Future Guilt
In Leo Katz's "Criminal Law" contribution to the Blackwell Companion to Philosophy of Law and Legal Theory (which comes across like an advertisement for a book he wrote around the same time), he puts forth an interesting hypothetical about causation:
A man who happens to be afflicted with a frequently fatal, sexually transmitted disease, something like AIDS, and who knows that he is afflicted with this disease, nonetheless has intercourse with a woman without first warning her. He infects her, though luckily she never comes down with a full-fledged version of the disease. In addition, however, to infecting her, he also impregnates her. The child that comes of this union also carries the fatal disease and dies within a year of its birth. The question for the court is a simple and basic one: is the defendant guilty of homicide, specifically, has he committed involuntary manslaughter, or perhaps even murder?
Well my first instinct was "yes, of course!"
On the one hand, one is inclined to say that of course his reckless act of intercourse fairly directly led to the child's death, and therefore, yes he is guilty of manslaughter and given the extreme recklessness of his behavior, maybe even murder.
Exactly. We've got knowledge of the disease, so we've got a pretty serious crime. But wait:
On the other hand, there is the fact that the child is not really worse off on account of his father's recklessness: it isn't as though, but for his father's recklessness, the child would be flourishing. But for the father's recklessness, he would never have been conceived in the first place! Given that, can on e really find him guilty of homicide?
OK, that sounds like a good rejoinder. But it would lead to some crazy outcomes, as Katz acknowledges. After all, I could say that I only have sex under the agreement that I will kill any baby that is born as a result. Could I then claim that, since I wouldn't have had sex without knowing I'd later kill the child, the child is no worse off? That they wouldn't have existed at all? Well no, that's preposterous.
This discussion leads Katz on a tangent away from CrimLaw (something he ought not have done since his contribution is only 14 pages long) and into the question of whether "future generations [can] complain about past generations or not?" As he puts it:
Suppose our generation decides to binge on energy, and that as a result five generations from now there is next to none left for our descendants. Do they have a right to complain? In a sense, they certainly do: our bingeing on energy causes their misery. On the other hand, is it really true that if we hadn't binged, they would not live more splendidly? No it is not true, it is not true because of an easily overlooked fact, to which some moral philosophers have very insistently drawn attention. If we today had pursued a different, less spendthrigt energy policy, a lot of other things would be different as well. Different people would marry or mate with different people and would conceive children at different times. Some children would then be born that otherwise wouldn't have been born. To be sure, in the first generation after us only a few such children would be born. But these children would mate with others and in the second generation there would be more children yet who would not have been born otherwise. And five generations down the pike an entirely different population would exist thatn would exist if a different energy policy had been pursued..... Therefore, here as in the AIDS hypothetical, the complainers can say that their ancestors' actions led to their plight. But they cannot say that but for those actions they would be better off. They would not be around.
Well damn, that's not where I expected to be 7 pages into an introduction on CrimLaw. Nonetheless, it shows how interconnected some of the broader questions of philosophy are with proper conceptions of legal duties and rights. Katz goes on to consider the answers given by Thomas Schwartz and Derek Parfit, but the question seems to remain unanswered.
Instinctually I feel that present day misbehavers must be answerable to someone. If not future generations, then who? It seems important that, right now, our fifth-generation descendants don't exist. So the present choice is between two future groups, one having energy aplenty and one having tremendous shortages. Shouldn't our moral obligations point us toward the former? Since it doesn't make any difference to us which "group" exists, it seems like we ought to make sure whoever does exist benefits from our good behavior. This is setting aside the important question of whether we can possibly know what is best for the future (perhaps the energy-starved group would be forced to invent some mind-boggling unlimited power source), which is best left for another day (I think).
