2 June 2018 
By Brian Wong
A Description-Based Solution to Non-Identity Problem in Context of Mitigating Historical Injustice
Abstract
Parfit (1984)’s Non-Identity Problem poses a central threat to the questioning of mitigating historical injustice: taken at face value, it appears to be the case that descendants of victims of historical injustice have no claims to compensation, on the basis that they would not have come into existence had the initial injustice not occurred. This article advances a de dicto descriptive solution to the challenge: through conceiving of the descendants’ claim to compensation as grounded upon their relations to their de dicto counterparts in worlds where they have higher net welfare, this account circumvents the Non-Identity Objection by pinpointing the individual description as the subject of harm under historical injustice.
Introduction
The Counterfactual Account of compensation posits that descendants of victims are owed compensation as they are left worse off as a result of the initial acts of injustice perpetuated upon their ancestors (Nozick, 1974). There exists a wide range of objections to the Counterfactual Account – that it is epistemologically indeterminate and self-defeating (Waldron, 1992); that it does not account for why present generations or descendants of the perpetrators have the obligation to compensate victims (Butt, 2013); that it erroneously assumes that the counterfactual would necessarily have had the descendants lead better lives, and – finally – that compensation is unjustified in cases where the descendants would not have existed, had it not been for the initial act of injustice (the Non-Identity Problem) (Parfit, 1984). This article concedes all of these issues, but focuses predominantly on showing why – at the very least – the Non-Identity Problem does not function as a valid objection to the account. Compensation is still justified on grounds of de dicto harm committed towards a general description, which in turn wrongs the particular individual that fits that description in the actual world.
The Question of Compensation
Consider the following paradigmatic case – Slavery. As a historical process, the slave trade coercively shipped millions of individuals from Africa to Europe and the Americas, against the will and wishes of the slaves. A commonly raised political claim is that the descendants of the slaves who are alive today are owed compensation for the historical injustice performed upon their ancestors. Whilst this claim appears to be intuitively plausible and valid, the underlying theoretical questions remains – why are these descendants owed such compensation?
The Counterfactual Account
The Counterfactual Account posits that descendants of victims have claims of compensation because they would have been better off had the initial acts of injustice perpetuated upon their ancestors not occurred. As per the standard view of compensation (Nozick, 1974), “something fully compensates X for Y’s action A if X is no worse off receiving it, Y having done A, than X would have been without receiving it had Y not done A” 1 To the extent that X has been comparatively harmed as a result of an injustice carried out towards X’s ancestor, it appears that X has the prima facie claim right on some unspecified agent to be compensated. Let it be such that an individual suffers counterfactual-comparative harm if they are worse off than they otherwise could have been “in the most probable outcome if the injuring act had not occurred”2
There are several plausible mechanisms through which historical injustices can result in counterfactual-comparative harm for the descendants of their victims, through impacts on i) financial inheritance (of property and wealth), ii) capability and physical capacity; iii) psychological unity or iv) wider social and political structures. i) to iv) are all cases where it seems that the welfare of the descendants could have been much better had the initial injustice not occurred. The Counterfactual Account above therefore seems to support the view that they are entitled to at least some claims of mitigation.
The Non-Identity Problem
A key objection to this claim is the Non-Identity Problem (Parfit, 1984); this will be the primary objection considered and addressed in this piece. Three assumptions underpin this objection, which effectively seeks to show that descendants have no claim to compensation if – in a world without the initial injustice – they would never have been born. Firstly, the fragility of existence: had the conditions precipitating an individual’s conception 3 been even slightly different, the very same individual would not have existed, and would have been replaced by another individual (even if they share largely similar characteristics and attributes). Roberts (2007) claims that the same individual could be generated despite differences in their genesis conditions; however, the Butterfly Effect of causation suggests that even a slight and seemingly irrelevant change at some time t0 could have affected the exact identity of the individual who is conceived at a time later than or equal to t0. Trivially, an individual conceived at a slightly earlier or later time than t0 does not share the exact same attributes (e.g. time of conception) as the individual conceived at t0. Secondly, the comparative account of harm by some action A: an individual X is not harmed unless X has less utility in a world with A than in a world without A. As such, an individual brought into a flawed existence (e.g. a child born into slavery) – so long as they are living above the threshold of 0 utility – is not harmed by their existence, because they would not have existed in the counterfactual. Thirdly, the assumption that existence is preferable to non-existence: a flawed life, whilst ridden with suffering and pain, are still preferable to the absence of the life. The implicit assumption is that flawed existences still incur positive utilities, whilst the absence of existence incurs none.
Given these three assumptions, it appears that descendants of victims of injustice are not harmed by events that precede their birth. Had these events not occurred, they would not have existed. To the extent that their welfare levels are better in this world as compared to any other world in which they do not exist, it appears that they are not harmed by the initial act of injustice. To the extent that any claims to compensation require the existence of some comparative harm, it allegedly appears that no descendant of victims of injustice has a legitimate claim to compensation.
A potential response to the above problem is the shift of the justificatory basis for compensation from harm to wrong – i.e. consider the Modified Counterfactual Account: descendants of victims have claims of compensation because they would not have been wronged had the initial acts of injustice perpetuated on their ancestors not occurred. The shift from harm to wrong expands the scope of potential features of events that warrant compensation, thereby potentially (as will be discussed) avoiding the specific objection that the individual would not have existed (and hence ‘worse off’) had the initial act of injustice not been perpetuated. Two types of wrongness accounts will be considered: the Uncomparative Wrong Account and the De Dicto Wrong Account. The first will be rejected; the second will be shown as preferable.
The Uncomparative Wrong Account
Consider first the proposition that individuals could be wronged in a non-comparative manner, through the violation of their entitlement to living in a particular way. Woodward (1986) raises the view that “… it was possible to wrong a person by violating a specific obligation owed to that person even though one's actions advantageously affect that person's other interests in such a way as to make him, on balance, better off than any other action one might have taken.”4. Woodward justifies this claim by appealing to a series of thought experiments5, which effectively seek to demonstrate that an individual can be wronged by a particular action X even though X improves their aggregate welfare. When applied to the cases of historical injustice (as outlined above), these obligations may include – the obligation to not introduce an individual into an existence with severe leg ailments, or governed by oppressive societal structures. It is worth noting that Woodward is deliberately ambiguous with respect to the subject of such obligations – these obligations could either arise from specific parental and procreative obligations (hence parent-specific), or from correlated, primitive rights to not be introduced into such forms of existence (i.e. these obligations arise from irreducible claims held by the individual). Both are possible subjects that render the obligation argument viable.
Parfit (1984) raises an objection to this argument based on the absence of regret. He reasons that it is unlikely that individuals who live flawed existences would nonetheless regret having been born, for they intuitively find their existence preferable to non-existence in the first place. To the extent that is an absence of regret, it is unclear why they are justifiably owed any compensation for their admittedly flawed, but non-regrettable existences. This objection undermines Woodward’s claim, because it posits that to the extent that even though such prima facie obligations are violated, the absence of actual regret in the flawed existence suggests that no compensation is required.
There are three possible replies to Parfit that will allow Woodward’s uncomparative wrong account to withstand this challenge. The first reply is the hypothetical denial – it is deeply unclear if individuals indeed do not regret their flawed existences. Trivially, individuals who are born under severely oppressive social structures inherited from slavery or colonialism may emotively resent their existence, to the point of regretting it. A potential rejoinder to this reply may be to posit that Parfit’s claim is not a postulation about whether individuals actually would regret their existences, but whether it is reasonable for them to do so. However, this rejoinder is susceptible to the following two objections.
Firstly, the argument from intrinsic wrongness – an event X necessarily entails Y; whilst X is not regrettable, the intrinsic wrongness in Y can still be regrettable and hence a legitimate ground for compensation, in spite of its being the necessary consequent of X. To visualise this, consider the Rape. As a result of an unconscious rape of which he is unaware and has no memory of (i.e. there is no change to his subjective conscious states), a man becomes substantially wealthier than he would have been otherwise. The man’s becoming substantially wealthier (X) entails (logically) the occurrence of the rape (Y). However, the man still has a legitimate claim to compensation upon his rapist, for the very fact that the rape’s violation of his autonomy and consent is intrinsically wrong. The intrinsic wrongness sources from a violation of the man’s non-phenomenal attributes (i.e. attributes that exist independent of his experience). Even if he experiences only net positive utility (from becoming significantly wealthier), he is still owed compensation for the specific act of wrongness that cannot be mitigated by the benefits that necessarily follow (Woodward, 1986).
Secondly, the argument from temporal misplacement – Parfit at best demonstrates that it is unreasonable to regret one’s existence after one’s being brought into existence. However, it is worth noting that a defendant of compensation could circumvent this challenge by positing that an individual has claim to compensation at some time t1 after their conception, based on whether or not they could justifiably object to their existence at some time t* prior to their conception. The logic here parallels most appeals to ideal choice theory – had the individual been able to choose at a time prior to their conception, would they have chosen otherwise? To the extent that individuals may object to being born as children of slaves and/or individuals with severely disfigured legs due to historical injustice, it appears that the regret-based challenge can be largely mitigated.
Whilst Parfit’s immediate challenge (1984) appears to be tentatively resolved, this account as a whole remains unconvincing. Consider first the temporal misplacement challenge above – whilst this challenge successfully bypasses Parfit’s objection by shifting the time at which the regret test is applied, it has a gaping metaphysical flaw: prior to the time of conception, the individual does not exist. As such, the question of whether the individual would object to their own existence prior to the time of conception is inherently self-defeating, because the subject (the individual) does not exist. Furthermore, consider the intrinsic wrongness argument above – it is deeply unclear if most descendants of victims of historical injustice are indeed violated to the same extent as the victim in the Rape case. Moreover, the account appeals to some arbitrary list of ‘intrinsic wrongs’ that is – at best – highly contestable and undefined. To the extent that a defender of Woodward replies with the claim that there may exist an obligation to ‘not introduce an existence who is a descendant of a victim of historical injustice’ (a crafty attempt to define out the problem), it is unclear whether or not such an obligation even exists. This obligation seems to suggest that there exists an obligation to prevent any victims of historical injustice from having any children – but this seems at best counterintuitive, and at worst deeply contrary to basic understanding of procreative liberties. Woodward (1986)’s version of uncomparative wrongness therefore seems to be futile in responding to the Non-Identity Problem, let alone justifying compensation to descendants of victims of historical wrongs.
An alternative version of the Uncomparative Wrong Account is a thresholdist view (Steinbock, 2009) that an existence-introducing act may wrong a person by introducing them to a life that is barely worth living, but still beneath the threshold to which a reasonable person is entitled. In other words, descendants of victims may lead lives that incur net positive utilities, but are not worth living despite the net positive utilities. This seems intuitively justifiable from an appeal to sufficientarianism: the bare ‘minimum’ of any life that is worth living should encompass a set of sufficiently satisfied capabilities and capacities (cf. Nussbaum). A life worth living intuitively seems to exist above a threshold of zero net utility, at which point the individual remains indifferent to whether they are alive or non-existent. Any life deemed to be worth living should be pursued and preferred actively to death. It seems, therefore, that the actual threshold should be at least somewhat higher than 0 utils. If this account is true, then individuals can be wronged by being brought into existence – even if their existences incur positive utilities (that nonetheless come beneath the thresholds). If individuals are wronged, then they by the above criteria – they can be owed compensation.
There are two issues with this response. Firstly, it is deeply unclear whether such a threshold exists in a meaningful sense. If the threshold is set at a point that is too high (Steinbock, 2009), it appears to insinuate that a large quantitative number of lives that currently exist are not worth living. Whilst the variabilist claim that prior existences matter more, and hence the threshold of harm required to remove a life is substantially higher than that required to not introduce a life, this still counterintuitively imposes a judgment that many individuals are not leading lives that are otherwise worth living, even if they personally disagree. The reason why this counterintuitiveness matters, is because it also practically implies that individuals can be owed compensation even if they do not feel the need for such compensation. To this effect, it is unclear how high the threshold can go prior to becoming absurd or excessive. If the threshold is set at an uncontroversially low level, it appears to largely resemble the current ‘0-utility’ baseline that is already used in the welfare comparisons, as well as failing to explain away the injustices perpetuated to descendants of victims
Secondly, it is unclear whose interests could be used or appealed to in determining the constituents of such a threshold. To the extent that the threshold is modeled after a hypothetical ‘ideal’ person, it is unclear why the ideal person should have any bearing on what compensation the non-ideal individual is owed in actuality; more importantly, it empirically appears that there exist many descendants of victims of historical injustice that are clearly not living beneath such thresholds in the Status Quo. Yet the intuition remains that they deserve some form of compensation – this suggests that this thresholdist conception of the Uncomparative Wrong Account is explanatorily either severely limited, or fails to correspond at all to the ground intuitions that underpin reparative justice.
The De Dicto Wrong Account
An alternative account of wrongness is the Parfitean view that person P commits some wrong upon P’s failing to satisfy some principle X. Such a principle X may constitute the principle of utilitarianism – i.e. maximising the aggregate utility given a particular set of options or choices available to an individual. It may perhaps be tempting at this point to stray into a general discussion of the Non-Identity Problem and its various manifestations. However, it is imperative to refocus the discussion on the question of compensation. The Parfitean account (1984) alone seems to be largely irrelevant to the problem of compensation outlined above – perhaps those who committed a historical injustice also committed a wrong by causing a flawed existence – but why should the impersonal wrong of the act translate into a justifiable claim to compensation by the individual living the flawed life?
Abandoning Parfit’s impersonal claim but retaining the view that the claim to compensation is grounded – at least partially – in the actions of the original wrongdoer, the De Dicto Wrong Account offers a viable solution to the Non-Identity challenge. It is worth introducing here the following metaphysical concepts: de dicto identity refers to two or more objects sharing the same description; de re identity refers to two or more objects sharing the same numerical identity. For instance, the statement ‘The 45th President of the USA could have been someone other than Donald Trump.’ is possibly true on a de dicto reading (after all, Hillary Clinton could have won the election), but a contradiction on a de re reading (Donald Trump tautologically could not have been not himself, by the law of identity). Descriptions are general – they can map onto different individuals in different possible worlds, assuming a Lewisian framework (Lewis, 1973). The particular refers to a specific counterpart that maps onto a certain general description in a possible world (e.g. in this world, Donald Trump is the particular of ‘The Successor of Barrack Obama’, which is a general).
Applying the concepts outlined above, descendants in this world are particulars who are owed compensation because they are wronged by the harm to their generals (Hare, 2007). Note here that the particular individual is wronged (non-comparative)), whilst their de dicto general is harmed (comparative – comparing the particulars across different worlds). This abstract claim could be grounded using the following example: Mother’s Only Child – in World X, some injustice occurred to Mother, leaving her only child (Child X) born into a life of misery and suffering; in World Y, no injustice occurred, which enabled her child (Child Y) to be born into a life of happiness and fulfillment. Note that the Non-Identity Problem suggests that Child X has no claim to compensation even though Child Y leads a life of comparative happiness and fulfillment. On the contrary, this essay posits that this conclusion is untrue. By holding the Child X and Child Y as de re different (different in particular) but de dicto identical (identical in their general description as the ‘Child of the Mother’, where ‘the Mother’ is used indexically), this argument identifies a comparative harm incurred to the general – the ‘Child of the Mother’ is worse off in World X as compared to in world Y. As such, the historical injustice has wronged the actual ‘Child of the Mother’ in this particular possible world (Hare, 2007).
Three Objections to the De Dicto Account
There are three immediate objections to this account. Firstly, the Queerness objection: the comparative ‘harm’ to the ‘Child of the Mother’ appears to be fundamentally queer – it is unclear how a non-existent, general description could be harmed by a particular decision. Secondly, the Irrelevance objection: why should the comparative harm to the ‘Child of the Mother’ have any moral bearing on the particular? Thirdly, the No Ground objection, to the extent that the particular is affected, it is unclear why this particular form of influence constitutes a justifiable ground for compensation. Resolving these three objections could substantially strengthen the account of De Dicto wrongness, as raised by Reiman (2007) and Hare (2007).
Consider first the Queerness objection. This objection challenges the validity of the claim that a particular description can be harmed, in the sense that the description is non-actual and does not exist in actuality. At best, the description refers to a collection of potential persons connected by a common description – yet it is unclear, if none of these persons is harmed by the particular action, why the description is therefore comparatively harmed. This objection can be resolved through a metaphysical clarification – the view that only actual or existent objects can be harmed is often grounded in the metaphysical intuition that harm must necessarily manifest in some concrete, visualisable physical processes; however, if we suspend the assumption that harm must require some active causal, physical process and adopt a purely comparative account of harm (cf. earlier discussions), it is not implausible to suggest that a description can be ‘harmed’ in so far as there exists a discrepancy between its particular in this possible world and an alternative particular in another possible world. Therefore, there is nothing inherently queer about harming a description. More importantly, this clarification also highlights a particular strength of the De Dicto account – it enables the preservation of the intuition that there exists some form of harm to some ‘individuals’ (i.e. those who conform to the general descriptions) without requiring the demonstration of harm to the particular individual who exists in actuality. In other words, the harm to a description is itself a sufficient wrongness-causing feature for the particular manifestation of the description that in fact exists.
The Irrelevance objection echoes Parfit’s concern, that there exists an apparent explanatory gap between the view that the initial act of injustice makes things worse for the ‘Child of the Mother’, and that the injustice enactor has actively wronged her child in this world. Parfit posits that there exists no “familiar moral principle”6 that supports this hypothetical linkage. A potential response may draw upon the idea of opportunity cost – consider, for instance, the Recommendation Letter. Bob could write a recommendation letter for Ruth, such that Ruth receives a job offer that pays her 100,000GBP per year; alternatively, Bob could write her a letter that allows her to be offered thrice the salary. Bob chooses the former for no particular reason, causing Ruth to be deprived of the opportunity of earning 300,000GBP. It appears that Ruth-in-this-world earns merely 100,000GBP per year, whilst Ruth-in-a-possible-world earns 300,000GBP per year. Given the disparity between the two scenarios, and given that Bob’s choosing otherwise would not have incurred a substantial cost upon him (if at all), it appears that Bob may owe Ruth 200,000GBP. Yet the Recommendation Letter thought experiment is apparently flawed on two levels: i) it is unclear if Bob in fact owes Ruth anything, given that any benefit accrued to her is the outcome of a voluntary, supererogatory act from him; ii) the Recommendation Letter, unlike the Non-Identity Problem, is not identity-changing – it is possible to identify the very same Ruth across both ‘possible worlds’, whilst it is impossible to do so for cases where the Non-Identity Problem arises. As such, a direct response to the Irrelevance objection seems untenable (Parfit, 1984).
It may be worth moving onto the No Ground objection prior to returning to the Irrelevance objection – as will be illustrated, the solution to the former also offers an indirect yet sufficient response to the latter. Given that it has been shown that the general ‘Child of the Mother’ is harmed by the initial injustice, it may be posited that there exists a prima facie claim to mitigation by the ‘Child of the Mother’. As noted above, however, it is de facto impossible to compensate a general description. To the extent that there exists a duty to compensate the ‘Child of the Mother’, and given that the ‘Child of the Mother’ does not exist as a general description, the next best way to discharge such a duty is to compensate the particular individual who is most proximately related to the general. In less jargonistic language, the child born in this world is the most intimately connected to the description ‘Child of the Mother’, as compared to any other person that currently exists. As such, there exists a ground for compensation (contra the objection); thus, the particular in this world is owed compensation even in spite of the Irrelevance objection above. More intuitively, this argument reflects the general intuition that in cases where direct compensation is impossible, compensating the most proximately related agent may be normatively required (Lewis, 1976).
What accounts for the unique relation that renders the child in this world most intimately connected to the ‘Child of the Mother’? A viable explanation for the connection is that the description ‘Child of the Mother’ can be decomposed into a conjunction of all of its particulars existing across different possible worlds – i.e. ‘Child of Mother’ = {Child-in-this-world, Child-in-W1, Child-in-W2, … etc.}. As such, the child in this world (the particular) constitutes a part of the ‘Child of Mother’ (the general). A duty owed towards the general is discharged through compensating a component of it. Whilst this solution apparently seems rather counterintuitive, it has two distinct analytical advantages: i) firstly, it allows for the preservation of the intuition that the compensation is targeted towards some wrong carried out towards some individual (the general); ii) secondly, it achieves i) without the need to prove either that an individual is wronged according to some arbitrary or under-substantiated absolutist metric, or that a particular individual is comparatively worse off (cf. the original Non-Identity Problem).
Two Further Objections
A further objection is that this account appears to ‘prove too much’. If the ground for compensation requires merely that the general description is worse off in this world, it appears to suggest that whenever the welfare of the general description is not maximised by an action in this world (i.e. there exists some possible world where the particular is better off than the particular in this world), the particular in this world is owed compensation. If this were the case, it would suggest that so long as there exists some possible world where some manifestation of a description is better off, the particular manifestation in this world should be compensated – e.g. if there exists a ‘Child of the Mother’ who leads an incredibly extravagant life in another possible world, then the child in this world should be compensated for the difference between his life in this world and his extravagant life in that optimal world – even if there were no act of ‘injustice’ that precipitated his existence. Call this the Excessive objection.
The Excessive objection is misguided, in that it can be resolved through some basic clarifications of the compensative question. The question of compensation seeks to identify what follows from a particular voluntary action – i.e. what can be directly attributed to that particular action. In the original Mother’s Only Child case, the injustice to the mother directly influences the welfare of the ‘Mother’s Child’ – in that had the act of injustice not occurred, Child Y – with higher levels of welfare as compared to Child X – would have been born. Therefore, the amount for which the child ought to be compensated (on grounds of reparative justice, at least) purely corresponds to the disparity between Worlds X and Y (worlds with or without the act of injustice). On a more general note, the amount for which the descendant of the victim can claim compensation is constrained by the choice options available to the victimiser – to illustrate this, it would be unreasonable to posit that the Mother’s Child must be compensated for the initial injustice through covering the difference between the extravagant life (led in some, ‘maximal’ possible world) and the actual life he lives; instead, the comparative should simply be one where the initial injustice is not committed. Any further compensation on other grounds (e.g. grounds of luck egalitarianism) falls outside the parameters of compensation, and ought to be ignored. Furthermore, note that the question of compensation is merely but one amongst many desiderata of justice; there may exist considerations of reasonability and other side constraints that restrict the extent to which compensation can justifiably be sought and claimed from individuals in real life. As such, it is untrue that this account ‘proves too much’ with respect to how much compensation can be claimed.
The second objection is that this account is deeply inconclusive with regards to certain cases. Consider the Conquest. In World X, a historical conquest left an originally very affluent country heavily plundered and savaged; in order to replenish the national wealth, the Conquistador mandates that every family gives birth to at least four children. Some couple A and B hence give birth to C, D, E, and F. In World Y (where the conquest does not occur), the couple would only have one child – and name them C*. The De Dicto account seems to suggest that each of C, D, E, and F are entitled to the welfare C* would otherwise have had – but this almost appears as if C, D, E, and F are over-compensated, given that the counterfactual only contains one C*. Call this the Inconclusiveness objection.
The first rejoinder to this objection is to note that it is possible to restrict the scope of the de dicto identity by further specifying it as ‘The First Child of A and B’, such that only C would be compensated. This avoids the concern of over-compensation, but also illustrates a further point – it is always possible to modify the direct description by specifying it along principles such as identical quantity (cf. Parfit’s Same Number cases), proximate qualities, and relevant contexts. An alternative rejoinder is to bite the bullet, and accept that C, D, E, and F ought to all be compensated – note that it is merely a matter of moral luck that D, E, and F were not born in place of C as the first child of A and B. A luck-egalitarian modification could support the view that all of them are equally entitled to the compensation that they would have received, had it not been for the element of luck. In any case, one thing remains constant across both replies: at least one of the descendants of the victims has a claim to mitigation.
Conclusion
In conclusion, this article addresses the Non-Identity Objection to counterfactual-based accounts of compensation for historical injustice. Accounts that seek to highlight uncomparative wrongness have been rejected, on the grounds that they either fail to justify the validity of their postulated wrongness-making features (Woodward’s rights-based account) (Woodward, 1986), or that they are unable to reconcile their thresholdist metric (Steinbock, 2009) with common intuitions concerning what lives are worth living. The alternative proposal of De Dicto Wrongness (Hare, 2007) is shown to be consistent and advantageous, in that it is able to retain somewhat the person-affecting intuition without assuming the burden of demonstrating comparative harm to an actual person. The counterfactual account may be problematic for various reasons on a wider scale – but at the very least, the Non-Identity Problem has been shown to be much less of a valid objection than it may initially seem.
About the author
Brian Wong
BA in Philosophy, Politics and Economics, University of Oxford, Kwok Scholar 2015
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