Animals in the Original Position

In A Theory of Justice, John Rawls l defends two principles of justice by means of an appeal to a hypothetical "original position." However, these principles are strictly principles of justice by and for human beings, or at least by and for persons. Several philosophers have recently argued that tllis argument is flawed-is "speciesist"-in tllat there is no adequate justification for excluding animals from consideration as beings to whom fue principles of justice ought to apply.2 If tllose in tlle original position had to consider tlle possibility tllat tlley might be reborn as a calf ratller than a human, they might well choose different principles. If tlley did not consider that possibility, the original position, and the "veil of ignorance" which helps define it, would fail to protect against prejudice or guarantee fairness and impartiality. One must be careful to distinguish at fue outset different bases for objecting to the exclusion of nonhuman animals from Rawls's tlleory. One might argue tllat Rawls simply cannot exclude animals from his tlleory, that doing so is internally inconsistent. Alternatively, one might argue that while animals can consistently be excluded, tllere are good reasons for including them. This line of argument might eitller attempt to find tllese good reasons wifuin Rawls's own tlleoretical proclivities (fue second possible strategy) or-a third type ofproject-introduce new fuemes which are independent of, even contrary to, some of Rawls's basic commiunents. On tllis last strategy, one would be arguing tllat fue notion of an original position can be used in contexts ofuer tllan the Rawlsian one to generate a concept of justice tllat wouJld be, in VanDeVeer's terms, "interspecific."3 Of course, all of fuese attacks presuppose fue more basic claim fuat it is logically possible to include animals in the original position. In tllis paper, I shall only briefly comment on fue argument that inclusion does not lead to logical absurdity; Rawls's critics, most 1l10tably VanDeVeer, are correct in noting tllat tlle original position already has in place tlle mechanisms by which fue interests of animals could be considered in tlle same way as tllose of humans. I shall argue tllat any attempt to force an expansion of fue original position fails, and tllat Rawls is quite justified in restricting Ithe argument so fuat it does not apply to most animals. While the critics apparently take themselves to be engaged in arguments of fue first or second sort, tlley must, at best, content tllemselves witll sometlling like tlle tllird strategy. In order to see why, we must first examine tlle concept of tlle original position and tllen step back for a sense of fue broader context in which talk of fue original position is embedded. The description of Rawls will necessarily