Contractarianism is probably the family of moral theories most commonly appealed to by opponents of animal rights. Animal rights opponents believe that these theories seem to disqualify non-human animals from being bearers of rights. Contractarianism and the direct moral status of non-human animals seem to be incompatible . In this post, I will explore the contractarian case against animal rights and then develop a response on behalf of the claim that animals possess direct moral status. In section one, I unpack the fundamentals of the contractarianism based on the early work of John Rawls. In section two, I lay out the prima facie case against animal rights from Rawlsian contractarianism. In section three, I develop a response to the prima facie case. In section four, I respond to criticisms of attempts at making the direct moral status of non-human animals and contractarianism consistent from Peter Carruthers.
1. The Fundamentals of Contractarianism
Contractarianism in its moral form is a theory that takes the direct moral status of individuals to be determined by their membership in the community of beings that are capable of agreeing to certain rules and standards of conduct that structure their interactions with each other and with the rest of the world. Any beings who are not contractors only possess indirect moral status by virtue of standing in morally relevant relations to contractors. As Mark Rowlands explains,
“According to contractarianism or contractualism, the legitimacy of moral and political rules and systems must ultimately be grounded in the existence of a hypothetical contract, to which rational, self-interested agents would assent if they were familiar with its conditions” (Garrett 147).
The contractors do not need to be actual beings; they can be hypothetical rational agents acting in their own self-interest. These hypothetical, rational, and self-interested agents will agree to principles that structure society such that the arrangement reaches a pareto-optimal equilibrium for all contractors (Gauthier 2013) .
The most famous version of contractarianism comes from the early work of John Rawls (cf. Rawls 1999). While Rawls intended to develop a theory of justice for politics, his theory can be modified into a more general thesis about the nature of morality. As a moral theory, Rawlsian contractarianism takes moral facts to be the outputs of a decision procedure among hypothetical contractors who are behind a veil of ignorance, meaning that they lack knowledge of their position within society, as well as of their abilities and identities like ethnicity, gender, sex, and socioeconomic status. The rationale behind this epistemic limitation is to remove any systematic bias from influencing the outputs of the decision procedure. If none of the agents are aware of their position in society, then they will select moral and political systems that do not favor any particular demographic over others, because they cannot be sure if they will be in that favored demographic. In other words, contractors behind the veil of ignorance would not be willing to gamble when determining the rules structuring society, because the gamble may not pay off, and it may even backfire if they end up in a group that is marginalized by biased outputs. So it is not a moral reason why the agents avoid bigoted and biased rules, but rather it is because it is in their self-interest to pick rules that are impartial with respect to contingent identities like gender and ethnicity. The Rawlsian contractors, then, are not employing moral concepts or principles when deliberating and determining the rules that structure society and the moral domain .
So, contractarianism is the view that morality is the output of a morally neutral decision procedure among hypothetical, rational and self-interested agents. John Rawls intended contractarianism to be a method of arriving at the structure of an ideally just political order. In this paper, I focus on the moral version of Rawlsian contractarianism. Rather than restricting the decision procedure to the political order, it will also determine morality. In the next section, I unpack the prima facie case against animal rights from Rawlsian contractarianism.
2. The Prima Facie Case Against Animal Rights
Rawlsian contractarianism seems to entail that non-human animals lack direct moral status . According to Peter Carruthers,
“Morality is here pictured as a system of rules to govern the interaction of rational agents within society. It, therefore, seems inevitably, on the face of it, that only rational agents will be assigned direct rights on this approach. Since it is only rational agents who will have their position protected under the rules. There seems no reason why rights should be assigned to non-rational agents. Animals will, therefore, have no moral standing under Rawlsian contractualism, in so far as they do not count as rational agents” (Carruthers 98-99).
Carruthers summarizes the prima facie case against the direct moral status of non-human animals concisely. Since morality is about rational agents within a society, rational agents will be the bearers of direct moral status. Any non-rational animals cannot have direct moral status because they cannot participate in the decision procedure that determines morality. At best, such animals can gain indirect moral status by being objects of concern to rational agents (Carruthers 146-169).
The challenge is not completely clear. What is the connection between direct moral status and being a contractor ? It can’t be that bearing rights requires that the bearer be capable of having duties and obligations to others or herself. Such a move is a non-sequitur. Although rights logically presuppose duties and obligations, that does not entail that rights bearers are also the bearers of those duties and obligations . Even if non-human animals cannot be bearers of duties and obligations, that does not mean that they lack rights; they may have rights without duties, which seems perfectly plausible. After all, most of us would grant that non-rational humans possess rights even though they cannot have any duties or obligations. Babies and some severely disabled people lack duties and obligations, but we would be hard-pressed to explain why those humans lack rights if others have them .
Perhaps it is just a feature of contractarianism that direct moral status is the same thing as being a contractor. This seems to be the most plausible move available to proponents of the claim that contractarianism excludes non-human animals from having direct moral status. If non-human animals are not rational agents that are capable of participating in the decision procedure behind the veil of ignorance, then they aren’t the sorts of beings that can have direct moral status, since direct moral status just is the property of being a contractor. Since this is a stipulated definition of direct moral status, failing to track ordinary use or use among philosophers is not necessarily a strike against it, but a residual worry for me is that it seems unmotivated .
Setting that worry aside, the prima facie case against animal rights is complete. Direct moral status requires the capacity to engage in the deliberative procedure that determines morality, which is to say that direct moral status is the capacity for rational agency. Since non-human animals lack the sort of rational agency required to engage in the deliberative procedure behind the veil of ignorance, they lack direct moral status. Non-human animals only morally matter insofar as rational agents care about them. Since non-human animals lack direct moral status, and many of them do not stand in morally relevant relations to rational agents, humans are justified in using them for their benefit (cf. Carruthers ch. 7). Factory farms and animal experimentation are therefore morally permissible .
3. Why Animals Can Have Direct Moral Status Under Contractarianism
Despite the prima facie case, contractarianism has conceptual space for animal rights. There are two routes from the Rawlsian procedure to the direct moral status of animals. First, it seems possible to consider whether or not you as a contractor would end up as a member of a different species that has significant interactions with human beings. Second, direct moral status being identical to being a contractor is not obvious; it seems that direct moral status should instead be a function of being the direct object of the moral rules that are determined behind the veil of ignorance. I will describe each of these routes in turn .
Within human societies there are a lot of cross-species interactions. Non-human animals play many roles in human lives. It seems plausible to assume that the question of animal moral status will arise during deliberations behind the veil of ignorance. It also seems plausible to assume that the deliberators will have at least a basic level of knowledge about the non-human animals that they are likely to encounter or affect through their actions. Such background knowledge includes the fact that such animals are subjects of conscious experiences and have interests (Regan 2004). It also seems plausible that contractors behind the veil of ignorance can make inferences from facts about non-human animal interests to facts about what such animals would prefer, if they had the relevant knowledge to consciously entertain such preferences.
With such background knowledge and inferences in place, the next step is to consider whether the contractors could plausibly consider what they would prefer if they had to occupy the roles of those non-human animals. We have to be careful here, though. I do not mean to consider what the contractors with their human traits and preferences would prefer if they were those animals, but rather what they with those animal preferences and interests would prefer. Would they prefer to be vivisected for the dubious epistemic benefit of humans? Would they prefer to be the equivalent of chattel slaves who meet the chopping block after a short and brutish life? Would they prefer to be forced to perform for the pleasure of gawking humans? Given the fact that the contractors would have access to a sufficient amount of knowledge about those non-human animals to be able to determine their interests, it seems like they can infer that those animals would prefer to be in the situations that I described above. It seems that the contractors can consider whether they would be willing to live in a society where they would be fine with living the life of a forced performer, a potential meal, or as a forced test-subject in a lab if they ended up in the position of those animals. I can’t think of a good reason why anybody would be willing to live in a society where such things could happen, and I doubt that the contractors behind the veil could either.
We now have the pieces in place to overcome the prima facie case against animal rights. Given uncontroversial and non-moral background knowledge about the lives and interests of non-human animals that are a part of human society in various capacities, it is reasonable to conclude that the contractors would take those animals’ interests into account during their deliberations. We can conceive of what our interests would be if we ended up as those species that are part of human society, and that ability is available to contractors behind the veil of ignorance . Since such an ability is available to contractors, it is also reasonable to conclude that they would take animals’ interests into account when determining a moral system. It follows that animals have direct moral status, since their interests would be taken into account by contractors behind the veil of ignorance.
The second route to direct animal moral status under Rawlsian contractarianism is to question why being a contractor is necessary for possessing direct moral status . One assumption of my exposition of Rawlsian contractarianism is that a necessary condition for direct moral status is being a contractor. However, as I mentioned in section two, there is no good reason to think that the capacity to be a contractor is a necessary condition of bearing direct moral status. At best, it is entailed by a stipulated definition of, “direct moral status” that only contractors can have direct moral status under contractarianism. But it is not a requirement of Rawlsian contractarianism that we stipulate such a definition, so if there is a version of the theory that does not include such a stipulation, but retains the plausibility of the theory with the stipulation, then that version is worth investigating. Furthermore, if that version without the stipulated definition retains more intuitive judgments when considering the question of non-human animal moral status, then in the battle of plausibility points, the version that allows for direct animal moral status scores higher .
The prima facie case against animal rights depends on the stipulation that having direct moral status is identical to being a contractor. Since this is a stipulation, there is no reason to believe it beyond the other virtues of the theory in which it is embedded. But if the stipulation delivers counterintuitive results , and the theory in which it is embedded can do fine without it, then we ought to keep the virtuous parts of the theory and abandon the rest. Before moving on, we should determine if the stipulation has counterintuitive results.
The easiest way to determine if the stipulation that direct moral status is identical to to being a contractor has counterintuitive results is to test it against marginal cases. The capacity to be a contractor requires the ability to be aware of one’s own interests and make rational decisions about them, both in the present and projected into the future. These capacities are not present in non-human animals, so according to the stipulation, animals lack direct moral status. However, those capacities are also not present in many human beings, but it seems wrong to claim that those humans lack direct moral status (Norcross 2004). If we imagine a human infant stripped of all of the relations that would confer indirect moral status, it still seems like that infant has direct moral status. An orphan with no social ties morally counts no less than the children of Donald Trump. There must be something that distinguishes humans from non-human animals who lack such a capacity if only the marginal humans are to possess direct moral status. Given the stipulation, though, this is not possible. If having direct moral status is identical to having the capacity to be a contractor behind the veil of ignorance, then infants lack direct moral status. There is no way around this without arbitrarily stipulating that humans as such have direct moral status. Such a move would be entirely ad hoc, so the contractarian who embraces the claim that direct moral status just is the capacity to be a contractor should bite the bullet and say that infants lack direct moral status.
Since the contractarian is biting a bullet in accepting that infants lack direct moral status, a version of the theory that does not have that entailment is preferable. I propose that the connection between direct moral status and the contractarian procedure is found in the contents of the moral rules that constitute the moral system resulting from deliberation among contractors. On this view, animals can have direct moral status by virtue of being the direct objects of moral rules agreed to by contractors behind the veil of ignorance. The contractors could agree that when non-human animals meet certain criteria such as sentience, having interests, or being the subject of a life, they possess direct moral status according to the ethical system to which they all rationally agree . There are no conceptual connections between direct moral status and being a contractor within Rawlsian contractarianism. My account has the added benefit of not implying that infants and other humans who aren’t contractors lack direct moral status.
One may worry that the contractors will need prior moral concepts or knowledge to conclude that animals with certain properties possess direct moral status. However, since contractors are not detecting a property in the mind-independent world called direct moral status that supervenes on some intrinsic properties of animals, but rather the contractors are constructing direct moral status through their deliberative process. Non-human animals possess direct moral status by virtue of being the direct object of the moral rules that are the output of the deliberative process. The contractors need not possess any moral concepts or make any moral judgments in the deliberative process; they may consider facts about how animals can suffer or enjoy their lives and then they feel sympathy for them, and conclude that any society in which animals lack direct moral status is one they would not want to live in.
Once we resolve the worry, it seems like there are no obstacles between contractarianism and animal rights . The two routes that lead to direct moral status for animals are in the spirit of Rawlsian contractarianism. However, Peter Carruthers has raised some objections to these kinds of attempts at making animal rights and contractarianism consistent. I will now move on to his criticisms.
4. Responding to Carruthers’ Objection
Peter Carruthers takes issue with attempts at making contractarianism consistent with the direct moral status of non-human animals (Carruthers 101-105). He has produced several criticisms of arguments like mine. Carruthers sums up his doubts about the compatibility of the direct moral status of animals and contractarianism in the following passage,
“Morality is here pictured as a system of rules to govern the interaction of rational agents within society. It therefore seems inevitable, on the face of it, that only rational agents will be assigned direct rights on this approach. Since it is rational agents who are to choose the system of rules, and choose self-interestedly, it is only rational agents who will have their position protected under the rules. There seems no reason why rights should be assigned to non-rational agents. Animal will, therefore, have no moral standing under Rawlsian contractarianism, in so far as they do not count as rational agents” (Carruthers 98-99).
This seems to be an attempt at connecting the property of rational agency to direct moral status. However, all that Carruthers has done is articulate the stipulation from section two. Even if the rational agents choose in their own self-interest, they choose from behind a veil of ignorance that withholds their status in and relation to the moral community, so it is not clear that the deliberative procedure will result in rights only for rational, self-interested agents.
Carruthers goes on to argue that attempts at making Rawlsian contractarianism consistent with the direct status of animals lead to incoherence,
“As Rawls has it, morality is, in fact, a human construction . . . Morality is viewed as constructed by human beings, in order to facilitate interactions between human beings, and to make possible a life of co-operative community. This is, indeed, a central part of the governing conception of contractarianism. It is crucial to the explanation of how moral notions can arise, avoiding the excesses of intuitionism and strong objectivism. It is also presupposed by contractualist accounts of the source of moral motivation, whether in the Rawlsian version (to make peaceful human community possible in conditions of modernity) or in my own, where the basic contractualist concept (as well as the desire to comply with it) is held to be innate, selected for in evolution because of its value in promoting the survival of our species. To suggest, now, that contractualism should be so construed as to accord equal moral standing to animals would be to lose our grip on where moral notions are supposed to come from, or why we should care about them when they arrive” (Carruthers 1994, 102-103).
There are several issues with this passage that I will deal with in turn. First, Carruthers frames his objection in terms of avoiding the excesses of intuitionism and strong objectivism. Second, he claims that allowing animals to have direct moral status goes against the view of moral motivation that is presupposed by contractarianism. Finally, he argues that allowing animals to have direct moral status on contractarianism would be to lose our grip on where morality comes from and why we ought to care about it. I will address Carruthers’ claims in order.
First, Carruthers claims that framing the subject matter of morality in terms of what rationally acting human beings would agree to avoids the excesses of intuitionism and strong objectivism. Intuitionism is the view that moral knowledge is based on moral intuitions. Carruthers takes strong objectivism to be the claim that moral properties or facts are part of the fabric of the world (Carruthers 14). Strong objectivism is contrasted with weak objectivism, which is the thesis that moral concepts have determinate conditions of application, similar to concepts about artifacts like tables and chairs (Carruthers 15-16). Whether or not an object is a chair is not dependent on any particular person’s attitudes, beliefs, or desires, even though the property of being a chair is not mind independent in the same way as the physical constitution of water by H2O molecules is. Weak objectivism takes moral properties and facts to be closer to facts about chairs than facts about the physical constitution of water.
It is unclear to me why Carruthers believes that the only way to avoid the excesses of intuitionism and strong objectivism is by framing the subject matter of morality in terms of what humans would rationally agree to. Intuitionism and strong objectivism are second order theories about morality rather than substantive moral claims, so it is not obvious that they entail or are conceptually connected to the thesis that only rational actors can have direct moral status. That rational actors are the only bearers of direct moral status seems to me to be a substantive moral claim, and it is commonly thought that substantive moral claims do not directly follow from second order claims about morality (Streumer ch. 4). It seems like weak objectivism is compatible with many first order substantive moral claims, so Carruthers needs to provide an argument that connects the first order moral claim that only humans and other rational actors can have direct moral status and the second order moral theory of weak objectivism.
Carruthers claims that animals having direct moral status under contractarianism robs the view of its source of moral motivation. However, like the previous claim, Carruthers is attempting to argue for a first order moral claim by employing second order moral considerations. Moral motivation is a second order moral issue, so it is unclear how it entails first order moral claims about which beings possess direct moral status. Furthermore, there are theories of moral motivation that are compatible with contractarianism that do not obviously exclude animals from having direct moral status, such as motivational internalism (van Roojen 55-70). On most forms of motivation internalism, a moral agent who sincerely makes a moral judgment is necessarily motivated, absent practical irrationality or some other factor like akrasia, to act on that judgment. Internalism is compatible with contractarianism and it does not exclude animals from having direct moral status because it is a thesis about moral agents, not moral patients . So it is not the case that animals having direct moral status robs contractarianism of its resources regarding moral motivation.
Lastly, Carruthers claims that animals having direct moral status under contractarianism loosens our grip on where morality comes from and why we should care about it. In my discussion about animals having direct moral status under contractarianism, I haven’t lost my grip on where morality comes from, because I have acknowledged that rationally acting human beings are the contractors entering into agreements behind the veil of ignorance. Claiming that animals have direct moral status has not made me forget where morality comes from. All that I have done is expand the circle of direct moral status, which is compatible with the contractarian view about where morality comes from, because non-rational animals do not participate in the decision procedure. I have also included reasons about why we should care about morality, which cannot be moral reasons, since contractarianism does not allow for moral considerations to play a role in the decision procedure. Two possible sources of non-moral reasons to care about morality are self-interest and sentiment. Carruthers only allows for self-interest, but he provides no arguments against allowing sentiments to count as reasons to care about morality. He may argue that sentiments are moral considerations, but as a cognitivist contractarian, it is unclear how or why sentiments are morally relevant. Sentiments can be construed as non-cognitive attitudes towards states of affairs, and on that conception they can play a role in motivating us to care about moral states of affairs without themselves having moral content. So Carruthers has not provided compelling reasons to doubt that animals can have direct moral status under contractarianism.
In this post, I have explored how Rawlsian contractarianism has the conceptual resources for direct animal moral status. I have argued that rational contractors behind the veil of ignorance can also allow their species to be indeterminate during the decision procedure, which opens up the possibility of contractors assigning direct moral status to non-human animals. I have also argued that contractarianism does not entail that contractors are the only bearers of direct moral status. Simply being the direct object of moral considerations determined behind the veil of ignorance is sufficient for direct moral status, and that includes non-human animals. So there is no barrier to the direct moral status of animals from contractarianism.
 The typical understanding of direct moral status is for a being to matter morally by virtue of some properties of that being. To have indirect moral status is to count morally by virtue of standing in certain relations to beings with direct moral status. I use direct moral status and rights interchangeably because rights bearing is typically taken to be direct moral status on deontological theories such as contractarianism.
 This assumes that rational, self-interested agents would be trying to maximize the benefits they gain from the arrangements to which they agree. See (Wedgwood 2017) for reasons to doubt that rational intentions aim at maximizing utility.
 If the procedure is intended to only determine political norms like justice, as Rawls develops it in A Theory of Justice, then the contractors can deploy moral concepts and principles in their deliberations, but if the procedure is meant to determine morality, then it would be circular to allow a conception of morality to play a role in the contractors’ decision procedures. For the purposes of this paper, I am dealing with the broader, moral version of contractarianism rather than the political one, so the procedure must be morally neutral.
 From now on I will refer to Rawlsian contractarianism as, “contractarianism” because repeatedly typing, “Rawlsian contractarianism” is as tedious as it must be to read.
 I use “contractor” and “rational, self-interested agent” interchangeably.
 I am grateful to Alasdair Norcross for pointing this out in an illuminating discussion.
 Here I shifted from using rights talk as equivalent to direct moral status talk to rights talk in a more narrow sense, but that was for the purposes of exploring this possible inference from rights bearing to obligation bearing to excluding non-human animals. I will now shift back to the broader usage.
 Another challenge to this move is to use a different word for the more common sense use of, “direct moral status” and then ask how contractarianism accounts for that. One possible reply is to say that such a concept does not play into contractarianism as a moral system, so it need not be accounted for. The theoretical cost of this avoidance must be made up for by contractarianism displaying other theoretical virtues. I will not pursue this line of thought any further as it is tangential to the purpose of this paper.
 Assuming that animal experimentation is beneficial for humans. For a dissenting view, see (Garrett ch. 13).
 These routes are compatible with each other, but they can also stand on their own.
 It has no moral content and it’s relevant to the structure of society, so it is available to them.
 This does not affect whether it is sufficient.
 See (Enoch 2011) for a discussion of plausibility points in ethical theory assessment.
 See (Singer 2011) for the view that having interests is sufficient for moral status, see (Norcross 2004) for the view that sentience is sufficient, and see (Regan 2004) for the view that being the subject of a life is sufficient for possessing moral status.
 You may wonder why I am assuming that contractarianism is a constructivist theory and not a realist one. If we take it to be a realist theory, then the procedure is such that it discovers independent moral facts, but this undermines any motivation for the prima facie case in section two. If direct moral status is based on the supervenience or grounding relation between the intrinsic properties of a being and moral facts about it, then the stipulation in section two is entirely unmotivated. The theory would have stipulated something about reality independent of us. But why assume that our stipulated definitions track the nature of stance-independent moral facts? It would be as if I stipulated that rocks are reducible to clusters of atoms arranged rock-wise when there is a stance-independent fact about the nature of rocks. So it seems like on a realist interpretation of contractualism, the prima facie case cannot be motivated.
 I take it that only moral agents are capable of making moral judgments and acting on them, so internalism about moral judgments can only apply to them. Animals are not moral agents, but on my view they are moral patients, which means that they still have direct moral status.
Carruthers, Peter. The Animals Issue: Moral Theory in Practice. Cambridge University Press. 1992. Print.
Enoch, David. Taking Morality Seriously: A Defense of Robust Realism. Oxford University Press. 2011. Print.
Garrett, Jeremy R. The Ethics of Animal Research: Exploring the Controversy. MIT Press. 2012. Print.
Gauthier, David. “Achieving Pareto-Optimality: Invisible Hands, Social Contracts, and Rational Deliberation.” RMM, vol. 4, 2013, pp. 191-204. Print.
Norcross, Alastair. “Puppies, Pigs, and People: Eating Meat and Marginal Cases.” Philosophical Perspectives, vol. 18, no. 1, Jan. 2004, pp. 229-245. Print.
Rawls, John. A Theory of Justice: Revised Edition. Belknap Press, 1999. Print.
Regan, Tom. The Case for Animal Rights. University of California Press, 2004. Print.
Singer, Peter. Practical Ethics. Cambridge University Press, 2011. Print.
Streumer, Bart. Unbelievable Errors: An Error Theory About All Normative Judgments. Oxford University Press, 2017. Print.
Wedgwood, Ralph. “Must Rational Intentions Maximize Utility?” Philosophical Explorations, vol. 20, no. 2, 2017, pp. 73-92. Print.
van Roojen, Mark. Metaethics: A Contemporary Introduction. Routledge, 2015. Print.