing to accept the outcome of public justification on prudential grounds. Despite finding such results unsatisfactory and not properly morally acceptable, some unreasonable parties may have a prudential reason to conform to rules endorsed by the public justification. In this case, the kind of compromise they may strike is a purely pragmatic one because such unreasonable parties may still consider the grounds of the rules unjust and the result insufficient. However, they may think that some ruling is still preferable to no ruling at all and that some concern for

228 

F. Zuolo

animals may be an improvement in the status quo. In sum, the role of compromise in the proposed account of public justification is not negligible but limited and scattered across diverse parts of the theory. Appeal to compromise is meant to ensure that the public justification is compliant with a mild concern for realism and feasibility. Its role is to open up the possibility that even those parties that do not fully accept the outcome of the procedure, may indirectly accept it or accept it for non-moral grounds. As a final critique, one may argue that my idea of consensual agreement holds in theory but not in practice, and that in the end the parties are in fact only likely to converge on some sort of compromise. Principled if we are lucky, merely pragmatic if we are less lucky. And it is not so unlikely that the parties may not agree on any compromise at all and continue to conflict with and oppose one another without endorsing a common set of principles. In response, that is certainly not a mere possibility. It is likely that things could go this way. However, it is not the task of normative theorizing, whether abstract or applied, to predict the probable occurrence of a certain state of affairs, because such an occurrence is dependent on too many factors that are beyond the reach of normative and philosophical reflection. The kind of considerations that we have seen so far show the reasons that the parties have. In other words, we have seen what we should normatively expect the parties to do, insofar as they have good reasons to do so. Whether they will do so in practice is another question altogether. Yet this does not mean that they may not have reasons to do so, despite the fact that they might fail to follow them because—say—they are generally irrational, they suffer from weakness of will, or they are prone to false beliefs and so on. However, it is not so unrealistic to expect an agreement in practice either. The reasons that are available have been reformulated here as stemming from some philosophical views in order to present them in their best and most rational fashion. But these reasons can also be embraced by views that are not fully acceptable in public and are to a certain extent understandable by ordinary people. After all, understanding that suffering is a bad and that, all other things being equal, we should minimize it for all those individuals—including animals—that can experience it is not a difficult idea and can be appreciated by many people and ordinary point of views.

5  Applying Public Justification 

229

References Broom, D. M. (2014), Sentience and Animal Welfare (Wallingford: CABI). Cavalieri, P. (2001), The Animal Question. Why Nonhuman Animals Deserve Human Rights (New York: Oxford University Press). Cochrane, A. (2012), Animal Rights without Liberation (New York: Columbia University Press). Donaldson, S. and Kymlicka, W. (2011), Zoopolis. A Political Theory of Animal Rights (Oxford and New York, Oxford University Press). Donovan, J. (1996), “Animal Rights and Feminist Theory”, Journal of Social Philosophy 27, pp. 81–102. Francione, G.  L. (2007), “The Use of Nonhuman Animals in Biomedical Research: Necessity and Justification”, Journal of Law, Medicine and Ethics, 35, pp. 241–48. Francione, G. L. (2009), Animals as Persons. Essays on the Abolition of Animal Exploitation (New York: Columbia University Press). Gaus, G. (1996), Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford: Oxford University Press). George, K. P. (2000), Animal, Vegetable, or Woman? A Feminist Critique of Ethical Vegetarianism (New York: State University of New York Press). Lister, A. (2010), “Public justification and the limits of state action”, Politics, Philosophy and Economics 9(2), pp. 151–175. McMahan, J. (2002), The Ethics of Killing. Problems at the Margins of Life. Oxford: Oxford University Press. McMahan, J. (2016), “The Moral Problem of Predation”, in A.  Chignell, T.  Cuneo, M.  C. Halteman (eds.), Philosophy comes to dinner. Arguments about the ethics of eating (New York: Routledge), pp. 268–293. Noddings, N. (1984), Caring: A Feminine Approach to Ethics and Moral Education (Berkeley and Los Angeles: University of California Press). Nussbaum, M. (2006), Frontiers of Justice. Disability, Nationality, Species Membership (Cambridge, Mass: The Belknap Press of the Harvard University Press). Regan, T. (1983), The Case for Animal Rights (London: Routledge & Kegan). Singer, P. (1993), Practical Ethics, 2nd edition (Cambridge: Cambridge University Press). Weinstock, D. (2013), “On the Possibility of Principled Moral Compromise”, Critical Review of International Social and Political Philosophy 16(4), 537–556.

230 

F. Zuolo

Wendt, F. (2016), Compromise, Peace and Public Justification. Political Morality beyond Justice (London: Palgrave Macmillan). Zuolo, F. (2016), “What’s the point of self-consciousness? A critique of Singer’s argument against killing (human or non-human) self-conscious animals”, Utilitas 28(4), pp. 465–487. Zuolo, F. (2017), “Equality, its Basis and Moral Status. Challenging the Principle of Equal Consideration of Interests”, International Journal of Philosophical Studies 25(2), pp. 170–188. Zuolo, F. (2020), “Cooperation with Animals? What Is and What Is Not”, Journal of Agricultural and Environmental Ethics 33(2), pp. 315–335.

6 Addressing Unlawfulness: Admissible and Non-admissible Forms of Protest

6.1 Rejecting the Outcome At the end of the previous chapter, we have seen how and why the set of individuals that might accept the outcomes of the procedure of public justification may extend well beyond those who subscribe to the publicly acceptable views. But, realistically, this will not cover all the instances in practice and we have to consider many other cases in which public justification is rejected. These cases are not due to those who believe in views that do not pass the epistemic criteria. Rather, they stem from people who, despite holding some mainstream or radical version of publicly acceptable views, might not accept the outcome and the grounds of public justification. Who are they? Here we should make some distinctions. Some may simply find the outcome unconvincing because, say, some reasons have not been adequately analyzed and weighed. Of course, any person from any admissible position may lament this problem and challenge the application of the procedure. Those who are unsatisfied may propose a reconsideration of their arguments, or new ones, without changing the structure of or the rationale for the public justification procedure. If they prove successful, the procedure will certainly be improved. © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_6

231

232 

F. Zuolo

In the previous chapter, the procedure has been run with what I have taken to be the most relevant and best available arguments and theories. But new arguments, cases, theories—whether stemming from philosophical theses or from new scientific findings—can change the flow of the procedure without undermining its validity. For instance, if we were to discover a reliable way to measure animals’ suffering, some arguments would have to change. Similar considerations apply to those who hold publicly non-admissible views, which, they may argue, have been improperly characterized, and thus excluded. In all these cases, the challengers are probably reasonable people who reject a specific application of the procedure but think that in principle the correct solution can come out of the procedure itself. A further case is represented by those who reject the outcome or the procedure itself, but do not act upon this refusal and in practice abide by the laws that stem from the principles generated by the procedure. These people may have reasons against the specific outcome or against the procedure itself but have countervailing grounds for not acting on their objection, because, say, they are very hesitant and thus unwilling to put in practice their objection, or they consider social order a more important good than the realization of their own good, or they are shy and unwilling to manifest their dissent. All these sorts of cases—of unwillingness, social conformism or hesitance—fall out of the scope of this analysis. All cases are certainly socially relevant. But to the extent that, as assumed in this point, they do not act on their refusal, they do not pose a practical challenge to the procedure of public justification. Finally, we must take into account those whose rejection of the outcome or of the procedure itself generates practical consequences. These people may protest against the social acceptance of a practice or the legal enactment of a rule embodying the principles that derive from the procedure of public justification. In theory, all people who subscribe to any view, including Humanists or Environmentalists, may reject the outcome and protest in some way. However, in practice, it is more likely to be the case that protests could stem from holders of Animal Subjectivism (and

6  Addressing Unlawfulness 

233

marginally by holders of Pathocentrism and Relationalism).1 This is so because, as we have seen, the acceptance of the outcome of the procedure for Animal Subjectivists is more strained than for others. Despite their full acceptance of the abstract principle of minimization of animal suffering, the inconclusiveness of the other areas of animal interests regarding liberty and life may render the accepted principle less convincing. This is fully understandable and already described in theory. But what counts here is how it may translate into practice. In this chapter, I will ask whether some unlawful acts of protest may be legitimate from the point of view of public justification. But, more specifically, what kinds of protests and objection? Of course, I will not address the cases of evasion from the law for the sake of gaining an advantage. In this last category, we could include also those who, in failing to comply with laws and principles, exploit animals and make them suffer for the sake of their own material interests, for fun or without a good motive. Furthermore, it is worth remarking that I will not be considering those who oppose because of a general rejection of the state’s authority on some principled or unprincipled anarchical grounds. In what follows, I will only consider those having relevant and morally admissible reasons to object. It is worth preventing a possible misunderstanding regarding the focus and object of the analysis of this chapter. We will mostly discuss real cases of unlawful protests. However, we are asking what is acceptable/non-­ acceptable with respect to the principles informing a rather idealized procedure which has never been put into practice. There might seem to be a sort of mismatch insofar as unlawful acts of protest object to real rulings or practices, not to the outcome of the procedure of public justification. And the current laws on the treatment of animals do not necessarily reflect the outcome of the procedure of public justification of the previous chapter. Can we take real cases of objection as interesting for an

 There might also be protests stemming from more conservative positions. If we suppose, for instance, that the outcome of the procedure of public justification were to generate a ban on fox hunting, as it is likely to be the case (see the last chapter), we should consider the protests that supporters of fox hunting have put in place in the UK, and we should ask whether these protests are forms of CD or something else. For an analysis of cases like this, see Milligan (2013, chaps. 4–5). However, the current cases are all represented by animal righters. 1

234 

F. Zuolo

idealized analysis? We can and should take real cases of objection too as relevant for our more idealized analysis for the following reasons. First, there is a substantive similarity between some current laws of liberal and democratic societies and the outcome of public justification. Current laws restrict the admissibility of killing and using animals only for some human needs and are mainly concerned with respect for animal welfare. This is a point of structural similarity with the outcome of the procedure of public justification. However, the principle of minimizing animal suffering is certainly more demanding and restrictive than most current laws regarding the treatment of animals in farms, labs and so on. Indeed, most of the current laws seem to hinge on the principle of avoiding unnecessary suffering (Sect. 5.4, C.3) which is more compromising and unduly favors human interests. Moreover, the current laws and the outcome of public justification differ as to the grounds of the principles for the treatment of animals. The procedure of public justification has a stronger grounding than the motivations behind current laws. Despite these important differences, though, there is some structural similarity. Second, the alternatives are not viable. We could, of course, devise and analyze a set of hypothetical alternatives where an objection to possible outcomes of a procedure is expressed. However, considering all these possibilities would be too long, and we would have no way of measuring the practical weight of these hypothetical objections. Here, we confront practical issues where attitudes, facts and reasons inextricably combine with the pure analysis of the weight of reasons which has been done in the previous chapter. Moreover, considering real objections is fundamental to understanding whether my proposed account can have any grasp of current reality. Although I have been pursuing a rather idealized perspective, the need for practical relevance has also been considered in many passages (e.g. when analyzing societal views, see Sect. 4.5.3, or when I asked whether the parties would have reasons to compromise or fully accept the result, see Sect. 5.7). Considering real cases of objection—with the important caveat of being a sort of proxy for possible objections to the outcome of the procedure of public justification—could be a further way to highlight the practical relevance of my account.

6  Addressing Unlawfulness 

235

Bearing in mind these cautionary remarks, one may ask what specific rule or principle emerging from the procedure of public justification animal-­rights activists may oppose. This is something we cannot fully know in advance. But the arguments above can provide us with a framework for assessing the relevance that the real cases of unlawful protest may have with regard to my account. Hence, depending on the cases, we can assess the admissibility of unlawful acts on the basis of a substantive criterion and a procedural one. In particular, the substantive criterion will signal whether the opposed law or practice could be justified according to the outcomes of the principle of public justification; the procedural criterion concerns whether the unlawful act of objection is compatible with the principles of the procedure of public justification. As such, the first criterion will have to do mostly with whether a law or practice meets the desiderata of animal welfare, while the second criterion will concern whether the unlawful acts of protests could be framed in an exchange of reasons that aims at public justification. In sum, the admissibility of unlawful forms of protests will be assessed on the basis of whether these acts oppose an unjust law or practice, and in so doing act in a way that honors the spirit of public justification. The chapter will proceed as follows. First, I will distinguish between diverse forms of unlawful action. Next, I will discuss the notion of civil disobedience (hereafter CD), provide some examples of it and try to understand whether it is an acceptable or non-acceptable form of protest. In the fourth section, I will analyze animal rescue and sabotage. In the fifth section, I will discuss the relation between forms of unlawful action and public debate, and next I will investigate the difference between public justification and moral evaluation. I will conclude that CD may be a legitimate form of protest while other forms are not prima facie admissible.

6.2 Diverse Forms of Unlawful Protests There are many forms of protest as a way to manifest one’s dissent. The first distinction we have to bear in mind is that between lawful and unlawful forms of protest. Here I will consider only unlawful forms of protest. Lawful forms include public campaigning, lobbying,

236 

F. Zuolo

demonstrations, hunger strikes, preaching, leafleting, picketing and so on. To the extent that they are not put in place in a harmful manner (e.g. with threats) all these activities, and many others, are protected by the right to freedom of expression and association. Moreover, they may be considered as manners of contributing to the public debate. Hence, they—as it were—are practical counterparts of challenges within the public justification procedure. Should we, then, infer that all unlawful forms of protest are ways of putting in question the public justification? No, that would be too hasty a move because there might be unlawful forms of protest that are not incompatible with public justification. But before going further into this, it will be prudent to provide a broader characterization of forms of protest so as to identify more precisely the other categories. The field of unlawful forms of protest is as wide as the lawful ones. The following account is a broad one, though it still does not cover all instances. First, as a matter of relevance and for reasons of space, I will only consider specific unlawful actions targeting animal issues and will not look at other attempts to change a political system (e.g. revolution) or those clearly violent actions that target innocent people. This restriction is not banal because, as is known, some forms of animal activism that involve damages to property or threats to persons have been defined as terrorism. Despite its popularity, this definition is very controversial. Many actions that have caused widespread fear may be considered acts of terrorism.2 Some accounts of terrorism define an action as terroristic only if it is performed for the sake of spreading terror, in a way that targets individuals who are innocent and non-responsible for the situation the terrorists oppose. However, animal-rights activists reject this description of their acts insofar as they do not consider the targeted individuals (e.g. the researchers of a lab employing animals or farmers) to be innocent (Hadley 2009). In what follows, I prefer not to consider terrorism because the actions that clearly fall within an uncontroversial account of terrorism cannot be  For a non-exhaustive but representative account of these acts, which include, among other things, arson and intimidating letters, by such groups as Animal Rights Militia and the Justice Department, see Monaghan (1999). 2

6  Addressing Unlawfulness 

237

acceptable in my respect-based public justification procedure. In the ambiguous cases, when it is not clear whether we are encountering terrorism, I will use other less disputable notions to make sense of these actions. Terrorism is, indeed, too controversial a notion. But by not using it to characterize some of the following acts I do not intend to soften the allure of these acts, as if only the label of terrorism were a mark of wrongness. What kinds of unlawful acts may be more or less acceptable, if any, will be discussed in due course. In any case, I will not discuss the admissibility of clearly violent actions—for instance, those that intimidate people by sending letter bombs—because, whatever the responsibility of the targeted individuals, these acts against persons are not acceptable in a framework that starts from the respect of persons as one of the founding values. Accordingly, we will discuss the relative admissibility of unlawful actions that do not directly target persons in a violent manner, even though in some cases they may be considered violent in a broader sense. (More to follow.) Having set aside the terrorism question, in order to try and map this terrain we now have to distinguish between different types of unlawful actions. There can be diverse taxonomies depending on the preferred criterion or purpose of distinction. In this case, we will differentiate them according to the primary goal that the action seeks to accomplish. For our purposes here, we can distinguish between actions that seek (i) to protect a personal good, (ii) to defend an overall good and (iii) to prevent a specific external evil. In (i) a person may act unlawfully to subtract herself from doing something which she regards as deeply wrong. The primary object to protect is one’s integrity when one is compelled by an authority to perform an action which is deeply in contradiction with one’s personal conviction. For instance, think of pacifists who were drafted into military service. The action that many performed was conscientious objection—at the beginning contra legem and later legally accepted by many countries. Concerning animals, we have few cases in this category because objectionable treatments of animals have mostly concerned professions or services which may be only voluntarily chosen. But people with ethical convictions against the exploitation of animals are unlikely to find themselves trapped in positions that compel them to perform actions that they

238 

F. Zuolo

deem wrong. Therefore, we can leave this kind of unlawful actions aside because it is of little practical relevance in respect of animals.3 The second category (ii) concerns those actions that seek to defend the overall good of living in a system that lives up to its ideal of justice. In these cases, unlawful actions seek to communicate to all citizens that something wrong is happening and try to remedy the situation by sending a message to the whole community with a view to persuading people to change a law or practice. Here the aim of the action is to protect the good of a functioning institutional system. Examples, which we will discuss in detail in the next section, include CD and whistle-blowing. A paradigmatic example is the actions of trespass that violate private facilities not for the sake of liberating animals, but rather for the sake of documenting the condition of animals. The third category (iii) concerns actions that seek to prevent a specific wrong from happening. In the debate in animal ethics they are called direct actions, namely those initiatives that typically aim at liberating animals, and this entails, for instance, breaching a laboratory and freeing animals. But this category also includes more indirect actions, such as sabotages when the activists seek to stop an activity (e.g. a research laboratory) deemed as wrong. While in (i) a person protects herself from being involved in something she thinks wrong and in (ii) a person seeks to protect the whole community from injustice, in (iii) the action seeks to prevent the occurrence of a specific wrong, in our case done to animals. Of course, all these actions are intertwined, and a person may want to protect her integrity (i) while also sending a message to all (ii). But distinguishing the three actions allows us to focus on the primary intention of the activist and the specific request being put forward—(i) whether being exempted from a wrongful practice without aiming to ban it altogether, (ii) sending a message to change a situation that all should consider unjust or (iii) directly  However, it is interesting to mention a real case of conscientious objection contra legem which has been performed by personnel of a laboratory in Italy in 1989. A group of employees in a hospital conscientiously objected to the opening of a new research lab that would have used animals. Their protest led to the enactment of a law (no. 413, 12 October 1993) that recognizes the right to researchers, technicians and students to be legally exempted from the use of animals in research labs in order to respect their conscience. 3

6  Addressing Unlawfulness 

239

stopping something deemed wrong. In the rest of the chapter, given the minor relevance of (i) in our cases, I will discuss, respectively, CD, as the most important instances of (ii), and animal rescue and sabotage as the most relevant instances of (iii).

6.3 C  ommunicative Unlawful Actions: Whistle-Blowing and CD This category is constituted by all those actions that aim to “send a message” to somebody in order to denounce an injustice with a view to restoring justice in the community. In general, this category includes two other broad types of actions: CD and whistle-blowing. In what follows I will mainly focus on CD because the near totality of the debate and practical instances consist of actions of CD.  Indeed, focusing quickly on whistle-blowing for the sake of completeness, whistle-blowing aiming to promote the cause of animals has received scarce attention by activists and commentators because whistle-blowing occurs when a member of an organization reports a wrong of which she is aware because of her role. In general, whistle-blowing is a genuine act of unlawful protest having a communicative intention because it infringes the duty of confidentiality toward the organization for the sake of disclosing the wrong. But animal-­ rights activists are unlikely to be hired in firms (e.g. farms) or agencies (e.g. research laboratories) where (alleged) wrongs are done to animals. Hence, whistle-blowing for the sake of animals may be sidestepped because the vast majority of communicative unlawful acts has been perpetrated as forms of CD. True, some people have sought to be hired in a firm or lab for the sake of denouncing the wrongful treatment of animals that they already expected to find in these facilities.4 However, this case is not a genuine case of whistle-blowing because the activist who denounces is not torn by a clash between competing duties (of confidentiality toward the organization and transparency to report the wrong to the public), for she is rather committed to disclosing injustice from the outset and uses  For a more detailed discussion of this strategy, also described as “undercover surveillance”, and other tactics, see Munro (2005). 4

240 

F. Zuolo

the fact of being hired in an organization merely as an instrument to collect inside information (Ceva and Bocchiola 2018). Now we can more extensively focus on CD. What is CD? Answering this question is more difficult than it seems at a first glance because there is no agreed upon concept which resists the variability of conceptions. Rather, the conceptions themselves aim at redefining the concept so as to include different cases as genuine cases of CD. CD is perhaps a structurally contested concept because it is intrinsically normative—in that it implies a positive standing for some violation of the law. In order to navigate the ambiguous area of CD, we need a minimal map. Although what follows cannot be a detailed and conclusive analysis, it should be sufficient for our purposes here. First, we should differentiate theories of CD as to the ground for disobeying the law. Second, we should distinguish the function that CD is thought to have. First, diverse grounds have been proposed to vindicate the special moral standing of CD.  Such grounds can be roughly grouped in two families: grounds based on publicly shared normative commitments, or those not based on publicly shared commitments. In the first group, we can put theories such as Rawls’s. Here, the admissibility of CD depends upon the shared sense of justice among the majority and the disobedients. The need for CD is triggered by some occasional situation or law that deviates from the shared principles of justice in a nearly just state. We can also include in the first group those theories (e.g. Smith 2011) that justify CD on the basis of deliberative failures. Civil disobedients may be justified in calling public attention to a law or situation on the grounds that the voice of a minority has not been appropriately taken into account. The deliberative procedural principle requiring that all positions and voices be appropriately heard and/or have equal chance to influence the overall deliberation is a publicly shared principle of democracy, the deviations from which may render a law or situation illegitimate and justify some appropriate unlawful acts. The second group includes those theories that justify CD on the grounds of some moral entitlement that is either located in individual conscience or in a supreme moral code that is unfortunately not shared by the majority that has passed a contested law or that upholds a controversial practice. Kimberley Brownlee has held that the justification of a

6  Addressing Unlawfulness 

241

right to CD rests on the humanist principle of respect for individual conscience as the locus of moral conduct. Given a morally pluralistic scenario and under the condition of conscientiousness of one’s conduct, we should acknowledge “the overly burdensome pressure that society and the law place on us when they coerce us always to privilege the law before our deeply held moral convictions” (Brownlee 2012: 144). The second group also includes Tony Milligan’s account which justifies CD on the grounds of appeal to what he calls the “higher law” (Milligan 2013: 137–42). The higher law is a superior moral code which may not be embedded in current legislations. Although the higher law is not a purely individual source of moral conduct because it is independent of and beyond individuals and specific communities, I include this theory in this group because what the higher law dictates may not be a matter of publicly shared commitment. Indeed, on this view, actions of CD may be justified precisely on the ground that the majority failed to access what the higher law demands, thus enacting wrong rules or abiding by unjust practices. What higher law is—whether overall morality or God’s commandment—need not concern us. Suffice it here to note that the higher law may not be shared. The second distinction that we have to bear in mind concerns the function of CD. On the one hand, there are those theories of CD which hold that it has primarily a communicative role (Rawls 1999; Smith 2011). Civil disobedients can be distinguished from other unlawful actions on the grounds of the kind of social function and message that they convey to the majority. This condition is tied to the idea that CD is essentially a public act that aims at informing other people about the occurrence of an injustice. On the other hand, there are those theories that conceive of CD as an act that might have a communicative aim, which is, though, not necessary to qualify such acts as CD from the law (Milligan 2013). On these views, CD has other primary aims, such as that of preventing a wrong, or remedying an unjust situation through unlawful acts. Such acts may also have a communicative function, but this need not be the case.

242 

F. Zuolo

6.3.1 A Suitable Definition of CD The attentive reader might have noticed that I have characterized CD as a kind of unlawful communicative action, but some accounts of CD— particularly, though not only, Milligan’s—do not make communicative intention as the primary feature of CD.  Are such accounts mistaken, then? The aim of this analysis is not to provide an overall reconstruction of what CD is and show that the other accounts are erroneous. Perhaps the complexity of the notion of CD cannot be shrunk into a single account. In what follows, I will, rather, try to argue that a communicative understanding of CD is more suitable to our analysis insofar as it is more congruent with the specificity of activism for the sake of animals. There are diverse communicative theories of CD (by Rawls, Habermas, Smith and Markovits). But the most influential—albeit controversial—is the Rawlsian account: I shall begin by defining civil disobedience as a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government. By acting in this way one addresses the sense of justice of the majority of the community and declares that in one’s considered opinion the principles of social cooperation among free and equal men are not being respected. (Rawls 1999: 320)

Several features of this definition have been criticized in general and with respect to the issue of animals in particular. It has been said that we ought to reformulate CD so as to include new forms of protests. In particular, the clause that an action ought not to be “uncivil” (Delmas 2016) or violent has been considered unduly restrictive (Celikates 2016; Milligan 2013; Adams 2018); the condition of publicity has been criticized for making almost impossible most current actions of CD, in particular those that, for instance, aim to disclose and report the condition of animal exploitat1ion (Milligan 2013); the appeal to the sense of justice of the majority has been seen as unjustly limiting the minority stances, particularly but not exclusively in respect of the issue of animals; finally, Rawls’s reliance on the state and majority as the addressees of civil

6  Addressing Unlawfulness 

243

disobedients’ appeal is at odds with many contemporary forms of international resistance and disobedience (Scheuerman 2018: 111–21). I do not want to take a side with these remarks, although some of them seem sensible and make CD to some extent more compatible with its historical instances. As said, my aim here is not to reformulate the very idea of CD. I take the spirit of a Rawlsian understanding of CD and just reformulate it to make it suitable for our analysis. But one may suspect that by adopting a broadly Rawlsian account of CD I am hiding, in fact, a self-serving double move: that of legitimizing a Rawlsian understanding of CD as the correct one, and that of covertly justifying those acts of CD that fall inside Rawls’s characterization. In reply to the first charge, I am not legitimizing the Rawlsian account as the best one. I am adopting it as the standard example of a communicative account of CD. As we will see below, a communicative account of CD is more suitable to the field of animal activism because there are other ways of accounting for unlawful practices for the sake of animals. Indeed, as anticipated, acts that aim to free animals may be characterized with another notion, while acts that have a communicative intention can only be characterized as CD. Regarding the second criticism, I reject the allegation that my move is self-serving with a view to putting under the blanket of CD only a pre-established set of actions. Unlike other recent proposals to reformulate CD in order to make it more hospitable to contemporary forms of protest (e.g. Occupy Wall Street), I do not think we have to change the very idea of CD to include new forms of protest because I do not assume that per se only CD is justifiable, while other forms of protest are not.5 Most supporters of CD and all those who advocate a more inclusive understanding of it, in fact, rely on the unconfessed assumption that only or eminently CD is a justified form of unlawful protest, while other forms are not. Hence, so this assumption goes, if we want to make more room for dissent, we have to reformulate the idea of CD so as to include as many kinds of protests as possible under its umbrella (lastly, see examples of this move in Celikates 2016; Adams 2018). Although this move is somewhat dubious, I do not want to  Here I agree with Scheuerman (2018: 135) on this general point, although he mostly refers to other types of acts of dissent and resistance (e.g. at the global and digital level). 5

244 

F. Zuolo

directly tackle it. I simply wish to remark that I do not have a pre-­ established set of protests that I want to justify as admissible, nor do I think that only CD is in principle a justifiable form of unlawful protest. Indeed, direct actions that seek to save animals from exploitative premises may seem equally or more appealing than acts of CD: although both acts of CD and animal rescue infringe the law, only the latter immediately change the state of affairs by saving animals. Or at least this is what supporters of animal rescue hold. Upon explaining the reasons for choosing a communicative account of CD, we may now analyze its specific components. Starting from the Rawlsian account, let us see what aspects of it we can retain and what should be reformulated. The main relevant features of the Rawlsian account are publicity, conscientiousness, shared sense of justice, non-­ violence and a condition of quasi-justice. First, Rawls’s phrasing that CD must be a public act can be understood in many ways. Here, public can be understood as an act performed in public, that is, in an open and visible manner. Or public can be understood as aiming at the public, that is, intended to publicly deliver a message. Of course, the two senses of public are often interwoven and any public act in the second sense must at a certain point become public in the first sense. But many acts of unlawful protest—for instance, those that require the collection of classified information—require a stage where the possible civil disobedient acts outside of the public scrutiny. In these cases, the unlawfulness is typically the act of obtaining and disclosing secret or private information. These actions may be considered forms of CD only to the extent that they are aimed at disclosing a situation of public concern. In the second place, the conscientiousness condition requires that acts of CD not be mere acts of refusal of the legal order or attempts to take advantage of a violation of the law for personal gain. Rather, they should be the expression of one’s most sincere and deep moral reasoning. What this means in practice is a very thorny issue. Since here I am not investigating the general condition of conscientiousness, as Brownlee (2012) has extensively done, we should be satisfied with a practical means to check this condition. It should be sufficient to grant that the objector is not merely evading her responsibility. Although this is perhaps too sketchy, I just want to suggest that the possible answer lies between the

6  Addressing Unlawfulness 

245

following two extremes. On the one hand, we may require that disobedients be willing to undergo a trial and possibly a punishment, as Sabl (2001)6 argues, or that they be called to answer publicly for their conduct in a trial, thus providing grounds and accepting the responsibility for their act even if one does accept the punishment (Moraro 2018). Third, the appeal to justice condition. Unlike acts of conscientious refusal/exemption, acts of CD spring from one’s moral conscience when it does not express purely idiosyncratic claims. If we want to make sense of CD in a Rawlsian spirit, if not following it to the letter, what justice is must be taken with some caution. On Rawls’s view, justice is a sub-­ domain of the overall dimension of practical normativity which specifically concerns what free and equal persons owe to each other. It is, in brief, a set of substantive and procedural principles that are the result of the application of the original position mode of reasoning. It has been said that this unduly restricts the set of issues that might be put forward as a matter of CD. This is particularly the case with animals, which fall outside the scope of justice in the strict Rawlsian sense. Hence, I propose to reformulate this condition in the following sense. To be a genuine matter of CD the issue must be (i) considered a matter of justice by the protesters, and (ii) considered important by the majority too. After all, what is a matter of justice is itself a matter of controversy in a post-Rawlsian scenario. This is especially the case with animals because there is disagreement over what justice-driven concerns should include— for instance, only human beings or animals too. Condition (i) is necessary but clearly insufficient insofar as there is disagreement over what a matter of justice is. Condition (ii) balances (i) and ensures that what is considered a matter of justice by the protesters may be an important issue for all, although not a matter of justice in the strict sense. Rawls himself holds that the treatment of animals is one of the cases where there is a problem of extension of public reason. However, even in this case, public reasons can be appealed to in order to say something from a political

 “Unlike punishment of ordinary crimes, which is meant ideally to dissuade people from ever committing the crime, punishment in cases of CD has the purpose of dissuading only frivolous or insincere acts” (Sabl 2001: 323). 6

246 

F. Zuolo

point of view. Regarding animals and nature, indeed, diverse values can be invoked: to further the good of ourselves and future generations by preserving the natural order and its life-sustaining properties; to foster species of animals and plants for the sake of biological and medical knowledge with its potential applications to human health; to protect the beauties of nature for purposes of public recreation and the pleasures of a deeper understanding of the world. The appeal to values of this kind gives what many have found a reasonable answer to the status of animals and the rest of nature. Of course, some will not accept these values as alone sufficient to settle the case. (Rawls 1996: 245)

As is plain to see, the Rawlsian response is too sketchy and unsatisfactory. One of the main aims of this volume is to provide a more elaborate and nuanced response to this problem. However, the passage I have just mentioned should suffice to show that the issue of animals is a matter over which a properly modified account of public reason could and should extend—despite the difficulty in doing so—as having justice-like features (Flanders 2015). In the case of animals, the justice condition is at least met when animals are treated in a way that does not comply with the spirit and letter of the law and civil disobedients aim to disclose this violation and make it public. It is under debate whether the justice condition may be more than this, but this requirement seems hardly controversial. In the fourth place, let us consider the non-violence-condition. How should we understand violence? Should we consider as violent only those actions which physically injure persons? That seems unduly restrictive insofar as targeting persons by means of threats or stalking them are certainly forms of psychological violence which can cause far more harm than some mild forms of physical violence. A famous example of psychological violence, among many others, is represented by the movement Stop Huntingdon Animal Cruelty (SHAC). It began as a denunciation of methods of rearing and experimenting on animals that violated the legal rules of the treatment of animals in labs. But it then escalated and became a movement aiming at closing the Huntingdon facilities as well as a

6  Addressing Unlawfulness 

247

campaign of intimidation of workers (by means of letter bombs, torching of cars and buildings).7 On the one hand, people like Rowlands (2002: 188) claim that we can do violence only toward sentient beings, not things. Hence, destroying property cannot be considered an act of violence. Regan (2004: 232–3), on the other hand, claims that violence may characterize many forms of destruction of property or breach into private facilities without any harm caused to sentient beings. Following Morreal we may say that Acts of violence are always acts which “get at” persons. Unless the destruction of some physical object will “get at” a person, it is not an act of violence. Throwing rocks through the windows of my neighbor’s new car would be an act of violence: throwing rocks through the windows of a junked car at the city dump (assuming that this has no ecological overtones nor makes it harder for dump personnel to dispose of the car) would not be an act of violence. (Morreal 1976: 38)

This remark seems to nicely capture the idea that there are different ways of committing violence. All are forms of violation of one’s sphere of self-ownership, which may touch one’s body, intrude in one’s property or affect one’s psychological domain. But what “getting at persons” means is dependent on contexts and cannot be established in general. To appreciate this underdetermination, consider this example. Is breaking a lab’s door and trespassing it a form of violence? In a broad sense, this act is a form of violence because the lab is usually frequented by people and is owned by somebody. It is not a mere thing or place with no human activity. Then, in a minimal sense it does “get at persons”. But what kind of condition is it? Is it an objective or subjective condition? If subjective, whether there has been violence or not should be only established by the victims, which in a sense is inevitable; but if so, we would have no independent check on the plausibility of one’s claim. If this break has not been discovered, would the subjective condition obtain? It seems not, but that is counterintuitive because whether detected or not the same action occurred. On the other side, it seems difficult to establish  For a fuller list of these acts, see Jonas (2004) whose support of SHAC suggests that his reconstruction of these acts of intimidation is not exaggerations. 7

248 

F. Zuolo

objective criteria. Consider for instance the following two cases. In case A animal-rights activists break into an animal farm by breaking the gate when there is nobody around. In case B they enter the same facility as undercover employees. Case A involves some physical act of infraction, hence it can be considered violent at least in a commonsensical manner. But case B involves acting under a false identity close to other people. If the criterion of “getting at people” makes a difference, here we do not have a clue because the “violent” act of breaking in is made when there is no person, while the “non-violent” act of deceiving employers gets closer to people. Should we only rely on the intuitive sense of violence as a physical act of breaking some boundary? If so, why should this sense of violence mostly targeting things be morally condemned more than the deceit perpetrated to persons? This and other considerations may be interpreted as reasons to abandon the criterion of non-violence. However, this conclusion is probably too hasty. These doubts about violence concern the unclear cases at the margins between CD and other forms of protest. Of course, in the account I am proposing here, physically injuring a person and/or engaging in a campaign of intimidation (such as letters containing threats or used syringes) should be clearly considered cases of violence and hence ruled out of our account of CD. But when the situation is fuzzier, I think we should employ other criteria to settle the question. In the last place, CD is understood in a Rawlsian paradigm as an action to remedy a situation of injustice within an overall nearly-just society. It has been understood by many as too restrictive a condition, thus ruling out many actual instances of CD. Robert Jubb (2019) has persuasively argued that this is not right, to the extent that Rawls is quite demanding with respect to the criteria for considering an actual regime a just or quasi-just one. Therefore, in all the other situations, a Rawlsian account is much more permissive, thus allowing a number of unlawful actions against an unjust state. If we look at this condition from the point of view of animals, some think that massive animal exploitation makes the case for considering a whole state illegitimate. If that is the case, however, those who embrace this view should rather be considered as fighters in a

6  Addressing Unlawfulness 

249

war or as revolutionaries who seek to radically change the whole system.8 On this view, the sheer structural unacceptability of the current treatment of animals in all states would make CD completely unsuitable. Indeed, for somebody to appeal to CD and act in good faith as a civil disobedient, she must in some respects consider the state at least partially just, or at least amendable with some political initiative. Otherwise, if there were no faith in the public conscience and institutions, how could civil disobedients think of going public? How could they believe in communicative action? The whole possibility not only of CD but also of public justification would be then taken off the table. Therefore, applying this condition means that for there to be CD, civil disobedients must consider the state at least partially just and their action an attempt to redress an injustice in an overall acceptable framework. Otherwise, they would simply consider themselves differently (e.g. as combatants or revolutionaries), as some radical activists do. In light of this account, a clear instance of CD is the one reconstructed and defended by McCausland et al. (2013). They focus on an Australian case of trespass into private property to record footage of the abuse perpetrated to animals in an intensive duck meat production firm. They reported that the firm actually held the ducks in intensive sheds while they were committed to being a free-range farm. Moreover, the activists mounted the case for reforming the law and improving the conditions of farm ducks. The footage was broadcasted on a popular TV show and attracted a lot of attention. Although the trespass was a covert action for the sake of its successful performance, the activists collected information for the sake of disclosing it to the public. Hence, they acted on the basis of the public’s and consumers’ right to know. Hence this case meets the condition of publicity, the appeal to a shared sense of justice (concerning the inappropriate rearing of ducks and the false marketing claim of raising free-range ducks), and it was not clearly violent.

 A diverse range of activists has explicitly appealed to the conditions of just war. See, among others, Bernstein (2004) and Kemmerer (2008). Clearly, if it is a war, this is an asymmetric war, wielded by activists in the name of innocent animals, in which the intention of their proponents cannot be “declared” and fought between states and regular armies, but which nevertheless takes place in virtue of there being a just cause and the need to wage war as a last resort. 8

250 

F. Zuolo

Besides this and other similar cases, it seems quite difficult to meet all the conditions that this account of CD requires. Hence, a possible objection to the definition I have proposed is that, in fact, it makes very few actions eligible for being considered real cases of CD. This would leave many earnest actions outside the justificatory umbrella of CD. In reply, this is not per se a problem. As said at the beginning of this section, I do not assume that there is a wide range of unlawful actions that are to be legitimized by being considered forms of CD. Nor do I assume that only CD is admissible. Hence, the fact that meeting these conditions is a bit restrictive, and in particular more restrictive than some contemporary proposals is not per se a problem. We will discuss later if some form of animal rescue can be considered a form of CD.

6.4 D  irect Actions: Animal Rescue and Sabotage The other category of unlawful acts includes those that are usually called direct actions. Unlike CD, direct actions seek to remedy a certain problem directly by preventing the (further) occurrence of a specific wrong. What does directly remedying a problem mean? And why should it be something distinctive? After all, acts of CD also aim at solving a problem, for instance by changing people’s minds on the admissibility of a practice or by putting pressure on the legislator to change a law. The specificity of direct action concerning the condition of animals is that of taking the initiative to change the condition of animals that are (supposedly) abused or exploited by some human practices. What it means to abuse and exploit animals is sometimes contested, which is why animal-rights activists sometimes take the unlawful route. The two main forms of direct actions are animal rescue and sabotage. In the case of animal rescue, activists liberate animals from constrictive premises (laboratories, animal farms) and (usually) put them in non-­ exploitative premises (animal shelters and sanctuaries). Acts of sabotage, instead, target the property of a firm or agency for the sake of causing financial and material damage, thus sending a message to the firm or

6  Addressing Unlawfulness 

251

agency in order to stop the (supposedly) abusive practice involving animals. Acts of sabotage aim at “levying the costs” of a certain practice, thus convincing the people in charge of this activity to stop it. Of course, in practice many cases of direct actions are both forms of animal rescue and of sabotage, and as such both are forms of direct action because the purpose of the unlawful initiative is achieved in the action itself (liberating animals or causing damage). Hence, the directness of the action of animal rescue favors specific animals, while actions of sabotage are direct in the sense that they aim at terminating the economic (or scientific) activity employing animals by causing financial damages. Unlike protests or campaigns that seek to convince people about the wrongness of some uses of animals, direct actions target animals or human activities themselves. Initiatives of direct action have grown out of a sense of disappointment in more traditional and indirect campaigns.9 To assess the ethical tenability of these actions and possibly their efficacy, we need a rough map of the kind of initiatives. To help us in this, it is perhaps useful to consider some of the main associative groups which directly engage in such actions and/ or to which other activists appeal. The most important sui generis collective subject in unlawful direct action is the Animal Liberation Front (ALF). ALF, unlike PETA (People of the Ethical Treatment of Animals) and other organizations that publicly campaign for animal welfare, is not a hierarchical organization. It is a manifesto which can be taken up and acted upon by any individuals or group of people. ALF’s principles are quite simple: given the massive injustice that animals undergo in a host of human activities and the apparent impossibility of convincing the majority to stop them, ALF’s activists aim at liberating animals directly or causing damage to those activities employing animals so as to disincentivize such activities. Such actions may involve breaking into laboratories or animal farms so as to liberate animals, or the destruction of property through sabotaging, if liberation is not possible. ALF’s websites (and previously their clandestine books and leaflets) provide a number of practical suggestions  The most forceful defender of uncompromising strategies is Francione (1996) both as a matter of principle and as a matter of efficacy. By contrast, others such as Hall (2006) have lamented the aggressive turn of many activists who thus have betrayed the pacifist spirit behind the animal-rights movement. 9

252 

F. Zuolo

regarding the kind of actions that are available also to small groups. If we were to order the import of these acts, they would range from minor acts of sabotage (graffiti spraying facilities, locking a door with a super glue), passing through animal liberation, up to major offenses (arson and forms of intimidation). Although ALF claims that their campaigns have not physically harmed any human over the years, intimidation and arson are certainly violent activities that exert significant pressure on people. ALF’s activists model themselves after the idea of a sort of liberation army that aims to free subjects who cannot liberate themselves. Hence, on their view, there is a war because innocent entities (animals) are taken hostage, exploited and killed by the vast and institutionalized practices of the majority of people. However, ALF is keen to warn activists not to injure people. So, despite the fact that some initiatives taken by ALF or in an ALF-like style have been declared forms of terrorism, AFL is committed to not causing injury to people or animals. That may involve a possible contradiction between demanding that no violence be committed and the condition of warfare—where violence under certain conditions is admissible. As we have seen, what constitutes violence is a matter of controversy, for some good reasons. In ALF’s manifesto, not to use violence against any (human or non-human) animals is understood in a restrictive sense as not physically injuring any individual. Best and Nocella (2004: 31–2), who take—as it were—the role of ALF’s advocates and spokespersons, accept that sabotaging property might be a form of violence and that ALF’s activities might involve some amount of psychological violence, but rejoin that the real violence at stake is the one perpetrated by most human activities to animals. In light of this, they argue, we cannot but acknowledge a huge disparity between human violence to animals and ALF activists’ violence to other human beings. Put this way, animal rescue is in straightforward opposition to CD and apparently incompatible with the values of public justification because it can be violent, it is primarily non-communicative, and dispenses with a shared sense of justice. But there is a kind of animal rescue (namely open rescue) that might be immune to this verdict.

6  Addressing Unlawfulness 

253

6.4.1 Open and Covert Rescue Tony Milligan has clearly characterized the main features of animal rescue. It concerns the following: 1. Removal of one or more animals from a situation of harm that has been deliberately brought about by humans. 2. Removal for the sake of the animal itself. (Although perhaps not only for the sake of the animal.) 3. Illegality, or at least the appearance of illegality in the form of trespass, breaking and entering and theft. (With the animals in question being regarded as someone else’s property.) (Milligan 2017: 282)

The difference between covert and open animal rescue is that the former involves the activists concealing their identity, while the latter requires that once the action is performed, the identity of at least some activists is disclosed. Covert rescue is typically performed in order to liberate animals from laboratories, while open rescue has been done in cases of small farm animals. Open rescue is usually performed by activists who are also committed to sending a message. The liberation of small farm animals that have low economic value for their owners constitutes a motivation for not prosecuting the activists that disclose their identity. The opposite is the case with covert rescue, which is performed in order to liberate animals that have a high economic and scientific value. The argument for considering open rescue a form of CD has a strength of its own. After all, open rescuers have a communicative intent, disclose their identity, and seem to accept the possibility of being sanctioned. Whether this meets all the conditions for CD is disputable but possible because it depends on whether there has been violence and whether the rescuers may successfully appeal to a case of injustice. As noted, this is a very thorny issue because for animal liberationists the mere fact that animals are kept in laboratories or farms is a case of injustice. Indeed, for a case of CD to obtain, there should be a matter of justice for the protesters and the majority should consider it to be a general and normatively important matter. To satisfy this latter condition, it should be the case that the liberation of animals remedies a condition where animals are

254 

F. Zuolo

treated in a non-controversially improper manner and the issue is a matter of public concern. As seen in the previous section, facilities and farms that fail to respect the spirit and/or letter of the law for the rearing of animals might constitute such a case. But not animals reared in conditions that are compliant with the legal requirements. Tony Milligan (2017) has further argued that even covert actions may be considered CD if they meet certain conditions of civility (respect for persons, lack of hatred, attempt to avoid violence and cruelty). The main argument in favor of his claim is that one ought to abandon the idea that the communicative function is a necessary condition for CD. After all, some covert actions may resemble other cases of CD, such as the Underground Railroad activism which liberated many black slaves during the 1850s. He, then, proposes the following reformulation of CD: Why not, for example, embrace a disjunctive account such that civil disobedience can be either a certain kind of communication or a certain kind of direct action in which communication plays (at most) a subordinate role? Such an account might at least have the merit of a good fit with all of the paradigm historical instances that are partly constitutive of our understanding of the concept. (Milligan 2013: 128)

The answer to this is quite simple and straightforward. It is not clear to me why the very definition of an action can be put in such disjunctive terms. Unless there is a common terrain keeping the two types together, it is not clear why they should be referred to with the same name. The fact that a part of its historical use might lend support to this need is not a sufficient reason for having this definition to the extent that there are other perfectly understandable and acceptable notions that may be employed to characterize different forms of actions. What I suggest is not a strong revision of the linguistic usages. Rather, I simply claim that whenever possible and linguistically acceptable, we should employ the other available terms—such as animal rescue. Beyond this, it may be the case that covert rescue is morally permissible or even desirable, even if it is not generally covered by the morally legitimizing umbrella of CD. Finally, by making more controversial acts (such as covert rescue) instances of CD, Milligan is, in fact, undermining his own point: it is

6  Addressing Unlawfulness 

255

unclear whether covert rescue is a real instance of CD, but to lend support to covert rescue’s moral acceptability he puts it under the blanket of CD. Yet, in doing so, he also undermines the overall implicit moral acceptability of CD.10

6.4.2 Mixed Cases: Anti-whaling Activities In this complex scenario, a peculiar issue is that of anti-whaling activism. In particular, I will focus on the two prominent NGOs active in this field: Sea Shepherd and Greenpeace. Sea Shepherd was a small militant organization founded by one of the fathers of Greenpeace (Paul Watson) who was dissatisfied with the democratic and non-violent methods of Greenpeace (Caprari 2010: 1506).11 Sea Shepherd activists aimed at interrupting the activity of whaling by physically hindering it through vessels that were equipped to break the whaling tools. They justified their actions by claiming that some countries, in particular Japan, are taking advantage of a legal loophole in the ban on whaling agreed upon by most countries (including Japan). Indeed, Japanese whalers claim that they hunt whales for research purposes (admitted by the ban) but not for commercial purposes, although the number of whales hunted per year and the availability of whale meat in Japan give us clear reasons to doubt the veracity of their claim. Sea Shepherd appealed to a paragraph of the United Nations World Charter for Nature (1982) which states that all individuals and groups can “safeguard and conserve nature in areas beyond state jurisdiction” (art. 20e). Sea Shepherd claimed that they were enforcing the agreement violated by the Japanese whalers who hunt in the Antarctic area. However, it is not clear at all that such a paragraph licenses all states and other agents to interfere with the activity of other people, in particular if such an interference is risky for people and damaging to their property (Caprari 2010: 1510). For this reason, their alleged motivation was not to protest, but rather to enforce an agreement. If we  I am grateful to Robert Jubb for suggesting this further reason to me.  I put the verb in past tense because Paul Watson has recently suspended their activity because of the impossibility of combatting newer Japanese whaling tools and vessels. 10 11

256 

F. Zuolo

take this to be the characterizing feature of their activity, their action would be at odds with a standard definition of CD. CD was instead the aim of anti-whaling activities of Greenpeace. The kind of action Greenpeace had been performing—until 2008—seems very similar to that undertaken by Sea Shepherd, differing in terms of the aim of the action (communicative for Greenpeace and justice-enforcing for Sea Shepherd) and the lesser degree of risk and violence of their interference. As to the position of Sea Shepherd’s and Greenpeace’s activities within the categories proposed here, we have to admit that the situation is somewhat blurred. On the one hand, Sea Shepherd is correct to claim that they acted against a clear injustice, namely the violation of a principle agreed upon by the vast majority of states. The fact that the Japanese whalers may be formally admitted to do so shows a problem in the agreement: it does not prevent all possibilities of de facto harvesting whales in large numbers, thus violating the spirit of the agreement. However, this sits more comfortably with the idea of vigilante activities than with the idea of CD. (By the way, Sea Shepherd would not reject this label). This impression is reinforced by the fact that Sea Shepherd activists acted in a violent manner and not only denounced a problem in the agreement, but also tried to solve this problem directly. For this reason, Sea Shepherd’s activities should be classified as a form of risky and somewhat violent sabotage which was not sanctioned so far because they acted in international waters. On the other hand, Greenpeace’s activities on seas to save whales seem less violent and more communicative. In this respect, while Sea Shepherd aimed at saving whales and enforcing an agreement by means of sabotage, Greenpeace aimed at saving whales by means of protesting and denouncing (O’Sullivan et al. 2017: 6–7). Hence, Greenpeace’s aim was also concerned with communication, not only regarding the unlawful acts of opposition to whaling but also in virtue of their commitment to public campaigning against this and other practices. It is a matter of debate to what extent the two NGOs’ self-representation should make up for a substantially different interpretation. Similar considerations apply to those activists who try to stop poachers. They act both as animal rescuers and as sorts of vigilantes. Unlike the case of whaling, though, here there are local authorities, which are either incapable of enforcing the law or complacent with poachers. Then, if the

6  Addressing Unlawfulness 

257

local authorities are legitimate, the role of vigilantes is less admissible in terms of the authority they claim to have, even though the activists may certainly be right from a substantive point of view.

6.5 F orms of Communication, Reciprocity and Unlawful Protests Upon analyzing the traits of these diverse forms of unlawful actions, now we should ask: which, if any, is more or less admissible? And admissible to what? The standard of admissibility we are employing here is that of public justification. To check what this means, we have to assess its communicative nature, namely whether it may figure as a contribution to the exchange of reasons that constitute public justification. But what is communication? Virtually anything can be a form of communication. But I contend that not all forms of communication may be appropriate. Let us take up Milligan’s claim—that some forms of animal rescue should be understood as a form of CD—from a different angle and focus on the sense in which animal rescue can be communicative. With regard to the justification of particular reworkings of the concept, on a Rawlsian account it is the communicative standing of civil disobedience that allows us to understand why it has to be non-violent. Violence cuts across communication and so, insofar as the action is genuinely communicative it will also have to be non-violent. However, this move involves a false generalization and is, in any case redundant. It involves a false generalization because violence can be communicative, and communicative in more than the loose sense in which all actions may be said to communicate something. (Milligan 2017: 293)

Milligan’s claim challenges the form of communication that CD requires. In a similar vein, Humphrey and Stears (2006) and D’Arcy (2007) have argued that direct actions and controversial campaigns of animal-rights activists should be understood as a form of improvement of democratic deliberation because without these strategies, the voice of animal-rights campaigners could not be sufficiently heard. Such methods

258 

F. Zuolo

include both non-violent but non-deliberative campaigns that use rhetoric, strong images and also exaggerations to stir the public consciousness, as well as more direct actions to cause damage to laboratories and so on. According to these authors, such actions can be justified as remedies to the “stickiness” of people’s mental frames that lead to the stickiness of democratic deliberation (Humphrey and Stears 2006: 416). Although this argument situates itself within the deliberative framework, it is parallel to Milligan’s claim in that in both cases a supposed lack of inclusion of animal righters’ voice should justify non-orthodox methods of public campaigning. Hadley (2015) has rejected these claims on deliberative terms. In particular, it is wrong to say that the non-deliberative methods of animal-­ rights campaigns are justified because they are trying to overcome the same kind of injustice as the one suffered by black people or women when they were denied equal public standing and inclusion in the polity. In these respects, the injustice against animal rights advocates is fundamentally different to the injustice suffered by, say, black people, women or homosexuals; rather, the phenomenon of stickiness prohibits the chance for advocates to present their views in particular ways. The qualifier is important; animal rights advocates are not being denied a chance to present their views entirely. (Hadley 2015: 705)

The purely participatory injustice, if any, does not license such departures from deliberation. More generally, if the idea is that disobedients are justified because they act for the sake of the injustice suffered by animals, then we are led back to the controversy over what the scope of justice is. If, instead, the injustice is restricted to the deliberative limitation, it cannot justify what is being proposed above. Besides these remarks and returning to Milligan’s claim, there is a general problem with both Milligan’s and Humphrey and Stears’s argument regarding the communicative function of non-deliberative or unlawful actions. Of course, all these actions involve communicating and sending messages. However, it is debatable that they are appropriate forms of sending messages and whether their non-appropriateness is justified by the kind of specific injustice that occurs. The differences between public

6  Addressing Unlawfulness 

259

justification and deliberative democracy notwithstanding, both share the idea that appropriate forms of addressing others’ claims involve the exchange of reasons. Exchange of reasons is typically an activity characterized by the principle of reciprocity. In giving reason to others, we aim to justify our behavior or claims to them. And in doing so, we recognize that they are autonomous and (at least in part) rational agents capable of appreciating our reasons (Forst 2011). Thus, we respect them. When other people affect our sphere of liberty or other fundamental interests without providing a proper justification, we rightly feel that we have not only been damaged by that behavior which negatively affects an interest of ours. We also feel that we have been disrespected (Larmore 1999). All of this is quite obvious in current political philosophy. For our concerns here, it should be sufficient to appreciate the difference between the diverse acts of communication we were discussing above. There are many ways of communicating but not all of them constitute a respectful form of communication. If I act violently or if I impose my behavior on others, what kind of reply should I expect? I do not mean to say that acts of violence should be reciprocated with violence, as if tit-for-tat were the only correct way of responding. I simply mean that acts of violence break the chain of providing and accepting reasons in a way that unilaterally imposes on others a different kind of game where mutual respect is no longer the guiding principle. Imposing one’s behavior at least suggests that one cannot further admit of counterarguments. Moreover, it often expresses a sort of lack of hope for the goodwill of the other parties. For this reason, violent actions—whether aiming at liberating animals or making a sabotage or targeting human individuals for the sake of intimidating them—cannot be in any way admissible within a public justification-­based framework. But at this point an objection immediately arises. Isn’t it paradoxical that, according to this account, communicative actions are more admissible than direct actions despite the fact that direct actions directly solve a problem? Wouldn’t it be paradoxical to say that it is more justified to call the police and denounce a crime than to directly prevent it? In reply, the analogy between prevention of a crime and animal rescue is misplaced for two reasons. First, the kinds of situations that animal rescuers seek to stop are not necessarily a wrong done to animals, at least

260 

F. Zuolo

according to a criterion of wrongness that may be collectively acceptable. In some cases, this is indeed so, but in others it is not. And the burden of proof to demonstrate this is on those who rescue animals. Assuming that it is self-evident may hide an attitude through which rescuers put themselves in a morally and epistemically superior position. Second, in acting as rescuers, activists assume a sort of vigilante role which is incompatible with the idea that the enforcement of justice is appropriately exercised only by recognized authorities. By adopting this role, animal rescuers aim to challenge the state’s authority, as if they were the state or the people in charge of enforcement of morality.

6.6 Violations of the Law and Institutional Response Now, we may approach the issue the other way around. Building on the previous considerations, we may ask: what should institutions do when challenged by unlawful actions? To highlight the differences, consider the following three actions: (i) Breach into a facility to make footage of (alleged) abuse to animals. (ii) Breach into a facility to free animals. (iii) Breach into a facility to cause damage to the firm or agency that owns it. Of course, in all cases we could enforce the law and try to sanction the offenders if found guilty. But, first, it is useful to consider the different attitude toward others that these actions involve. In (ii) and (iii), activists do not think they have a burden of proof because their aim is not primarily that of convincing others. In (i), they might be right or wrong; but by going before the public to denounce a situation, they accept the burden of proof in providing grounds to others. Besides the diverse attitudes these cases display, consider the other two types of differences. The most important question from a moral point of view is whether the aim of the violators of the law—disclosure of the (alleged) harm perpetrated to animals, causing damage to disincentivize

6  Addressing Unlawfulness 

261

an activity involving animals, the liberation of animals—matches a real wrong. It all depends on whether we agree that (i) abusing animals is wrong, (ii) simply owning them is wrong or (iii) making profit through animals is wrong. We can easily agree that the first act is wrong also according to a shared sense of justice. Moreover, making footage to disclose an injustice is a communicative act contributing to the public debate. Hence, it can be characterized as an act of CD and is compatible with public justification. But what about the other actions? From the perspective of the pluralistic disagreement analyzed in the previous chapters, it seems that the other two actions try to impose a substantive and controversial position onto unwilling others. Hence, they are in some sense disrespectful, besides being illegal. Therefore, in the cases of sabotage or animal rescue, which oppose uses of animals that comply with correct principle of the treatment of animals, we should enforce the law without special consideration; while actions of CD probably deserve a special consideration, which may be a special standing in a trial, a reduced sentence or even, in some special cases, clemency. One may argue that conceived in this way CD is, somewhat, conservative in that it is tied to denouncing practices that are deemed wrong by the majority. But what is shared is sometimes not what is morally correct, and history is full of morally abhorrent practices licensed by the majority’s sense of justice. That is true. However, in the public justification account proposed here, what is publicly justified does not amount to what is merely accepted by the majority. Rather, by means of epistemic desiderata and the kind of exchange of reasons that the parties have during the procedure, the mere fact of there being a majority’s acceptance is substituted by a more demanding and refined acceptability criterion.

262 

F. Zuolo

6.7 W  hat Is Admissible and to What? Public Justification, Morality and What We Ought to Do In sum, what kind of justifiability have we been discussing here? If seen from the perspective of the debates on CD, I have probably given the impression of talking about the overall admissibility of violations of the law. However, that is not wholly accurate. Indeed, in the rest of the book we have been discussing disagreement and public justification, not that of an overall morality. What I have asked is whether certain unlawful acts for the sake of animals may be deserving of a special standing because they can denounce deviations from principles accepted by all. Of course, unlawful acts to oppose laws that are unjustified should be seen as clearly more legitimate insofar as the mere criterion of legality does not guarantee moral correctness or public justification. In this chapter, I have argued that there are acts that violate the law that nevertheless may be somewhat admissible within my public justification account. Properly qualified acts of CD (and perhaps open rescue) deserve special consideration and need to be treated differently from other kinds of violations of the law (animal rescue, sabotage). Acts of CD are forms of contribution to the public justification, albeit in a particular fashion. However, I have not argued that they are all things considered justified or that there is a moral right to CD. Recall that my approach rests within the premises and boundaries of public justification. Hence, I am assessing the intersubjective acceptability of CD, namely whether it can be justified to others publicly, not its overall morality. Of course, public justification and all things considered moral justification have many things in common. Yet they differ as to at least the following two features. First, full moral justification may simply concern single individual actions that cannot be expressed in a general rule. For instance, one may find herself in a tragic situation where any action is both required and wrong. Obvious examples of these situations are the trolley-like cases. Or consider situations where in order to save somebody, one has to commit an illegal act. A single action may be justified given the special circumstances in which it occurred and yet fail to be publicly justified in the

6  Addressing Unlawfulness 

263

sense I am using here because it might not be translatable in a rule that could be institutionally enforced. Public justification, instead, concerns principles informing rules to be generally valid. Second, public justification rests on a few moral assumptions but is not committed to a substantive moral theory, while if we ask what the all things considered just thing is, we have to appeal to a specific morality. In this sense, the outcome of public justification is valid with regard to general public laws and principles, but perhaps it is only pro tanto valid as to specific cases. Nevertheless, it is a very robust pro tanto principle since it has survived a wide range of counterarguments and is supported by diverse neutral and internal reasons. Besides these general remarks on the relation between public justification and morality, we have to briefly consider the standing of public justification with respect to purely individual behaviors. Regarding this, the conclusion of public justification sets the limit for admissible behavior but, of course, leaves a lot of space to personal convictions that stem from comprehensive views. After all, what I propose is a distinctively liberal perspective. On a more practical note, it is worth emphasizing the level of my discourse: the procedure of public justification is an abstract framework that processes the reasons of different parties and the neutral ones. It is not like a participatory panel or a concrete procedure of discussion, although both could be modeled after the form of public justification that I propose. Given the abstract form of the procedure, we could only imagine that civil disobedients could be included in proxies of the public justification procedures, such as deliberation and/or an informed public debate. However, I would want to add that from the perspective of public justification, CD may be admissible for two orders of reasons. First, it can be supported by grounds that are widely, if not publicly, acceptable by others. Thus, civil disobedients address a problem that should concern all. Second, the way that civil disobedients deal with their disobedience and address the overall public is non-violent and characterized by a communicative intent. Hence, it can be part of a public debate. A rational and reasonable public debate can be considered a practical implementation of the public justification procedure I have proposed. A final objection to these conclusions might be the following. Why give such a priority to CD, if in practice it does not solve any problem?

264 

F. Zuolo

Why delegitimize animal rescue, if in many cases animal rescuers can achieve some result and improve the condition of some animals? As said, in this chapter, I have investigated the admissibility of different forms of unlawful protests from the point of view of public justification, which does not coincide with the point of view of overall morality. It might be the case that animal rescuers in some specific circumstances are morally legitimized to violate the law. However, to do so, we would need an agreement on substantive morality which is precisely what we lack and why we need public justification. Moreover, animal rescuers put themselves in a special superior position that is at odds with the principle of equality and reciprocity at the basis of this account. If animal rescuers free animals from premises that are abusive according to commonly agreed principles and laws, we may say that such acts deserve a kind of special consideration or that they might be all things considered morally justified in doing so.

6.8 Conclusion What is the practical implication of these considerations? In practice, what does the special standing of CD amount to? As said, we have not established whether there is a right to CD. Rather, we have argued that only CD is justifiable to others, while animal rescue and sabotage are not. Some forms of intermediate actions (such as open rescue) may be acceptable but need to be assessed in their specificity. The special standing for CD may mean at least that if the disobedients should undergo a trial, their position should be seen morally and legally as a special one. But to deserve this special consideration, they should take the opportunity to speak publicly and make their reasons properly appreciated. This could make the public understand the public nature of their claim and the communicative intention of CD. From the moral point of view, if an act of CD has actually pointed to a real problem in an appropriate manner, it would deserve moral appreciation. From the legal point of view, the special consideration may—though need not—lead to clemency given the overall positive contribution of disobedients to public life. Or

6  Addressing Unlawfulness 

265

minimally it may mean a significant reduction in their sentence, in the case that they are found guilty. If unlawful acts for the sake of animals are being committed, it might be the case that such acts protest against some practice or rule that could not be justified within the public justification procedure. Hence, in this case the action of CD is a way to raise awareness of a situation, a rule or a practice and call for its public justifiability. Hence, CD may act as a form of injustice-detector, thus requiring that the justifying procedure analyzes a specific issue. However, civil disobedients might be wrong and denounce a situation which does not present any publicly recognizable problem. In this case, how are we to treat the civil disobedients? This question would require further investigation. As a way of preliminary and sketchy reply, we might say that we should check whether the seeming action of CD does not qualify as another form of unlawful action (animal rescue or sabotage). In that case, it should be treated as such. If it cannot, then perhaps it might be considered a form of failed CD, where disobedients acted in good faith, non-violently, with a communicative intention but failed to spot a situation of shared injustice. In that case, given the quasi-case of CD and the special standing of CD, perhaps the disobedients might still deserve some special consideration at least morally if not legally. But opportunistic behaviors for the sake of using the coverage of CD for other unlawful actions should be prevented. How to do this, and how other forms of unlawful actions should be addressed, is a matter for another work.

References Adams, N. P. (2018), “Uncivil Disobedience: Political Commitment and Violence”, Res Publica 24(4), pp. 475–491. Bernstein, M. (2004), “Legitimizing Liberation”, in Best and Nocella (2004), pp. 93–105. Best, S. and Nocella, A. J. II (2004), “Behind the Mask: Uncovering the Animal Liberation Front”, in Id., Terrorists or Freedom Fighters? Reflections on the Liberation of Animals (New York: Lantern Books), pp. 9–63.

266 

F. Zuolo

Brownlee, K. (2012), Conscience and Conviction: The Case for Civil Disobedience (Oxford: Oxford University Press). Caprari, A. M. (2010), “Lovable Pirates? The Legal Implications of the Battle Between Environmentalists and Whalers in the Southern Ocean”, Connecticut Law Review 42(5), pp. 1493–1526. Celikates, R. (2016), “Rethinking Civil Disobedience as a Practice of Contestation-Beyond the Liberal Paradigm”, Constellations 23(1), pp. 37–45. Ceva, E. and Bocchiola, M. (2018), Is Whistleblowing a Duty? (Cambridge: Polity). D’Arcy, S. (2007), “Deliberative Democracy, Direct Action, and Animal Advocacy”, Journal of Critical Animal Studies 5(2), pp. 48–63. Delmas, C. (2016), “Civil Disobedience”, Philosophy Compass 11, pp. 681–691. Flanders, C. (2015), “Public Reason and Animal Rights”, in M. Wissenburg and D. Schlosberg (eds.) (2015), pp. 44–57. Forst, R. (2011), The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press). Francione, G. L. (1996), Rain without Thunder. The Ideology of the Animal Rights Movement (Philadelphia: Temple University Press). Hadley, J. (2009), “Animal Rights Extremism and the Terrorism Question”, Journal of Social Philosophy 40(3), pp. 363–378. Hadley, J. (2015), “Animal Rights Advocacy and Legitimate Public Deliberation”, Political Studies 65, pp. 696–712. Hall, L. (2006), Capers in the Churchyard. Animal Rights Advocacy in the Age of Terror (Darien: Nectar Bat Press). Humphrey, M. and Stears, M. (2006), “Animal Rights Protests and the Challenge to Deliberative Democracy”, Economy and Society 35(3), pp. 400–422. Jonas, K. (2004), “Bricks and Bullhorns”, in S. Best and A. Nocella II (2004), pp. 263–271. Jubb, R. (2019), “Disaggregating Political Authority: What’s Wrong with Rawlsian Civil Disobedience?”, Political Studies 67(4), pp. 955–971. Kemmerer, L. (2008), “Just War and Warrior Activists”, Green Theory & Praxis 4(2), pp. 25–49. Larmore, C. (1999), “The Moral Basis of Political Liberalism”, Journal of Philosophy 96(12), pp. 559–625. McCausland, C., O’Sullivan, S. and Brenton, S. (2013), “Trespass, Animals and Democratic Engagement”, Res Publica 19, pp. 205–221. Milligan, T. (2013), Civil Disobedience: Protest, Justification and the Law (London and New York: Bloomsbury).

6  Addressing Unlawfulness 

267

Milligan, T. (2017), “Animal Rescue as Civil Disobedience”, Res Publica 23(3), pp. 281–298. Monaghan, R. (1999), “Terrorism in the name of animal rights”, Terrorism and political violence 11(4), pp. 159–169. Moraro, P. (2018), “On (Not) Accepting the Punishment for Civil Disobedience”, The Philosophical Quarterly 68(272), pp. 503–520. Morreal, J. (1976), “The Justifiability of Violent Civil Disobedience”, Canadian Journal of Philosophy 6(1), pp. 35–47. Munro, L. (2005), “Strategies, Action Repertoires and DIY Activism in the Animal Rights Movement”, Social Movement Studies 4(1), pp. 75–94. O’Sullivan, S., McCausland, C. and Brenton, S. (2017), “Animal Activists, Civil Disobedience and Global Responses to Transnational Injustice”, Res Publica 23(3), pp. 261–280. Rawls, J. (1996), Political Liberalism (New York: Columbia University Press). Rawls, J. (1999), A Theory of Justice. Revised Edition (Cambridge, Mass: The Belknap Press of the Harvard University Press). Regan, T. (2004), “How to Justify Violence”, in Best and Nocella (eds.) (2004), pp. 231–236. Rowlands, M. (2002), Animals Like Us (London: Verso). Sabl, A. (2001), “Looking forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lesson”, The Journal of Political Philosophy 9(3), pp. 303–330. Scheuerman, W. E. (2018), Civil Disobedience (Cambridge: Polity). Smith, W. (2011), “Civil Disobedience and the Public Sphere”, The Journal of Political Philosophy 19(2), pp. 145–166. United Nations, General Assembly (1982), World Charter for Nature

7 Conclusion

I want to conclude this book with a few further considerations about how the logic of my proposal could work in practice. I have stressed throughout the book that my approach makes some idealizations (the epistemic requirements) and exclusions (the minimal ideal of reasonableness) in order to render the procedure functional, while still being committed to some realistic principles. In a sense, I have tried to strike a balance between normative and empirical desiderata. On the one hand, I have bolstered the normative quality of the procedure by requiring that the views pass an epistemic filter; on the other, I have sought to include an approximation of people’s real views by discussing religious and sociological attitudes. The previous chapter on violations of the law has continued this attempt to strike a balance between these two tendencies. This combined and comprehensive approach notwithstanding, of course there are many things which I have left out of the picture. In this brief conclusion, I want to discuss a couple of issues: what forms the application of public justification may take and what kind of results could be reached, if we applied public justification to more specific issues. I have said that public justification is an inevitably idealized form of reasoning. I have defended its normative import by showing the kinds of © The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1_7

269

270 

F. Zuolo

reasons that diverse people may have to endorse its results. In a nutshell, the strength and weakness of public justification are two sides of the same coin: public justification is nothing more (and nothing less) than a procedure through which to process reasons to accept or not accept principles. But, of course, even in its most realistic fashion it cannot tell us whether real people will actually agree with its results. Hence, what are its prospects of implementation beyond the important but obvious appeal to people’s rationality? If the public justification procedure can only process reasons for or against principles, what should we expect of it with regard to real people? Answering these questions would mean trying—as it were—to get out the theory and implement the results of public justification. Of course, this is another story which goes beyond what we can do in theory. For now, we can only set forth the following considerations which curtail the impact of this practical challenge. First, we should recall that public justification aims at a potentially consensual and universal form of justification to all those who are affected by certain principles. However, it concerns only political issues, not all moral issues. Hence, its scope is somewhat limited to what the state can legitimately enforce. This means that it should not be taken to be more ambitious than it actually is. Second, the procedure of public justification should not be taken as an outlandish kind of logic. Indeed, it simply formalizes practical reasoning for matters of public interest under certain conditions. It is not something alien to other forms of debate. It is a constrained and idealized form of debate but not a completely different kind of activity. Hence, the arguments and results employed in the procedure of public justification may be conceived of as the best version of other real forms of reasoning, were they done under the appropriate conditions. Therefore, public justification should not be thought of as deliberation in heaven and does not require that the parties have super-normal rational capacities. Rather, we can imagine a number of real fora where some form of deliberation could approximate public justification: public discussions in appropriate venues, legislating and governing bodies, tribunals. Third, by way of getting closer to an institutionalized practice, a procedure of public justification may be approximated by an inclusive and demanding form of deliberative democracy. Of course, the two are

7 Conclusion 

271

different. But the principles behind their functioning are quite similar: in some of its versions, deliberative democracy too is committed to the ideal of unanimity and accepts simple majority as a second best; in both cases what counts is the force of the best argument; and in both cases the legitimate result is not substantively predetermined but rather decided by what all peoples have most reasons to accept.1 For these reasons, the procedure of public justification I have proposed is not alien to other forms of reasoning and decision-making that actually happen in the world. It is just a mildly idealized version of something that already happens. If the previous considerations aimed at countering the objection of scarce applicability of public justification to the world as it is, one may further contend that public justification, as I have outlined it, remains too abstract and limited in its reach. Indeed, I have used it only to discuss very general principles (regarding animals’ life, liberty and welfare). But what follows from these very abstract and indeterminate principles? A proper answer to this question would require a long detour and would also call for determinate responses in the areas that the procedure left indeterminate (on animals’ interests in life and liberty). What we can do here is to sketch how the procedure could be applied in other, more specific cases. As a way of illustrating the matter with a new issue and a very traditional one, I will discuss the problem of genetic engineering and hunting. At present, genetic engineering includes a series of techniques—so-­ called gene editing which, for instance, permits the disabling of a certain gene—mainly employed in order to create animals more suitable for experiments. In addition to these practices, there are other, more radical proposals that are worth discussing, although they have yet to be realized. First, consider the possibility of creating morally and cognitively enhanced animals. Second, consider the possibility of creating “knockdown animals” that are deprived of their capacity to have conscious experience. In a sense, these two examples lie at opposite ends of the spectrum: moral and cognitive enhancement improves animals’ prospects for life and their  This is especially, but not only, true if we consider such forms of deliberative democracy as discursive representation (Dryzek and Niemeyer 2008) where the subject of representation are not people in a direct sense, but rather the discourses that are relevant to a certain issue. 1

272 

F. Zuolo

overall capacities, while knocking down their capacity for conscious experience would put animals below the threshold of sentience, and thus of moral considerability. If we want to check the possible application of the procedure of public justification to these two cases, we should run the double procedure of acceptability by neutral and internal reasons. As to the neutral reasons in favor of genetic enhancement, we can think of the scientific progress that this would entail. Such progress would improve knowledge to cure human diseases or to practice, if deemed necessary, the enhancement of humans. Moreover, from an impersonal point of view, the enhancement of animals would create more beings that can live richer forms of life, and we would increase the number of moral agents with some new types of animals. As to the possible neutral reasons against, one may worry that this meddling with the code of nature would bring about consequences that we can neither foresee nor control. Hence, we should avoid this genetic engineering for reasons of prudence. Given the limited knowledge available and the brief discussion that we can have here, it is difficult to establish what would be the result of the neutralist stage. Instead, a clearer picture comes out of the second stage of the procedure. Indeed, there are some views (Animal Subjectivism, Pathocentrism, Relationalism) that would probably support the enhancement of animals, a view that would have no clear answer (Humanism) and perhaps only a view with some opposition (Environmentalism) based on concerns about the disruption of the natural order. As to the case of knockdown animals, the neutral reasons in favor would be the reduction in suffering and the lesser cost to raise these animals. The public reason against would be the possible reaction of horror that some people would have toward this practice. However, it is not clear whether this (understandable) reactive feeling could figure as a reason given that its possible ground (aversion toward an unnatural phenomenon) does not hold up to further scrutiny. As to the internal reasons, Pathocentrism and Humanism may support this practice because it radically decreases animals’ suffering. Animal Subjectivism and Relationalism could not accept it because, while decreasing animals’ suffering, it would also erase their subjectivity which is valuable per se on these views. Environmentalism would probably not support it, because it seems to entail a radical subversion of a natural feature of animals (namely

7 Conclusion 

273

sentience), but it would also have some reasons to accept it insofar as it may entail a lesser ecological impact by animal farming. In sum, in both cases we would have an inconclusive outcome but not an outright rejection on neutral grounds. Despite the inconclusiveness on genetic engineering, public justification may not be a useless exercise to the extent that it could provide an elaboration of reasons that may be further employed in some specific deliberative forum or governing body. As to hunting, we should first set aside the issue of hunting for survival. Whether it is done by individuals who are occasionally lost in the wild or by populations who cannot live otherwise, hunting for survival is another issue because we cannot require people to relinquish their rights (to survival) for the sake of respecting animals (Cochrane 2018: 109). It may be contentious to establish when hunting is really necessary or when it could be forsaken but other, culturally based reasons are invoked to maintain this practice. Hence, for the sake of simplicity here I will focus only on hunting as a recreational and traditional activity in Western societies in which it cannot be an activity required for survival. The neutral reasons supporting recreational hunting could be that recreational traditions are part of people’s identities that we have independent reasons to support. However, it is not clear why hunting should be considered a fundamental part of some cultural identities. Indeed, it is a residual activity in our societies and few people identify with it. Moreover, even if it were more widespread, its recreational motive could not cover the clear suffering that it causes. As to the internal reasons, no view supports recreational hunting, including Environmentalism and Humanism. In sum, it seems that we have neither public nor private reasons to allow hunting. Similar considerations may be applied to the issue of zoos. As with the case of hunting, the recreational motive seems too weak a ground with respect to the countervailing considerations. Although there are some public reasons in favor of zoos because they provide the possibility of seeing animals that ordinary people could never see in vivo, this knowledge may be substituted by proxies that do not involve wild animals. In sum, the reasons for zoos are either too weak (recreational) or lend support to the idea that the practice of zoos may be better substituted by other means. These final considerations are admittedly sketchy. And many other issues should be discussed. However, they are simply meant to suggest

274 

F. Zuolo

how the framework proposed herein may be further employed in other specific cases. Besides demonstrating that public justification can be applied to the problem of the treatment of animals, the aim of this book has been to demonstrate how it can be done and what implications it has in practice. This is particularly important not only because showing the practical import of a normative theory is in general important, but also because much theorizing about public reason and public justification has been about its meta-theory. Of course, the discussion about the conditions of public justification, the limits of public reason, the nature of reasonableness or the epistemology implicit in public justification are all worthwhile and fundamental issues. But showing how public justification may work in a difficult case could be a good argument against its detractors. To conclude, I do not want to rehearse all the steps and arguments that we have gone through. I just want to reconnect with the beginning of this book and stress that disagreement should be taken seriously if we care about legitimacy. But we should also care about its epistemic quality. This holds true for the problem of disagreement about the treatment of animals, but it also pertains to other types of disagreement. Attending to the quality of disagreement may improve the prospects of an approach based on public justification without renouncing the liberal commitment to inclusion.

References Cochrane, A. (2018), Sentientist Politics. A Theory of Global Inter-Species Justice (Oxford: Oxford University Press). Dryzek, J. S. and Niemeyer, S. (2008), “Discursive Representation”, American Political Science Review 102(4), pp. 481–493.

Index1

A

Ackerman, Bruce, 117 Adams, Carole, 146, 242, 243 Animal Liberation Front (ALF), 251, 252 Animal Subjectivism, 8, 129, 131, 138, 140–142, 152, 153, 190–194, 197, 198, 203, 204, 210, 211, 213, 216, 219, 221, 227, 232, 272 Animism, 161–167 Anti-whaling, 255–257 B

Badano, Gabriele, 77n5, 87n12, 98 Barry, Brian, 150

Bentham, Jeremy, 142 Bernstein, Mark, 249n8 Best, Steven, 252 Bistagnino, Giulia, 44n19 Bocchiola, Michele, 240 Boettcher, James, 83, 84, 90n16, 112n27 Bohman, James, 97n20, 105 Bonotti, Matteo, 87n12 Broom, Donald M., 11, 206 Brownlee, Kimberley, 240, 241, 244 Buddhism, 158, 161–167, 176, 223 Burdens of judgment, 115, 120, 123, 62–65, 63n48, 64n49, 83, 84, 84n11

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 F. Zuolo, Animals, Political Liberalism and Public Reason, https://doi.org/10.1007/978-3-030-49509-1

275

276 Index C

Callicott, J. Baird, 149 Cartesianism, 65, 88, 106, 107, 157–161, 176, 186, 194, 216 Casal, Paula, 167 Catholicism, 120, 167, 227 Cavalieri, Paola, 160, 198 Celikates, Robin, 242, 243 Ceva, Emanuela, 22, 240 Christianism, 161–167 Civil disobedience (CD), 9, 22, 233n1, 235, 238–250, 252–257, 261–265 Cochrane, Alasdair, 3, 153, 219, 273 Coeckelbergh, Mark, 11, 146 Comprehensive doctrines, 76, 91, 100n22, 111, 120, 129–131, 168 Compromise, 5, 9, 44n19, 83, 184, 222, 224–228, 225n5 Conscientious objection, 237, 238n3 Consensus (in public reason), 8, 109 Convergence (in public reason), 90, 98, 109 Cooperation, 11, 83, 111, 146, 149, 151, 189, 191, 192, 242 D

D’Agostino, Fred, 90n16 D’Arcy, Stephen, 257 DeGrazia, David, 153 Deliberation, 240, 257, 258, 263, 270 Delmas, Candice, 242 Descartes, René, 158, 159, 161, 204 Direct action, 9, 76, 238, 244, 250–259

Disagreement, 1–6, 15–68, 73–125, 129, 183, 245, 274 Dombrowski, Daniel, 53n26, 81n7 Donaldson, Sue, 141, 152, 152n6, 187, 191, 3, 54n32 Donovan, Josephine, 146, 199, 203 E

Elga, Adam, 39, 64 Enoch, David, 41, 64n49, 114–120, 175 Environmentalism, 8, 129, 138, 148–153, 156, 190, 192, 193, 197, 199, 203, 204, 210, 213–216, 272, 273 Epistemic peerhood, 37–39, 41, 44, 48 Equal Weight View (of peer disagreement), 39 Experiments on animals, 2, 44–46, 48, 50, 63, 64, 190, 203, 211n4 F

Faultless disagreement, 32–36, 34n10, 41–43, 42n18 Ferretti, Maria Paola, 20n4 Flanders, Chad, 107n25, 246 Floridi, Luciano, 156 Formal Epistemic Norm (FEN), 112, 116, 117, 124, 125, 129, 138, 142, 144, 148, 152, 160, 170, 173, 174, 212, 223, 8, 82, 88, 88n14, 89, 90n15, 98 Forst, Rainer, 24, 78, 259 Francione, Gary L., 47, 141, 142, 153, 189, 191, 198, 202, 219, 251n9

 Index  G

Garner, Robert, 3, 6n1, 75n2, 81n7 Gaus, Gerald, 109, 109n26, 117, 218–220, 22, 73, 78, 79, 90n16, 96, 99–103 Genetic engineering, 10, 155, 271–273 George, Kathryn Paxton, 199 Greenpeace, 255, 256 Gruen, Lori, 16n1

277

Internal reasons (iRs), 90, 93–100, 94n18, 102, 109–112, 112n27, 130, 138, 177, 188, 189, 191, 194, 195, 205, 213, 217, 219, 223, 227, 263, 272, 273 Intrinsic Potential Account, 61n44 Islam, 94, 161–167 J

H

Habermas, Jürgen, 20, 24, 78, 90n16, 242 Hadley, John, 22, 236, 258 Hebraism, 94, 161–167 Herzog, Hal, 49, 50, 168, 169 Hinduism, 158, 161–167, 223 Horta, Oscar, 53n27, 81, 81n7 Humanism, 8, 129, 139, 151, 152, 154, 156, 157, 177, 186, 190, 192–194, 197, 199, 203, 204, 210, 214–216, 219, 272, 273 Humphrey, Mathew, 257, 258 Hunting, 10, 154, 197, 204, 233n1, 271, 273

Jainism, 150, 165, 167, 198 Jønch-Clausen, Karin, 83n10, 88, 88n14 Jubb, Robert, 248, 255n10 K

Kant, Immanuel, 158–161 Kappel, Klemens, 83n10, 88, 88n14 Kelly, Thomas, 38n13, 40 Kemmerer, Lisa, 162, 249n8 King, Nathan L., 48n22 Kitcher, Philip, 146, 147 Kymlicka, Will, 141, 152, 152n6, 187, 191, 3, 54n32 L

I

Inclusiveness, 8, 84, 91, 98, 99, 104–114, 125, 183, 188, 189, 191, 197, 199, 204, 210, 214, 216, 219, 223 Inconclusiveness (of public justification), 218, 220, 273 Indirect view on animals, 151, 154, 159, 222

Larmore, Charles, 20, 22, 67, 96, 259 Leopold, Aldo, 149 Liberty, animals’ interest in, 195, 271 Life, animals’ interest in, 9, 183, 198, 204, 205, 271 Linzey, Andrew, 162, 162n10 Lister, Andrew, 101, 102, 219, 220

278 Index M

McCausland, Clare, 249 McMahan, Jeff, 16n1, 133, 153, 196, 208 Midgley, Mary, 145 Milburn, Josh, 17n2 Mill, John Stuart, 143, 199 Milligan, Tony, 22, 233n1, 241, 242, 253, 254, 257, 258 Moral considerability, 10, 12, 17, 61n44, 80, 106, 143, 148, 156, 162n9, 186, 272 Morreal, John, 247 N

Neutrality (principle of ), 212, 223 Neutral reasons (nRs), 9, 91–95, 94n18, 98–102, 100n23, 105, 107, 108, 110–112, 112n27, 175, 176, 189–191, 193, 194, 196, 202–204, 208, 213, 219, 223, 272, 273 NGOs, 255, 256 Nocella, Anthony J., 252 Noddings, Nel, 146, 199, 203 Non-discrimination, principle of, 56n34, 82, 212 Nussbaum, Martha, 5, 6, 16n1, 141, 142, 197

190, 192, 193, 197, 199, 203, 204, 210, 211, 213, 216, 227, 233, 272 Peer disagreement, 7, 32, 34–44, 34n10, 50, 62, 64, 66, 120–123 People of the Ethical Treatment of Animals (PETA), 251 Pepper, Angie, 6 Person (concept of ) human person, 80, 81 Personhood, 73, 78–82, 90, 140, 156, 160 Personism, 75, 75n1 Peter, Fabienne, 20, 49, 51, 67, 119 Plous, Scott, 49, 50 Poaching, 255–257 Public justification procedure (PJP), 98, 113 Public reason, 100, 105, 107n25, 109, 114–116, 114n28, 118–120, 125, 175, 176, 195, 200, 201, 205, 212, 216, 217, 220, 224, 226, 245, 246, 272–274, 76, 77, 77n4, 77n5, 8, 87n12, 88, 90, 96, 97, 97n20, 99 Q

O’Sullivan, Siobhan, 256

Qualified disagreement, 18, 32, 41–52, 65–68, 74, 85, 88, 115, 116, 122, 124 Quong, Jonathan, 20, 22, 77, 90n16

P

R

O

Palmer, Clare, 147, 148 Pathocentrism, 8, 129, 131, 138, 140, 142–144, 147, 153, 176,

Rachels, James, 18, 156 Rawls, John, 109, 109n26, 114, 115, 117–119, 130, 150, 166n13,

 Index 

20, 22, 240–246, 248, 33, 63, 73, 76, 77n4, 77n5, 78, 79, 83, 83n9, 84, 88, 89, 90n16, 92n17, 97, 99–103 Raz, Joseph, 114, 117–119 Realism moral, 74, 113–121 political, 23n6 Reasonable disagreement epistemic, 7, 19, 36 moral, 19, 42 Regan, Tom, 47, 47n21, 81n7, 141, 142, 152, 153, 189, 197, 247 Reidy, David, 76 Relationalism, 129, 138, 144–148, 151, 152, 154, 168, 171, 173, 173n15, 175, 176, 190, 192, 193, 197, 199, 204, 210, 213, 216, 233, 272, 8 Rescue of animals covert rescue, 253–255 open rescue, 252–255, 262, 264 Research on animals, 5, 22, 29, 44, 45, 48, 51, 202, 203, 211n4 Richardson, Henry, 97n20, 105 Rowlands, Mark, 166n13, 247

Sentience, 11, 12, 12n3, 47, 61, 79, 81, 82, 108, 112, 132, 141–143, 152, 156, 161, 169, 172, 186, 272 Sentimentalism (about animals), 88, 106 Singer, Peter, 139, 143, 144, 153, 18, 198, 199, 199n1, 201n2, 203, 208, 47, 56n35, 81n7 Smith, William, 240–242 Societal attitudes, 168, 171, 174, 175, 222, 223 Speciesism, 47n21, 75, 145, 151 Steadfast View (of peer disagreement), 39 Stears, Marc, 257, 258 Steiner, Gary, 158, 158n7, 6 Stop Huntingdon Animal Cruelty (SHAC), 246, 247n7 Substantive epistemic norm (SEN), 112, 116, 117, 124, 125, 129, 132–138, 142, 144, 148, 152, 158, 159, 164, 167, 173, 212, 223, 8, 88, 88n14, 89, 90n15, 98 Suffering of animals, 165, 210, 211, 213, 214

S

Sabotage, 9, 235, 238, 239, 250–257, 259, 261, 262, 264, 265 Scanlon, Thomas M, 54n30, 150, 151n5 Scheuerman, William E., 243, 243n5 Scruton, Roger, 154 Sea Shepherd, 255, 256

279

T

Talisse, Robert, 90n15 Taylor, Paul W., 10, 11, 133, 148, 150 U

United Nations, 255

280 Index

Valentini, Laura, 146, 147 Vallier, Kevin, 78, 90n16, 97, 97n20, 98 Van Wietmarschen, Han, 123, 123n29, 124 Varner, Gary, 134, 148 Violence, for the sake of animals, 7

Watson, Paul, 255, 255n11 Welfare, animals’ interest in, 9, 183, 217 Welfarism, 75, 143 Wendt, Fabian, 225n5 Whistle-blowing, 238–250 Williams, Bernard, 154 Wolff, Jonathan, 5

W

Z

V

Waldron, Jeremy, 4, 67 Wall, Steven, 114, 120, 121, 131

Zuolo, Federico, 32, 44n19, 47n21, 61n46, 133, 142, 144n2, 199n1, 209n3