Contractors Deciding on Their Existence

"The question of justice between generations . . . subjects any ethical theory to severe if not impossible tests" (Rawls 1971, 284). This opening remark of the section on justice between generations is well attested by the serious problems encountered by Rawls himself (and highlighted by some of his critics) in the attempt to apply principles of contract theory to transgenerational issues. It must be noted in the outset, however, that Rawls is solely concerned here with questions of savings, the transmission of culture and knowledge, and (above all) the ongoing historical process of enhancing the institutions of justice. Reference to genesis problems is conspicuous by its absence. This absence is surprising, for population policies are definitely typical cases of intergenerational issues involving specifically distributive dimensions.

One might say that criticizing Rawlsian theory for failing in something

it is not trying to do is unfair and beside the point. However, if social policies of demographic planning (e.g., the distribution of the rights and incentives to procreate) are matters of distributive justice, the theory must be able to deal with them. And even if they are not, one cannot deny that those problems of distributive justice between generations that are of Rawls's concern (like the just savings principle) are directly dependent on genesis decisions. Only twice in the sections devoted to the intergenerational subject (secs. 44 and 45) does Rawls mention this dependence: in both cases in the course of a critical comment on the handling of the savings problem by utilitarian theory (see p. 286 and p. 298). Yet, the population factor is relevant to contractarian accounts of the savings problem no less than to the utilitarian attempts "to mitigate the consequences of wrong principles" (p. 297) by adding a principle of social discount.^[1] Utilitarianism indeed takes population size as "a variable" in dealing with the saving issue, and that is problematic due to the indeterminacy that I will examine later in this chapter. But Rawls's opposite fallacy is no less serious from a genethical point of view; he takes population size as given and fixed, instead of taking it as a moral or a political issue that has to be decided. Thus, the dependence relation is deeper than hinted at by Rawls: it is not only that the (expected) numbers of future people should affect our savings policies as some sort of relevant background data; these numbers might very well be a crucial part of, or the very subject of these policies. And as population trends have become a matter over which we—the present generation—have gained some control, we cannot avoid articulating normative principles for making those choices.^[2]

It is noteworthy that Rawls does refer to the question of population size in an earlier section of the book devoted to average utilitarianism. He even suggests there that it is a subject for institutional arrangements, implying that it is a matter of choice (p. 162). The fact that an increase in the number of people could promote overall happiness by drastically lowering average happiness (the anticipation of Parfit's Repugnant Conclusion) is given as a reason for the contractors' preference for the average version over the classical (total) alternative. Yet, when explaining this preference Rawls fails to notice that the contractors are not just deciding between two alternative societies in which they might live but between a large society that, let us assume, will include them and a smaller society that, for that very reason, will not include them (or all of them).

I come here to the basic flaw in contract theory in its application to genesis problems (and hence also derivatively to all other intergener-

ational issues like the just savings principle). In the same way as the choice between average and "classical" utilitarianism is a decision about the number of people who are going to exist, so also is the decision of how much we have to save for posterity (indeed, whether we have to save anything at all). For one of the most efficient ways of fulfilling whatever obligations we may have regarding the level of welfare of future generations is a deliberate limitation of the birthrate. This is an alternative or a supplementary way to that of saving. In an era of efficient birth control methods one cannot ignore the inseparability of savings issues from population policies. This, as we have come to realize in modern times, is not only an abstract theoretical point, but a very practical dilemma faced by both individuals and societies.

With individuals, we all know that modern parents partly decide the number of children they are going to have in the light of their notion of a right amount of savings for their prospective children together with the ratio of their income which they are willing to set aside. With societies, we can say that there is a correlation (though not always an outcome of a deliberate policy) between the awareness of the rights of future people to enjoy a high standard of living and the effort to control birthrates. However, in all these cases the contractarian method of deciding basic social policies seems to break down for the simple reason that the question who is to decide the relevant principles remains undetermined.

Let me explain: the idea of an original position is based on ideal universal participation, at least through virtual representation. When applied to transgenerational problems, like the just savings principle, Rawls wavers between two competing interpretations of the participation condition. According to the first, every generation is represented in the original position, thus guaranteeing that no generation is discriminated against in the savings policy. The problem with this interpretation is that it does not satisfy what are known as the "circumstances of justice," as the relations between the bargaining parties are not those of competition and cooperation (thus only the earlier generation can, for example, benefit or cause harm to the later ones, and not vice versa). Therefore, Rawls prefers the second interpretation, called "the present time of entry," according to which all the contractors belong to one generation. They know this condition, but do not know to which particular generation they in fact belong. Thus, the incongruity of transgenerational bargaining is avoided. However, Rawls must add in this interpretation what he calls "a motivational assumption," which guarantees

that the contractors will not decide against any savings (being assured of whatever was left to them by the previous generations, independently of their putative negative decision). This assumption views the contractors as heads of family lines, having deep interests in the welfare of their descendants of at least the first two generations. This is considered by Rawls to be a natural psychological supplement to the otherwise psychology-free conditions of the original position, and hence a reasonable (though not easy) theoretical price to pay for a contractarian account of the saving principle.

Now, beyond the critique that has been raised by many philosophers against the adequacy of the motivational assumption,^[3] I may add that neither of the two interpretations can make sense in genesis contexts.

According to the first, all generations have to be represented in the original position in order to decide the issue of how many generations there are going to be, and that is obviously logically impossible. There is no way to visualize a representative of a particular generation agreeing to a policy that would allow the previous generation to declare that humanity should better come to a peaceful end (i.e., stop all procreation). That is to say questions of the existence of future generations cannot be decided by contractarian methods.^[4]

Furthermore, and more realistically, the question of the size of each generation cannot be decided by such a universal conference of generations, because it will put an impossible strain on the idea of representation: why should I let the representative of my generation decide its size, if that decision potentially involves my nonexistence? The very idea of representation presupposes a given number of people—all with the relevantly same interests and status. A wild possibility would be to allow literally all possible human beings into the original position, thus avoiding the problem of having to decide in advance who is going to exist. But as the existence of all possible beings would mean a disastrous overpopulation of the world, criteria would be required for limiting the number of actualized possible beings. But again, the conference of all possible beings would not be able to agree on those criteria, because no one would be willing to negotiate "his" or "her" inexistence. And beyond all that, we know that there is no determinate group of all possible human beings, but rather many groups of com possible beings. How are the contractors to decide which of those groups is in fact going to be procreated?

And even if the enormous class of all possible gametes (combinations of sperm cells and eggs) can be imagined, it would not include the

products of nonsexual reproduction such as cloning, genetic engineering, and divine creation ex nihilo . Possible persons cannot be admitted either to a Rawlsian "constructed" original position, or a fortiori to a Hobbesian naturalistic state-of-nature bargaining, which in a more marked way takes individuals as given. The grand conference interpretation is viciously circular: we have to decide whom to let into the original situation in order to decide who is going to exist in the world. But only those existing in the world can make the first decision.^[5]

The second interpretation, "the present time of entry," fares no better in genesis contexts than its rival. The motivational assumption is indeed a "natural" one, as Rawls claims. But it is natural only as a psychological generalization constituting the background for justifying a certain ratio of savings for future generations that are assumed to come into existence anyway. However, population policies and family planning make this existence the very subject of decision and choice and hence cannot prejudge the issue by pointing to altruistic sentiments as a general human trend. To avoid the possibility of egoistic solutions by contemporaneous contractors, Rawls suggests that

the parties are thought of as representing continuing lines of claims, as being, so to speak, deputies for a kind of everlasting moral agent or institution. (p. 128)

Again, this view is psychologically sound when we come to deal with intergenerational problems of distribution (e.g., savings). But it hardly helps to guide the decision of an individual whether to become a "head of a family" or a link in a continuing generational chain.^[6]

It is by this invisible logic of the inherent inapplicability of justice as fairness to genethical problems that Rawls is led to the kind of undeclared goal-based, impersonal, and transindividual propositions alluded to in the lines quoted above. These are hard to reconcile with his rightbased approach to ethical theory. It makes individuals the servants not only of transtemporal interests, but also of a transindividual (and metaphysically vague) abstract "everlasting moral agent or institution." When speaking about the natural duty of promoting the institutions of justice it is not always clear whether Rawls is thinking of justice as something good for and deserved by human beings, or whether he is concerned with a historical process that is valuable per se .

The question for Rawls is this: should we decide the number of people in the next generation in the light of the chances of alternative policies to promote the institutions and principles of justice? And if we

do so, is it not using procreation (and thus people) as means for the promotion of a certain ideal? Rawls says that "each generation must . . . preserve the gains of culture and civilization . . ." (p. 285). But why? Is it because of distributive considerations of fairness, that is, sharing with our descendants what we inherited from our predecessors? Or because of the inherent value of culture as such? The first interpretation is more Rawlsian in nature, but fails to address genesis problems by presupposing the existence of descendants who have rights over these values. The second leaves open the possibility that procreation itself might be required as a means for the preservation of certain human goats or values, but that transcends the methodological framework of justice as fairness.

The dilemma might be put in slightly different terms: basically Rawls insists that the duty to further the institutions of justice throughout history is a natural duty agreed upon in the original position, that is as something deserved by individuals (as a right). But, when faced with the problem of applying this natural duty in the intergenerational sphere, Rawls vacillates between two alternative strategies. According to the first, the essentially right-based approach is maintained but the temporal individual agent becomes a transtemporal, "everlasting" individual creature. Logically this is a satisfactory solution, since the concern with future interests becomes similar to the prudential care that any individual takes of his or her future. However, metaphysically it makes for a very difficult conception of a moral agent who is an "individual" but unnaturally extended in historical time. The second possible strategy is to stick to plausible individualistic metaphysics of actual persons agreeing on principles of justice, but supplement the doctrine with goal-based elements such as the ideal of a fully just society. Here the metaphysics is convincing but the methodology clearly stretches beyond the idea of justice as fairness. Contractarian terms cannot explain the duty to further justice "to the last stage of society" in which no more savings are required for the promotion of justice (p. 289), or the duty to bring about "the full realization of just institutions" (p. 290).^[7]

It is also not clear why we should both "uphold" and "further" the institutions of justice. If indeed it is rational on our part to want for egoistic reasons to enhance our chances of living in a just society that leads us to agree in the original position on a natural duty to enhance justice, then the same would apply to the promotion of wealth from generation to generation. But Rawls explicitly denies the latter (p. 290), which implies that he is treating justice as a particular goal worthy of promotion rather than mere "upholding."

We should keep in mind this difficulty of accounting for genethical questions in purely right-based terms and the natural tendency to slip into some kind of goal-based rhetoric. This tendency is not unique to Rawls, but rather reflects a general problem with right-based as well as duty-based theories (as will be shown in the next section).

The basic issue is the extent to which a contract theorist is willing to go beyond metaphysical or methodological individualism. Rawls interprets the just savings principle as the undertaking of individuals in the original position "to carry their fair share of the burden of realizing and preserving a just society" (p. 289). But clearly, a just society is a value only for individual human beings living in it. Rawls might be challenged with the following dilemma, which may sound a little abstract and remote, yet it could test the limits of contract theory: either double the population in the next thirty-five years (this is roughly the present rate of population growth) and hope at most to maintain the present level of justice, or enforce a zero population growth for that period and significantly enhance the level of social justice. Although the natural inclination definitely favors the second policy, the theory of justice cannot justify it. Or it can justify it only by being extended so as to include transindividual ideals (of the sort characterized by Rawls as "grand projects" for which people are allowed to decide to save, but are not bound to do so by the theory of justice [p. 288]).

It is indeed a plausible assumption that human beings are motivated by love of their offspring (and also of their offspring's offspring); but this can only explain how people ought to share what they have with future people once these are born or at least after it is decided that they will be born. It cannot solve the question whether to conceive children at all and how many. Rawls is aware of the impossibility of "a gathering of all actual or possible persons" as a way to envisage the original position (p. 139), but because he is concerned with distributive problems of savings and conservation, he attributes this impossibility to the overstretching of the fantasy of the original position. Once we focus on genesis problems, we see that the impossibility is logical. It is not only hard for the imagination to visualize a grand conference of all people deciding who is going to be born and who is not; it is a conceptual absurdity. (Note that even had this idea of a grand conference made sense, there would have been no way for me, as a possible person, to forgo actualization, without consulting all my possible descendants, who by my very decision would become "impossible"!).^[8]

If we turn our attention to the genethical question of determining the

identity of future people, the conceptual absurdity of contractors deciding their identity becomes no less manifest. For again, the contractors can agree on the principles that would govern their social life even if they are ignorant of their individual identities. But the whole idea of the veil of ignorance is that such an identity is given, that is, not a matter of choice (otherwise there would be nothing to hide). In the same vein, Rawls cannot allow the list of primary goods to become a matter of bargaining in the original position. But could not further progress in genetic engineering enable us to create individuals with a different set of primary values? And are any moral limitations on such a manipulation available to the contract theory? Rawls takes for granted a certain universal psychological structure of human interests. This is a valid methodological move as long as the structure itself does not become a moral issue calling for a decision. The original position is a powerful and consistent idea up to the point where both human existence and the identity (in the sense of nature) of the planned existing beings becomes a matter of choice.

One implication of all this is that the difference between "all actual persons" and "all possible persons" is crucial. Rawls is concerned with all actual persons and the way goods are to be distributed among them. Only by limiting himself to actual beings can Rawls extend his principles of justice to the intergenerational dimension. All persons can be viewed as if they were contemporaries, and temporal location is neutralized, because the existence, number, and identity of people throughout time is implicitly assumed as fixed. However when people must by definition be viewed as possible, as in genesis problems, the contract theory breaks down, because potential people cannot choose the principles for making themselves actual.^[9] Another implication is that the fact whether an individual exists or not cannot be hidden by the veil of ignorance in the original position: existence is a fact about an individual, which on the one hand is not a general truth, yet on the other must be known by the individual in the original position. This might prove to be the only truth of a particular nature which Rawls must allow his contractors in the original position. But then it also bars him (and them) from being able to decide genesis problems.

Another typical way of highlighting the difference between genesis problems and intergenerational problems of just distribution is through the Rawlsian idea of a "social minimum." The theory of justice is primarily concerned with that minimum owed to future generations as the basis for the determination of the right rate of savings (pp. 285–

286). This minimum is determined neither by the average wealth of the present generation, nor by the customary expectations of the future beneficiaries. It is decided rather by the difference principle, that is, relatively to what others have. This involves for example a comparison between the worst off in the present generation and the worst off in the next generation as one way of deciding the limit of taxation on present consumption for the sake of future people. However, it seems that the relevant minimum cutoff line in matters of procreation is of an absolute nature, related to some notion of a life worth living. In other words, the moral constraints on population growth have to do primarily with a certain view of what makes life worthy, irrespective of the quality of life enjoyed by other people. This difference is natural, since the theory of justice and just savings focuses on distribution, whereas genesis decisions are "existential," with life being on the one hand something that is given to people, yet not exactly distributed, especially not among "them," or between "them" and us.

This leads us to another Rawlsian idea that will require modification before being applied to genesis problems. Rawls is sensitive to the interdependence of intergenerational distributions of wealth and resources and intragenerational distributions of these goods (p. 292). Basically, the present worst off individuals in society have a claim on their contemporaries which puts direct constraints on the level of savings for future generations and vice versa: the responsibility to future people limits the degree of redistribution within a generation for the benefit of its least advantaged members. This sounds plausible. Yet, Rawls admits that it defines only the constraints on the savings ratio but leaves the precise limits of the rate of savings impossible to define (p. 286). My argument is that one of the major reasons for this impossibility lies exactly in the dependence of the rate of savings on the number of people we decide to create. Furthermore, this number can be decided in a just way only if certain distributive principles of procreation rights are agreed upon. In other words, genesis problems also manifest a similar, though as we shall see more tricky, interdependence of inter-and intragenerational considerations. Begetting children does not only affect "them"; it primarily affects the contemporaries of the begetters, and in that they must be subject to principles of political justice (what will later be referred to as the problem of licensing parenthood). But as we have shown, the Rawlsian principles fall short of guiding us on these matters.

Of course contract theory can be defended by emphasizing that it is only a theory of justice and hence should not be expected to be able to

deal with genesis problems, as these lie beyond the scope of the subject of justice. This in itself would be a significant meta-ethical restriction on the theory of justice to issues relating to actual people. It will mean that some important issues of population policy together with those aspects of savings policies that are dependent on demographic planning cannot be subjected to the principles of justice and fairness. In fact this is exactly part of our thesis, as will be elaborated in part 2. What would be left for a theory of justice to decide in the genesis context would be the way genethical questions are resolved by a given, actual generation, including for example the distributive aspects of the burdens of procreation policies on present people. Contract theory, in this case, would be able to deal with genesis problems only in terms of the justice relations between actual people, thus depriving potential people (whose very existence is at issue) of any status (i.e., rights, or participation and representation in the original position).

The fundamental problem in applying a Rawlsian methodology to genesis problems (and hence, indirectly also to saving, conservation, and enhancement of culture and justice) has been shown to lie in the absence of the circumstances of justice in intergenerationa) relations. These are the conditions that make human cooperation both possible (as people are assumed to be partly altruistic) and necessary (as they can further their interests only by cooperation). Principles of distributive justice are required to govern the behavior of cooperating but competing individuals in a world of moderate scarcity. Since Hobbes and Hume these background conditions making justice a relevant political ideal have been listed as rough equality in natural powers, vulnerability, interdependence, limited mutual sympathy, and so on.

Now, the fact that these circumstances are not satisfied in relations between generations undermines all non-Rawlsian theories of justice as well.^[10] People of different generations cannot cooperate with each other, they cannot have a Humean sympathy for each other, they are not symmetrically vulnerable to harm, and even their resources are not limited in a defined and fixed way. Furthermore, in genesis problems the question is whether to beget new people and how many. It is as if the good to be distributed is life , human existence. But this is hardly a scarce good, or at least it is not scarce in the standard sense as are the conditions that make life possible and good. So it seems that existence itself is not a matter of distribution (let alone redistribution), but only the precondition for its maintenance at a certain level or quality. Scarcity presupposes a given number of human beings competing for limited re-

sources. Life itself is not a limited resource, or at least it is biologically so much more abundant than the means of maintaining it on various levels of worthiness.

It is thus also a problem for natural right theories, the historical precursors of Rawlsian contract theory: can the traditional right to life be granted to potential individuals? It seems that no one has the right to be given life, as distinguished from the right to stay alive once he or she is born or conceived.^[11] It is even doubtful whether natural right theories can establish a right to be born with a certain nature (e.g., free), for the same reason that nonactual persons have no rights.^[12] This would make the justification of begetting only humans with certain morally relevant features a problem for contract theorists of all sorts. Yet, although possible persons are not subjects of rights, some philosophers want to claim that they have a moral standing, that is to say that they are the object of moral consideration, sympathy, and beneficence. This claim will be examined as part of goal-based ethical views. Although not incoherent in the way that ascribing rights to potential beings is, this view will prove no less baffling.