The identity and (legal) rights of future generations

The George Washington Law Review 77:1173 (2009)
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Exploring the peculiar nature of future generations and concluding that types of future people is the most promising object on which to project our concern for future generations the article poses two main questions: “Can future people have rights?” and, if so, “Do they in fact have any rights?” The article first explains why the non-existence of future people raises doubts whether future generations can have rights. Within the philosophical literature, the leading approach explaining how future people can, nevertheless, have rights argues that they have rights as tokens of types of people. 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 the article goes on to explain that there is reason to doubt whether any such rights actually exist, which derive 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. The article then elaborates and assesses the merits of these approaches



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Ori Herstein
King's College London

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