Tom Regan on Contractarianism

In this essay, Tom Regan, the philosopher best known for his writings on animal rights, argues against “contractarianism” in a fashion similar to that of my argument below. Here’s Regan:

Here, very crudely, is the root idea [of contractarianism]: morality consists of a set of rules that individuals voluntarily agree to abide by, as we do when we sign a contract (hence the name contractarianism). Those who understand and accept the terms of the contract are covered directly; they have rights created and recognized by, and protected in, the contract. And these contractors can also have protection spelled out for others who, though they lack the ability to understand morality and so cannot sign the contract themselves, are loved or cherished by those who can. Thus young children, for example, are unable to sign contracts and lack rights. But they are protected by the contract nonetheless because of the sentimental interests of others, most notably their parents. So we have, then, duties involving these children, duties regarding them, but no duties to them. Our duties in their case are indirect duties to other human beings, usually their parents.

Regan points out that the status of animals under contractarian theories is analogous to that of children since they, obviously cannot be parties to a contract – implied or otherwise. But he doesn’t think this is a problem for his theory of animal rights since, according to him, contractarianism is far from being an adequate theory of moral duties with respect to humans, and so doesn’t even make it out of the gate. He says:

When it comes to the moral status of animals, contractarianism could be a hard view to refute if it were an adequate theoretical approach to the moral status of human beings. It is not adequate in this latter respect, however, which makes the question of its adequacy in the former case, regarding animals, utterly moot. For consider: morality, according to the (crude) contractarian position before us, consists of rules that people agree to abide by. What people? Well, enough to make a difference – enough, that is, collectively to have the power to enforce the rules that are drawn up in the contract. That is very well and good for the signatories but not so good for anyone who is not asked to sign. And there is nothing in the contractarianism of the sort we are discussing that guarantees or requires that everyone will have a chance to participate equally in framing rules of morality. The result is that this approach to ethics could sanction the most blatant forms of social, economic, moral, and political injustice, ranging from a repressive caste system to systematic racial or sexual discrimination. Might, according to this theory, does make right. Let those who are the victims of injustice suffer as they will. It matters not so long as no one else – no contractor, or too few of them – cares about it. Such a theory takes one’s moral breath away…. A theory with so little to recommend it at the level of the ethics of our treatment of our fellow humans cannot have anything more to recommend it when it comes to the ethics of how we treat our fellow animals.

Regan goes on to consider more sophisticated versions of contractarianism, such as the version propounded by John Rawls. Nevertheless, it suffers, according to Regan, from the same fundamental defect – by excluding certain individuals from the original bargaining position, it denies that we have direct duties to those individuals who lack a sense of justice.

I think Regan here puts his finger on a central defect of contractarianism. Its circle of moral concern – who it considers agents worthy of moral consideration and obligation – will have to be determined in advance of determining the rules of morality (which is what the contract is supposed to do). But specifying to whom we have moral duties is itself a crucial and central aspect of morality. By excluding entire classes of beings in advance, contractarianism appears to beg a central question of morality, despite the fact that the contract is supposed to determine morality’s content.