The Responsibility Principle vs. Breach of Duty

So I stumbled upon a really jarring debate today. I'm sort of puzzled that I haven't already heard of this issue, and am suspicious that someone might just be able to explain to me why there isn't any problem, and I'm just confused. But in any case, here's the issue.

It seems that in our current legal system, in order to establish that someone owes you damages to compensate you for a tort, you need to show that they have breached a duty that they owed to you. If it is determined that they did nothing wrong in harming you, then the idea is that they don't owe you anything.

But on the other hand, there's this, care of Joel Feinberg:

Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble upon an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing all these things, and yet you have infringed the clear rights of another person.

I agree that the hiker is justified in his actions. But as Judith Thomson points out, it seems true that in this case, the hiker would also be obligated to compensate the owner of the cabin for the damage. This is in line with a principle central to the doctrine of Strict Liability, called the Responsibility Principle. Talbot Paige phrased the principle like this: "When A's actions impose costs on B, A should be made responsible, by paying those costs." It sort of does seem like this is why the hiker should have to compensate the cabin owner. Even though the hiker didn't do anything wrong, he still imposed a cost on the cabin owner, and he should have to pay that cost.

So it seems like I'm rejecting the "duty of care" standard. But on the other hand, I feel like there are some situations in which Strict Liability is, well, too strict. It seems to me that the concept of negligence (as distinct from something like "mere harming") is not completely without value: I find it an attractive notion that in situations where a person does nothing wrong, they should not be subject to the coercive pressure of others (through being held to account for something by a court--here I obviously don't mean "coercive" to imply that there's anything objectionable about holding people accountable through courts).

I definitely need to think about this some more; any thoughts or suggestions would be very much appreciated!

Enforcing the Attitude of Respect for Nature

So I wrote this for my environmental ethics class, and I figured I'd post it. But I just want to make clear up front that I don't agree with Taylor's argument for the attitude of respect for nature. The paper takes its correctness as a premise, and I want to make sure it's understood that I believe that premise to be false. Nevertheless, I think it's a fascinating point of view, and I think this exercise has been valuable for me in terms of thinking about rights and how they're supposed to work. Hopefully others can find some value in it too.

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In his book, Respect for Nature, Paul Taylor offers an account of a disposition which he calls the “attitude of respect for nature.”[1] This disposition, Taylor explains, involves the recognition of the inherent worth of non-human “nature,” which leads to the treatment of nature with a proper degree of respect.[2] Proper respect, he argues, involves adherence to certain rules[3] which should not be broken in the absence of morally significant reasons. These rules include a duty to refrain from harming other organisms, from interfering in their activities, and from deceiving them or violating their trust, as well as a duty to make restitution when one does wrong.[4] For Taylor, the attitude of respect for nature is a virtue; it is view about how good people will act,[5] and for what reasons they do so.[6] For the sake of our discussion, we will make the assumption that Taylor’s view is objectively sound (a claim which Taylor does not make[7]), and the attitude of respect for nature is in fact virtuous.

Because Taylor’s view includes a mechanism by which individuals would voluntarily make restitution for any transgressions, it seems that if everyone were completely virtuous, there would never be any need to coercively enforce the mandates of justice; Taylor’s virtuous people would take care of any problems on their own. But it will immediately be noted that not all people are virtuous in Taylor’s sense. Many fail to hold the attitude of respect for nature. Because of this, they will likely do things that are inconsistent with this attitude, and which therefore represent iniquities. Accordingly, we might ask whether others would be justified in coercively interfering with these individuals’ actions in order to ensure that individuals who are not themselves virtuous nevertheless behave as if they were.

Generally, the simplest way to justify coercion is to cite the violation of some right held be the victim. As Taylor points out, rights represent things to which we are entitled,[8] so that if we are wrongfully deprived of them, our rights are violated.[9] Given that we are entitled to the objects of our rights, it seems eminently plausible that we would be justified in using force in response to the violation of our rights. If we could show that the sort of unvirtuous actions identified by the attitude of respect for nature represented rights violations, then we would have a good reason for believing that coercive enforcement might be justifiable.

Complicating matters, however, is the fact that Taylor offers two different accounts of rights, and these two views produce opposite conclusions about whether the behaviors in question violate rights.[10] In order to properly appraise the justifiability of coercion, we will need to decide between these views. According to Taylor’s first account, there are several necessary components of rights which plants and non-human animals cannot fulfill, making it impossible to conceive of them as having rights.[11] First, Taylor argues that to have a right, it must be possible for us to conceive of the rights-holder asserting the moral legitimacy of the claim represented by a right. Because they cannot think in terms of moral legitimacy, plants and non-human animals fail this test.[12] Second, he claims that we must be able to conceive of the holder of a right being able to think of herself as being inherently worthy of that right. Plants and non-human animals fail in this criterion as well.[13] Third, Taylor contends that we must be able to conceive of a rights-holder as being able to choose whether or not to exercise his right. Because plants and non-human animals cannot make this sort of choice, they fail here as well.[14] Finally, Taylor explains that having a right involves an entitlement to “…register complaints, demand redress, or call for legal enforcement of their rights…”[15] whenever they are violated. Because plants and non-human animals lack the capacity to carry out any of these entitlements, Taylor suggests that it would be nonsensical to recognize them as having rights.[16] Though each of these objections, if correct, would be conclusive on its own, taken together they seem devastating.

However, Taylor offers a way to understand rights that would allow us to preserve the notion that acting inconsistently with the attitude of respect for nature constitutes rights-violating behavior. Where the first view understood duties possessed by others as the corollary of rights recognized and asserted by the rights-holder, Taylor’s alternative conception of rights holds them to amount to recognitions of duties towards others which result from taking proper account of their inherent worth.[17] If failure to act in accordance with these duties indeed qualifies as rights-violating behavior, then actions inconsistent with Taylor’s attitude of respect for nature could certainly be understood in this way.

But do actions which fail to properly respect others’ inherent worth constitute potentially enforceable rights violations by themselves, or are the conditions described in Taylor’s first account really necessary for the recognition of rights? To answer this question, we might ask whether there are any seemingly clear cases where we would think ourselves justified in coercively enforcing the “rights” of a victim who does not fulfill one of the criteria mentioned in Taylor’s first view. And in fact, Taylor alludes to two groups of such entities: the insane and the severely mentally handicapped.[18]

Members of these two groups seem to fail on each of the four tests Taylor offers in his argument that plants and non-human animals do not have rights. Some insane and severely mentally handicapped individuals are certainly unable to conceive of “legitimacy,” to see themselves as being inherently worthy of respect, to choose whether to exercise or waive a right, to complain about violations of their rights, to demand restitution, and to call for the enforcement of their rights. Accordingly, Taylor’s first view would deny that we can possibly conceive of these individuals as having rights.

But nevertheless it seems clear that we would often think ourselves justified in using coercion to protect these individuals. And it does seem that the kind of situation in which we would feel justified in doing this lines up quite well with Taylor’s second conception of rights. That is, we coercively intervene to protect the insane and the severely mentally handicapped when we feel that they are being treated by others in a manner which fails to take proper account of their inherent worth. If we feel that this practice is based on a manner in which those individuals are entitled to be treated, then it seems to follow that we recognize them as having rights, in spite of all of the objections that Taylor’s first account has to offer, and that these rights are of the kind suggested by Taylor’s second account.

Of course, it could be that we are simply unjustified in behaving in this manner towards the severely mentally handicapped and the insane. But if we are justified, then it seems that we have good reason to think that coercion could be justified in protecting plants and non-human animals, whose inherent worth we have acknowledged by assuming that Taylor’s attitude of respect for nature is an objective account of the way that virtuous individuals will interact with non-human nature.

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[1] Taylor, P.W., page 59.

[2] Ibid, pages 71-80.

[3] Ibid, page 89.

[4] Ibid, pages 172-192.

[5] Ibid, pages 88-89.

[6] Ibid, pages 15-16.

[7] Ibid, page 167.

[8] Ibid, pages 226-227.

[9] Ibid, pages 243-244.

[10] Ibid, pages 219-255.

[11] Ibid, page 246.

[12] Ibid, pages 246-247.

[13] Ibid, pages 247-248.

[14] Ibid, pages 248-250.

[15] Ibid, page 251.

[16] Ibid, pages 250-251.

[17] Ibid, pages 251-255.

[18] Ibid, page 225.

On Playing "Government" When People Are Dying

So today is apparently "Hey, everyone write about human rights today!" day in the "Blogosphere" (yea, I said it). I'm all in favor of such an occasion, because...well...I'm all in favor of human rights. But I'm not completely sure what to write about. I feel like it would sort of be missing the point to discuss another of the abstract theoretical issues with which this blog is generally concerned. But I also don't want to just pump out some garbage "reporting on" some current event that I don't understand any better than anyone else. The happy medium, I think, would be to compromise and talk about some current event from a very vaguely abstract perspective. I choose Myanmar.

In case you live in a hole, or in case you're reading this a while after I wrote it, Myanmar was hit by a severe storm and tens of thousands of people are in desperate need of help. According to CNN, 38,491 have been confirmed dead, and the UN predicts that the final death toll could be 100,000 or more, especially if aid does not arrive quickly. From the sound of it, there are a dearth of people who would be very happy to help these people. But to this point, the "government" of Myanmar, a military junta which took power in a 1962 coup and has violently suppressed political dissent ever since, has been obstructing much of this aid from getting to the people who need it. Apparently they've gotten their act together a little bit in the last few days, but things are still moving slowly.

Now it seems clear to me that the junta's role in this is illegitimate. There is a group of people who want to help another group of people who would undoubtedly consent to being helped in this way. I'd even go so far as to say that the people whose land they'd have to cross in order to get to these people would almost certainly consent to this happening (especially if we moved everything by plane). So bringing the aid to the people who desperately need it would likely violate no rights, and would therefore seem to be protected against interference from third parties. And yet, here are a group of people who are interfering anyway.

So the real question is, what should be done about this sort of thing? I mean, if we're not willing to violently overthrow the military junta (I'm just taking that off the table up front, if only because it wouldn't likely result in the storm victims being helped any better), the obvious option is to just shrug our shoulders and plead with the junta not to be so callous. And this seems like what people are doing. But at what cost? How many thousands of lives will be lost on account of this strategy?

I think it's reasonable to say that morality would permit us to bring the aid to the people who need it and to defend our efforts against Myanmar's government if they tried to stop us. We need to seriously consider the alternative of bringing aid to these people, junta be damned, and greeting anyone who tries to stop us with the muzzle of a gun. I'm not saying it's what we have to do, but I'm concerned about the fact that no one has even brought it up, given how ready people are to bomb entire cities of civilians into the Bronze Age in order to combat terrorists who could possibly live among them.

We need to remember that an important part of the idea that the use of force is only justified in protecting rights is the idea that force is justified when protecting rights. People are dying by the thousands, and we can save many of them. I'm appalled that the same group of people that seem to consider themselves the world's police force when they're dealing with Muslims are not even toying with the idea of approaching Myanmar's leaders with a simple position: "Listen, we're going to help these people. And if you try to stop us, I hope God has mercy on your soul, because we sure won't."

Universally Preferable Behavior and the Maxim Description Problem

[Part of The Molyneux Project; read the main critique here]

So now that I'm no longer going to be communicating with Stefan directly, I'm not sure if there are any real prospect of my actually understanding his book. Still, I think it might be worthwhile, if anyone's interested, to lay out a bit of criticism of some of the main themes that I actually found objectionable, and not just confusing. This post won't represent an attempt to completely tackle that task. Rather I'll focus on one idea which comes up several times in Stefan's book, and which represents a significant problem for any theory taking the form that Stefan's does.

A cursory examination of Stefan's book reveals that he's working in a distinctly Kantian framework, in the sense that he takes morality to be based on maxims which are evaluated for moral goodness or badness by universalizing them and determining whether they come into contradiction with themselves (Kant introduces this framework in his Fundamental Principles of the Metaphysic of Morals).

Now, I have a long track record of being accused of misrepresenting Stefan's positions, and I'm very comfortable with the assumption that I'll be accused of doing this here in describing his methodology. Nevertheless, I believe that the proof is on the paper, and I will take great care to establish beyond what I think is a reasonable doubt that this is the approach that Stefan is using. I apologize in advance if this is tedious.

Stefan writes, on page 43:

...the first test of any scientific theory is universality. Just as a theory of physics must apply to all matter, a moral theory that claims to describe the preferable actions of mankind must apply to all mankind. No moral theory can be valid if it argues that a certain action is right in Syria, but wrong in San Francisco. It cannot say that Person A must do X, but Person B must never do X. It cannot say that what was wrong yesterday is right today - or vice versa. If it does, it is false and must be refined or discarded.

Then, on page 44, he writes:

If I say that gravity affects matter, it must affect all matter. If even one pebble proves immune to gravity, my theory is in trouble. If I propose a moral theory that argues that people should not murder, it must be applicable to all people. If certain people (such as soldiers) are exempt from that rule, then I have to either prove that soldiers are not people, or accept that my moral theory is false. There is no other possibility. On the other hand, if I propose a moral theory that argues that all people should murder, then I have saved certain soldiers, but condemned to evil all those not currently murdering someone (including those being murdered!) - which is surely incorrect.

If, to save the virtue of the soldiers, I alter my theory to argue that it is moral for people to murder if someone else tells them to (a political leader, say), then I must deal with the problem of universality. If Politician A can order a soldier to murder an Iraqi, then the Iraqi must also be able to order the soldier to murder Politician A, and the soldier can also order Politician A to murder the Iraqi. The application of this theory results in a general and amoral paralysis, and thus is proven invalid.

It seems clear that Stefan is using a maxim-based approach here which is more or less identical to the one used by Kant. That approach states moral precepts in the following form: "In all circumstances C, I will do X," universalizes them, and searches for problems. It's worth pointing out that Kant discusses two different ways in which a universal law can come into contradiction with itself: it can be impossible to conceive of a world in which it is followed, or such a world could not be desired by any rational person. Stefan does not explicitly assent to this distinction, but I think that there is evidence that Stefan would accept both sorts of "contradictions" as sufficient reason for rejecting a maxim.

On page 66, Stefan writes:

Raping someone is a positive action that must be initiated, executed, and then completed. If "rape" is a moral good, then "not raping" must be a moral evil - thus it is impossible for two men in a single room to both be moral at the same time, since only one of them can be a rapist at any given moment - and he can only be a rapist if the other man becomes his victim.

He continues:

...two men in a room must be considered to be in the same situation. If only one of them can be good, because goodness is defined as rape, and only one of them can rape at any time, then we have a logical contradiction that cannot be resolved.

I take this to be pretty good evidence that Stefan accepts Kant's first sort of contradiction as a reason for rejecting a maxim. The maxim, "I will always rape," cannot be adopted as a universal law; it would be impossible to conceive of a world in which it was. Stefan also seems to accept that Kant's second sort of contradiction, that a reasonable person would be unable to will the universal adoption of the rule, would be problematic for a maxim. On page 80, Stefan writes:

...if stealing is good, then goodness becomes a state achievable only in the instant that Doug steals Bob's lighter. In that instant, only Doug can be moral, and Bob cannot be. After that, goodness becomes impossible to achieve for either party, unless Doug keeps giving Bob's lighter back and then snatching it away again.

Of course, it seems patently ridiculous to imagine that the ideal moral state is for one man to keep giving another back the property he has stolen, and then immediately stealing it again. Thus logic seems to validate our instinctual understanding of the foolishness of this as a moral ideal...

Stefan goes on to argue that a maxim advocating the practice of stealing would be contradictory for the reason discussed above (it would be impossible to conceive of a world in which everyone consistently advocated theft), but his statements here suggest that Kant's second variety of contradiction would also provide some grounds for rejecting a maxim.

It might have been noticed that I set up the phrasing of a maxim to explicitly include circumstances, and yet in many of the examples above, Stefan did not make any mention of circumstances. I would point out that in any situation in which circumstances are not explicitly set out, it is not unreasonable to think that the maxim could simply apply to all circumstances. Further, there are examples in which Stefan does make reference to circumstances as potentially providing basis for making moral distinctions. For example, returning to the soldier example on page 44, Stefan suggests that we could alter a moral theory to say that "...it is moral for people to murder if someone else tells them to (a political leader, say)..." Here we would need to make use of the maxim structure outlined earlier: "In circumstances in which another person tells me to murder, I will murder."

There is further reason to believe that circumstances should be relevant in the exposition of a moral theory: It could be that in some circumstances, an otherwise impermissible action would be perfectly acceptable. For example, it is generally impermissible to kill another person. But if that person is attacking you, then it seems that it would be acceptable to use lethal force in self-defense. The maxim, "I will kill people" seems obviously problematic; this is not so with the circumstance-dependent maxim, "In circumstances in which I am being attacked and can save myself only by killing my attacker, I will kill my attacker."

But none of this seems particularly problematic for Stefan's theory. So far, I haven't really done anything but clarify how I think the theory is supposed to work. So what's my problem? The objection is one that has been commonly raised against Kant; I'll call it the Maxim Description Problem (there's probably an "official" name for it somewhere, but I don't know what it is). The problem is this: Our evaluation of an action will depend on the maxim on which we are acting when we perform it. But any individual action can be justified by a number of different possible maxims. Accordingly, we could reach the conclusion that an act is permissible or impermissible depending on the maxim that is being used to justify it.

To invoke a classic example, we might imagine that a person has come to your door and is asking where your friend is. Unbeknownst to the person at the door, you know that the reason that she is asking is because she is a murderer who wants to kill your friend. You know where your friend is, and know that if you tell the murderer his location, she will certainly kill him. You also know that if you lie, nothing bad will happen to you, and that your friend will be able to escape with his life. What should you do?

On one hand, you can consider the maxim, "Whenever I can promote the outcomes I desire by lying, I will do so." We can imagine that if everyone adopted this maxim, no one would ever accept anyone's word for anything, and there would never be any occasion to lie in the first place. Such a maxim would simply make no sense as a universal law. On the other hand, as Christine Korsgaard points out in her essay, "The Right to Lie: Kant on Dealing with Evil," it would not be absurd for everyone to adopt a maxim by which they would lie in order to keep a murderer from her victim. Here we might imagine the maxim to be "Whenever I can prevent someone from murdering a person by lying, and I know that no other negative consequences will occur on account of my actions, I will lie."

This brings into focus an important problem, however. The fact that a particular maxim is unacceptable for justifying a particular action does not mean that there is no acceptable maxim which could justify it. So it could be that an action is morally permissible, even if we can show how a number of maxims which could justify it are unacceptable. This becomes a problem for Stefan in a number of different places in his book, where he seems to try to argue that certain actions are morally impermissible by rejecting particular maxims on which they could be based.

For instance, returning to the soldier example, Stefan wrote:

If, to save the virtue of the soldiers, I alter my theory to argue that it is moral for people to murder if someone else tells them to (a political leader, say), then I must deal with the problem of universality. If Politician A can order a soldier to murder an Iraqi, then the Iraqi must also be able to order the soldier to murder Politician A, and the soldier can also order Politician A to murder the Iraqi. The application of this theory results in a general and amoral paralysis, and thus is proven invalid.

This is fine, but as I've noted before, it does not prove that soldiers are wrong in killing people (murder is a bad word to use here, because the definition of the word "murder" is "wrongful killing," and therefore it is conceptually impossible for murder to be permissible). It only proves that soldiers' killing people cannot be justified by the maxim in question. It is logically possible that there is some other maxim which would justify soldiers' actions.

And indeed, such a maxim is not too difficult to come up with. One example would be the maxim, "Whenever I have declared myself to be a combatant of a particular group in a universally recognized manner, and I can kill a recognized combatant of another group who has not surrendered in a universally recognized manner, I will do so." That maxim could be adopted as a universal law without any contradiction that I can think of. But if this is the case, then how is the maxim-based approach supposed to serve as a moral guide? It might seem like any time we come across an action that cannot be justified by a particular maxim, the most we would be able to say is that we simply aren't sure if it's permissible or not. In order to effectively put Stefan's methodology to work, we need a way to determine what the right maxim is.

This problem is brought into focus by another factor in the equation, known as the Principle of Formal Equality. This principle states that in order to treat two things as ethically different, there must be a ethically significant difference between them. We have already seen evidence that Stefan accepts this principle, when he wrote:

Just as a theory of physics must apply to all matter, a moral theory that claims to describe the preferable actions of mankind must apply to all mankind. No moral theory can be valid if it argues that a certain action is right in Syria, but wrong in San Francisco. It cannot say that Person A must do X, but Person B must never do X. It cannot say that what was wrong yesterday is right today - or vice versa. If it does, it is false and must be refined or discarded.

The implication here is that being located in Syria as opposed to San Francisco cannot represent an ethically significant difference between two scenarios; being Person A instead of Person B is not a morally relevant way to distinguish a circumstance; taking place today instead of tomorrow cannot matter to an ethical theory. For example, notice that the maxim, "Whenever it is May 6, 2008, and I am Danny Shahar, and I can steal a pen from the University Book Store without anyone ever noticing, I will do so," could be adopted as a universal law without coming into any sort of contradiction with anything. But surely that doesn't mean that it would be okay for me to steal the pen. The Principle of Formal Equality helps us explain why: the maxim I've offered is unacceptable because it only works because of distinctions that aren't morally relevant in any way.

However, as we have seen, maxims can coherently contain certain distinctions which allow them to apply only to actions which occur in specific circumstances. So, for example, I am justified in killing in self-defense when I'm being attacked, even though there are other scenarios in which I'm not justified in killing people. What is needed, then, is an account of what kinds of features of a set of circumstances are morally relevant. If we had such an account, we could conceivably come up with a proper description of the set of circumstances in which your action was taking place, and then determine whether the maxim based on that set of circumstances could be acceptably adopted as universal law.

Unfortunately, as far as I can tell, Stefan doesn't provide any such account. And perhaps more unfortunately, no one else has either. Until someone does, it seems like any maxim-based approach to ethics is going to be hampered by the Maxim Description Problem. Annnnddd...that's part of the reason why I take a rights-based approach to ethics! [Added later: turns out rights-based approaches to ethics aren't that great either :-P]

So that's one problem with Stefan's view. When I get a chance, I'll try to touch on some more problems in future posts. But for now, I hope this was helpful!

Generational Rights

The conclusion that we cannot infringe upon future people’s right by causing climate change may not appeal to individuals who see injustice in the fact that by causing climate change, the world we leave behind for future people could be substantially less hospitable than it would have been if presently existing people had not caused climate change. One might argue that perhaps we do not infringe the rights of individual people by creating dangerous or otherwise undesirable circumstances which are necessary conditions for their existence, but we infringe the rights of their generation by leaving behind a “spoiled” Earth.

The appeal of this notion is in the fact that a generation is simply the group of people who come into existence during a particular period of time, and there is no requirement for who exactly those people are. So, for example, we may say that a woman, Charlene, is a member of some generation A. If Charlene’s mother had conceived a child with a different man than Charlene’s father, Charlene would never have existed. But so long as the child was conceived around the same time as Charlene was, that child would have also been a member of generation A. Because the identity of the generation does not depend on the identities of its members, one might see an opportunity for getting around the Non-Identity Problem by focusing on what happens to generations instead of individuals under different policy choices.

So do future generations have a right to inherit an unspoiled Earth? For that matter, do future generations have rights at all? We may once again recall that rights represent the respect to which we are due as individuals and as ends-in-ourselves. Because of the inclusion of individuality as a part of our conception of rights, it might be said that generations cannot possibly have rights, because they are not individuals. But it seems reasonable to say that to talk about respecting the individuality of a generation is only so suggest that it should not be sacrificed for the interests of others—namely, other generations.

One might point out that other groups, like corporations or organized communities, can be seen as “individuals” and “ends-in-themselves” in the sense that they are entities which utilize means in the pursuit of their own distinct ends. These entities can be “benefited” and “harmed” in a meaningful sense by impairing their ability to pursue their own goods, and so it would not be inconceivable to suppose that these entities had rights of their own which were not simply the sums of the rights of their members (whether they can truly be disrespected is a separate and controversial issue, which we will not address here).

It may be noted, however, that generations do not seem to have an analogous “good of their own,” and do not pursue their own distinct ends in any recognizable sense. Any discussion of “the good of a generation” seems like it could be nothing more than a vague statistical statement about the good of its members. Indeed, the aforementioned groups can be seen as ends-in-themselves only through an understanding of the way that they are organized. In the way that a body is composed of organs which have functions in terms of the good of the body, a corporation’s constituent parts are organized to promote the ends of the corporation. The members of a generation, on the other hand, have no identifiable function in terms of the good of the generation itself. Temporal coexistence does not seem to illustrate the sort of structure which could make it meaningful to talk about a generation as an abstract entity with a good of its own. And if a generation does not have a good of its own, then it is difficult to imagine how we could disrespect it. Accordingly, we may conclude that generations cannot have rights, and so cannot have a right to inherit an unspoiled Earth.

Rights for Future People in Light of the Non-Identity Problem

To this point, we have identified rights-infringements as occurring where climate change causes the climate system to become more dangerous. It might seem, then, that wherever the impacts of a more dangerous climate system are felt, rights will be infringed, into perpetuity. After all, the mere passage of time between a cause and its effects does not seem like the kind of feature which would lead us to deny that a rights-infringement has taken place.

But we might take a different view if we thought that those upon whom the impacts of climate change will eventuate will necessarily not be made any worse off than they possibly could have been. How could this be true? Consider the implications of climate change not being caused. Those who otherwise would have contributed to climate change would spend their money on different things, travel to different places, and get different jobs. More importantly, they would meet different people, and fall in love under different circumstances.

As Derek Parfit points out in his book, Reasons and Persons, “Each of us grew from a particular pair of cells: an ovum and the spermatozoon by which, out of millions, it was fertilized.” If our parents had conceived their children under substantially different circumstances than the ones through which we were brought into existence (perhaps even with different partners), the consequence would be that we would not exist; other people would have existed instead. Accordingly, Parfit observes:

If a choice between two social policies will affect the standard of living or the quality of life for about a century, it will affect the details of all the lives that, in our community, are later lived. As a result, some of those who later live will owe their existence to our choice of one of these two policies. After one or two centuries, this will be true of everyone in our community.

The changes in our lifestyles that would be necessary in order to prevent anthropogenic climate change seem like they would constitute the sort of differences which would affect the identities of future people within a relatively small number of generations. Even those communities which are completely isolated from the rest of civilization would likely be affected by the decision not to cause climate change, through differences in the climatic conditions in which they lived. Accordingly, we can say with a reasonable level of certainty that if humanity does not cause climate change, the people who will inherit the Earth will be a completely different group of people than would have existed if climate change had been allowed to occur.

Acknowledging this phenomenon, referred to as the Non-Identity Problem, we are faced with a startling conclusion. If we cause climate change, the people who will experience its effects will be people who could not possibly have existed if climate change had not occurred. Accordingly, they will be no worse off as a result of our choice to allow climate change to occur than they could have been in any other scenario. The climate change that they would face would be a necessary condition of their existence. Confronted with this fact, we must ask, do we infringe these individuals’ rights by contributing to climate change?

Perhaps the most intuitive response would be that we do not. There is a sense in which we generally think of rights-infringements as involving harm to their victims, and it difficult to identify any person among the future generations who will have to deal with the impacts of climate change who is harmed by the actions of the present-day contributors to climate change; none of them will be any worse off than they could have been in any other scenario. Essentially, the only thing that will have been done to them is that they will have been brought into existence. And while it is conceivable that in some cases, where a life is deemed to be not worth living, it might be seen as harmful to be brought into existence, this possibility does not seem to create problems for the overall notion that bringing a different set of people into existence is not a harmful act. If harm is a core component of rights, then, it seems that no rights are infringed when future people, who are only brought into existence because of climate change, have to deal with the effects of that climate change.

But some might point out that even if they are not technically worse off than they could have been, the impacts of climate change will involve definite costs for future people. Individuals have interests in certain things being the case, and it imposes a cost on them when those interests are hampered, even if their overall wellbeing is not made any lower than it otherwise could have been. An individual whose house is destroyed by a flood must still deal with the consequences of that destruction, even if the flood’s occurrence is a necessary condition of that individual’s existence.

Accordingly, one might coherently argue that individuals have a right not to have their interests interfered with by others, even if those costs do not result in the victim being made worse off as a result. For example, James Woodward writes:

In his moving memoir Man’s Search for Meaning, Viktor Frankl seems to suggest that, as a result of his imprisonment in a Nazi concentration camp, he developed certain resources of character, insights into the human condition, and capacities for appreciation that he would not otherwise have had. Let us suppose, not implausibly, that Frankl’s mistreatment by the Nazis was a necessary condition for the richness of his later life, and that, had the Nazis behaved differently toward him, his life would have been, on balance, less full and good. It seems wildly counterintuitive to suggest that it follows from this fact alone that the Nazis did not really wrong Frankl or violate his rights.

I think that Woodward’s suggestion is completely correct. It does seem as though Frankl’s rights were infringed by the Nazis’ actions, even though he was not actually made worse off on the whole, and that this is so because of the costs that were imposed on him. As we have discussed, the contributors to climate change will bring about the occurrence of phenomena which will impose costs on future people. If we accept the view that the hampering of certain kinds of interests is sufficient grounds for identifying a rights infringement, then, we might be led to the position that climate change does infringe the rights of future individuals.

However, we must note a critical difference between what it means for the Nazis to hamper Frankl’s interests and what it means for the contributors to climate change to hamper future people’s interests. We can reasonably say that if the Nazis had not imprisoned Frankl (and nor did anyone else), then Frankl would have gone unimprisoned. This is not the case for those future individuals whose interests are affected by climate change. If the contributors to climate change had not acted as they did, it is not as if the future individuals in question would have gone unaffected by climate change. They would have never come into existence.

We may think of this difference in terms of a particular set of conditions’ “distance” from some baseline representing the fulfillment of some interest. For Frankl, the relevant baseline was a state of liberty, in which his interest in being free of unjust imprisonment was fulfilled. By imprisoning Frankl, the Nazis “moved” Frankl away from the baseline in a way that impeded his interest in freedom. On the other hand, the future people who will be affected by climate change will be born into a world in which they are inherently not “on” the baseline of freedom from the costs that will be imposed upon them by climate change. By the nature of their existence, this baseline is unattainable. Where Frankl is moved off of his baseline, the future people who will be affected by climate change are not.

It seems intuitive to me that in order to have a right that something be the case, it needs to be possible that that thing be the case. If the thing in question is the integrity of my interest, then it must be possible that my interest is fulfilled. But the future people’s interests which will be hindered by climate change cannot possibly be fulfilled. Accordingly, it seems reasonable to say that future people have no right to these interests.

Reflecting upon our discussion of the nature of rights, this conclusion seems to be the correct one. As we have said, rights reflect the respect to which individuals are due as ends-in-themselves. If it is impossible that a person exist unless certain things are the case, then it seems odd to say that we could disrespect that person by bringing it about that those things are the case (again, excluding the possibility that the person’s life is not worth living). Accordingly, it seems fair to conclude that we do not infringe future people’s rights by causing phenomena that will impose costs upon them, so far as the occurrence of those phenomena are necessary conditions of those individuals’ existence.