Ori J. Herstein · September 2009
77 GEO. WASH. L. REV. 1173 (2009)
What is the moral significance of “future generations”? Can they be the subjects of (legal) rights? And if so, do they have rights?
The first part of this Article reflects on who or what in future generations is of moral significance, exploring three options: future generations as groups, as future individuals, and as types of future people. Lacking both intrinsic and instrumental moral significance, perhaps the most prevalent conception of future generations—generations, age groups, and birth cohorts (all taken as groups)—is ruled out as morally insignificant, thereby ruling out the notion that the rights of future generations are rights of generations. The notion that future individuals should be the focus of the moral concern with future generations, and therefore the subjects of the legal rights of future generations, is questioned for the straightforward reason that there are no future individuals, thereby putting in doubt the notion that the rights of future generations are rights of individuals. Even if not of intrinsic moral value, the most probable or promising subjects for the moral concern with the future are types of future people.
Based on the determination that types of future people is the most promising object on which to project our concern for future generations, this Article explores how types of people (as opposed to particular individuals) can have (legal) rights and be the object of (legal) duties. Within the philosophical literature, the leading approach explaining how future generations can have rights argues that they have rights as tokens of types of people. Indeed, general norms confer rights on those actual individuals who meet the criteria of the norm-subject type. As such, a right is conferred on individuals not as particulars, but as tokens of the general norm-subject type. Accordingly, future people may currently have rights, just not as particular individuals, but as particular instances of a normatively protected type of person. Here, this type-based approach is applied to the concepts of legal norms and legal rights, demonstrating how according to this approach future people can have legal rights as tokens of legally protected types. After presenting this account of the rights of future people and couching it in a jurisprudential context, this Article points out a possible deficiency in the approach’s metaphysical underpinnings.
Assuming that future people can have rights (be it as individuals or as tokens of types) there are still reasons for doubting whether in most cases future people have any rights, deriving from the doubt whether future people will be harmed by most actions and choices in their prenatal past. According to what has come to be known as the “nonidentity argument,” actions and choices that are necessary parts of the causal chain leading up to the existence of a person cannot harm that person—had the act or choice not occurred that person would have never existed, and one is better off existing than not. Under the two prevalent theories of rights, the Will Theory and the Interest Theory, the nonidentity argument seemingly entails that future people have no rights. After exploring how this is the case, the conception of harm underlying the nonidentity argument is analyzed. Two types of interests future people may have in prenatal identity-determinative events (constitutive interests and threshold interests) are explored as possible sources of certain rights future people may have—the nonidentity argument notwithstanding.
