Being fair to future people: The non-identity problem in the original position

Philosophy and Public Affairs

Volumn 35, Issue 1, 2007, Pages 69-92

  Reiman, Jeffrey ^a  

^a NONE

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EID: 33846663861     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2007.00099.x     Document Type: Article

References (32)

1. 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 10, 2006. 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 4, 2005. I thank Dan Brock and Norman Daniels, speakers at that conference, for their comments and encouragement. I thank the faculty and students at both events for their probing and useful questions. I am grateful as well to the Editors of Philosophy & Public Affairs for their very helpful comments.
2. Woody Allen, Without Feathers (New York: Random House, 1975).
3. 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.
4. Reported in Bernard Williams, Problems of the Self (Cambridge: Cambridge University Press, 1973), pp. 42-43.
5. 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.
6. 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, 1999), p. 92.
7. Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), p. 359. 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
8. Michael Bayles, "Harm to the Unconceived, " Philosophy & Public Affairs 5(1976): 292-304
9. Robert M. Adams, "Existence, Self-Interest, and the Problem of Evil, " Noûs 13(1979): 53-65
10. Gregory Kavka, "The Paradox of Future Individuals, " Philosophy & Public Affairs 11(1982): 93-112.
11. "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. 355; 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. 56).
12. "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, even in 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 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. 361).
13. 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 existence, is a crime against that being"(John Stuart Mill, On Liberty [Indianapolis, Ind.: Hackett Publishing Company, 1978], p. 106). 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.
14. 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 the living people have when they make the choice (see RP, pp. 361-64). 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 "positive"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.
15. Speaking of a case analogous to 14-Year-Old-Girl, in that it concerns choosing between actions that will bring different people into the world, Parfit writes, "The objection ... 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 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. 376).
16. Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler, From Chance to Choice (Cambridge: Cambridge University Press, 2000), pp. 243-48, 251-57. Future references to this book will be as Chance and page number. On the authors' use of a Rawlsian framework, see Chance, pp. 15-18, 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 concerns for general welfare as well.
17. 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 consideration of the case. Let us assume that the woman has some moderately serious reason for not 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 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 Refinements,"in Prenatal Testing and Disability Rights, ed. Erik Parens and Adrienne Asch (Washington, D.C.: Georgetown University Press, 2000), pp. 234-58.
18. James Woodward, "The Non-Identity Problem,"Ethics 96 (1986): 810-11; cf. Chance, p. 253. Interestingly, Woodward does not think that his account of rights will work to make 14-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. 815, n. 12). I think that the argument that I shall make shows that children do have such rights.
19. John Rawls, A Theory of Justice, revised edition (Cambridge, Mass.: Harvard University Press, 1999), pp. 15-19, inter alia. Future references to this book will be as TJ and page number.
20. 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 both insist 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.
21. 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. 251-58.
22. Chance, pp. 73-75; see also Norman Daniels, Just Health Care (Cambridge, Mass.: Cambridge University Press, 1985). Daniels writes: "Impairments of normal species functioning 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 for extending 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. 27, 45).
23. John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, Mass.: Harvard University Press, 2001), p. 174; 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. 175, n. 58).
24. This is in keeping with Rawls's notion that justice should concern objective goods rather than subjective ones such as satisfaction. See TJ, pp. 78-81; and Rawls, Justice as Fairness: A Restatement, pp. 59-60.
25. Parfit writes that "exact similarity is not numerical identity"(RP, p. 355). Someone might object to my distinction between difference in properties and difference between particulars 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 notwithstanding, 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.
26. "[T]he agents of actions only accidentally affecting the identities of future people cannot plausibly be taken to act in order to ensure one group of people's coming into existence rather than another's"
27. Matthew Hanser, "Harming Future People, " Philosophy & Public Affairs 19 [1990]: 47-70
28. Jan Narveson, "Moral Problems of Population," Monist 57(1973): 62-86
29. Rawls writes that the constraints of the original position have been designed so that "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. 121).
30. On the model of racism and sexism, we might say that the bias here removed is that of whenism.
31. 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. 367). In both cases, the condition at issue will cause the same significant handicap in the child that will result from pregnancy or conception. And both medical programs will result in 1,000 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. 368). Since the difference between the two programs is precisely the difference between preventing the handicap for an already conceived child and preventing the conception of a child with that same handicap, it is strictly analogous to the difference between Postconception and Preconception Wrongful Disability.
32. "Utilitarianism does not take seriously the distinction between persons,"writes Rawls (TJ, p. 24).