Justice for All: Revisiting the Prospects for a Biocommunitarian Theory of Interspecies Justice

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Notes

1 For the sake of zoological accuracy, I should consistently use the phrases “human animals” and “nonhuman animals,” but for the sake of brevity, I will more often refer to “humans” and “animals.”

2 Brian Baxter, A Theory of Ecological Justice (2005); Andrew Dobson, Justice and the Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice (1998); Helen Kopnina, Environmental Justice and Biospheric Egalitarianism: Reflecting on a Normative Philosophical View of Human–Nature Relationship, 1 Earth Perspectives 8 (2014).

3 Some important works that do frame the discussion in these terms include: Brian Baxter, A Theory of Ecological Justice (2005); Robert Garner, A Theory of Justice for Animals: Animal Rights in a Nonideal World (2013); Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (2006); Mark Rowlands, Animal Rights: Moral Theory and Practice (2d ed. 2009); David Schlosberg, Defining Environmental Justice: theories, Movements, and Nature (2007); Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics (1986).

4 James P. Sterba, Rethinking Global Justice from the Perspective of All Living Nature and What Differences It Makes, 66 Am. J. Econ. & Soc. 71 (2007).

5 John Rawls, A Theory of Justice (rev. ed. 1999) [hereinafter Rawls, TOJR].

6 Id. at 10. The “basic structure” of society has a particular meaning for Rawls: it refers to the way the major institutions (economic and political systems) distribute rights, duties, and the benefits of cooperation. A well-ordered society is one that “is not only designed to protect the good of its members” but “is also effectively regulated by a public conception of justice.” Id. at 4, 6.

7 Id. at 11.

8 This second principle is commonly called “the difference principle.” See, e.g., Lawrence Zelenak, Does Intergenerational Justice Require Rising Standards of Living?, 77 Geo. Wash. L. Rev. 1358, 1363 (2009) (referring to Rawls's “difference principle”).

9 Id. at 17.

10 See Rawls, TOJR, supra note 5, at 441 (“Our conduct toward animals is not regulated by these principles, or so it is generally believed”). In this conclusion, he joined other strict contractarians. See, e.g., Peter Carruthers, The Animals Issue: Moral Theory in Practice (1992); Jan Narveson, Animal Rights Revisited, in Ethics & Animals 45–60 (Harlan B. Miller & William H. Williams eds., 1993).

11 Rawls, TOJR, supra note 5, at 441.

12 Id. at 448. In this, Rawls departed from Kant. But as Robert Garner has noted, by not admitting animals as direct recipients of justice, any such “duties” depend on political, cultural, or even individual priorities. Robert Garner, Animals, Politics, and Justice: Rawlsian Liberalism and the Plight of Non-humans, 12 Envtl. Pol. 3–22 (2002).

13 Rawls, TOJR, supra note 5, at 448.

14 One seemingly unlikely proponent of this argument is Jan Narveson, who considers the Hobbesian variety of contract theory to be a more adequate description of contractualism. Of the Rawlsian veil of ignorance, Narveson writes: “Why should we not go just a little further and specify that one is not only not to know which person he or she is, but also whether he or she will be a person at all…” Narveson, supra note 10, at 56; see also Donald VanDeVeer, Of Beasts, Persons, and the Original Position, 2 The Monist 373 (1979); Tom Regan, The Case for Animal Rights 171 (2d ed. 2004).

15 Examples of animal behaviors meeting at least the level of “precursor to” or “minimal standard of” Rawls's description of a sense of justice are provided in Paul Shapiro, Moral Agency in Other Animals, 27 Theoretical Med. & Bioethics 357–373 (2006); Marc Bekoff & Jessica Pierce, Wild Justice: The Moral Lives of Animals (2009); S.F. Sapontzis, Morals, Reason, and Animals (1987); Frans de Waal, Good Natured: The Origins of Right and Wrong in Humans and Other Animals (1996); Frans de Waal, The Age of Empathy: Nature's Lessons for a Kinder Society (2009). In defense of Rawls, I should note that some—but certainly not all—of these findings were published well after the first (1971) edition of A Theory of Justice. But the discussion of animals in his 1999 revision would certainly have benefited from engagement with some of these studies.

16 Mark H. Bernstein, On Moral Considerability 162 (1998); see also Carlo Filice, Rawls and Non-rational Beneficiaries, VI Between the Species 8 (2006), available at http://digitalcommons.calpoly.edu/bts/vol13/iss6/3.

17 See, e.g., Bernard E. Rollin, Animal Rights and Human Morality 216 (1992); Temple Grandin, Thinking in Pictures: And Other Reports from My Life with Autism 235 (1995). Grandin acknowledges that her thinking was shaped by an article by Stephen Budiansky, The Ancient Contract, US News & World Rep. 74–79, March 20, 1989. Budiansky expanded this line of thought in his The Covenant of the Wild: Why Animals Chose Domestication (1992). See also Vonne Lund, Raymond Anthony, & Helena Rocklinsberg, The Ethical Contract as a Tool in Organic Animal Husbandry, 17 J. Agric. & Envtl. Ethics 23–49 (2004).

18 Some of the formative Western communitarian theorists and works include: Michael Sandel, Liberalism and the Limits of Justice (1981); Charles Taylor, Sources of the Self: The Making of the Modern Identity (1989); Michael Walzer, Spheres of Justice (1983). A “second wave” includes Amitai Etzioni, cited several times infra, Daniel Bell, Communitarianism and Its Critics (1993), and Henry Tam, Communitarianism: A New Agenda for Politics and Citizenship (1998).

19 I am loosely following Amitai Etzioni's definition of “community” here: “a shared set of social bonds, or a social web, as distinct from one-to-one bonds.” A human being can thus be a member of multiple communities, some overlapping, and some nested within larger communities. Amitai Etzioni, Old Chestnuts and New Spurs, in New Communitarian Thinking: Persons, Virtues, Institutions, and Communities 16–36 (1995).

20 Many communitarian writers have nonetheless taken pains to clarify that their concerns for the common good are not meant to be interpreted or enacted at the expense of individual well-being. See, e.g., Robert N. Bellah, Community Properly Understood: A Defense of “Democratic Communitarianism,” in The Essential Communitarian Reader 18 (Amitai Etzioni ed., 1998). Bellah writes of democratic communitarianism that it “believes that individuals are realized only in and through communities, and that strong, healthy, morally vigorous communities are the prerequisite for strong, healthy, morally vigorous individuals.”

21 Mary Midgley, Animals and Why They Matter 112 (1983). Here she is referring primarily to domesticated agricultural and companion animals.

22 Hannah Arendt, Lectures on Kant's Political Philosophy 42 (1992).

23 See Paula Casal, Is Multiculturalism Bad for Animals?, 11 J. Pol. Phil. 1–22 (2003), for an overview of some representative legal cases where cultural and religious rights were asserted to defend activities deemed cruel to animals. See also Kopnina, Wild Animals and Justice: The Case of the Dead Elephant in the Room, J. Int'l Wildlife L. & Pol'y, this issue.

24 Robert Garner, The Political Theory of Animal Rights 98 (2005).

25 J. Baird Callicott, Animal Liberation and Environmental Ethics: Back Together Again, in The Animal Rights/Environmental Ethics Debate 257 (Eugene Hargrove ed., 1992).

26 See Mary Douglas, How Institutions Think (1986).

27 Robert N. Bellah, Richard Madsen, William M. Sullivan, Ann Swidler, & Steven N. Tipton, Habits of the Heart: Individualism and Commitment in American Life (1985); Virginia Held, Non-Contractual Society: A Feminist View, in Feminism & Community (Penny A. Weiss & Marilyn Friedman eds., 1995).

28 Nussbaum, supra note 3, at 414.

29 Douglas, supra note 26, at 127.

30 Some theorists are beginning to attribute degrees of moral agency to certain nonhuman animals, but usually a moral agent is a human being. See, e.g., Paul Shapiro, Moral Agency in Other Animals, 27 Theoretical Med. & Bioethics 357–373 (2006).

31 Taylor, supra note 3, at 126–127.

32 Nussbaum, supra note 3, at 61.

33 In fact, our familiarity and comfort level with the creature will also be an important determinant in our judgments. This puts animals about whom we know little—or choose to know little—at greater risk for exploitation or harm. Confronted with unfamiliar animals, the Western response is to assume they are non-sentient until indisputably proven otherwise. This allows us to maximally exploit them until evidence finally compels us to stop—the animal ethics equivalent of what Australian forester John Paull has called the “postcautionary principle”: “Where there are threats of serious or irreversible damage, the lack of full scientific certainty shall be used as a reason for not implementing cost-effective measures until after the environmental degradation has actually occurred.” John Paull, Certified Organic Forests & Timber: The Hippocratic Opportunity, Proc. ANZSEE [Australia New Zealand Society for Ecological Economics] Conf. 1–14 (2007), available at http://orgprints.org/11042/.

34 Taylor, supra note 3, at 67.

35 This might be a nearly inevitable influence of the liberal tradition—with its emphasis on rights and liberties—from which even this perspective emerges.

36 Taylor, supra note 3, at 45. Taylor includes plants in his scope of justice, but I am limiting my discussion to animals.

37 Id. at 186.

38 Taylor's Principle of Self-Defense allows moral agents to protect themselves against harmful or dangerous organisms (up to and including “destroying” harmful organisms if necessary), but only by means “that will do the least possible harm to the organisms consistent with the purpose of preserving the existence and functioning of moral agents.” The Principle of Proportionality applies in situations where the basic interests of plants or animals compete with non-basic human interests that are “intrinsically incompatible with respect for nature” (such as trophy-hunting). The Principle of Minimum Wrong holds in conflicts between “basic interests of wild animals and plants and those non-basic human interests that are so highly valued that even a person who has respect for nature would not be willing to abstain from pursuing them,” such as damming a river for a hydroelectric project or destroying an ecosystem to build a highway. The Principle of Distributive Justice is entailed when “self-defense” does not apply, and when the competing claims are all basic interests, so that the principles of proportionality and minimum wrong are not applicable. When the needs in conflict are all basic survival needs, all the parties involved are entitled to an equal share of necessary goods. Since it is not always possible to achieve fairness, Taylor allows for “mutual accommodation” that accomplishes fairness and equality of treatment, even if the goods distributed are not identical. Such accommodations might include setting aside permanent habitat or sanctuary space or conserving resources (such as water) that will be shared with other beings. Taylor also specifies that the principle of distributive justice be supplemented by a principle of restitutive justice, which stipulates that compensation must be proportional to the harms done and must emphasize “the soundness and health of whole ecosystems and their biotic communities, rather than on the good of particular individuals.” For Taylor, this is the most practical means of achieving “the greatest good (for) the greatest number of organisms.” Taylor, supra note 3, at 265–282.

39 Id. at 55.

40 Id. at 69. Taylor argues that it makes no sense to speak of benefits or harms to a species because “species” is a class name, and classes cannot have a good of their own. Taylor is, of course, aware that each species “kind” has species-specific needs for flourishing and that what is beneficial to the good of one species might even be harmful to another. Id. at 68. But these benefits and harms are accrued by individual representatives of the species. Other descriptions of biocentric individualism include Nussbaum, supra note 3, and Nicholas Agar, Life's Intrinsic Value (2001).

41 “[U]nder certain conditions at least, species-populations and communities of life in natural ecosystems should be granted legal protection and accorded the corresponding legal rights. Once the people of a nation come to regard all wild living things as possessing inherent worth, they will enact such laws as are needed to protect the good of those wild creatures as far as that is compatible with the rights of humans.” Taylor, supra note 3, at 223.

42 See, e.g., Katie McShane, Individualist Biocentrism vs. Holism Revisited, 9 The Ethics Forum 130–148 (2014); Michael P. Nelson, Teaching Holism in Environmental Ethics, 32 Envtl. Ethics 33–49 (2010); Val Plumwood, Feminism and the Mastery of Nature (1993).

43 For example, ecologists can observe—but not fully account for—a so-called downward spiral that occurs when species diversity is reduced; at some point, species loss begins to accelerate in ways that are not easily modeled. See Nick Neely, A Downward Spiral, Audubon (January 12, 2011), http://magblog.audubon.org/downward-spiral.

44 James P. Sterba, From Biocentric Individualism to Biocentric Pluralism, 17 Envtl. Ethics 191–207 (1995).

45 Id. at 192.

46 Id. at 197.

47 Sterba, supra note 4, at 71–86.

48 A bit later in the article, Sterba adds that the principle “only permits aggression against nonhuman nature for the sake of what we need for a decent life.” Id. at 82 (emphasis added).

49 Id. at 83. Sterba argues earlier in the article that his principles present an obligation to curb human population growth in order to “restrict the membership of future generations so that those generations will be able to meet their basic needs” without aggressing against others. Id. at 82. He admits, though, that this argument is the “weakest link” of the proposals he puts forth here and requires further development. Id. at 84.

50 The term “biocommunitarian” appears to have been coined by J. Baird Callicott, who used it to characterize African and Aboriginal ecological ethics. J. Baird Callicott, Earth's Insights: A Multicultural Survey of Ecological Ethics from the Mediterranean Basin to the Australian Outback (1994). Godfrey B. Tangwa has adapted the term to describe a (generalized) African theological perspective he calls “eco-bio-communitarian.” Godfrey B. Tangwa, Bioethics: An African Perspective, 10 Bioethics 183–200 (1996).

51 A paper by Kai Chan proposes one such precautionary approach. Kai M.A. Chan, Ethical Extensionism under Uncertainty of Sentience: Duties to Non-Human Organisms without Drawing a Line, 20 Envtl. Values 323–346 (2011). Chan argues that “uncertainty of a being's sentience modifies the strength of duties to that organism,” id. at 324, but that the probability of sentience in such uncertain cases is always assumed to be “non-zero.” Chan considers sentience to be “synonymous with possessing a point of view in the sense of a mental experience of some kind.” Id. at 327. “[T]o assume no sentience in the face of some (inconclusive) evidence is to fail to imagine. Absence of evidence is not evidence of absence. Given the great diversity of ways that living beings operate, imagination of alternatives is critical to the fair assessment of likelihoods, and this must lead us to acknowledge the non-zero probabilities of mental phenomena.” Id. at 327. This means that in the face of uncertainty about an organism's sentience, our starting position must be that the being “might have a point of view. … [A]t this first stage, we cannot justify excluding any entity.” But the strength of our duties to that entity is proportional to the (non-zero) probability of its sentience. “As the range, complexity and intensity of a being's apparent interests increase, so do the range, complexity and intensity of our responsibilities to them.” Id. at 339.

52 Sapontzis, supra note 15, at 261.

53 Iris Marion Young, Responsibility and Global Justice: A Social Connection Model, 23 Soc. Phil. & Pol'y 102–130 (2006). I should note here that Young does not explicitly include animals in the social connection model and makes only one brief reference to the possibility that animals could be included. Citing Onora O'Neill's “pragmatic test” for establishing the scope of obligations, Young writes, “An agent has obligations to any agents or subjects—or perhaps creatures—about whom they make implicit or explicit assumptions as a basis of their own activities.” Iris Marion Young, Responsibility for Justice 159 (2011).

54 Id. at 102. I am, of course, expanding this to suggest that obligations arise between humans and other animals as well, specifically from humans to other animals. I make this a “one-way street” because (1) a biocommunitarian approach to justice need not include an expectation of reciprocity, and (2) we can consider obligations to be proportional to a being's “response-ability” and culpability. Humans excel in both of these dimensions, and it is to humans that I am addressing these recommendations.

55 Young defines structures this way: “structures denote the confluence of institutional rules and interactive routines, mobilization of resources, as well as physical structures such as buildings and roads.” Young, Responsibility and Global Justice, supra note 53, at 111.

56 Young, Responsibility for Justice, supra note 53, at 119.

57 Coincidentally, I also considered this matter at some length, using fish as a “case study” for a theory of justice precisely because of the challenge they present to our moral imaginations. Marilyn Matevia, Casting a Net: Prospects Toward a Theory of Justice for All (2012) (unpublished dissertation) (on file with author).

58 In much of well-provisioned North America, there are adequate non-animal protein alternatives, but this is not the case in many regions of the world. In addition, we do not yet know the environmental impact of global vegetarianism. While some studies suggest that vegan and vegetarian diets have a lower environmental impact, these effects may be dependent on a number of geographic and economic variables. See, e.g., E. Hallström, A. Carlsson-Kanyama, & P. Börjesson, Environmental Impact of Dietary Change: A Systematic Review, 91 J. of Cleaner Production 1 (2015); Marco Springmanna, H. Charles J. Godfraya, Mike Raynera, & Peter Scarborough, Analysis and Valuation of the Health and Climate Change Cobenefits of Dietary Change, 113 Proceedings of Nat'l Academy of Sci. 4146 (2016).

59 Leaving “one third for the birds,” as recommended in Philippe M. Cury et al., Global Seabird Response to Forage Fish Depletion: One-Third for the Birds, 334 Science 1703–1706 (2011).

60 This bycatch includes fragile corals, which are classified as animals.

61 Sustainable Fisheries, G.A. Res. 61/105, U.N. Doc. A/RES/61/105 (Dec. 8, 2006), available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N06/500/73/PDF/N0650073.pdf?OpenElement.

62 Hal Bernton, Dividing the Catch: Controversial Quota System Results in Fewer Fish Being Discarded at Sea, Seattle Times (June 30, 2012), http://seattletimes.nwsource.com/html/localnews/2018571418_trawler01m.html. A National Fisheries Service administrator quoted in the article remarks that the new system is “building in very real incentives to do the right thing.” There is some irony in his comment, since the incentives are revenue-based. See also NOAA Fisheries, Catch Shares, https://www.nwfsc.noaa.gov/research/hottopics/catchshares.cfm (last visited June 11, 2016).

63 Lisa Kemmerer, Ethics and Eating Fishes, J. Int'l Wildlife L. & Pol'y, this issue.

64 Young, Responsibility for Justice, supra note 53.

65 Kopnina, Wild Animals and Justice: The Case of the Dead Elephant in the Room, J. Int'l Wildlife L. & Pol'y, this issue.

66 Garner, supra note 24, at 162.

67 Taylor, supra note 3, at 312.

68 Id.

69 Douglas, supra note 26, at 113.