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Animal Rights in a Diverse Society ANIMAL RIGHTS IN A DIVERSE SOCIETY Marcus Schultz-Bergin A Dissertation Submitted to the Graduate College of Bowling Green State University in partial fulfillment of the requirements for the degree of Doctor of Philosophy December, 2017 Committee: Michael Weber, Advisor Gary M. Heba Graduate Faculty Representative Kevin Vallier John Basl ii ABSTRACT Michael Weber, Advisor This dissertation defends the following thesis: the legal status of non-human animals as property is politically illegitimate. Instead, I argue that humans should be legally understood as guardians over those animals under their tenure. This guardianship relation involves limits on what humans may do to animals, limits which do not currently exist in our society. Most notably, guardians are required to act in the interest of their wards, and so guardians cannot kill or transfer the animals under their tenure unless doing so would be best (or at least good) for the animal. My position broadly fits with, but importantly differs from, much of the recent political philosophy literature focused on animals. I agree that ownership is inappropriate, but argue that considerations of political legitimacy lead us to the guardianship relation rather than full legal personhood. This position falls out of taking seriously the public reason challenge to justice for animals, which appeals to public reason liberalism to argue that the pursuit of justice for animals would be illegitimate. Thus, I examine important debates in public reason liberalism to develop an attractive model of that theory of legitimacy and then apply it to the question of the legal status of animals. iii To my father, Steve Bergin 11/21/1950 - 08/13/2007 iv ACKNOWLEDGEMENTS This dissertation would not have been possible without the support, guidance, and feedback of a variety of people. First, I’d like to thank my advisor Michael Weber, as well as the rest of my committee: Kevin Vallier, John Basl, and Gary Heba. Michael’s constant support through this process has been immensely beneficial, and his constant skepticism and pressure on the positions I put forth certainly made this dissertation better. It was Kevin who first introduced me to public reason liberalism, and his expert knowledge has been invaluable. I thank John for his guidance in my work in animal ethics, which also led me to this dissertation as well as his feedback on earlier versions of this dissertation. Finally, I’d like to thank Gary for his time and support through this process. There have also been a number of others who have provided feedback in presentations or on earlier versions of parts of this dissertation. My special thanks to Julia Netter, Tony Boese, Ian Werkheiser, Jason Wyckoff, and Mylan Engel, Jr. Additionally, many of the graduate students at Bowling Green graciously allowed me to bounce ideas off of them and provided feedback on the various ideas in this dissertation. In particular, I’d like to thank Tim Walsh, David Schwan, Ryan Fischbeck, and Colin Manning. Many others have also been involved, and I apologize I cannot mention them all by name. Finally, I’d like to note my deep gratitude to three incredible people in my life. Margy Deluca is the lifeblood of the BGSU philosophy department and I do not think any graduate student could make it through the program without her assistance. My mother, Debbie Schultz, has also been immensely supportive of my work, even sitting through a presentation of some of the ideas of this dissertation. Last, Tatiana Gracyk, who helps me work through ideas all day but v unlike my other colleagues, she still has to put up with me when the work day is over. I cannot thank her for her constant support and insight enough. vi TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 CHAPTER I. THE PUBLIC REASON CHALLENGE TO JUSTICE FOR ANIMALS .............. 5 1. Liberalism and Animals: The Orthodoxy ............................................................................... 7 2. The Political Turn and Justice for Animals .......................................................................... 10 3. Political Legitimacy and Public Reason ............................................................................... 15 4. Responding to the Public Reason Challenge ........................................................................ 20 4.1. Liberal Perfectionism and Pursuit of the Good .............................................................. 20 4.2. An Asymmetry between Justice and the Good .............................................................. 23 4.3. Legitimacy is about Procedure ....................................................................................... 28 5. Animals and the Incompleteness of Public Reason .............................................................. 31 6. Conclusion ............................................................................................................................ 36 CHAPTER II. LEGITIMACY IN A DIVERSE SOCIETY ......................................................... 37 1. The Scope of Public Justification ......................................................................................... 41 1.1. Social Tyranny and Non-State Coercion ....................................................................... 43 1.2. The State and Social Overlap ......................................................................................... 44 1.3. Social Tyranny and Corrective State Action ................................................................. 48 1.4. Individuating Coercive Social Arrangements ................................................................ 51 2. The Constituency of Public Reason ...................................................................................... 53 vii 2.1. Idealization and the Goal of Public Justification ........................................................... 55 2.2. Populism, Disagreement, & the Legitimacy of Liberal Institutions .............................. 57 2.3. Diversity and Radical Idealization ................................................................................. 58 2.4. Embracing Diversity & Liberalism: Moderate Idealization .......................................... 62 2.5. Moderate Idealization in Practice .................................................................................. 66 2.6. Idealizing Motivation ..................................................................................................... 69 3. The Reasons of Public Justification ...................................................................................... 71 3.1. The Incompleteness of Consensus Models .................................................................... 72 3.2. Consensus, Convergence, and the Bases of Public Reason ........................................... 75 3.3. Asymmetry, Accessibility, and Public Reasons ............................................................ 79 4. Conclusion: The Wide Asymmetric Convergence Model of Public Reason ........................ 84 CHAPTER III. DOES ASYMMETRIC CONVERGENCE RISK ANARCHY? ........................ 86 1. Convergence Liberalism and the Anarchy Objection ........................................................... 89 2. Full Anarchy, Sufficient Reason, and Social Coordination .................................................. 93 2.1. Disagreement, Ranking Proposals, and Sufficient Reason ............................................ 94 2.2. The Value of Social Coordination ............................................................................... 101 2.3. Vindicating Liberalism ................................................................................................ 105 3. Abstraction, Social Coercion, and the Min-archy Objection .............................................. 107 3.1. Agency, Redistribution, and Welfare Liberalism ........................................................ 108 3.2. Social Coercion and Social Justice .............................................................................. 112 viii 3.3. The Modern Liberal Welfare State .............................................................................. 114 4. Beyond Min-archy: The Order of Justification, Accommodation, and Exemption ............ 115 4.1. The Order of Justification and (Objectionable) Anarchy ............................................ 117 4.2. Implementing Defeated Legislation: Exemption & Accommodation ......................... 122 5. Conclusion .......................................................................................................................... 125 CHAPTER IV. THE PUBLIC REASON CASE FOR ANIMAL GUARDIANSHIP ............... 127 1. Property and Public Reason ................................................................................................ 128 1.1. The Coercive Nature of Private Property Rights ......................................................... 130 1.2. The Fragmentation of Property Claims........................................................................ 131 1.3. Public Justification and “What can be Owned” ........................................................... 136 2. Property and Justice for Animals ........................................................................................ 140 2.1. Animals as Persons, not Property ................................................................................ 140 2.2. Justice and
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