Being Fair to Future People

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Being Fair to Future People:The Non-Identity Problem in

the Original Position

JEFFREY REIMAN

A natural illusion gets in the way of thinking clearly about our duties to

future people. In particular, it leads to confusion about the so-called

Non-Identity Problem discussed by Derek Parfit and others. Consider-

ation of duties to future people in John Rawls’s original position corrects

for this illusion and points to a solution to the Non-Identity Problem

based on a surprising but defensible conception of the morally relevant

interests of future people. Responding to a potential objection to this

solution from Parfit leads to recognition of an unexpected problem

of fairness between generations and, from there, to an additional and

more powerful justification of the solution to the Non-Identity Problemfound in the original position. The solution turns out to be a require-

ment of being fair to future people. I start by introducing the illusion

and the problem.

i. woody allen’s illusion and the non-identity problem

On the jacket of Woody Allen’s book Without Feathers , there is a brief bio

that describes Allen’s background and career, and ends with the line:“His one regret in life is that he is not someone else.”1 This joke works

because, like many jokes, it catches us holding a dubious belief that we

This is a revised version of a paper that was delivered as the Third Annual Evelyn Barker

Memorial Lecture at the University of Maryland Baltimore County on April ,

. An earlier version, entitled “What We Owe to Future People,” was presented at the

McDowell Conference on Philosophy and Social Policy on the topic “Ethics and

Genetics,” at American University in Washington, D.C., on November , . I thank Dan

Brock and Norman Daniels, speakers at that conference, for their comments and encour-

agement. I thank the faculty and students at both events for their probing and usefulquestions. I am grateful as well to the Editors of Philosophy & Public Affairs for their very

helpful comments.

. Woody Allen, Without Feathers (New York: Random House, ).

© by Blackwell Publishing, Inc. Philosophy & Public Affairs , no.



know is dubious but which we cannot easily remove from our belief system. In this case, the belief is that each of us is a particular individual

separable from our actual lives, and even prior to them in that we are

thought able to live one or another whole life. This belief is false: there

are no individuals apart from the lives they live; none that are waiting in

the wings, so to speak, to live this or that life. In honor of that very

philosophical comedian, I call this belief “Woody Allen’s illusion.”2 One

philosopher who was not taken in by Woody Allen’s illusion was Leibniz.

He is supposed to have said of someone who wished he were the King of

China, that such a person wished only that he himself did not exist and

that the King of China existed instead.3 Leibniz was right. However, that

hardly anyone who wishes she were someone else thinks that she is

wishing herself not to exist shows the grip that Woody Allen’s illusion

generally has.4

I think that Woody Allen’s illusion causes confusion in our reasoning

about our duties to future people. In particular, it leads us to treat people

in effect as if they have interests before they exist or even timelessly , that

they can only have once they exist. I say “in effect” here because theillusion does not normally take the form of explicit attribution of inter-

ests to people before they exist. It works more indirectly, say, by causing

us to miss—because we are not on the lookout for—important implica-

tions of the fact that certain interests can only matter once the person

whose interests they are exists.5 In the course of the discussion that

follows, we shall see the illusion at work in various ways.

. I do not, of course, suggest that Allen fell for this illusion. On the contrary, seeing

through the illusion is a necessary condition of seeing the humor in evoking it.

. Reported in Bernard Williams, Problems of the Self (Cambridge: Cambridge Univer-

sity Press, ), pp. –.

. I think this illusion has such a grip because it is natural to us as reflective beings. We

think about ourselves thinking. This has the odd but pervasive effect of making it feel like

our lives are happening before us, in front of our inner gaze. That in turn leads to thinking

that there is an “I” for whom my life is happening and thus for whom a different life could

happen. Perhaps this is why the idea of immortality, both before and after natural life,

comes so easily to us.

. I have formulated the arguments of this article in a way that avoids the thorny questions surrounding the abortion dispute, in particular, the issue of the moral status of

the fetus. That notwithstanding, I do believe that an analogue of Woody Allen’s illusion

causes confusion about the morality of abortion. Elsewhere I have called this analogue

“retroactive empersonment.” See Jeffrey Reiman, Abortion and the Ways We Value Human

Life (Lanham, Md.: Rowman & Littlefield, ), p. .

Philosophy & Public Affairs



One problem about duties to future people that I believe is made moredifficult by Woody Allen’s illusion is what Derek Parfit has called “the

Non-Identity Problem.”6 Its general form is this: We are confronted with

a choice between two policies, one of which will have a negative effect on

some future people, although not so negative as to make their lives not

worth living. For example, someone must choose whether to conceive a

child now with a large chance of producing a disadvantaged or disabled

child, or conceive a few months or years later without this risk; or a

community must choose whether to institute a risky energy policy that

will likely cause some people far in the future to die prematurely, or stick

to a safer policy. We are tempted to say that, if someone chooses the

policy with the predicted negative effect, they have wronged the future

people negatively affected. The problem arises because the choice that is

made will affect who it is that gets born. This should be obvious regard-

ing the choice of when to conceive since each choice will result in a

different ovum meeting up with a different spermatozoon.7 With respect

to the choice between energy policies, different choices will lead to dif-

ferent investments, which will lead to different jobs in different placesand thus to different people meeting and marrying, and conceiving at

different times. After a number of generations and certainly after a few

centuries, a wholly different group of individuals will be born depending

on which energy policy is chosen.8 The result is that, in these cases, if the

. Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, ), p. .

Future references to this book will be as RP and page number. Parfit is not the only

philosopher to have noticed this problem in some form. For others, see Michael Bayles,

“Harm to the Unconceived,” Philosophy & Public Affairs (): –; Robert

M. Adams, “Existence, Self-Interest, and the Problem of Evil,” Noûs (): –;

and Gregory Kavka, “The Paradox of Future Individuals,” Philosophy & Public Affairs

(): –.

. “You were conceived at a certain time. It is in fact true that, if you had not been

conceived within a month of that time, you would never have existed” (RP , p. ; emphasis

in original). “My identity is established by my beginning. It has been suggested that no one

who was not produced from the same individual egg and sperm cells as I was could have

been me” (Adams, “Existence, Self-Interest, and the Problem of Evil,” p. ).

. “Given the effects of two such policies on the details of our lives, it would increasingly

over time be true that, on the different policies, people married different people. And, evenin the same marriages, the children would increasingly be conceived at different times. As

I have argued, children conceived more than a month earlier or later would in fact be

different children. Since the choice between our two policies would affect the time of later

conceptions, some of the people who are later born would owe their existence to our choice

of one of the two policies. If we had chosen the other policy, these particular people would

Being Fair to Future People



negative alternative is chosen, a negative effect will be imposed on somefuture people who would not have been born if the other alternative had

been chosen. Since nonexistence is the alternative, it appears that the

people negatively affected by the choice have not been made worse off by

it. They get lives that are still worth living, and that seems better than not

having existed at all. Then, on the assumption that wronging people

requires making them worse off than they would otherwise have been,

those future people have not been wronged.

I want to defend what I take to be the commonsense judgment that, in

choosing the negative policies, one has wronged the future people who

are negatively affected as a result—even though the alternative is that

those people would not have existed at all.9 Indeed, I contend that in

these cases, living people are violating the rights of future people.10 I shall

never have existed. And the proportion of those later born who owe their existence to our

choice would, like ripples in a pool, steadily grow. We can plausibly assume that, after one

or two centuries, there would be no one living in our community who would have existed

whichever policy we chose” (RP , p. ).. John Stuart Mill, for example, seems to have felt that such a judgment was plainly

justifiable. He wrote: “The fact itself, of causing the existence of a human being, is one

of the most responsible actions in the range of human life. To undertake this

responsibility—to bestow a life which may be either a curse or a blessing—unless the being

on whom it is to be bestowed will have at least the ordinary chances of a desirable exist-

ence, is a crime against that being” (John Stuart Mill, On Liberty [Indianapolis, Ind.: Hackett

Publishing Company, ], p. ). It should go without saying that by “crime” here, Mill

meant a moral wrong. He was well aware that there was no criminal law prohibiting the act

he here condemns. An Editor of Philosophy & Public Affairs wonders how I can maintain

both that the commonsense judgment is correct and that people are confused on this issue

by Woody Allen’s illusion. My answer is that it is not so much in the judgments as in the

reasoning in support of the judgments that the confusion enters. Note, for example, that

Woody Allen’s illusion also implies prima facie that the negative policies wrong future

people, since it imagines them preexisting their actual lives and thus, if they are handed a

defective life, they are wronged. This is only prima facie because the illusion also implies

something that has only recently been recognized by some philosophers, namely, that

since these lives, though defective, are still worth living and are the only ones available for

those preexisting individuals, those individuals are not made worse off by being given

defective lives and are thus not wronged. Thus, what is needed is to eliminate the effect of

Woody Allen’s illusion from the reasoning in favor of the commonsense judgment. We shall

see that Rawls’s original position accomplishes this elimination.. Note that Parfit also considers some non-identity cases in which the negative effect

on future people is the reducing of some benefit rather than the imposing of some harm.

For example, he considers the possibility of living people choosing an energy policy that

will mean that future people have less energy available to them than they would have had

had current policy continued, though the future people will still have somewhat more than




reach this result by making use of Rawls’s original position. First,however, it is necessary to look at some cases of the Non-Identity

Problem and the way in which Parfit and others have analyzed them.

ii. the non-identity cases

After pointing out how a change of even a month in when a couple

conceives a child will result in a different child being conceived, Parfit

goes on to describe a number of hypothetical cases, two of which I willconsider. The first is:

The -Year-Old Girl . This girl chooses to have a child. Because she is

so young, she gives her child a bad start in life. Though this will have

bad effects throughout this child’s life, his life will, predictably, be

worth living. If this girl had waited for several years, she would have

had a different child, to whom she would have given a better start in

life. (RP , p. )

The second case is:

The Risky Policy . As a community, we must choose between two

energy policies. Both would be completely safe for at least three cen-

turies, but one would have certain risks in the further future. . . . If we

choose the Risky Policy, the standard of living will be somewhat

higher over the next century. We do choose this policy. As a result,

there is a catastrophe many centuries later . . . , which kills thousands

of people. Though they are killed by this catastrophe, these people willhave had lives that are worth living. . . . (RP , pp. –)

Of the -Year-Old Girl, Parfit contends that she was wrong not to have

waited before conceiving until she could give her child a good start.

However, since the child she did produce had a life worth living, and

the living people have when they make the choice (see RP , pp. –). I have ignored these

cases since the right for which I will argue is a right to a “normal” level of functioning, and

thus will not help in these cases. On the other hand, if we can solve the Non-Identity Problem for the negative cases that I address, then that problem is solved for these “posi-

tive” cases as well. Their ultimate resolution, however, will depend on whether a right of

future people to something more than a normal level of functioning (or a duty—with or

without a correlative right—on the part of living people to provide more than a normal

level) can be justified.




waiting several years would have caused that particular child not to haveexisted, “this girl’s decision was not worse for her child.” Nonetheless,

says Parfit, that does not change his judgment that she was wrong not to

have waited. But, he continues: “What is the objection to her decision?

This question arises because, in the different outcomes, different people

would be born. I shall therefore call this the Non-Identity Problem”

(RP , p. ).

Since it appears that whatever the girl did wrong, she did not wrong

the child she produced, Parfit suggests that our objection to her con-

ceiving when she did requires a principle that is broadly utilitarian

in its approach:

The Same Number Quality Claim or Q: If in either of two possible

outcomes the same number of people would ever live, it would be

worse if those who live are worse off, or have a lower quality of life,

than those who would have lived. (RP , p. )

Crucial to this principle is that it judges the girl’s decision in terms of thegoodness or badness that her act produced for whoever existed com-

pared to what she could have produced by conceiving later in life

without holding that she has wronged any particular person.

Parfit’s consideration of the Risky Policy is essentially along the

same lines, with the exception that our judgment that it was wrong to

adopt the Risky Policy cannot be based on Q, since we cannot say that

our choices would have led to the same number of people coming into

existence. Parfit admits that he cannot formulate the different numberversion of Q, but contends that such a Q-like principle, which he calls

“Theory X,” is what we will need to ground our judgment that it is

wrong to adopt the Risky Policy (RP , pp. , –). This is a compli-

cation that will not enter into my analysis. I include Risky Policy here to

show that the solution that I will propose to the problem handles dif-

ferent number as well as same number cases. What is important is that

in both Risky Policy and -Year-Old Girl, Parfit defends the idea that

the choice was wrong because it produced lower quality of life than

could have been brought about by different choices, but it wronged no

one in particular . Those with lower quality of life would not have

existed had the other choice been made, and thus they are not made

worse off by the choice.




Parfit then asks if appeal to rights, such as a child’s right to a good startin life, can show that the girl wronged her child by giving birth at so

young an age. He writes,

Even if the child has this right, it could not have been fulfilled. This girl

could not have had this child when she was a mature woman. Some

would claim that, since this child’s right could not be fulfilled, this girl

cannot be claimed to have violated his right. The objector might reply:

‘It is wrong to cause someone to exist if we know that this person will

have a right that cannot be fulfilled.’ Can this be the objection to thisgirl’s decision? (RP , p. )

Parfit replies that it cannot or, at least, it cannot be the full basis of our

objection. To make his point, Parfit cites a letter to The Times written by

a man whose mother had given birth to him when she was only fourteen

with the result that he had not had a good start in life. However, the letter

continued, he had a life now well worth living and he found the sugges-

tion that it would have been better that he had not been born outra-

geous. Parfit takes this to mean that, if this man had a right to a good startin life, he would waive that right. Writes Parfit,

This man’s letter shows that he was glad to be alive. He denies that his

mother acted wrongly because of what she did to him. If we had

claimed that her act was wrong, because he has a right that cannot be

fulfilled, he could have said, ‘I waive this right.’ This would have

undermined our objection to his mother’s act. (RP , p. )

Parfit admits, however, that he cannot say with certainty that every-one would waive their rights (RP , p. ; see also p. ). To prove that

appeal to rights cannot be the whole basis of our objection to the nega-

tive choices, he argues, further, that the objection to the negative choices

must be based on a comparison between the lives of the people who did

come to exist and the superior lives of the possible people who would

have lived had different choices been made. Consequently, we must

appeal to some utilitarian-style principle like Q or Theory X.11 Later, I will

. Speaking of a case analogous to -Year-Old-Girl, in that it concerns choosing

between actions that will bring different people into the world, Parfit writes, “The objec-

tion . . . cannot appeal only to her child’s right to a [good] life. The same is therefore true of

the objection to our choice of the Risky Policy. This objection must in part appeal to the

effects on the other possible people who, if we had chosen differently, would have lived. As




argue that, consistent with his view, Parfit could have maintained that we are entitled to assume that the persons negatively affected would

waive their rights, and thus that acting on this assumption would be

blameless. The result of this will be that such a waiver poses the strongest

objection to the solution to the Non-Identity Problem that I shall defend

here. Responding to that objection will yield deeper insight into the

nature of our duties to future people.

A third case that is structurally similar to -Year-Old Girl is discussed

by the authors of From Chance to Choice , an important survey of the

moral problems surrounding genetic interventions authored by four

well-known ethicists who explicitly adopt a Rawlsian framework for their

treatment of the issues.12 The case in point is:

Preconception Wrongful Disability. A woman is told by her physician

that she should not attempt to become pregnant now because she has

a condition that is highly likely to result in moderate mental retarda-

tion in her child. Her condition is easily and fully treatable by taking

a quite safe medication for one month. If she takes the medicationand delays becoming pregnant for one month, the risk to her child

will be eliminated and there is every reason to expect that she will

have a normal child. . . . [S]he does not take the medication, gets preg-

nant now, and gives birth to a child who is moderately retarded.13

(Chance , p. )

before, the appeal to rights cannot wholly solve the Non-Identity Problem. We must also

appeal to a claim like Q, which compares two different sets of possible lives” ( RP , p. ).

. Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler, From Chance

to Choice (Cambridge: Cambridge University Press, ), pp. –, –. Future ref-

erences to this book will be as Chance and page number. On the authors’ use of a Rawlsian

framework, see Chance , pp. –, inter alia. It should be noted that the authors’ use of

Rawls is not at all rigid. They are willing to extend or modify the Rawlsian framework and,

while their approach is generally deontological, they make room for utilitarian-type con-

cerns for general welfare as well.

. I have added the title “Preconception Wrongful Disability” to this case. Also, I have

eliminated the authors’ account of the woman’s motivation, namely, to not put off her

vacation, since I think the frivolousness of that reason interferes with objective consider-

ation of the case. Let us assume that the woman has some moderately serious reason fornot delaying, e.g., she is sensitive to heat, cannot afford air conditioning, and does not want

to be pregnant during the hot summer months. Also, in following the authors in treating

mild mental retardation as a disability worth preventing, I do not want to take a position

on the vexed issue of what is a disability and when or if it is a harm. I assume that there

are some disabilities that, though they do not make people’s lives not worth living, are




After a careful analysis of this and related problems, the authors of FromChance to Choice conclude in terms that are similar to Parfit’s that, by

bringing into existence a disabled child, albeit with a life worth living,

when by waiting she could have brought a normal child into existence,

this woman did wrong, but she did not wrong anyone in particular. She

violated a general utilitarian-style duty to avoid causing more suffering

than necessary, rather than a duty of justice not to harm specific persons.

The authors of From Chance to Choice consider the possibility that a

right of the child’s has been violated even though the alternative would

have been that that child not be born at all. Here, they refer to James

Woodward’s argument that a right might be violated even if the victim

was glad that it had happened. Woodward gives the example of an

African American who is denied an airplane ticket because of his race.

Woodward contends that this individual has suffered an injustice even if

the plane he was prevented from traveling on crashes, and he himself is

thankful to have had his request for a ticket turned down.14 In response,

the authors of From Chance to Choice write,

Even if [Woodward] is correct that standard accounts of moral rights

can be applied to cases of wrongful disability . . . , our argument has

been that person-affecting moral principles [such as appeals to rights]

will mischaracterize the wrong done in such cases. . . . Non-person-

affecting principles correctly fit wrongful disability cases because the

nonetheless serious losses and thus misfortunes that should be avoided where possible. I

take mild mental retardation as standing for such a disability. The argument that I shall

make in Section IV, below—that decisions in such cases are not about which particular

child is to be born, but rather about which properties one’s child is to have—has the

implication that decisions to wait to conceive a nondisabled child do not imply the belief

that currently disabled people should not have been allowed to exist. Cf. Adrienne Asch,

“Why I Haven’t Changed My Mind about Prenatal Diagnosis: Reflections and Refine-

ments,” in Prenatal Testing and Disability Rights , ed. Erik Parens and Adrienne Asch

(Washington, D.C.: Georgetown University Press, ), pp. –.

. James Woodward, “The Non-Identity Problem,” Ethics (): –; cf. Chance ,

p. . Interestingly, Woodward does not think that his account of rights will work to make

-Year-Old Girl or Preconception Wrongful Disability into cases of wronging individuals,because he does not believe that children have rights to such things as a good start in life or,

presumably, to normal functioning. He grants, however, that if children had such rights

then his account would imply a rights-based objection to the actions regarding those

children in the two cases, and thus that they are cases of wronging individuals (ibid., p. ,

n. ). I think that the argument that I shall make shows that children do have such rights.




nonidentity problem at the heart of those cases makes the wrong thatis done not done to the child and the disability not a loss suffered by

anyone. (Chance , p. )

In short, these authors think that the Non-Identity Problem is not really

a problem. It simply describes the situation, and shows it to be one in

which no one in particular is wronged. Thus appeal to rights is not

appropriate. In this respect, their conclusion is even stronger than

Parfit’s, and they do not have to avail themselves of his argument that

such rights as Woodward’s argument allows would be waived.The authors of From Chance to Choice distinguish Preconception

Wrongful Disability from a case that I shall call Postconception Wrong-

ful Disability , in which, “after conception and when she is already preg-

nant,” a woman refuses to take a medication that her physician tells

her will prevent moderate retardation in her child (Chance , p. ).

That case, they believe, is not a non-identity case. Rather, it is a case of

wronging a particular individual since a particular fetus already exists.

They suggest that this is a graver violation than violating the utilitarian-style prohibition against producing more suffering than is necessary

that is the basis of their objection to Preconception Wrongful Disability

(Chance , p. ).

I shall argue that the actions chosen in all of the non-identity cases—

-Year-Old Girl, Risky Policy, Preconception Wrongful Disability—

wrong the individuals that come to exist as a result of the choices.

Contrary both to Parfit and to the authors of From Chance to Choice , I

contend that the chosen actions violate those individuals’ rights even

though the alternative is that they would not have been born, and that

this suffices to ground our objection to those chosen actions. I shall

argue that those individuals cannot be thought to waive those rights. I

shall argue further that there is no moral difference between Preconcep-

tion Wrongful Disability and Postconception Wrongful Disability. I will

begin this argument by looking at how the cases would be handled in

Rawls’s original position.

iii. duties to and rights of future people in the original position

As is by now well-known, John Rawls’s original position is a mental

experiment in which we are to think of a group of rational people who




represent us, and who must consider to what principles of justice gov-erning their treatment of one another they can rationally agree.15 Most

distinctively, these “parties,” as Rawls calls them, stand behind a veil of

ignorance that deprives them of knowledge of their specific circum-

stances. The point of this restriction is to make it impossible for the

parties in the original position to tailor principles to their own circum-

stances. Among the kinds of knowledge excluded are knowledge of peo-

ple’s sex, race, age, level of abilities, social position, degree of wealth,

or—and this will be important for us—what generation they are in (TJ ,

p. ). The overall effect of these restrictions on knowledge is that the

parties in the original position must choose principles thinking that they

may turn out to be anyone in the society that will be governed by those

principles. And this ensures that the principles will be just, because it will

only be rational for them to agree to principles that they could accept

whoever they turn out to be.

Because they do not know their generation, the parties in the original

position, in effect, represent all and only those people who, from this

moment on, will ever exist: people who are currently living, and futurepeople who do not yet exist but who one day will.16 This makes sense

because those who come to exist have interests and those who never

. John Rawls, A Theory of Justice , revised edition (Cambridge, Mass.: Harvard Univer-

sity Press, ), pp. –, inter alia. Future references to this book will be as TJ and

page number.

. There is an interesting asymmetry here. Strictly speaking, if parties in the original

position do not know what generation they are in, they represent not only all people who

do or will exist, but also all people who once existed and are now dead. There is no

absurdity in thinking that people who have already lived and died had interests that

create moral obligations that are binding on currently living and future people. Does not

the World War II monument in the nation’s capital fulfill an obligation of gratitude for

sacrifices and honor for heroism owed by living Americans to Americans who fought and

died in that war? However, there are no obligations that dead people can act on. And

since the original position tests obligation-making principles by their reasonableness

from both sides, that of having to act on the principle and that of being the recipient of

action based on the principle, dead people are not represented in the original position.

Fortunately, there is no need for them to be represented, since living people can bothinsist that future people satisfy obligations owed to them when they are no longer living,

and consider the reasonableness of those obligations from the standpoint of people who

may have to act on them. It is, however, necessary that future people be represented

since, as I shall argue, their morally relevant interests are different in form from those

of living people.




come to exist have none. So characterized, the original position is adevice that is capable of identifying the rights of future people against

currently living people and the correlative duties of currently living

people to future people. This is confirmed by the fact that Rawls used the

original position to determine a principle of just savings between gen-

erations: “Each generation must not only preserve the gains of culture

and civilization, and maintain intact those just institutions that have

been established, but it must also put aside in each period of time a

suitable amount of real capital accumulation” (TJ , p. ).17 Since this is

a principle of justice, it effectively spells out the rights of future people

and the duties of currently living people to them.

I will start by applying the original position mental experiment to

questions about genetic interventions in general, by which I mean any

action, whether it involves tinkering with the genome or merely delaying

conception, aimed at improving the genetic endowment of future

people. Although Rawls does not launch a detailed argument about our

duty to future people regarding genetic interventions, he does affirm in

passing that “a society is to take steps at least to preserve the general levelof natural abilities and to prevent the diffusion of serious defects” (TJ ,

p. ). This is broadly equivalent to the notion that we owe people assis-

tance in achieving “normal species functioning,” an idea that Norman

Daniels has defended as the content of the right to health care based on

an appeal to Rawls’s notion of fair equality of opportunity.18 Indeed, in

his last book, Justice as Fairness: A Restatement , Rawls accepts the link

between medical care and fair equality of opportunity. “Such care,”

Rawls writes, “falls under the general means necessary to underwrite fair

. Rawls does not indicate how much must be set aside. Rather he spells out a series

of considerations relevant to determining that amount at different stages of history. See

TJ , pp. –.

. Chance , pp. –; see also Norman Daniels, Just Health Care (Cambridge, Mass.:

Cambridge University Press, ). Daniels writes: “Impairments of normal species func-

tioning reduce the range of opportunity open to the individual in which he may construct

his ‘plan of life’ or ‘conception of the good’ ”; and further: “The most promising strategy forextending Rawls’s theory simply includes health-care institutions and practices among the

basic institutions providing for fair equality of opportunity. . . . Once we note the special

connection of normal species functioning to the opportunity range open to an individual,

this strategy seems the natural way to extend Rawls’s view . . . about the scope of theories

of justice” (ibid., pp. , ).




equality of opportunity and our capacity to take advantage of our basicrights and liberties.”19

It seems reasonable for parties in the original position to agree to a

general duty of living people to provide for future generations’ normal

functioning since the parties want to safeguard their ability to pursue

their goals whatever they turn out to be, and maintenance of normal

functioning (including prevention of serious defects) provides such a

safeguard. Moreover, the standard of normal species functioning has

the advantage of avoiding a hemorrhage of unlimited duty that could

flow from the idea that we owe future people to make them the best

people possible. Furthermore, it parallels the commonsense view that

what we owe others in the way of medical care is correction of deficien-

cies, rather than provision of enhancements. So, I shall assume that this

is what the parties in the original position would agree to about our

duties to future people, and future people’s correlative rights, regarding

genetic intervention.

Similar reasoning can be extended to apply to other current policy

choices that will affect at least the major objective determinants of thequality of life of future people, such as life expectancy and morbidity.

Thus, I shall assume that parties in the original position would agree on

a principle providing that currently living people have a duty to do what

they reasonably can, subject to their needs, rights, and other moral

duties, to ensure that future people are capable of normal functioning

and live lives with normal life expectancies and normal morbidity rates.

If this is current people’s duty to future people, then future people have

a correlative right to those efforts on the part of currently living people. Ishall sum this up by saying that future people have a right to normal

functioning . Note that this is not strictly a right to normal functioning as

such, but to living people’s reasonable efforts to ensure that level of

functioning; nor is it a right to a certain quality of life, but to living

people’s reasonable efforts to ensure that future people face normal life

expectancies and morbidity rates.20

. John Rawls, Justice as Fairness: A Restatement , ed. Erin Kelly (Cambridge, Mass.:

Harvard University Press, ), p. ; in a footnote, Rawls refers readers to Daniels’s Just Health Care , where the link between medical care and fair equality of opportunity “is

worked out further” (p. , n. ).

. This is in keeping with Rawls’s notion that justice should concern objective goods

rather than subjective ones such as satisfaction. See TJ , pp. –; and Rawls, Justice as

Fairness: A Restatement , pp. –.




If we ask whether conceiving a child with a disability when we couldhave conceived a different normal child later would be acceptable, the

answer would have to be that we had failed in our moral duty to future

people. We had not given one of them what future people have a right

to expect. Thus, in Preconception Wrongful Disability, bringing a

person into existence with a disability would not only be wrong, but a

wrong to the future person thus conceived, a violation of that person’s

right to his forebears’ efforts to ensure normal functioning. I think we

could easily extend this argument to reach similar answers to the prob-

lems of -Year-Old Girl and of Risky Policy. In each case, consideration

in the original position would yield the conclusion that the people

adversely affected had had their rights to normal functioning violated

and thus had been wronged. Notice that the original position does

not require the detour of saying that the wrong is bringing people

into existence with rights that cannot be fulfilled. From the original

position, it follows that the actions in question directly violate future

people’s rights.

This conclusion is a prima facie one, since the constraints under which those responsible acted and the reasons for which they acted as

they did might in some cases override the presumption that they had

wronged the people involved. The prima facie conclusion, however, is

enough for our purposes. What is striking is that it holds even though the

alternative in each case would have meant that the parties wronged

would have not existed at all. How is that possible?

To answer this question, let us first consider why it is that the original

position yields the result in Preconception Wrongful Disability that thedisabled child has been wronged even if the alternative were not con-

ceiving that child. Recall that the veil of ignorance deprives the parties in

the original position of knowledge of the individual traits of the people

they represent. This goes all the way down to which particular individu-

als, with which birthdays and genomes, they will be. It follows that future

people are represented in the original position as the people who will

exist in the future whatever particular individual traits they turn out to

have, indeed, whatever particular individuals they turn out to be . From

this it follows that what we owe to future people is not owed to them in

virtue of the particular individuals they will be. We owe it to them simply

in virtue of the fact that they will be people, as if which particular indi-

viduals they will be were irrelevant. To be sure that this is not merely an




accident of the design of the original position, we need to see how it is theappropriate way to consider morally the interests of future people.

iv . the morally relevant interests of future people

People can be different from one another in two ways. First of all, they

can be different in their properties : one is tall and the other short, one

healthy, the other sickly, and so forth. People are also different from one

another in that each is a different particular . Even if two twins were truly

identical, having exactly all the same properties, they would still betwo different particulars. They are, as philosophers sometimes say,

numerically different.21

Normally, which particular one is will determine which properties one

has. However, we can distinguish these two, and say that a person’s fate

(whether her life turns out to be good or bad) depends on her properties

and not on which particular she is as such, that is, as distinct from which

properties she has . Of course, which particular she is may also determine

what kind of world she lives in. This too will contribute to her fate. But,note that this contribution also does not come from which particular she

is as such. It comes from which properties the world has when she is in it.

If the air and water are polluted, that will likely reduce the quality of her

life. Which particular a person is may determine whether she is born into

a world contaminated by pollution, but that is not because the person

is this or that particular. It is because, whichever particular the person

is, the world in which she happens to exist has the property of

being polluted.

Let us call the person’s own properties her “personal properties,” and

the properties of the world she inhabits her “worldly properties.” Then,

the full statement of my point is that a person’s fate depends on her

personal properties and her worldly properties, not on which particular

she is apart from these. Since Preconception Wrongful Disability does

not hinge on what properties the world has when the individual is born,

. Parfit writes that “exact similarity is not numerical identity” (RP , p. ). Someone

might object to my distinction between difference in properties and difference betweenparticulars by saying that the latter boils down to difference in spatial or temporal location,

and thus to difference in properties. My response is that difference in spatial or temporal

location is a mark of difference between particulars, but not the thing itself. This notwith-

standing, my point could be made, albeit less economically, by taking the difference

between particulars to be a special kind of difference in (spatial or temporal) properties.




it is effectively about the different personal properties an individualmight have, while worldly properties remain constant. Risky Policy, by

contrast, depends very much on the properties that the world will have in

the future. And -Year-Old Girl may depend on some combination of

both, since there the issue is that of giving a child a good start in life,

which may apply both to the child’s own constitution and to his sur-

roundings. Since the argument that I am making addresses all three

types of cases, I shall speak simply of properties, and leave the reader to

interpret that as personal and/or worldly as the cases require.

From a future person’s standpoint, it makes sense to think that it is in

his or her interest to be born with certain properties rather than others,

but it is not in his or her interest to be born this particular one rather than

that particular one independent of differences in properties . Thus a future

person’s properties may be morally relevant now, but which particular a

future person is beyond the difference in properties is not.

Applied to the problems of -Year-Old Girl and of Preconception

Wrongful Disability, before anyone is conceived, the difference in prop-

erties between two particular future children—say, between having agood start and not having a good start, or between having a disability and

not having one—is morally significant . However, that they are different

particulars as such is not . The original position is capturing this moral

fact. It is representing the interests of future people as if which properties

they turn out to have is morally important, but which particulars they

turn out to be is morally irrelevant.

I contend that this represents the real shape of the morally relevant

interests of future people as they can be affected by the actions of currentpeople. This seems odd because of the grip of Woody Allen’s illusion. We

suppose that the interests of future people are just like the interests of

present people, only later . Present people are already particular indi-

viduals, however, while future people are not. Present people have an

interest in being the particular ones they already are. (Killing me and

replacing me with an identical duplicate is still killing me.) So, thinking

of future people’s interests on the model of present people’s interests

subtly treats future people as already particular people, as if the particu-

lar individuals they will be are already existing, waiting in the wings, just

as in Woody Allen’s illusion.

Shaking free of this illusion, we should expect that the morally rel-

evant interests of future people—coming to us now, so to speak, from out




of the future—will be different in form from the interests of presentpeople. These are the interests of people who do not yet exist as particu-

lar individuals, but who already count morally insofar as we can affect

their fates and thus have moral duties to them. Their morally relevant

interests are a function of what we can do now to improve or worsen

their lives in the future; and that is a matter of what properties they are

born with or into, not which particulars they are apart from that, since

they are not yet particular individuals. This makes it appropriate to think

of the interests of future people as interests of people considered as if

which particular individuals they are is irrelevant.

Moreover, as unusual as this approach might seem, it corresponds to

the circumstances in which people decide on what they owe to future

people, much as Rawls says that the unusual conditions in the original

position correspond to the circumstances in which people raise claims of

justice (see, e.g., TJ , p. ). If the -Year-Old Girl considers the cost to

her future child of her getting pregnant now versus waiting a few years,

and if the woman in Preconception Wrongful Disability considers the

cost to her future child from her conceiving right away or holding off conceiving until she has had time to take medication, neither woman is

considering which particular they want their child to be . They are think-

ing only about their child’s properties. They would be happy to have now

the same particular child they could have later without negative proper-

ties. They are effectively considering their future children’s interests as if

what properties they have is important, but which particular children

they are is not.

Likewise, when the society is deciding between the Risky Policy and asafer one, they are considering the worldly properties that will affect the

fates of future people. They are not considering which particular future

people their decisions will lead to.22 They are thinking only about the

different properties that the two policies will bring about. They, too, are

effectively considering future people’s interests as if what properties they

have is important, but which particular individuals they are is not.

. “[T]he agents of actions only accidentally affecting the identities of future peoplecannot plausibly be taken to act in order to ensure one group of people’s coming into

existence rather than another’s” (Matthew Hanser, “Harming Future People,” Philosophy

& Public Affairs []: –, at p. ). Hanser’s article takes a different approach to

Parfit’s Non-Identity Problem than the one I take here. I neither critique nor endorse that

approach in this article.




I contend then that the original position is considering the morally relevant interests of future people correctly. Consequently, the results of

considering the non-identity cases in the original position stand: choos-

ing to do actions that adversely affect interests of future people wrongs

them by violating their rights to our efforts to ensure them a normal

level of functioning. This is so even though the alternative would be that

those particular people would not have existed, because the interests

harmed are the interests of people considered as if which particulars they

are is irrelevant .

Note that the principle affirmed here is a strictly deontological prin-

ciple. It shares with Parfit’s Same Number Quality Claim or Q indiffer-

ence to which particulars future people are. Aside from this, however,

the two principles are quite different. The principle I have affirmed

makes no comparison between the quality of life of those who do live in

the future and those who might have lived in the future. Moreover, it

affirms a right in justice of each separate future person against every

separate living person (who has the means to perform the relevant

actions) and a correlative duty running in the other direction.The original position leads to this conclusion because, in effectively

considering the interests of future people irrespective of which particu-

lars they turn out to be, the original position eliminates the effect of

Woody Allen’s illusion. In the end, however, we shall see that there is an

additional and deeper reason why the original position treats the inter-

ests of future people as those of the people who will live irrespective of

which individuals they will be. For that, however, we must consider

Parfit’s claim that future people might waive the rights that the originalposition indicates are theirs.

v . waiver of rights and temporal fairness: back to the

original position

Parfit supposes that because the people who come to exist as a result

of the negative actions chosen in -Year-Old Girl and Risky Policy will

not regret those actions, even if they have rights against such actions,

they may waive those rights. Parfit is hesitant about the implica-

tions of this fact, admitting that he cannot be sure that everyone

would waive their rights. I think that, given his view of the issue, this

hesitancy is unwarranted.




At one point, Parfit likens the negative choices in non-identity casesto surgery, and writes: “There may be no objection to our harming

someone when we know both that this person will have no regrets, and

that our act will be clearly better for this person. In English law, surgery

was once regarded as justifiable grievous bodily harm” (RP , p. ).

Suppose that we expand this to a case in which we operate on an uncon-

scious person without his consent because surgery is the only way to

save that person’s life. Since a person has a right not to be operated on

without his consent, we can view such a situation as one in which we

may operate because we are entitled to assume that the person will waive

his right on regaining consciousness and learning that the surgery was

necessary to save his life. Assuming that we did what we could to deter-

mine if this person had scruples against surgery or would have refused it

on other grounds, and finding no such evidence, it seems that operating

would be justifiable even if it turned out that the surgery patient later

insisted that he would not waive his right not to be operated on.

Then, even if we cannot be sure that future people negatively affected

by current choices would waive their rights, if we sincerely and reason-ably believe that they would because they would have lives worth living

that they would not have otherwise had, then our choices are blameless.

And that would counter my view that future people’s rights to living

people’s efforts to assure them normal functioning ground the objection

to the negative choices in the non-identity cases.

But the choices in the non-identity cases are not analogous to the

choice to perform life-saving surgery on an unconscious person. Con-

sider that when we assume that the unconscious person would waive hisright not to have surgery performed on him without his consent, we

assume that the waiver releases us from wrongdoing at the moment we

made the choice to operate. Such a waiver is a retroactive permission,

not an after-the-fact pardon. It is tantamount to saying that had the

person been conscious at the moment when the choice to operate had

been made, he would then have consented to surgery. No such retroac-

tive consent is possible, however, in the case of the people negatively

affected by the choices made in the non-identity cases, because they did

not exist when those choices were made. Since particular individuals

only care about existing as those particulars once they already are alive,

the argument that they would waive their rights fallaciously assumes that

particular people have an interest before they are alive that they only can




have once they are alive. This suggests that applying the surgery case tothe non-identity cases would be another instance of falling for Woody

Allen’s illusion, that is, thinking that there are particular individuals

waiting in the wings to live. But the problem runs deeper.

We have seen that the way to avoid Woody Allen’s illusion is to con-

sider the interests of future people in the original position, where they

are found to have rights to normal functioning that do not depend on

which particulars they turn out to be. If we suppose that the parties in the

original position are aware of the possibility of waiver of those rights,

we can easily see how they would respond to that possibility. If they

insist that those rights are independent of which particular individual

anyone turns out to be, then they will insist that those rights cannot be

waived on the grounds that otherwise some particular individual would

not have existed.

Put otherwise, parties in the original position will insist that it is unjust

to make the price of some particular individual’s existing that that

person waive his or her right not to be negatively affected. Then it is clear,

however, that such a waiver would be obtained under duress: that is, by an unjust albeit retroactive threat, namely, the threat of not existing.

Parfit is certainly right to think that the people produced as a result of the

negative actions in the non-identity cases might be tempted to waive

their rights since the alternative is not existing at all. A person who waives

a right in the face of an unjust threat of not existing, however, does not

make a free and morally binding choice. Thus, even if the future people

in the non-identity cases would waive their rights, that waiver would

not be valid.That people would be tempted to waive their rights here shows us

something deeper about the Non-Identity Problem. It reveals a dissym-

metry in power between currently living and not-yet-living persons. Cur-

rently living people have the power to determine which future people

live, a power that future people do not have vis-à-vis living people and

which living people do not have vis-à-vis other living people. As they are

treated by Parfit and the authors of From Chance to Choice , the non-

identity cases are ones in which that difference in power functions to

reduce the duties of present people toward future people, and to weaken

the correlative rights of future people against present people.

Jan Narveson writes that “if we think that all men have certain rights,

then it follows that we think that people living in the year have




them, just as much as we do now, and that people living six millennia agohad them. . . . In short, time as such would seem to be quite irrelevant to

the attribution of fundamental rights.”23 Temporal position is an arbi-

trary difference between people from a moral point of view. But, then, as

a matter of fairness, temporal position should not change the force of

people’s rights. The rights of future people should be no weaker than the

rights of living people, and the duties of living people to future people

should be no weaker than their duties to other living people. This, ulti-

mately, is why the original position treats future people without regard to

which particular individuals they will be.

The original position has been designed so that it does not allow

accidents of birth or history to affect people’s rights. By eliminating

knowledge of which generation the parties are in, the veil of ignorance

effectively eliminates the unfairness built into the temporal asymmetry

between people already born and people who will be born.24 Thus, when

we consider the rights of future people, the original position calls on us

to ignore the issue of which particulars they will be for the same reason

that it calls on us to ignore the issue of which race or sex they will be. 25

It thereby yields rights with the same force for all humans who do

or will exist.

Accordingly, it is possible for living people to wrong particular future

people even if avoiding that wrong would have meant that those particu-

lar people would not have existed. The original position shows that each

future person has a right to the reasonable efforts of present people to

ensure that they are capable of normal functioning and that they face

normal life expectancies and morbidity rates. The original positionawards this right to each future person as whichever particular he or she

turns out to be. Thus if present people fail to make the reasonable efforts

needed to assure future people of normal functioning and the rest, those

particular future people are wronged. Those future people are wronged,

not because they are made worse off than they otherwise would have

. Jan Narveson, “Moral Problems of Population,” Monist (): –,atpp. –.

. Rawls writes that the constraints of the original position have been designed sothat “no generation is able to formulate principles especially designed to advance its

own cause. . . . Whatever a person’s temporal position, each is forced to choose for all”

(TJ , p. ).

. On the model of racism and sexism, we might say that the bias here removed is that

of whenism.




been, but because their rights have been violated. The consideration thatthose particular future people would otherwise not have existed is ruled

out as unfair when determining those rights. The result of this is that the

Non-Identity Problem dissolves as a moral problem.

vi. varieties of the no-difference view

Parfit thinks the Non-Identity Problem dissolves as a moral problem too.

He holds that the fact that we continue to condemn the negative choices

in the non-identity cases—even after learning that they will bring about

people who would not have otherwise existed—shows that we do not

think it makes a difference whether these choices wrong particular

persons or simply make whoever exists worse off than necessary. Parfit

calls this “the No-Difference View ” (RP , p. ). He takes it as support for

the idea that rights will not suffice to account for our judgments in these

cases, and a utilitarian-style principle such as Q or Theory X will be

necessary. My argument leads to the conclusion that it does not make adifference whether our choices harm persons who otherwise would not

have existed, but precisely because appeal to rights accounts for our

judgments in the non-identity cases. We appeal to the rights that the

original position bestows in equal force on all people who do or will live.

The authors of From Chance to Choice also do not think that

the Non-Identity Problem is a problem, but they reject Parfit’s

No-Difference View (Chance , p. ). They continue to think that it is

worse to wrong a particular individual than to cause the sort of harmcaused by the choices in the non-identity cases (Chance , pp. –).

They think that, in causing the latter sort of harm, wrong is done, but that

this is a lesser evil than the wronging of an individual. Consequently,

they hold that a pregnant woman who refuses to take medication that

would prevent the child she has already conceived from eventually suf-

fering mental retardation wrongs an individual, while the woman who

refuses to hold off conceiving so that she can take medication that will

prevent the child she will conceive from suffering mental retardation is

responsible for a lesser evil. She only does wrong, but to no one in

particular. For the authors of From Chance to Choice , Postconception

Wrongful Disability is a kind of injustice while Preconception Wrongful

Disability is (merely) a violation of a general utilitarian-style prohibition.




I think that Parfit is right that there is no moral difference betweenPreconception and Postconception Wrongful Disability.26 But not

because there is no difference between actions that adversely affect par-

ticular persons and actions that lead to people having a lower quality of

life than that of other people who could have been brought into exist-

ence. Rather for a very different reason, namely, that when we follow the

cue of the original position and eliminate the unfairness built into dif-

ferent temporal positions, both of these cases are instances of wronging

particular persons.

vii. concluding observations

I have given two arguments for the claim that the rights of future people

are theirs irrespective of which particular individuals they turn out to be.

The first is that the morally relevant interests of people who will exist in

the future do not include which particular individuals they will be (as

distinct from which properties they will have). The second is that ignor-

ing which particular individuals future people will be, when determining their rights and our duties to them, is required by fairness. These two

arguments are cumulative and complementary: The first tells us that

which particular individuals future people will be does not matter in the

right way to count as part of the determination of future people’s rights,

because it is not part of their interests as future people. The second tells

us that which particular individuals future people will be does matter in

the wrong way to count in determining future people’s rights, because it

unfairly weakens those rights. It should be evident that similar cumula-tive and complementary arguments could be made for why people’s

rights are theirs irrespective of their race or sex.

. Parfit renders this judgment on two analogously related cases. He considers two

medical programs, one that cures a condition during pregnancy and one that cures the

same condition prior to conception (RP , p. ). In both cases, the condition at issue will

cause the same significant handicap in the child that will result from pregnancy or con-

ception. And both medical programs will result in , children being born normal who,

in the absence of the program, would have been born handicapped. There is, however, only

enough money to adopt one of the two programs, so a choice between them must be made.In response to this, Parfit writes: “I judge the two programmes to be equally worthwhile”

(RP , p. ). Since the difference between the two programs is precisely the difference

between preventing the handicap for an already conceived child and preventing the con-

ception of a child with that same handicap, it is strictly analogous to the difference between

Postconception and Preconception Wrongful Disability.




A theory is normally thought to be strengthened if it can provide anexplanation of why the theory it aims to supplant would have seemed

plausible. This is clear in the present case since the deontological prin-

ciple that I have defended includes the proviso that future people have

rights irrespective of which particulars they turn out to be. Something

like this proviso is shared by utilitarian-style principles. Such principles

tend to sum goods or evils across individuals without concern for which

particular individuals are experiencing them. Thus it is understandable

that a utilitarian-style principle such as Parfit’s Q or Theory X would

appear to be what is necessary in the non-identity cases, especially since

it may easily be thought that deontological principles are distinguished

by the fact that they do take into account which particular individuals

people are.27 However, my argument from the original position to a

deontological principle awarding rights to all future people irrespective

of which particular individuals they are shows that a deontological prin-

ciple can ignore differences between particular individuals when deon-

tological considerations, such as fairness, dictate that it must.

Finally, my argument suggests that we have not exhausted the moral wisdom built into Rawls’s conception of the original position.

. “Utilitarianism does not take seriously the distinction between persons,” writes

Rawls (TJ , p. ).


Documents

Being Fair to Future People