On the Rights of Future Generations

 

Ernest Partridge
University of California, Riverside
www.igc.org/gadfly

From Upstream/Downstream: Issues in Environmental Ethics

ed. D. Scherer, Temple University Press, 1990

 

I

"Time," wrote Thoreau, "is a stream I go a-fishing in." And so do we all. As we look upstream and downstream along the river of time, beyond the scope of adjacent generations and concurrent lives, numerous ethical paradoxes, puzzles and perplexities emerge. And while most would agree that it would be morally reprehensible for our generation to "trash the future" in a spree of resource depletion and environmental destruction, thus devastating the lives of successors we will never know, we are hard- pressed to explicate the ethical concepts or to articulate the ethical theory which might best express and condemn such moral dereliction. Fundamental to this puzzle is the apparent non- reciprocity across generations, typified by the old cynical taunt, "what has posterity ever done for me?" Strictly speaking, nothing.⁽¹⁾

Conversely, posterity is in no position to demand compensation from us. The "downstream" course of the river of time is swift, invariant and unidirectional.

One prominent candidate for the portentous task of articulating the moral bonds between the generations, is the notion that our effects upon the remote future are ethically constrained by the rights-claims of our posterity upon us, and consequently by the burdens of moral duty entailed by these rights. The numerous objections to this approach have led many philosophers to seek other justifications for such constraints, such as unreciprocated (i.e., "imperfect") duties to the future, utility calculations, and so forth. Some have even claimed that future persons have no claims whatever upon our resources. These objections to the "rights approach" have been based upon a few allegedly "essential" differences between actual persons and future (or "potential") persons -- most prominently, their temporal remoteness, incapacity, non-actuality, and indeterminacy. Despite all these objections, I will argue that members of future generations have rights-claims upon us, now -- albeit, some of the rights-claims that obtain among contemporaries, do not apply across non-concurrent generations.

Though fewer rights might obtain across generation than within them, I will further argue that the rights that remain may nonetheless be stringent. The duties that we have to our successors may be more than merely praiseworthy "duties of beneficence." Rather, some of these duties are, in Kantian terms, "perfect duties," morally required now, due to the rights of future persons.

 

II

"Rights" -- an analysis. Recently, several environmental writers have put the word "rights" to some imaginative uses and contexts, thus placing this essential moral concept under considerable strain and complicating the task of circumspect moral philosophers. Thus, for example, while most of us would agree that we are not free to do what we please with regard to insentient nature, describing these constraints as "rights of nature" (or, in particular, of rocks and trees), extends the concept far beyond it's paradigm application to persons and sentient beings, thus diluting the concept of much of it's moral significance.⁽²⁾

In this essay, I steadfastly resist the temptation to "extend" the concept of rights beyond it's paradigm application. Following Joel Feinberg's splendid analyses, I will instead ground moral rights in "interests" and "valid claims." Accordingly, only beings which can be benefited or harmed, "in and for themselves," can properly be said to "have rights."⁽³⁾

Thus a line may be drawn to include sentient animals, but to exclude inanimate nature. Beings "within," may thus said to "have rights" by virtue of their "interests" in (perhaps) being benefited or (more fundamentally) in not being harmed. These "interests" entail valid claims upon those in a position to thus affect the rights-bearers (a point which will be elaborated shortly).

My exclusive focus of concern, however, will be with human persons -- beings of which the word "sentience" denotes the simplest pre-requisite of moral significance. "Human rights" (more correctly, "personal rights"), are grounded in the remarkable cluster of capacities, and consequent interests, which designate "personhood" -- i.e., use of an articulate language, self-concept and self-consciousness, time perspective, hypothetical (practical) thinking, abstract reflection, responsiveness to moral principles, etc. -- in short, what philosophers have come to call "moral agency."

Accordingly, by "moral rights" I shall mean valid claims made either directly or by proxy against particular persons, groups, and institutions, or indefinite individuals, or even "the world in general." These claims announce to others that obligations and duties to the rights-holders are to be honored and that their liberties and opportunities are not to be curtailed. Furthermore, I would endorse H. L. A. Hart's principle that "to have a [moral] right entails having a moral justification for limiting the freedom of another person and for determining how he should act."⁽⁴⁾

Parenthetically, this limitation of the freedom of the other constitutes his duty to the right-bearer. Rights, in short, entail duties on the part of others.⁽⁵⁾

Some additional clarifications and qualifications are in order, if, our analysis of rights is to bear the burden of argument which follows. First, the duties and rights referred to herein are, unless otherwise indicated, to be interpreted as prima facie, and thus subject to being over-ridden by competing and compelling rights and duties. Second, duties and rights apply to circumstances that are situated between the extremes of inevitability and impossibility, and thus are subject to the agency of responsible, free, and rational persons. To quote and elaborate upon the old maxim, "ought implies can (possibility), and yet might not (non-inevitability)." Finally, if A has a right-claim upon B, and B is thus correspondingly duty-bound to A, the moral burden is upon B, and thus applies to such time as B can act upon his duty.⁽⁶⁾

Note that according to this account, the class of individuals deliberately affected by dutiful acts need not be restricted to contemporaries. However, if duties are presumed to be derived from the rights of others, some interesting controversies emerge. To explore this further, let's borrow from Kant the terms "perfect duties" and "imperfect duties". "Imperfect duties" (e.g., of kindness, beneficence and charity) do not entail corresponding rights (e.g., duties of kindness, of beneficence, of charity). "Perfect duties" follow from the claims of rights-holders (e.g., the duty to pay one's debts, or not to interfere with another's freedom to speak, etc.). That we have "imperfect duties" to posterity (say, "duties of beneficence") is, I believe, granted by most of the critics that I will deal with in this paper. My point of contention with these critics is the stronger and more interesting claim that duties to the future include the ("perfect") duties of actual persons to respect the rights of their successors. I claim that there are such rights. My adversaries contend that there are not.

But if some critics accept "imperfect" uncorrelated duties to the future and reject the "perfect" duties based upon the alleged "rights" of future persons, why not settle for the imperfect duties and be done with it? Why need we insist that future persons have "rights"? What difference does it make?

It might make an enormous moral difference. A duty to respect another's rights generally carries greater weight and has priority over an "imperfect" duty to be charitable. Thus, for example, we assume that we can write a check to the March of Dimes only if we have cash on balance after paying our bills and installment debts. Our creditors have a right to our money, but the charitable agencies do not. Need is irrelevant: the situation is unaltered by the fact that our creditor might be Exxon, and that the potential beneficiaries of our charity include the wretched of the earth. In short, rights have a stringency and urgency which benefactions do not.

But there is more. Beings with rights deserve respect -- especially so, if these "beings" are persons. Rights, as Joel Feinberg insists, command our attention and demand our response.

Their characteristic use and that for which they are distinctively well-suited, is to be claimed, demanded, affirmed, insisted upon. They are especially sturdy objects to "stand upon," a most useful sort of moral furniture. . . Having rights enables us to "stand up like men," to look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others... To respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims.⁽⁷⁾

Thus, if future generations have rights-claims against us, they will have no cause to be "grateful" to us for preserving a diverse and flourishing ecosystem, for they will have received their due. On the other hand, if we violate this ("perfect") duty, their appropriate response will be not simply regret but also moral indignation. Moral duties born of rights weigh more heavily upon the duty-bearers. Thus, to the degree that our policy-makers and legislators respond to valid moral arguments, the interests of future generations will be far better served if we can succeed in defending the notion that succeeding generations have rights-claims against the living who, in turn, have the moral duty to respect and respond to these rights. In other words, this stronger claim transforms the moral case -- a point of no small significance for those whose job it is to propose and defend environmental policies with long-term significance.

And why might future persons not have rights claims against us? I have found five persistent arguments against these claims, to which we now turn.

 

III

The Re-Population Paradox.⁽⁸⁾

The first objection must be treated briefly, though not because it can be easily and quickly disposed of. On the contrary, this is a deeply perplexing problem which we must merely mention and step around, lest we enter a thicket from which cannot emerge in the allotted space. Otherwise, the larger part of this paper will not be addressed. (My treatment of the paradox may be found in "Should We Seek a Better Future?" at this website).

In a troubling and provocative paper, Thomas Schwartz argues that any effective attempts to "improve" the living conditions of the remote future will so alter "genetic shuffle" of future meetings, matings, and births, that such policies will, in fact, "repopulate" that future with different individuals. Accordingly, since none of the individuals in "Future A" will exist in ("improved") "Future B," no individual will be benefited ("made better off") as a result of this policy. It follows that since any attempts to "improve the future" will, strictly speaking, "benefit" no one, there are no obligations to future generations.⁽⁹⁾

And if there are no duties to the future, it follows that future generations have no rights. (Since rights imply duties, this conclusion follows by modus tolens).

Schwartz's challenge has provoked carefully crafted responses by such noteworthy philosophers as Gregory Kavka and Derek Parfit, neither of whom is convinced that this argument has severed all moral commerce across generations.⁽¹⁰⁾

Elsewhere, I have, like Kavka and Parfit, also (a) accepted Schwartz's argument that long-term policies effectively "repopulate" the future, and (b) rejected his inference therefrom that we have no obligations to the future. Briefly, my reply is that while "radical genetic contingencies" absolve us of obligations to act "in behalf of" future persons as individuals, this moral absolution does not entail a permission to disregard the remote consequences of our policies. Since relevant moral principles bind us to persons in general, and not to particular individuals, we remain obligated to improve the life prospects of (variable) future persons. Schwartz's error, therefore, is a failure to treat this moral problem from "the moral point of view." Instead, he assumes the perspective of hypothetical, though radically indeterminate, future persons.⁽¹¹⁾

This is, of course, a summary, not an argument. The argument itself takes us into the "thicket" and, in effect, another paper. Thus we must instead, walk around this obstacle, with our assumption that this puzzle can be solved serving as our "ticket" to the next section of this paper. Those familiar with, and unalterably convinced by, Schwartz's argument, need read no further, since all that follows assumes that future persons have claims upon us to favorably affect the conditions of their "eventual" lives. By Schwartz's account, this presupposition is incoherent.

 

IV

The Time-Span Argument against the rights-claims of posterity objects that duties and rights cannot meaningfully be said to hold over long periods of time and between persons with non-concurrent lives, who are thus denied reciprocal communication and interaction. But with this argument, time itself is the foremost reason for this moral disconnection.

Do long durations of time erode moral responsibilities? For the moment, consider, causal and epistemic connections through time, rather than moral connections. According to informed scientific opinion, some technological innovations and social policies enacted during the last few decades, and others now being contemplated, may result in both short-term advantages for some of our contemporaries, and devastating long-range effects for our successors. Such long-term effects, which are tied to their remote causes by quiet, continuing, and accumulating processes, are called, by ecologists, "time-lag effects." Consider some possible cases: First, the manufacture of thousands of nuclear weapons, and the decision to invest heavily in nuclear fission energy, has resulted in the production of highly toxic, long-lasting, radioactive by-products. Some of these substances (i.e., the actinides) must then be isolated from the biosphere for hundreds of thousands of years.⁽¹²⁾

If, in the intervening time, a geological event should cause the release of these materials into the biosphere, the results could be catastrophic. The "time-lag" between the disposal of these substances and their possible reappearance is unknown and unknowable.

Another case concerns the accumulation of chloro- fluorocarbons (CFCs) in the atmosphere. In the last four decades, several million tons of these "inert" compounds have been released into the atmosphere. There is now significant evidence that CFCs now irrevocably in the atmosphere, are drifting up into the stratosphere where they will deplete the ozone shield that protects the biosphere from harmful ultraviolet radiation. Because of these warnings, the release of CFCs into the atmosphere has been sharply curtailed by law. Nonetheless, it appears that the worst effects of ozone depletion might become evident well into the twenty-first century, which means that due to "time-lag effects," the deadly results might not affect the generation that introduced these substances into the atmosphere.⁽¹³⁾

Of course, similar reflections might be made regarding the "greenhouse effect" in the atmosphere, or the slow but inexorable spread of chemical toxins in the aquifers.

The point of this recitation should be clear: Events enacted or contemplated within the lifetime of the present generation may, through "time-lag effects," produce benefits for this generation and, perhaps, a generation or two beyond, at the eventual cost of bringing devastation upon those who will be born a century or more hence. Moreover, informed persons now alive recognize these possibilities, and scientific techniques now available might provide even more exact assessments of the long- term impact of our technology.

The moral implications are apparent: If, indeed, due to their long-term "time-lag" effects, our activities and policies reach across generations to cause significant changes in the life-conditions of posterity, and if, furthermore, we know this and can choose alternative policies, can we continue to pretend that we have no duties to this posterity? If it is within our knowledge and power to cause or prevent grave harm to future generations, can we still maintain that future generations have no rights to be spared such injury? Can we, in short, acknowledge our foresight, capacity and choices to significantly affect the life conditions of future generations, and, at the same time, disclaim moral responsibility across the same time span? I think not. Rather, I would suggest that our power to affect the lives of posterity, and our scientific foresight of the results thereof, require us to extend our moral responsibility to the limits of this anticipation, capacity and choice.

Perhaps one reason why the notions of "duty to" and "rights of" posterity might seem strange is that we have not become accustomed to the moral implications of recent scientific and technological developments. Consider again the technological impacts cited above. Scarcely sixty years ago, atomic energy was merely being contemplated in a few physics laboratories, and artificial disruption of the chemistry and physics of the earth's atmosphere seemed preposterous. Today, though environmental scientists know better, the logic of ordinary discourse has yet to reflect this profound change in the human biotic and moral condition. Only a generation or so ago, within the memory of many of us, one could innocently believe that the effect of his generation upon its successors was totally beyond human predictability and agency and thus not within its moral competency. No longer. With the contemporary extension of foresight and power has come a corresponding extension of moral responsibility.

Time-span, of itself, cannot be construed as an argument against duties and rights. Quite the contrary, these moral relationships are inextricably bound to durations of time. Contractual obligations, and their correlative rights, endure from the time of the agreement to the time of its consummation. The duty to forebear from injuring others, and its corresponding rights, lasts as long as the agent is capable of deliberately causing or permitting preventable injury, which is to say, usually throughout one's lifetime. And, if a person is duty- bound not to cause deliberate harm during his lifetime, is he any less duty-bound to prevent such injuries that may occur after his death due to neglect during his lifetime? If one is both aware of the harm he might cause and capable of preventing it, does it matter if the calamity takes place five years after his death? Five hundred years? Five hundred thousand years? I suggest that foresight, capacity and choice, not time (however, long) are the morally relevant factors here.

To summarize this point: If we have a general duty not to cause avoidable pain, this means the pain, any time, of any being who, at the very least, is a member of the ongoing entity called "mankind." Time does not diminish the prima facie force of duty, albeit it may be conjoined with a diminished certainty or efficacy of one's attempts to fulfill his duty.⁽¹⁴⁾

In such cases the factors of probability, efficacy, and deliberative choice, as such, not time, are morally relevant. And with recent advances in scientific knowledge and technological power, we are losing our ability to hide behind the excuses of ignorance and impotence.

 

V

The "No-Claims" Argument. Another common objection to the claim that future generations have rights, is that posterity, being "merely potential," is incapable of claiming these alleged rights. And without claims, it is argued, there can be no rights.

Bertram Bandman expresses the "no claims" position quite directly (though he nonetheless affirms some rights of posterity).⁽¹⁵⁾

To have a usable right means that one is in a position to make an effective claim for one's right. Legal philosophers from John Austin on distinguished between primary and secondary rights, the first being a right to an action itself, and the second being a back-up or remedial right, one that provides a remedy if the first is blocked. Consequently, rights also imply back-up rights or the right to claim one's rights.

Future generations can only correctly be said to have the rights to breath clean air if there is provision for them to claim that right. And there are various conditions that may undercut such a right, such as the end of life on earth, acute scarcity, absence of clean air, low priority placed on clean air in relation to other more urgent human goals.⁽¹⁶⁾

A common and forceful response to the "no-claims argument" is that individuals incapable of claiming their rights may have these rights defended by others acting in their behalf. (While Bandman makes an implicit acknowledgment of the possibility of representing others' rights, he has little more to say about it.) Thus, the rights of animals can be legally represented by private agencies such as the ASPCA, and the rights of infants can be claimed and defended by appointed counsel or by public agencies. Of particular interest to us is the explicit legal protection of the rights of the future persons. Thus, for instance, a person can stipulate in his will that certain funds be held in trust for the education of yet-unborn grandchildren, who can properly be said to have a legal right to these funds, even though they do not, as yet, exist. Still more to the point, the National Park Act of 1916 specifies that the National Park Service shall protect and keep the land in its charge "unimpaired for the enjoyment of future generations." The Service, in other words, is the legally-appointed guardian of posterity's rights, a point that must be constantly reiterated by the Sierra Club, among others.

The critic might reply that these are examples of rights protected by law; that is to say, the claims made by, or in behalf of, the rights-holders are legally recognized. However, most of posterity's alleged rights, although they might be argued on moral grounds, lack legal standing. These rights can not be legally claimed by, or in behalf of, posterity, and thus there are no so-called "back-up rights" -- i.e., no institutional sanctions against, or remedies for, violations of these rights.

Moral philosophers routinely distinguish between moral and legal rights. But surely this distinction, however significant, is not sufficient to sustain the suggestion that without legal protection and recourse, future generations cannot be said to have rights at all. For one thing, this notion runs counter to our normal mode of speaking, and our ordinary "considered moral judgments" (to borrow Rawls's phrase). We are well aware of legally sanctioned violations of moral rights: the Nazi race laws, slavery in the pre-civil war United States, Soviet suppression of dissent by means of "anti-slander" laws, and so on.

It is noteworthy that such conflicts between legal and moral rights preclude the possibility of the offended individual claiming his or her (illegal) moral rights. Before the Emancipation Proclamation of 1863, the slave who exercised his moral right to be free could find no legal "remedy," as the fugitive slave Dred Scott was to be told, quite directly, by the Supreme Court in 1857. On the other hand, a person enslaved after 1863 could call upon the power of the state to acknowledge his claim and sustain his right to be free. The Proclamation did not alter the moral force of the prima facie right to be free, but it totally reversed, in the southern United States, the ability to claim that right. Indeed, the growing moral consciousness of the injustice of slavery was a significant factor in bringing about this reversal.

Accordingly, legal means are not the only means to "claim" a right. In the words of Joel Feinberg, a person can be said to have a moral right "when he has a claim, the recognition of which is called for -- not (necessarily) by legal rules -- but by moral principles, or the principles of an enlightened conscience."⁽¹⁷⁾

It is commonly said that "you cannot legislate morality." The prohibition amendment and laws against such private vices as prostitution and gambling are cited as examples. However well the rule might fit these examples, it is, as a generalization, patently absurd. Morality can be legislated, and is properly legislated time and again. Prohibition taught us a much more qualified rule: "You cannot impose by legislation the private morality of a determined but unrepresentative minority." Universal moral rights to life, liberty and property are, in free societies, guaranteed by the rule of law. A universal abhorrence to murder gives rise, in all civilized societies, to legal sanctions against it. Furthermore, as the public moral consciousness (following perhaps the teachings and example of moral educators and exemplars) extends to new realms of moral awareness, the legislators respond, and still more rights-claims are recognized and protected by law. Thus, at the time of the founding of this republic, there was no legal recognition (and little cultural acknowledgment) of the "right" to a free public education. The right was legally recognized only after a long and sustained struggle by such men as Franklin, Jefferson, Mann, and Parker. The right of future generations to enjoy designated areas of unspoiled natural beauty, and the duty of the living to protect these areas, were proclaimed by such men as Thoreau and Muir before this right, and duty, were enacted by the National Park Act of 1916. To be sure, the laws often determine whether or not a right can effectively be claimed. But it is equally the case that laws are often enacted in response to the public consciousness of a preexisting right -- a right the claim to which morally should be sustained and protected by the force of law. In other words, defenders of the "positive law tradition" who insist that the possession of rights entails effective legal claims and remedies, beg the essential moral issue. For only if the moral case has merit should legal means be enacted to insure the protection of the alleged rights.

This all may be well and good, but the essential problem remains: If, as must be granted, posterity is itself incapable now of claiming or appointing a surrogate to claim its rights, who, then, is authorized to represent posterity? The answer, quite directly, is anyone who is able and willing to defend posterity's rights on the grounds of rational and general moral principles. In such debate, it is the principles, and the validity thereof, that count, not who the advocates might be. The pre-abolition slaves could not legally claim their rights, nor could they appoint surrogates. But the fugitive slaves, and their defenders, could and did argue for abolition on the basis of moral principles. Similarly, animals and infants can not claim their right not to be cruelly treated, nor can they appoint defenders. They are, instead, defended by the courts or by public agencies which, in a well-ordered community, are the surrogates of everyone. So should it be with the rights of future generations. Ideally, their rights will be protected by the laws and by the legitimately appointed and elected representatives of the community. In the less-than-ideal actual world, the advocates of the interests of posterity (many of them self- appointed) must often present the case for posterity's legally unrecognized rights in the arena of moral debate, in the hope and expectation that the public conscience will come to demand that the laws of the living be extended to protect the rights and interests of posterity.
 

VI

The Non-Actuality Argument. Among the most common objections against the rights of future generations is the contention that since posterity does not exist now, it makes no sense to speak of posterity having rights now. Thus Ruth Macklin states:

The ascription of rights is properly to be made to actual persons -- not possible persons. Since future generations can only be viewed as consisting of possible persons, from any vantage point at which the description "future generations" is applicable, it would follow . . . that rights cannot properly be ascribed to future generations."⁽¹⁸⁾

The "non-actuality argument" might be subdivided into two interpretations: (a) the charge that posterity is "merely imaginary," and (b) the contention that posterity's rights apply only in posterity's own time. We will examine these points in order.

(a) There are no duties owed to imaginary persons. In an unpublished paper, Stuart Rosenbaum argues this point with great confidence:

I take it as obvious that the general principle that obligations cannot be owed to merely potential individuals needs no defense. (Consider my potential harems -- there are an indefinite number of them. Am I obligated to plan for all of their financial securities, or for the care of all of their potential children? And if not all, but only some, then which?). If there is something unique about future generations which exempts them from this general principle, I am unable to discover what it is. Consequently, I take this objection to the claim that future generations have rights to be conclusive against it.⁽¹⁹⁾

A careful reading of Rosenbaum's paper reveals that he is as good as his word. The principle that "no obligations are owed to potential persons" is reiterated, but it is given "no defense." The closest he comes to an argument for his "general principle that obligations cannot be owed to potential individuals," is his parenthetical comment about his potential harems: "There are an indefinite number of them. Am I obligated to plan for all of their financial securities, or for the care of all their potential children?" In reply, I must agree that a philosophy professor today need care little about his "potential harems." But the case would be quite different if one were an Arabian prince, or a Mormon elder a century ago. In that case, one would have a duty to plan for the security and well-being of potential wives and children. Indeed, the example is by no means far-fetched, for it is the duty of every young person contemplating marriage and parenthood to make provision for his potential spouse and children.

Thus there is, indeed, "something unique about future generations" which distinguishes them from Rosenbaum's imaginary harems. Very simply, the harems are imaginary and highly improbable, while future generations, though also imaginary, are, barring catastrophe, virtually certain. And since the most likely catastrophe, nuclear annihilation, is a matter of our own choice, the uncertainty of human survival scarcely provides an absolution of responsibility toward the future. Surely these differences give us ample reason to reject this analogy and with it this argument.

 

(b) "Future generations . . . should correctly be said to have a right only to what is available when they come into existence, and hence when their possible future rights become actual and present." This objection is raised by Richard de George, who continues:

Prehistoric cave men had no right to electric lights or artificial lungs since they were not available in their times, and we have no right to enjoy the sight of extinct animals. To claim a right to what is not available and cannot be made available is to speak vacuously. Some future people, therefore, will have no right to the use of gas, or oil, or coal, if, when they come into existence, such goods no longer exist. If the goods in question are not available, they could not be produced with a right to them.⁽²⁰⁾

But surely the distinction between our "right to enjoy the sight" of some extinct animals (say, dinosaurs), and posterity's right to clean air is, from a moral point of view, quite essential! We have no right to "enjoy" dinosaurs because it was, at all times, impossible for us to "have" them. (Recall that we have rights only to things that are possible but less than inevitable, and within the agency of rational and capable beings.) No rational, morally responsible beings deprived us of the dinosaurs; they vanished millions of years before any creature evolved to a state of moral accountability (the "Flintstones; and "Alley Oop" to the contrary, notwithstanding). The same cannot be said concerning the availability to us of passenger pigeons or, much more to the point, the availability to future generations of clean air and energy sources (be they fossil fuels, or some yet-to-be developed alternatives). It is, to some degree, within the knowledge and power, and thus the moral purview, of contemporary persons to determine whether future generations shall have clean air and energy sources.

But surely it seems paradoxical to claim that persons in the future can have rights in the present. I will grant that is seems so, but I will insist that the claim is intelligible. So that we might unravel this subtle point, I suggest that we shift our time perspective to the past and consider the case of the cedars of Lebanon. In ancient times, the Phoenicians cut the fabled trees from the mountains and thus brought devastating floods and silt down to the valleys below. Can we not say that the Phoenicians, by this policy, defaulted in their duties to the present inhabitants of Lebanon? Furthermore, weren't these contemporary persons correspondingly deprived, in the past, of their rights to an abundant and beautiful environment? It would seem that the duty to protect the right of the present Lebanese to have the cedars applied to those who were in a position to protect this right: e.g., the ancient Phoenicians. This follows from the rule that rights and duties apply to possible circumstances -- i.e., to circumstances that fall between the limits of impossibility and inevitability. The savages who lived in the region before the dawn of history, and who were presumably incapable of causing lasting damage to the forests, had no duty to forebear from what was, to them, the impossible. The Romans and Saracens who followed the Phoenicians found barren hills, and thus had no duty to protect the non-existent trees. All this bears some strange implications for the perspective of time- present. Thus, for example, the present-day Lebanese had (!) no rights-claims upon the savages or upon the Romans and Saracens. Neither do the Lebanese have rights today to trees that can not be had. (For the sake of argument, I am assuming that the damage was irreversible and thus that the cedar forests, once destroyed, could not have been restored at any subsequent time). The "rights" of the present generation to the cedars of Lebanon belong to the past tense. These rights could only entail duties applicable, first, to the predecessors of the Phoenicians who were capable of destroying the trees, but who fulfilled their duties by protecting the cedars, and finally to those who violated these duties by destroying the cedars. Thereafter, there were no more rights or duties, for the trees were (I assume) forever gone.

But does it not seem strange to speak of rights, long past, of present persons? I grant that it does, and suggest that this strangeness may be sufficient reason to prefer "duty-talk" to "rights-talk" in such cases.⁽²¹⁾

But the very application of duties and rights across generations constitutes an unusual use of these concepts which are usually applied among contemporaries. The strangeness of this use of "rights" is compounded by the fact that "rights" are not commonly referred from the contingent present back to the immutable past. We are not encouraged to cry over spilt milk, or accustomed to lament over long-lost forests. Such issues are no longer "live." Indeed, we may be little aware of what we have lost. However, the same situation seems far less odd when viewed from the perspective of the predecessor generation; when, for example, we speak of the rights-claims of future generations falling upon the present generation. Accordingly, while it may seem odd to speak of the right of the present Lebanese to the lost cedars, we would have little difficulty making sense of the recorded complaint, by some ancient Phoenician environmentalist, that the cedars should be carefully managed in deference to the rights of future generations.
 

VII

The final objection to the notion of the rights of posterity might be called "the indeterminacy argument." Ruth Macklin presents it quite forthrightly:

While it is appropriate to ascribe rights to a class of persons, in general, such ascription is inappropriate when the class in question has no identifiable members. Now the class describable as "future generations" does not have any identifiable members -- no existing person or persons on whose behalf the specific right can be claimed to exist.⁽²²⁾

Of all the objections so far, I find this one to be the most curious in that, while it appears time and again, it seems to be among the easiest to answer. Indeed, we need not look to posterity to find examples of duties to, or rights of, "unidentifiable persons." Such "persons" exist among our contemporaries. For example, Joel Feinberg offers the example of "the duty of care that every citizen is said to owe to any and every person in a position to be injured by his negligence. I have this duty to some degree even to the uninvited trespasser on my land."⁽²³⁾

Notice that the duty of the landowner is owed not to identifiable persons, or even to probable persons, but only to (indefinite) possible persons in the (undetermined) future, whosoever they might be. And what of duties of "the indefinite?" Here too, examples are easy to imagine. For instance, my right not to be physically assaulted entails the duty of any (indefinite) persons who might, at any time in the (undetermined) future have occasion or opportunity to do so. Does Macklin wish to deny that these are rights and duties properly so-called? And if they are, and surely common usage so indicates, then in what sense are "future generations" less "definite" than the person, now alive, who might be injured eight years hence, due, say, to my failure now, to cover an abandoned mineshaft on my mountain property. Does such a person have any more right not to be injured than his now-unborn (thus "indeterminate") child who will be six years old on that date?

It might be countered that if, due to my negligence, someone will in the future be injured, the victim's identity at that time will be made quite "definite" to me (presumably by his lawyer), which is not the case with injuries to posterity. But the objection misses the point. My duty not to be negligent is a duty to anyone who might be injured, and if my duty is fulfilled there will, ipso facto, be no "definite" victim and, moreover, the rights of unidentified multitudes will thereby be respected.

Now all this may appear to be well and good when applied to our contemporaries. But will duties to, and rights of, the indefinite still be morally valid if the "indefinite" are not yet alive; if they are possible future persons?⁽²⁴⁾

I believe that these moral requirements might be meaningfully applied to such cases. To illustrate this point, consider Galen Pletcher's very apt "paradigm of the campsite":

If I have been camping at a site for several days, it is common to say that I have an obligation to clean up the site -- to leave it at least as clean as I found it -- for the next person who camps there. We assume, of course, that the person who will use it next does exist somewhere; but it is not necessary to assume this, just as it is not necessary to know who he or she is, or when he or she will use the site. We have an obligation which might be called an "obligation- function," because it is to some as yet unspecified person or persons. There is a preliminary "right function" in this case, which can be stated: "for any x, if x is a person who wants to camp at this site, then x has a right to a clean campsite."⁽²⁵⁾

Significantly, the morally operative consideration here is not the time of the next use, nor the identity of the next camper. It is that the area might be used by an unknown and indeterminate individual with an interest in having a clean campsite.

But does this example have bearing upon the posterity question? Clearly it does. Pletcher continues:

If, happily, I have discovered a campsite so removed from the beaten track that the next person to discover it is someone who wasn't even alive when I last camped there, it still is true of that lucky person that he has a right to a clean campsite, and I had an obligation to secure to him that state of affairs. My conclusion can thus be stated: If any moral obligations or rights can properly be stated in terms of "obligation - or right-functions," then these apply also to future generations.⁽²⁶⁾

The next camper has a "right" to a clean campsite, not because of who he is (as an identifiable person), or when he is, but for what he is -- a sentient, rational person (thus of our moral community) who might have an interest in enjoying the use thereof. That he may, at this moment, be non-existent is, morally speaking, non-relevant. The argument is all the more urgent when we speak not of a campsite where a camper might possibly visit but of a planet upon which another generation, and then another, must dwell.
 

VIII

The Upshot -- Some General Principles. The "non-actuality" and "indeterminacy" arguments share a common error which, I believe, we are now prepared to identify. Both arguments commit the fallacy of "false criterion" or (viewed differently) of "hasty generalization." Criteria that correctly apply to certain kinds of rights are, I believe, falsely assumed to apply to rights in general. I have argued these points informally by citing counter-examples to the claims (of Rosenbaum, DeGeorge and Macklin) that future generations do not have rights due, respectively, to their "mere imaginability," their "non-actuality" and their "indeterminacy." It is time to offer an analysis of the concepts that underlie my refutation of these arguments.

We begin with a simple, and I believe uncontroversial, acknowledgement that not all species of rights that obtain among contemporaries are the sorts of rights that can be held by future persons against their predecessors that are now actual. Thus, if future generations have rights now, then these are special kinds of rights (though they may be stringent, nonetheless). My analysis follows upon a partial adoption, and an extension, of Joel Feinberg's analysis of rights -- particularly, of the contrasting pairs of "active/passive rights" and "in rem/in personam rights."⁽²⁷⁾

Feinberg defines the first pair as follows: "active rights are rights to act or not to act as one chooses; passive rights are rights not to be done by others in certain ways." He provides the following examples:

Among one's active rights may be such as the rights to go where one will and say whatever one pleases, often referred to concisely as 'the right to liberty.' Among one's passive rights may be such as the rights to be let alone, to enjoy one's property, to keep one's affairs secret, or one's reputation undamaged, or one's body unharmed. These are often characterized collectively as 'the right to security.'⁽²⁸⁾

The in rem / in personam distinction is as follows:

The distinguishing characteristic of in personam rights is that they are correlated with specific duties of determinate individuals. . . [For example], the rights of landlords to collect rent from their tenants, and the right of the wrongfully injured to damages from their injurers.

In rem rights, on the other hand, are those said to hold not against some specific nameable person or persons, but against "the world at large." Examples include a homeowner's right to peaceful occupancy of his own house, and anyone's rights to the use or possession of the money in his own purse or pocket. Corresponding to these rights are the legally enforced duties of non-interference imposed on everyone. Everyone has a duty to keep off my land without my permission. . .⁽²⁹⁾

Feinberg has a third distinction, between negative and positive rights:

A positive right is a right to other persons' positive actions; a negative right is a right to other persons' omissions or forbearances. For every positive right I have, someone else has a duty to do something; for every negative right I have, someone else has a duty to refrain from doing something.⁽³⁰⁾

This third pair ("negative/positive") does not have an important role in this analysis, since the rights of future persons can be either positive (e.g., the right to have certain resources available), or negative (e.g., the right not to be poisoned by radioactive wastes).

Similarly, the in personam/in rem distinction also has no direct application to the posterity issue since, once again, both kinds of rights apply to future generations. Thus the putative rights of future generations might be directed, "in personam," against a specific person (e.g., a Congressman about to vote on a nuclear energy bill), or, "in rem," against "the world at large" (e.g., against any and all citizens in a position to influence that same legislator's vote).⁽³¹⁾

But while the in personam/in rem distinction does not, in itself, advance our conception of rights which are, and are not, applicable to posterity, this distinction is important for what it suggests; namely, still another distinction, not explicated by Feinberg, yet relevant to the issue of the moral status of future persons. This pair, which I call "denotative rights" and "designative rights," might be thought of as correlates to in personam and in rem duties (not "rights"). Thus a (so to speak) "in personam duty" is responsive to the rights-claim of ("denotatively") identifiable individuals, while an "in rem duty" is correlated to the rights of a class of persons identifiable by description (by "designation"). As Macklin has clearly indicated, denotative rights are clearly not applicable to future generations due to their "indeterminacy." But Pletcher's "campsite paradigm" demonstrates, with equal clarity, the applicability of designative rights to future generations.

If these distinctions all hold true -- if, that is, valid cases of "rights" can be found to fill these special categories -- then the "non-actuality argument" (of Richard DeGeorge and Rosenbaum) and the "indeterminacy argument" (of Macklin) both commit the fallacy of "false criterion." In both cases, the criterion for one type of a right is falsely taken to be the criterion for all rights. In the first case, Richard DeGeorge claims that the fact that future persons can not act or exercise their personal "rights" now entails that they have no "rights" now. His argument is sound with regard to active rights, but not with regard to passive rights. Ruth Macklin states that "it is [in]appropriate to ascribe rights to a class of persons . . . [with no] identifiable members." As noted, she is correct with regard to "denotative rights," but not with regard to "designative rights." In the two previous sections, I have presented a number of exemplifications of such rights of future persons that demand action or forbearance in the present. All these cases indicate how persons now alive can now deliberately set in motion events and circumstances that will affect the quality of life of future persons, regardless of the analytic truth that they are non-active, even non-actual, now (cf. the examples of nuclear waste and ozone depletion in Section IV, above). Furthermore, these options now before us affect future persons generally (i.e., "by description" or designatively -- cf. "the campsite paradigm," in Section VII).
 

XI

If my analyses have been correct, then neither temporal remoteness, lack of direct claims, non-actuality, indeterminacy nor non-reciprocity disqualify future persons from our moral community.⁽³²⁾

These four features present, I believe, the most serious challenges to the claim that future persons have rights, and thus that the living have strong "perfect" moral duties toward them. Perhaps I have overlooked a convincing and fatal objection. However, unless and until such a refutation is offered, I believe that we can be assured that the moral categories of rights and corresponding duties, which morally bind us to our contemporaries, can meaningfully be said to bind us to our successors as well.

The primary burden of this essay has been to demonstrate the plausibility of acknowledging that future generations have rights. The question of the content of those rights lies beyond it's intended scope. However, when such issues arise, they may bring forth still more objections to the alleged rights-claims of posterity. Some of these objections are not significantly different, in kind, from objections to the rights-claims of contemporaries (such as the impoverished peoples of "the third world").

Consider, for example, the following observation of Richard DeGeorge:

Speaking of the rights of future generations as if their rights were present rights ... leads to impossible demands on us.... Consider oil ... It is a nonrenewable resource and is limited in quantity. How many generations in the future are we to allow to have present claim to it? Obviously if we push the generation into the unlimited future and divide the oil deposits by the number of people, we each end up with the right to a gallon or a quart or a teaspoon or a thimble full.⁽³³⁾

This objection is, I believe, effectively answered by Douglas MacLean, who writes: "moral requirements apply not to the distribution of resources themselves [among generations], but to the distribution of whatever it is that makes resources valuable."⁽³⁴⁾

Thus, he correctly points out, the claims of future generations might not be to particular material or energy resources, but to the availability, somehow, of the benefits that these resources produce. Accordingly, our duties to the future might be met by utilizing our necessarily brief and transitory age of abundant fossil fuels to develop technologies that might produce and utilize such "next generation" fuels as biomass, photovoltaic cells, fusion reactors, or whatever unanticipated sources may yet turn up. Therein might be an intelligible, and even practicable, interpretation of the "Lockean Proviso" that we leave "as much and as good" resources for our successors.

The question of the content of the rights of future generations is subject for another paper -- still better a book or a career. At this closing, the following sketch must suffice: Posterity's claims upon us are less for gifts, than for forbearances and options. Positively, we should bequeath the assimilated records and skills of our civilization, in libraries, archives and universities. Beyond that, our duties are primarily of a negative sort. While we may share few of the aesthetic tastes, or even the cultural mores, of our remote successors, we can still surmise much regarding their fundamental needs. They will require just institutions, basic energy and material resources, a functioning atmosphere and flourishing ecosystem, and an unpolluted and unpoisoned environment. A just provision of many of the items on this list might be achieved by little more than prudent stewardship of our own inheritance.

 

At length, perhaps our own brief moment alongside the river of time will be justified and fulfilled if we can gaze "upstream" with gratitude at what we have received, then "downstream" with pride and satisfaction at what we will bequeath.⁽³⁵⁾

 

Copyright 1990 by Ernest Partridge

____________________________________________

NOTES

1. 1. And yet, in a figurative sense, we may "owe" a great deal to posterity. I so argue in my essay, "Why Care About the Future?" in Partridge (ed.), Responsibilities to Future Generations, (Buffalo: Prometheus Books, 1981), p. 203-18. (On this site).

2. My dissatisfaction with this "extension" of the concept of rights is spelled out in "Environmental Ethics Without Philosophy," in Richard Borden (ed.), Human Ecology: A Gathering of Perspectives, (College Park: Society for Human Ecology, 1986), p.7, pp. 140-5.

3. Though Feinberg has defended this analysis in numerous books and publications, perhaps the best-known source is "The Rights of Animals and Unborn Generations," in Blackstone (ed.), Philosophy and Environmental Crisis, (Athens: Univ. of Georgia Press, 1974). I accept Feinberg's analysis of rights virtually intact. My profound intellectual debt to this outstanding philosopher will become cumulatively obvious to the reader, as he proceeds with this essay. Less apparent, though no less significant, is my personal debt to Professor Feinberg.

4. H. L. A. Hart, "Are There Any Natural Rights?" Philosophical Review, Vol. 64 (1955), p. 183.

5. The reverse is not the case: there may be duties without rights -- e.g., some duties of beneficence. However, this qualification is not important to my argument.

6. "Act" is interpreted broadly here and thus includes forbearances. (Cf. my discussion of "negative rights" in section VIII, below).

7. Joel Feinberg, "The Nature and Value of Rights," The Journal of Value Inquiry, 4: (Winter, 1970),, p 252.

8. This is my term for the problem. Other names are "the non-identity problem" (Derek Parfit), "the paradox of future individuals" (Gregory Kavka), and "the case of the disappearing beneficiaries" (Thomas Schwartz). (Citations Follow)

9. Thomas Schwartz, "Obligations to Posterity," in Barry and Sikora (eds.), Obligations to Future Generations, (Philadelphia, Temple University Press, 1978), pp. 3-13.

10. Gregory Kavka, "The Paradox of Future Individuals," Philosophy and Public Affairs, 11:2 (Spring, 1982), pp. 92-112. Derek Parfit, Reasons and Persons, (Oxford University Press, 1984), pp. 351-441.

11. "Should We Seek a Better Future?", Ethics and the Environment, 3:1, 1998.

12. William H. Millert and Albert J. Fritsch, Nuclear Energy: The Morality of Our National Policy. (CSPI Energy Series IV. Washington: Center for Science in the Public Interest, October 1974); pp. 41-7. Also, Harvey Wasserman and Norman Solomon, Killing Our Own, (New York: Delta Books, 1982), pp 193-302. For an acknowledgment of this problem by an proponent of nuclear power, see Alvin Weinberg, "Social Institutions and Nuclear Energy," Science, 177 (7 July, 1972).

13. Ralph J. Cicerone, "Changes in Stratospheric Ozone," Science, 237 (3 July, 1987), pp. 35-42. James Gleick, "Even With Action Today, Ozone Loss Will Increase," New York Times, March 20, 1988. Richard A. Kerr, "Stratospheric Ozone is Decreasing," Science, 239 (25 March 1988), pp. 1489-91. See also Dale Jamieson's contribution to this anthology.

14. For a splendid statement of this point, see Derek Parfit's criticism of "The Social Discount Rate," Appendix F of his Reasons and Persons, (op. cit.). In actual fact, the efficacy of an action and the certainty of its results generally diminish with time; but this is a contingent, not a logically necessary, fact. There are conceivable, and probably actual, exceptions. Indeed, I have just cited two of them. The damages caused by nuclear wastes and ozone depletion are more likely to occur in the remote than in the immediate future. Furthermore, in the ozone case, though the manufacture of all chloro-fluorocarbons may soon be banned, the severity of the consequences of their past use will increase with time.

15. Bertram Bandman, "Do Future Generations Have the Right to Breathe Clean Air?", Political Theory, 10:1 (February, 1982), pp 95-102. While this paper is useful for it's clear expression of the "no- claims argument," and while it appears to arrive at a conclusion similar to my own, Bandman's argument strikes me as incoherent. Furthermore, though this argument has a superficial resemblance to Section VIII, below (which I developed independently of Bandman), close scrutiny will reveal significant differences.

16. Bandman, op. cit., p. 96.

17. Joel Feinberg, Social Philosophy (Prentice-Hall, 1973), p. 67.

18. Ruth Macklin, "Can Future Generations Correctly Be Said to Have Rights?," in Ernest Partridge, Ed. Responsibilities to Future Generations, Buffalo: Prometheus Books, 1981, pp. 151-2.

19. Stuart E. Rosenbaum, "Do Future Generations Have Rights?" (Unpublished paper read at the Annual Meeting of the American Philosophical Association, Eastern Division, Atlanta Georgia, December 28, 1973. The topic of the symposium was "Can Future Generations Correctly be Said to Have Rights; e.g., the Right to Clean Air?" Papers by Galen Pletcher, Richard DeGeorge, Ruth Macklin and Annette Baier, presented at that symposium, were later revised and included in my anthology, Responsibilities to Future Generations (op. cit). I am grateful to Dr. William P. Alston of Rutgers University for sending me copies of the papers read at that meeting.

20. Richard T. DeGeorge, "The Environment, Rights, and Future Generations," in Partridge, op. cit., p. 161.

21. Nevertheless, this is talk of "perfect duties" (with correlative rights).

22. Ruth Macklin, "Can Future Generations. . . " (Op. Cit.), p. 152.

23. Joel Feinberg, "Duties, Rights and Claims," American Philosophical Quarterly 3:2 (April, 1966), pp. 139-4O.

24. It may be important to keep in mind a distinction here between those who are "indefinite" due to our limited knowledge ("epistemologically indefinite," including persons at all times), and those who are "indefinite" in the sense that their eventual existence is contingent (call them "ontologically indefinite" -- a class comprised of future persons). Cf., in this regard, the final lines of the paragraph before the preceding ("Does Macklin mean to deny . . .").

25. Galen Pletcher, "The Rights of Future Generations," in Partridge, op. cit., p. 168.

26. 26. Ibid.

27. Cf. Joel Feinberg, "The Nature and Value of Rights," The Journal of Value Inquiry, No 4. (1971), and Chapter 4 of Social Philosophy, (Prentice-Hall, 1973).

28. Feinberg, Social Philosophy, op. cit., p. 60.

29. Ibid., p. 59.

30. Ibid.

31. Bandman, (op. cit, p. 99), errs in overlooking the fact that the in rem/in personam distinction refers to duty bearers, and not to rights-holders. Thus he incorrectly concludes that future generations do not have in personam rights.

32. Again, I will not claim to have demonstrated here that "re- population" due to effective policy choices, fails to absolve us of our duties to posterity. I have attempted that task elsewhere. (Cf. Section III, above).

33. Op. cit., p. 161. I would not wish to associate DeGeorge with the naivete of this fragmented quotation. He subjects this rather gross observation to a subtle and sophisticated analysis. Furthermore, he is quite aware of, and to some degree endorses, the response which I present below.

34. Douglas MacLean, "Introduction" to Energy and the Future, Totowa, NJ: Rowman and Littlefield, 1983), p. 5. Many of the contributors to this valuable anthology, offer elaborations on this seminal theme.

35. This paper has its origins in the third chapter of my doctoral dissertation, Rawls and the Duty to Posterity (University of Utah, 1976). An earlier and briefer version of the paper was read at the annual meeting of the Philosophy of Education Society, Vancouver BC, April 1976, and appears in the Proceedings of that conference. It has undergone extensive revision and expansion since then. I gratefully acknowledge support from the Rockefeller Foundation, and the National Science Foundation, during the development of these ideas and of this paper.

---

Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .