Aaron Garrett. Journal of the History of Philosophy. Volume 45, Issue 2. April 2007.
Theories of animal rights first arose in modern Europe, and not in another place or time, for a straightforward reason. “Animal rights” presupposed a doctrine of rights, and “rights” in their familiar forms were a legacy of modern European political and moral thought. In the seventeenth century, philosophers in the natural law tradition were confronted with a problem: what to make of the moral standing of animals. It seemed that animals should be treated decently, but given the natural-law pictures with which many philosophers were working, it was not at all evident why they should be treated decently. One powerful eighteenth-century answer to this question led to a notion of rights allowing for the widening of franchise-acquired rights rooted in pain and pleasure and independent of the cognitive capacity or bodily form of those acquiring them. This solution had important political and social consequences. I will argue that Francis Hutcheson was the pivotal figure in this animal rights tradition-a tradition which is of interest not only for what it tells us about animal rights but also for what it tells us about the history of rights as such by rethinking them in terms of the moral standing of animals.
The Problem of Animal Rights
The handful of eighteenth-century European philosophers who argued that animals had, or could acquire, rights were developing a moral concept at odds with most of their contemporaries and nearly all of the major philosophers and natural lawyers of the seventeenth century. Hobbes viewed our relations to animals as a matter of force. In his early Essays on Natural Law, Locke asked whether animals fall under natural law and answered ‘no.’ The great natural lawyer, Samuel Pufendorf, came to the same conclusion. Spinoza argued that since our natures are fundamentally different from animal natures, we have no obligations of any sort towards them-moral or otherwise-and may use them as we see fit, and at our pleasure.
Those seventeenth-century philosophers who argued that morality and animals were not mutually exclusive tended to adopt one of two strategies. Skeptics such as Montaigne and Pierre Bayle claimed that animals might be capable of moral actions. Bayle immortalized the sixteenth-century theologian Hieronymous Rorarius in the Philosophical Dictionary for arguing that rats have moral codes and can be virtuous, even heroic, moral actors. But neither Montaigne nor Bayle was interested in the consequences that the putative moral agency of animals might have for the moral duties of humans towards animals. Bayle was primarily interested in using Rorarius as a means to criticize Leibniz, and any sympathies he had with Rorarius were in a shared disdain for human pretension to special standing in the universe. Much the same could be said for Montaigne. The use of animals to criticize human pretensions persisted into the eighteenth century (and beyond), for example in Bernard Mandeville’s Fable of the Bees (1714/1723), Soame Jenyns’ notorious A Free Enquiry into the Nature and Origin of Evil (1757), Guillaume Hyacinthe Bougeant’s Amusement Philosophique sur les Languages des Bêtes (1739), and David Hume’s discussion of animal reason in A Treatise of Human Nature (1739-40).
Although the skeptical line of argument was relatively uncommon, it was widely held that animals deserved humane treatment of some sort. Even vivisectionists like Robert Boyle argued that we ought not make animals suffer without purpose. But although many philosophers argued that we should not be cruel to animals, they did not derive the duty to humane treatment of beasts from a moral status, standing, or right held by animals themselves. Boyle’s justification of why we should not torture animals, for example, rested not on any standing animals had in and of themselves, but rather on the role of humans as stewards of nature, and by extension stewards of beasts. The idea of stewardship had importance for early-modern political and moral philosophers far beyond the issue of animal rights. For John Locke, and many others, Adam’s stewardship of God’s creation was the model for natural right in general. But on Locke’s theory, animals were clearly property and due consideration no different than fruit trees. One of the challenges for Hutcheson, which I will discuss in a later section, was in appropriating the image of stewardship for an animal rights theory.
Even philosophers who were of very different philosophical persuasions came to similar conclusions as Boyle. Malebranche, following Descartes, claimed that animals were not due any serious moral consideration, since their apparent expressions of suffering were mere mechanical responses unaccompanied by any internal sensation. Malebranche thought that one should not torture animals, but solely due to the similarity between external human behavior (accompanied by internal states) and external animal behavior (unaccompanied by any internal states). This similarity had been orchestrated by God to stop humans from drawing the wicked inference, “because I can torture animals, I can also torture humans.” Still, there is no moral duty incumbent on us toward the animal, but only a duty towards humans in which animals play a derivative, pedagogical role.
Related arguments—today associated with Kant—were found in Jean Barbeyrac and others. But this family of justifications for “gentle” treatment of animals did not assume moral duties toward animals derived from a standing the animals had. And ironically, although Boyle and Barbeyrac would have opposed some elements of Malebranche’s Cartesian justifications, their own arguments were theoretically and practically quite similar to the Cartesian arguments. Malebranche would have agreed with Boyle that we ought not torture animals without purpose. And he would have agreed with Barbeyrac that, as they emit sounds when we torture them, if we ignore these sounds, it might lead to our ignoring similar signs in humans. They disagreed on whether animals felt pain, but they agreed that animal screams were primarily for human moral edification.
In sum, the seventeenth-century and early-eighteenth-century positions on our moral duties to animals-which I have associated with Bayle, Boyle, Barbeyrac, and Malebranche—do not get us to animal rights, or moral standing, in anything resembling a contemporary sense. The idea of animal rights adds—above and beyond such arguments for humane treatment of animals—that animals ought to be treated humanely because they have moral standing, or a moral right, deriving from a quality or property intrinsic to them, such as sentience or reason.
It is not surprising that Boyle, Malebranche, and many others had nothing to say in defense of animal rights, since ‘animal rights’ seemed oxymoronic to seventeenth-century moral philosophers. The concept of rights bundled into the expression ‘animal rights’ derives from those seventeenth-century authors-Locke, Pufendorf, Hobbes, Spinoza, etc.—who argued rights did not apply to animals. Consequently, the eighteenth-century application of rights talk to animals fuses concepts that, when taken together, seemed to be at odds with one another. In the next two sections, I will consider the origins of British animal-rights philosophy, first, through Jean Barbeyrac’s and Gershom Carmichael’s rejections of the idea of animal rights, and then, through Francis Hutcheson’s original and surprising arguments for it. Hutcheson’s arguments are the earliest Anglophone justification for animal rights of which I know. I will then discuss how a less well-known philosopher, named Humphrey Primatt, developed a related Christian, utilitarian theory of animal rights, some of the most important elements of which are familiar-albeit in a secular form-from the work of Jeremy Bentham. This will also point to an alternative history of rights: from the natural lawyers, Pufendorf and Cumberland, and their advocates Barbeyrac, Carmichael (both of whom who aligned Pufendorf with Lockean natural rights), and Shaftesbury (who drew on Cumberland’s insights in his own theory of virtue and moral perception), to the synthesis of these lines and the consequent widening of the sphere of rights in Francis Hutcheson, and ultimately to Christian and secular attempts to rethink rights in terms of utility, as opposed to natural dispensations to humans alone.
Jean Barbeyrac and Gershom Carmichael
Hutcheson’s main duty as Professor of Moral Philosophy at Glasgow was lecturing on the Protestant, natural law theory delineated by Pufendorf, Barbeyrac, Grotius, and others-theories particularly antithetical to the idea of animal rights. Natural law was usually understood by early-modern moral philosophers to consist of norms and rules for the good or happiness of humankind, and empirically discoverable through reflection on social interaction. Such laws ranged from the duties of parents, to laws against destroying another’s property, to laws indicating that murder ought to be punished by death, and so forth.
Animals are incapable of understanding the natural law, since either they have no minds at all, or else what minds they have are insufficient for understanding the natural law. Furthermore, since animals lack language, the natural law cannot be propagated to them with publicly accessible signs. Animals can be conditioned by reward and punishment, but that is not understanding the content of the natural law. If brutes can understand neither the contract from which the legitimacy of the law derives, nor the law as such, then they cannot be obliged to follow it.
The great translator and commentator, Jean Barbeyrac, took a similar position in an important note appended to his French translation of Pufendorf’s De officio hominis et civis. The note begins:
Animals lack Reason, without which neither the law nor obligation can be conceived, properly speaking. Consequently there is no law common to men and animals. Animals lose nothing by dying, because their souls die with their bodies.
Barbeyrac followed these remarks with a discussion of the positive effect that human killing of animals has in getting rid of “a great number of species pernicious to humankind” (but warned against the dangerous effect of cruelty to animals extending to cruelty to humans, as discussed previously). His main point was clear: because animals lack reason, they do not fall under a common natural law shared with humans. For example, they do not fall under our ban on murder. The fact that death has no meaning for animals means that animal morality-were it to exist-could not be anchored by knowledge of future divine judgment and fear of death. Consequently, the ultimate anchor of sanctions-namely divine evaluation and reward or punishment based on culpability in relation to a propagated law-was null and void.
Francis Hutcheson’s predecessor and the first Professor of Moral Philosophy at Glasgow was the Calvinist natural lawyer, Gershom Carmichael. His commentary on Pufendorf’s De Officio was a bridge between Barbeyrac and Hutcheson: Hutcheson first lectured on Pufendorf’s De Officio with Carmichael’s compendium, before he began building his own lectures that became the basis for the System of Moral Philosophy. In a section entitled ‘Human Property Rights not Shared with Animals’, Carmichael wrote:
Animals are not endowed with reason; no sharing of right can exist between animals and men; and God does not command men to hold any society with them. For there are many things which are suited to serve the different purposes of both animals and men, and there are also many ways in which men can receive benefit or suffer harm from animals, and can themselves either save or destroy them; yet nature has not given us a way to become familiar or share thoughts with them so that we could make agreements with them, as we do with other men, about mutually sharing things and services or at least about not hurting each other. The author of nature would clearly have made provision for this, if he had wished the human race to cultivate society with the families of animals. No right therefore belongs to animals either over themselves or over other things which would limit the universal authority of the human race over external things or prevent men from using them in whatever way would make them most useful to men as a whole. (Moore and Silverthorne, Carmichael, I.12.I.ii)
This passage is a key for understanding Hutcheson’s attitude toward animal rights. The first line—“Animals are not endowed with reason; no sharing of right can exist between animals and men; and God does not command men to hold any society with them”—is nearly a direct quote of the opening passage of Barbeyrac’s note, but the remainder of the discussion moves in a different direction.
Carmichael argues that humans and animals have different needs and different ways of satisfying these needs. But, despite the divergence of needs, human beings can benefit from animals, i.e., animals can contribute to the satisfaction of human needs. Given that animals help to satisfy human needs, and that animals have needs of their own, human beings could share beneficial things and services with animals. This would then be backed by a natural law governing interaction and cooperation, insofar as it would be a rational, discoverable, social norm. But God has clearly not made any provision for society between humans and animals. “No right therefore belongs to animals either over themselves or over other things which would limit the universal authority of the human race over external things or prevent men from using them in whatever way would make them most useful to men as a whole.”
There are three aspects of Carmichael’s analysis that must have led Hutcheson to question Carmichael’s conclusion. First, Carmichael confidently stated that God has not made provision for society between men and animals. But why is this so evident? Second, and by extension, if animals have something in common with humans, as Carmichael allowed, why is it obvious that what humans have in common with animals is so morally irrelevant that it cannot provide the basis for a natural, moral law prescribing duties and obligations between men and animals? Third, Carmichael’s strong denial of any rights that animals have against men is noncommittal as to whether animals have any rights at all. Yet the problem remains: if animals are to have rights, in some sense, and further, if we humans are to have duties or even obligations to animals, how is it possible to frame rights and duties against a natural law background? I will return to the first two questions in section 4; this essay, as a whole, will provide one answer to the third question.
Before turning to Hutcheson’s own treatment, we should briefly examine how duties and rights were generally thought of in the framework within which Barbeyrac, Carmichael, and Hutcheson wrote. We have various duties and roles as humans, as parents, as parishioners etc., which arise from different features of our human “frame”; they are natural to us, as sociable human beings who seek and need other human beings. We have rights in order to fulfill these duties. We are granted a right to property, in order to feed our families and ourselves. We have a right over our children, in order to teach them and help them to grow (this is the normal way in which rights are framed: rights to and for).
In addition to these rights, we also have obligations-the obligations that arise from our duties and offices-to take care of our children, etc. Rights are, for the most part, reciprocal on obligations and duties; i.e., I have rights insofar as I fulfill duties. Duties and obligations are defined by moral roles: father, master, statesman, parishioner, etc. So, for Locke, I have a right over my daughter, in order to fulfill my duty towards her as steward, bringing her to rational maturity where she will be capable of exercising her own natural rights to property and self-defense. Now on this account-as presented, for example, by Barbeyrac-animals have neither duties qua natural law, nor obligations in relation to it, nor rights in order to fulfill their duties, because they cannot understand the natural law in the first place. Animal rights, consequently, can never get off the ground floor.
This aside, where do animals fall within the division of three traditional duties toward others: husband toward wife, father toward children, and master toward slave or servant? Do they have roles? They are neither spouses nor children. Pufendorf and Barbeyrac considered animals to be property, and this is the heading under which Hutcheson treated them as well. But it is not at all clear in what way property, in and of itself, has a right. In fact, to an early-modern philosopher, it would seem to be clear that property does not have rights. In other words, rights to property make a great deal of sense within such a scheme; rights of property, none.
Hutcheson, Cumberland, and Shaftesbury on Virtue and Rights
Hutcheson’s philosophical reputation rests on two works that he wrote early in his career, before becoming the Professor of Moral Philosophy at Glasgow: An Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), and An Essay on the Conduct of the Passions and Affections, with Illustrations on the Moral Sense (1726). Each of the two books consisted of two treatises, and the four treatises may be taken together as a coherent moral system. The four treatises analyze (in order) the sense of beauty and taste, the moral sense, the moral psychology appropriate to a moral sense theory, and finally, Hutcheson’s criticisms of rationalist theories of morality. Much like his contemporary, Joseph Butler, Hutcheson built his moral philosophy on a rich, empirical moral phenomenology, set in opposition to both egoism and rationalism.
In these early works, Hutcheson developed a moral sense theory, ostensibly derived from Shaftesbury, but highly original and far more systematic, which drew on Locke’s distinction between primary and secondary qualities (and on empiricist theories of perception, more broadly) to construct a theory of moral perception. The basic idea was that the quality perceived in a moral perception-a virtuous character or a benevolent action-is peculiar to moral perception, just as beauty is a quality particular to aesthetic perception. Perception of moral qualities gives rise to moral motivation, and moral motivation gives rise to moral action. Moral qualities supervene on physical states, but they are not derivable from them; they are instead irreducible “occult qualities.” In the Inquiry, the paradigm moral perception was of benevolence, and one of the main points of the second Inquiry was to show-contra Mandeville and in support of Shaftesbury-that self-interest was an insufficient base for morality, and that benevolence was rather the basic moral motivation.
Hutcheson’s theory of moral perception supported his account of virtue as well. In the Inquiry Concerning Virtue or Moral Good, he defined virtue in terms of actions or characters that
by a superior Sense, which I call a Moral one, we perceive Pleasure in the Contemplation of such Actions in others, and are determin’d to love the Agent, (and much more do we perceive Pleasure in being conscious of having done such Actions our selves) without any View of further natural Advantage from them.
As is clear from the definition, Hutcheson intended his account of virtue as an alternative to theories like those of Selden, Pufendorf, Hobbes, Locke, Barbeyrac, and Carmichael that took self-interest as the basic, human motivation, and morality as obedience to a lawgiver with the backing of sanctions. For Hutcheson, the support for his own theory rested on the fact of disinterested benevolence, which he argued for at great length in his early works, and on the veridicality of the faculty of moral perception. Both supports were connected through our ability to correctly perceive our own moral motivations, when we disinterestedly approve of the benevolence of others. And, even when we incorrectly judge the actions of others, when we think that others are acting kindly, and they are really scheming, what we approve of is the action properly performed, i.e., from benevolent, rather than from interested, motives. When we realize that a perception is incorrect, we correct it and disapprove, just as we correct errors in our judgments of visual perceptions arising from illusions. But the standard of moral praiseworthiness remains the same, namely, an action pleasing to the spectator insofar as it arose from benevolent motives.
How, then, did Hutcheson view rights, given his theory of virtue? He first treated rights in the final section of the second Inquiry, “A Deduction of some Complex moral Ideas, viz. of Obligation, and Right, Perfect, Imperfect, and external, Alienable, and Unalienable, from this moral Sense.” this was also Hutcheson’s initial attempt to generate the doctrine of right from the moral sense theory, and so make it consistent with natural law theory.
Hutcheson defined ‘obligation’ as “[w]hen any Sanctions co-operate with our moral Sense, in exciting us to Actions which we count morally good … but when Sanctions of Rewards or Punishments oppose our moral Sense, then we say we are brib’d or constrain’d.” He took the distinction between obligation and constraint as pivotal, insofar as a system built on self-interest would be unable to distinguish between a morally-fulfilled obligation and coercion: one would be no more moral in fulfilling a duty rooted in interest than “a Monkey under the Discipline of the Whip.” Instead, the sentiment of benevolence was as necessary for true moral obligation as it had been for virtue. It was necessary in both cases, since moral motivation was key to moral obligation-both insofar as the proper sentiment was essential for the obligation to be discharged in a salutary way, and, more broadly, as the motivation reflected the virtue of the agent.
[w]henever it appears to us, that a Faculty of doing, demanding, or possessing any thing, universally allow’d in certain Circumstances, would in the whole tend to the general Good, we say that any Person in such Circumstances, would in the whole tend to the general Good, we say that any Person in such Circumstances, has a Right to do, possess or demand that thing. And according as this tendency to the publick Good is greater or less, the Right is greater or less.
When Hutcheson’s accounts of obligation and right are combined, we have something like the following. A corrigible moral sense effectively tracks the general good, just as a corrigible sense of sight effectively tracks states of affairs in the external world. Rights are those entitlements or possessions that the moral sense recognizes as tending to the general good, and such rights vary with the contribution to the public good. It is easy to see the interconnection between this account of right and Hutcheson’s spectatorial discussion of virtue.
Those rights that all human beings have-those that are “universally allow’d” for the general good-are perfect, inviolable, or inalienable. Hutcheson did not discuss “natural rights” in the Inquiry. Following Pufendorf and Barbeyrac, Carmichael had divided rights into natural and adventitious (or those which “arise from some human action or other event”). As I will discuss in a moment, Hutcheson drew on this distinction in the Short Treatise and the System. For Carmichael, like Barbeyrac, natural rights were primary, and adventitious rights had warrant insofar as they were superadded upon natural rights and drew on “particles” of natural liberty. Adventitious rights, in other words, were rights only insofar as they were derived from those natural rights placed into our human frames by God.
When viewed against this background, what is most innovative about Hutcheson’s theory of rights is that, for him, the warrant for a right did not arise from individual “particles” of natural liberty, but rather from a holistic, external, real, “public” system. The ultimate warrant for a right is the general good, and rights are “universally allow’d” only insofar as they are necessary for the general good. In pressing this holistic line, Hutcheson was extending arguments found in two of his primary influences: the natural lawyer, Richard Cumberland, and Shaftesbury.
In the seventeenth and eighteenth centuries, Richard Cumberland was considered to be one of the most important natural lawyers alongside Grotius and Pufendorf. In his De Legibus Naturae disquisitio philosophica (1680), Cumberland constructed a theory of obligation that turned on benevolence for others and for the public good in opposition to the “selfish” theories of Hobbes and Selden. Through the rigorous application of a mathematical method to morals, the immutable moral structure of this world, which God had created, could be made manifest, and immutable causal connections could be discovered and understood, much as the causal laws of the physical world had been understood mathematically by the Cartesians. The key was benevolence:
[U]nder these few Relations or Respects of Duty also, we shew after what Manner this one single Affection, or strong Propensity [Benevolence] towards the Common Good is fully, from the very nature of it, sufficient to promote all these relative Duties and Offices. And the Reason is, Because universal Love or Benevolence naturally opposes and contradicts all Motions of a contrary tendency … From hence it manifestly appears, that, the very same Law which lays the Obligation of such an Affection, lays the Obligation at the same time also, of Coercion, of Restraint, upon all Motions and Attempts opposite to, and destructive of such an Affection.
Cumberland was an important source of Hutcheson’s thesis that benevolence is the basis of obligation and right, and that one is ultimately obliged to act from benevolent sentiments for the good of others, and for the common good. What is right, in other words, and what one has a right to, is that which is right for the common good, and is normally cashed out in terms of happiness. Hutcheson also inherited much of Cumberland’s optimism in the harmony of individual and group happiness—an optimism anchored in providentialist theologies quite different from the assumptions about natural depravity found in Carmichael, Pufendorf, and Hobbes.
Finally, Cumberland saw the theory of obligation as interconnected with—in fact, as coeval with—a virtue theory. It is not surprising that Cumberland advocated virtue theory insofar as the affective state of the actor was a necessary condition of the appropriate fulfillment and discharge of the obligation, in contradistinction to a theory that stressed self-interested actors only obliged to moral laws by external sanctions. The stress on virtue theory also reflects Cumberland’s debts to the Cambridge Platonists.
The virtue theory was developed even further by Hutcheson’s other primary influence: Shaftesbury, in “An Inquiry concerning Virtue and Merit,” and in the philosophical dialogue, “the Moralists, a Philosophical Rhapsody.” Like Cumberland45 and the Cambridge Platonists, Shaftesbury portrayed the physical world as an interconnected whole made up of animals with diverse functions, and stressed that we can know the order of nature through the functions that “the many Proportions and various Shapes of Parts in many Creatures actually serve,” and through the causal consequences of these functions—the ends that their frames dictate: a chicken’s beak is for pecking, a grizzly bear’s claw for grabbing salmon, and so forth.
This last example shows that these functions often interrelate animals to animals of different species in an implicit hierarchy. Shaftesbury used this to construct a theory of natural social virtue. According to Shaftesbury, each “sensible creature” seeks its natural ends, which in turn dictate what we consider to be the creature’s excellences, its “virtue.” Following Cicero and Cumberland, Shaftesbury emphasized the particularly social character of virtue and how it dictated an interlocking economy of functions. A spider without a fly is not much of a spider. In many cases, consequently, virtues and functions are understood in relation to other creatures, with interconnected but different functions, and the order that they establish. In absence of the other creatures, the ordering character of the functions—that spiders eat flies—would not be present, and their function would not be exhibited.
What does this have to do with morals? Shaftesbury stressed that only humans were capable of morals, as only human beings have the capacity to form general notions, and our ability to make judgments about actions, and the affections from which actions arise, depend on our capacity for abstraction. Only in this case do we call any Creature worthy or virtuous, when it can have the notion of a publick Interest, and can attain the Speculation or Science of what is morally good or ill, admireable or blameable, right or wrong. For tho we may vulgarly call an ill Horse vitious, yet we may never say of a good one, nor of any mere beast, Idiot, or Changeling, tho ever so good-natur’d, that he is worthy or virtuous.
Much as was the case for Cumberland, for Shaftesbury, natural virtue was dictated by the individual economy of each natural being, and by the way it interacted with others in the natural economy. Still this was (at most) a necessary, but not a sufficient, condition for moral action. Instead, a moral judgment, or a moral virtue, must also arise from, and be grounded in, sentiments of public interest, and in our understanding of the system. Although endowed with natural virtues, animals do not have the cognitive capacity to be moral. Cumberland had also argued that cognitive incapacity rendered brutes unaccountable to the natural law.
Hutcheson on Animal Rights
In 1728, a follower of the moral rationalist Samuel Clarke and a vigorous polemicist, John Balguy, wrote an attack on Hutcheson entitled, The Foundation of Moral Goodness: or a Further Inquiry into the Original of our Idea of Virtue. Among his many objections, Balguy noted (quite rightly) that Hutcheson’s stress on sentiment seemed
to expose him to the necessity of allowing some Degree of Virtue to Brutes … There is no reason to doubt, but Brutes, as they are capable of being treated by us either mercifully, or cruelly, may be the Object either of Virtue or Vice. But the present Question is, whether according to our Author’s Account of Moral Good, they are not also in some measure Subjects of Virtue.
Ten years later, while finishing, or shortly after finishing, the draft of the System, Hutcheson revised the Inquiry. One of the most significant changes was a lengthy response to Balguy in the final chapter of the second Inquiry, the chapter on rights I examined in the previous section:
Some also object, that according to this Account, Brutes may be capable of virtue; and this is thought a great Absurdity. But ’tis manifest, that, I. Brutes are not capable of that, in which this scheme places the highest Virtue, to wit, the calm Motions of the Will toward the Good of others; if our common Accounts of Brutes are true, that they are merely led by particular Passions toward present Objects of Sense. Again, ’tis plain there is something in certain tempers of Brutes, which engages our Liking, and some lower Good-will and esteem, tho’ we do not usually call it Virtue, nor do we call the sweeter dispositions of Children Virtue; and yet they are so very like the lower Kinds of Virtue, that I see no harm in calling them Virtues. What if they are low Virtues in Creatures void of Reflection, incapable of knowing Laws, or of being moved by their Sanctions, or by example of Rewards or Punishments? Such Creatures cannot be brought to a proper trial or Judgment: Laws, Rewards, or Punishments won’t have these effects upon them, which they may have upon rational Agents. Perhaps they are no farther rewarded or punished than by the immediate Pleasure or Pain of their Actions, or what Men immediately inflict upon them. Where is the Harm of all this, that there are lower Virtues, and lower Vices, the Rewarding or Punishing of which, in Creatures void of Reason and Reflection, can answer no wise end of Government? (Hutcheson, Inquiry, 244)
Hutcheson is clearly accepting the implication that Balguy drew from his emphasis on the role of sentiment in virtue, in the Inquiry and the in Essay with Illustrations. Animals are capable of “lower Kinds of Virtue,” as are children, insofar as they have particular “sweeter dispositions” which are approved of by spectators. Unlike Shaftesbury and Cumberland, Hutcheson does not suggest that (due to animals’ lack of reflective or cognitive capacities) these are “natural virtues,” as opposed to moral virtues. Why not rather consider them to be moral virtues-albeit to a lesser degree-insofar as some of the basic constituents of virtue (sentiment and spectator approval) are present? Unlike Montaigne and Bayle, the evocation of animal virtue is not meant to be sardonic, or to make human beings recognize their own depravity; far from it. Hutcheson clearly viewed animal virtue (and child virtue) as reinforcing the superiority of virtue in adult human beings, insofar as they had different places in a hierarchy.
A serious theory of animal virtue is a first step toward animal rights, in particular, given Hutcheson’s interconnecting of virtue and right. But how, then, to take the next step to animal rights? Like Carmichael, whom he succeeded at Glasgow, Hutcheson’s moral philosophy teaching, as opposed to his early writings, centered on natural law. And it was in the context of his pedagogical writings that he first addressed the problem of animal rights.
Hutcheson initially based his moral philosophy course at Glasgow on Carmichael’s notes on Pufendorf, but the lectures soon took a form very close to the posthumously published System of Moral Philosophy. Hutcheson began writing the System in the early 1730s, completed it in 1737, and circulated it among his friends, only to abandon the project by 1741. The System was edited by William Leechman and published in 1755. It includes Hutcheson’s most extensive treatment of rights and duties and his most extensive attempts to unite natural law, moral sense theory and theodicy in a cogent system.
In addition, in 1742, shortly after he abandoned the System, Hutcheson published a brief compendium of moral philosophy for his students, the Philosophia Moralis Institutio Compendiaria, which appeared five years later in english translation as the Short Introduction to Moral Philosophy. There are differences between the Short Introduction and the System, but for the purposes of considering animal rights, the differences are less important than the affinities, so I will discuss the System (since the treatment of animal rights there is more detailed, and most of what I say will hold, by extension, of the Short Introduction).
As has now hopefully been made clear, there were serious problems in developing animal rights within the natural law frameworks of Pufendorf, Barbeyrac, Carmichael, and even Cumberland. So what niche did animals have in the sort of natural-law scheme on which Hutcheson lectured? How could property be the anchor for obligations? And how did Hutcheson respond to Carmichael’s criticisms of moral obligations to animals-criticisms that he must have had in mind, given the genesis of the System?
As noted, the System includes an extensive treatment of rights-including Hutcheson’s treatments of the right to resistance, the right in the state of natural liberty, and many of the other inherited topics of natural rights theory. The problem he had in addressing this range of topics was how to derive the complex structure of classical, natural law theory from benevolence, the common good, and spectator approval. Throughout the System, Hutcheson stressed the importance of benevolence and the common good, and attempted to show how the particular roles, duties, and obligations of classical, natural law theory were “constituted for … happiness, in consistence with and subserviency to the general interest.” In the System, he defined a right as a claim a man has “when his acting, possessing, or obtaining from another in these circumstances tends to the good of society, or to the interest of the individual consistently with the rights of others and the general good of society, and obstructing him would have the contrary tendency.”
He derived more specific duties by stressing the local character of system, i.e., the particular rights and duties that the human system demands for the happiness of human beings. So, Hutcheson justified the duty to prevent suicide, “as we are formed by nature for the service of each other, and not each one merely for himself; each one is obliged to continue in life as long as he can be serviceable.” Whatever Hutcheson’s ultimate success—and some rights were more difficult to derive convincingly than others—that particular rights were an anchor for the happiness of the system as a whole was crucial for his thinking about rights.
It was important for his justification of animal rights as well. To do this, Hutcheson provided two noteworthy innovations. First, he created a niche for animals in his natural law theory between property and servants as legitimate property of a special sort-inferiors capable of feeling pleasure and pain. As a consequence of the fact that animals could feel, they were owed the consideration of superiors in a way that trees and grass are not. Second, Hutcheson developed our duties to domestic animals. Here we see the consequence of the first problem that I noted Hutcheson must have had with Carmichael’s denial that God had made a provision for society between men and animals. It is, of course, difficult to coherently claim that we have duties to animals in each and every case. It would be absurd to claim that we have a duty toward a bear attacking us, or in fact any animal with which we compete for resources. But contra Carmichael, Hutcheson asserted that there are examples of a divine “provision” for the cultivation of society with animals all around us, in every pasture and feed yard, and curled up by every hearth: domestication. Furthermore, Hutcheson presumed that the happiness of members of the system is, along with God’s desire for our happiness, a sufficient basis for the justice of the system, and that the desires of the members of the system for happiness is, then, thoroughly interconnected with justice:
Here is plainly a well ordered complex system, with a proper connexion and subordination of parts for the common good of all … Thus by human dominion over the brutes, when prudently and mercifully exercised, the tameable kinds are much happier, and human life exceedingly improved. And this sufficiently shows it to be just. (Hutcheson, System, II.vi.iii)
This is a striking claim, justified along the lines of Cumberland and Shaftesbury by the good or happiness of the system. But, unlike Shaftesbury and Cumberland, Hutcheson held that our obligation is independent of animals’ capacities “of considering the notions of right and wrong.” Here we can see Hutcheson affirmatively answering the first and second questions-which must have occurred to him upon reading Carmichael-that there is a moral community between men and animals providing a sufficient basis for duty or obligation.
Hutcheson’s argument for animal rights was not the only strikingly “modern” position for which he argued. In the Short Introduction and the System of Moral Philosophy, he offered arguments for two other liberal doctrines that we might consider profoundly enlightened. He argued against Locke’s “just war” justification for slavery influentially enough to have been quoted as a support for the arguments of the abolitionist Anthony Benezet in his anti-slavery tract, A Short Account of that Part of Africa Inhabited by the Negroes. And Hutcheson argued, quite surprisingly, that women ought to have equal standing in the internal deliberations of families, if the women are as capable of reason as the men, for as he says “nature shews no foundation for any proper jurisdiction or right of commanding in this relation.”
But, insofar as they involve rational, human agents, servitude and marriage differ from the standing of animals. Still, in both cases, Hutcheson’s justifications partly rested on extra-rational considerations. In the case of women, Hutcheson took it to be empirically the case that men are generally stronger of body and mind than women, although “the superiority of males in the endowments of mind does not at all hold universally.” And he stressed that the passionate relations between men and women are far more important than cognitive differences as anchors of moral propriety. Even when women are inferior, inferiority “does not give perfect right of government in any society.” Similarly, the inferior status of a human being could not warrant his being enslaved.
So what about animals then? As I have just emphasized, contra Carmichael, Hutcheson viewed humans as capable of forming evolving, providentially-governed, moral communities with domesticated animals. In presenting this view, Hutcheson presumed that we have affinities to animals, and animals to us, which allow for such a moral community. Of course, Shaftesbury, Cumberland, Carmichael, Locke, and many others thought that humans and animals share mental powers, but they also thought that only creatures capable of understanding laws can be held morally culpable and, by extension, can be morally praiseworthy or blameworthy. This was, in turn, the precondition of a moral community governed by natural law. Thus, there are affinities between human beings and animals, but not moral affinities.
By emphasizing the central role of the passions in morality, as well as the continuity between human and animal passions-most importantly, benevolence and the desire for happiness-Hutcheson was able to treat animals’ passionate natures as morally affine to man’s moral passions. This was a drastic shift in the inherited picture of the natural law. Something can matter morally, even if it has no moral sense and no cognitive capacities, due to the fact that we approve of its sentiments, and it has a desire for happiness (as a desire to avoid pain). Hutcheson had put himself into conflict with the parallel natural law traditions of Pufendorf, Locke, Barbeyrac, and Carmichael, on the one hand, and More, Cumberland, and Shaftesbury, on the other hand, and drawn out an ongoing problem, the moral status of animals. He had resolved the problem (for himself) by drawing on a tendency in Cumberland and Shaftesbury that neither had fully embraced, by stressing moral justification as deriving externally from the good of the system as a whole (and the capacity of the moral sense to track the systemic good through perceiving real moral qualities), and by minimizing the role of the individual agent’s cognition as the necessary condition of making an act moral, or morally relevant. It is essential, in other words, that a guiding reason is involved in coordinating the happiness of the system, but the reason can be externally derived from the system, if the precognitive child, or non-cognitive child, has the proper dispositions.
For Hutcheson, this shift was crucially interconnected with right:
These considerations would clearly shew that a great increase of happiness and abatement of misery in the whole must ensue upon animals using for their support the inanimate fruits of the earth; and that consequently it is right they should use them, and the intention of their Creator. (Hutcheson, System, I/II.vi.ii)
Because he stresses that it is right that animals use the inanimate fruits of the earth, insofar as it leads to “a great increase of happiness and abatement of misery,” Hutcheson provides a non-cognitive basis for ascribing rights to animals, and this right seems derivative of the justice of the system, and the universal desire for happiness. This does not mean that charging bears have a right against us. Hutcheson maintained that animals and humans form “a well ordered complex system, with a proper connexion and subordination of parts for the common good of all,” but he also stressed that our relations to domesticated animals and responsibilities to them vary with the needs of the superior members of the community: men. A charging bear takes away the happiness of a human being, and so, even though it is right that it have access to the fruits of the earth, in this case, it is trumped by human happiness. This holds, as well, of the local systems which animals and humans form. In times of scarcity and crisis, we owe animals nothing; the community in which they are junior members dissolves, as it can no longer sustain itself. In better times, we should defend the tamer species that, in turn, work for us, and thus “by human dominion over the brutes, when prudently and mercifully exercised, the tamable kinds are much happier, and human life exceedingly improved.”
Similarly, Hutcheson insisted, as Barbeyrac had, that we are perfectly justified in eating animals, since it is in “the interest of the animal system that the nobler kinds should be increased, tho’ it diminished the numbers of the lower.” There is a real hierarchy of beings, and this hierarchy enters into our judgments about individual happiness and the happiness of the system as a whole. But there are limitations on how this can be carried out, and here we begin to move from the fact that it is right that animals have access to the fruits of the earth, to animal rights. Hutcheson claimed that, since the whole system aspires to happiness, and is governed accordingly, animals too have a right to happiness:
Brutes may very justly be said to have a right that no useless pain or misery should be inflicted on them. Men have intimations of this right, and of their own corresponding obligation, by their sense of pity. ’tis plainly inhuman and immoral to create to brutes any useless torment, or to deprive them of any such natural enjoyments as do not interfere with the interests of men. ’tis true brutes have no notion of right or of moral qualities: but infants are in the same case, and yet they have their rights, which the adult are obliged to maintain. (Hutcheson, System, I/II.vi.iii)
The sentiment and pity men have toward animals is a clue to the fact that animals have certain rights, and we have reciprocal obligations. Animals have a natural right to happiness, which God wishes them to seek, and-unless it must be undercut such that a being of higher standing in the system, namely, man, should be properly happy-that right should be respected. Men, therefore, are obliged neither to cause them pain nor to deprive them of their pleasures without reason.
We can also see why the community between men and animals is so important for backing presumptive animal rights. If domestic animals and humans form communities, some of the ways in which animals contribute to human happiness-and the happiness of the system as a whole-will be quite evident: pony rides, milk, eggs, and plow-pulling. As these animals clearly add to happiness, and do not cause misery, there can be no “just” warrant for taking away their happiness. They have a role in the moral system, and through it, an adventitious or acquired right anchored in the common desire for happiness.
Note that Hutcheson has transferred the ground of moral obligation from cognizance of moral qualities to natural desire for enjoyment and the shared capacity for system. This is anchored in a fundamental shared passion, the desire for happiness, which is able to draw together different sorts of beings in a system serving the happiness of all of its members in their differing degrees and importance. In transferring moral obligation, Hutcheson moved toward a utilitarian line of argument by implying that, since all parts of creation aspire to happiness-the reason they enter communities in the first place-the desire for happiness is basic to humans and animals, and prior to communities. It is instilled in all of creation, and all of creation attempts to be as happy as possible. Domestic animals can and do become part of these communities, in the first place, only because they strive for natural enjoyments; they have desires through which a right can be established and anchored-their passions and sentiments susceptible to incorporation and domestication. This allows for rights to be granted and backed by local systems of beings seeking happiness, whatever their standing outside of the system.
The emphasis on domestication and communities, and the emphasis on the universal desire for happiness of sentient beings, point in two different directions for justifying animal rights. On the one hand, animals have a right like all other sentient beings insofar as God thought it right that they be happy. For Hutcheson, this is a feature of the justice of the system, and the desire for happiness of the members of the system is a reflection of the overall purpose of the system. It is not difficult to see how this could be interpreted as a utilitarian justification. On the other hand, domestic animals have special adventitious rights, like all domestics, insofar as they are important contributors to the happiness of a local community through their roles. If pursued, this line might lead to a theory of historically acquired rights in the spirit of Hume, Smith, and Millar.
Finally, the system is governed by a superior: man with his moral sense. Here Hutcheson employs the traditional image of stewardship within his unorthodox theory. Man is the steward of the limited part of the system that he controls: one system within the vast world system. Each man is able to be a steward, because his moral sense is effective in tracking the real happiness of the system, and in approving or condemning the motives of those who make it up. And he is necessary to the system. But the moral sense is not the sole basis of morality; the warrant for duties and obligations arises from the system that the steward appropriately ministers to on the basis of his sense.
We can see the importance of the holism for the justification. On the one hand, in order for animals to find their moral place and acquire their moral rights, there must be someone with a moral sense who recognizes their contributions to the happiness of the whole and backs their presumptive rights. On the other hand, they are owed moral duties all the same, independent of their cognitive capacities, due to the fact that they feel. This second line of justification was developed in an important way by Humphrey Primatt.
Humphery Primatt and Christian Utilitarianism
Primatt opened his A Dissertation on the Duty of Mercy and Sin of Cruelty to Brute Animals (1776) by considering the role of animals in the system of creation.70 In order to see the import of Primatt’s work, we might examine the following line of argument defended in Soame Jenyns’ notorious A Free Enquiry into the Nature and Origin of Evil. Assume an objective scale of being-as many eighteenth-century philosophers and theologians did-from plants to oysters, to the “brutal Hottentot,” to Bacon or newton, to “the inhabitants of other planets, to angels,” and finally, to “the footstool of the celestial throne.” Assume, further, that the value of the happiness or pleasure of the members of the system varies according to their objective standing on the scale of being: angelic happiness is greater than oyster happiness and brings greater happiness to the system as a whole. As a consequence, due to the nature of the system, sometimes beings of the lower ranks must be used for the pleasure of the higher: we eat chickens (they would likely prefer not to be eaten), and chickens eat grubs (they would likely prefer not to be eaten), and so forth.
Two problems immediately arise in such a theory. First, as Johnson noted rather pointedly in his famous criticisms of Jenyns, this gives angels warrant to torture us for their amusements, and presents the world as a kind of grande guignol. Second, if the objective differences are dramatic enough-humans and puppies, let us say-then it would seem that the pleasure of the higher ranks of beings could not be easily offset by the pain of lower-ranking beings. So, if you get a minimal pleasure from tormenting a puppy, this is still an objectively greater good than the pain of the puppy is a deficit.
Now, although Primatt does not name Jenyns, this appears to be the sort of justification of animal suffering to which he is responding. According to Primatt, a theory like Jenyns’ presumes that we have access to the objective standing of creatures on the great chain of being. But the great chain also normally assumes some sort of holistic interconnection between the parts of creation. So, if a philosopher is committed to nature as a unified system, where “[e]very creature is to be considered as a wheel in the great machinery of nature,” then, Primatt believes, they are tacitly committed to give all creatures dignity and respect, because we cannot really be sure what the systemic consequences of qualities we find disgusting really are. Even those defects found in a creature-which we might view as a warrant for our cruelty-could have an important positive, although remote, function qua the system, and thus provide no warrant to despise said creatures. A spider may eat flies and indirectly prevent a child from getting an infection, and so forth. Certainly, we have insufficient knowledge of the inner workings of the system to warrant cruelty.
But Primatt wanted more than to simply deny warrant for extraneous cruelty (which, as we have seen, was a commonplace of eighteenth-century moral theories). Is there any way to anchor an obligation, or duty of mercy, from human toward fly? Primatt derived the duty of mercy from two arguments, both of which conferred moral standing and moral rights on animals. First, he made explicit the right to happiness implicit in Hutcheson’s theory, and he anchored it not only in the general aspirations of the System toward happiness, but also in individual sensibility:
Yet, in one particular we all agree alike, from the most perfect to the most dull and deformed of men, and from him down to the vilest brute, that we are all susceptible and sensible of the misery of Pain … Superiority of rank or station exempts no creature from the sensibility of pain … Pain is pain, whether it be inflicted on man or on beast; and the creature that suffers it, whether man or beast, being sensible of the misery of it while it lasts, suffers Evil.
Primatt takes this sort of argument to back a right: “yet if I will not kill him till to-morrow, I ought not put him to pain to-day; for Whilst he lives, he has a right to happiness, at least I have no right to make him miserable.” Although Primatt is qualifying his claim, he clearly thinks that the former is the case—that the animal has a right to happiness, not just the right not to be miserable. Much like Hutcheson, he argues that our primary duties are toward domestic animals, and our duties toward wild animals are mainly to “Let them alone.” But still, the work done by domestic animals is not as important a basis for obligation as it is in Hutcheson’s theory, and there is no discussion of adventitious rights. Even more than Hutcheson, Primatt stressed justification in terms of the universal system, and our repulsion toward cruelty as the clue to our obligation to kindness. Pain is pain-we immediately respond with horror when confronted by it—and as such, it is to be avoided regardless. The intrinsic quality of pain (or happiness) is a secondary question; the moral duty rests on the brute fact of pain and pleasure.
Second, Primatt used the great chain of being against many of its exponents, to safeguard the standing of inferiors by arguing that the discrepancies between the various rungs on the chain make “the cruelty of Men to Brutes … more heinous (in point of injustice) than the cruelty of Men unto Men.” The difference of station between man and animal entails that an act of cruelty by a man towards an animal is an abuse of an inferior—an inferior that has its own happiness and its own purpose. Worse, it is the abuse of a subaltern inferior—a creature that cannot speak or seek redress and often has little means to defend itself. In this way, it is like the torture of an infant, and Primatt implied that, when we see a man acting cruelly towards an infant, the helplessness of the child and its inability to plead for itself are what we find so abhorrent. There appears to be no utilitarian justification for this claim; rather, it rests on an argument from our moral intuitions. We find the abuse of infants to be heinous because of, not in spite of, the discrepancies in power and intelligence between adult humans and infants. There is no reason not to extend the same sort of argument to animals, for the differences between animals and infants are not relevant in re this justification. We do not have this stance toward animals because, for various reasons, we are incapable of opening our hearts towards them. Thus, unlike Hutcheson, the violation of the duty to inferiors entails even stronger disapprobation than towards equals or superiors.
In a celebrated footnote to the Introduction to the Principles of Morals, Jeremy Bentham claimed:
The day has been, I grieve to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated by the law exactly upon the same footing, as, in england for example, the inferior races of animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognized, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog, is beyond comparison a more rational, as well as a more conversible animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason? Nor, Can they talk? But, Can they suffer?
Bentham’s statement is initially puzzling, since he claimed elsewhere that rights were only meaningful when backed by laws. And he stressed that a belief in entitlements that the state could not abrogate for the whole advantage of society was a destructive lie when it got in the way of happiness. Rights talk, practically speaking, is often used to deprive a group of social privileges, while at the same time trumpeting the universality of human rights to cover the injustice. Furthermore, “universal” rights are reasonably abrogated all the time: what are jail and fines but the abrogation of the right to move about freely and the right to property for public benefit? Consequently, Bentham thought talk of universal rights, or natural rights, at best inconsequential, and at worst actively destructive.
Bentham was able to grant rights with one hand and take them away with the other, because he was criticizing not rights as such, but rather a particular cluster of theories that sought warrant for natural rights independent of the principle of utility. To pull animals into the arena of rights, for Bentham, is to pull them into the arena of deliberations about utility. One can do this because pain and pleasure do not depend on the capacity to reason, although reason is necessary to make extensive judgments about the utility of the system, in general: this demands reasoners and legislators. But, much as for Hutcheson and Primatt, pain and pleasure are the essential precondition of moral rights, not adult reason, as in the Lockean tradition.
Consequently, Bentham can be seen as having given a concise secular expression to one of Hutcheson and Primatt’s arguments, and as having taken it an important step further. Although there is no proof that he relied on either author, as far as I know, in his discussion of animal rights, similarities to their writings can be found throughout the note. In line with Primatt, Bentham stressed that “right” was merely the moral desire all creatures have for happiness and aversion to pain-albeit with the crucial proviso that it be backed by law. Animals ultimately should acquire political rights, as we cannot deny that they, like us, are pleasure-seekers and painavoiders. As they are pleasure-seekers and pain-avoiders, they ought to be included when we deliberate on the happiness of the aggregate-on how best to give pleasure to and make happy those who seek happiness, and conversely to help to avoid pain. As with Primatt, it is our own fault that we cannot see that animal pain and pleasure matter; unlike Primatt, the arguments have no religious warrant. As with Hutcheson, animals should acquire rights, and only when their rights are backed by legislation will happiness be served. Bentham effectively replaced Hutcheson’s moral steward (with his moral sense) with the wise utilitarian legislator, taking extensive utility fully into account and promoting utility with the law.
Examining the line from Pufendorf to Barbeyrac, to Carmichael, to Hutcheson, to Primatt, to Bentham, one sees an alternative history of rights. Instead of universal rights being expanded to include all types of rational, mature human beings, the non-cognitive ability to feel pain and pleasure became the focus, moving rights beyond reason and species to include all types of pain-avoiders and pleasure-seekers. Instead of referring to ever-present human rights, we see the idea of rights as acquired-and, therefore, potentially acquirable-by all pain-avoiders and pleasure-seekers who need them. Pain is pain, pleasure is pleasure. In the absence of providentially guided systems, rights can be backed only by political laws; anything besides is just a fantasy, at best, and power-grabbing, terroristic nonsense, at worst. Thus, for Bentham, rights are political grants of communities, not features of the providential community of creation. We are all, more or less, deserving animals, and we all ought to have rights. This alternative way of thinking about rights was first initiated by Hutcheson’s daring argument for animal rights.