The Moral Entitlements of Future Persons: Expectancies and Prospective Beneficiaries

Abstract

This paper develops a future-oriented and person-centred normative argument based on expectancies that is immune to most of the problems identified in the rights of future persons. The argument unfolds in four parts. The first draws on the notion of expectancies present in inheritance law and maintains that it is possible to formulate a rule of prospective beneficiaries that correlates with entitlements and legitimate claims without necessarily acquiring the status of rights. The second extends expectancies to future persons and concludes that the latter can be considered present holders of such currently binding entitlements. The third section raises the question of whether democracies are bound to a principle of fidelity towards expectancies in such a way that outweighs current people’s rights in cases of conflicts. The response does not prove particularly future-beneficial in such cases. However, section four clarifies why expectancies still carry a crucial moral weight in democracies, one that is not sufficiently established by depersonalised forms of future-oriented ethics.

Theories of intergenerational justice are a common way to conceptualise the responsibilities currently living people may have to persons yet unborn. Many of these theories focus on distributive responsibilities towards members of future generations, who in turn are considered to have valid moral entitlements towards present generations.

Quite often, such moral entitlements are regarded as rights held by people who will live in the present. This view can be problematic in many respects, though. A considerable part of the available literature on the topic shows scepticism about attributing rights to people in the future, especially if they are to be considered binding on equal terms as the rights of current persons and capable of countervailing the latter in certain cases of conflict. The objections levelled against the existence of future rights are myriad: for instance, the ‘nonexistence’ argument states that future persons cannot have rights because they do not exist (Beckerman 2006; De George 1981; Macklin 1981); the ‘no-satisfaction’ argument maintains that future persons cannot have rights to resources that do not exist at the time of their existence because such rights could not be satisfied (Gosseries 2008: 464); the non-identity problem poses a challenge for any view on which members of present generations would have duties to future persons whose existence and identity are contingent on present decisions, but whose lives would be unavoidably flawed in some way (Adams 1979; Kavka 1981; Parfit 1984; Schwartz 1978).

Because the idea that future people may have rights that bind us today seems disputable, alternative moral strategies to promote moral sensitivity towards future people either replace the terminology of rights with principles establishing that something is wrong in view of impersonal effects (Parfit 2017; Brock 1995; Buchanan et al. 2000; Mulgan 2006; Page 2006; Sanklecha 2017), or they preserve rights-language by making moral intergenerational relations depend primarily on the rights of certain groups of living people. Such right-holders range from adults with present interests in future states of affairs (Mazor 2010), our children or other children born in our lifetime (Vanderheiden 2006; Gheaus 2016), any presently existing person (Delattre 1972), to any member of temporally neighbouring generations that will at least at some point in the future have a chance of overlap** (Gosseries 2008). The first strategy uses a depersonalised ethics grounded on the interests of persons, even if they live only in the future; the second purports to solve moral problems that pertain to the future by focusing exclusively on the present. Both are unreceptive to the vindication of (subjective) moral entitlements of future persons.

However, a future-oriented personalised ethics focused on the moral entitlements of future persons still preserves certain merits, especially in democratic environments, where cross-temporal moral arguments seem to carry more weight. In such collective decision-making settings, moral principles grounded on subjective claims tend to trump impersonal responsibilities or duties. The emphasis on the rights of future persons is often no more than an expression of this endeavour to provide substantive reasons for attending to the interests of future people based on a personalised view of morality.

This paper develops a notion of future-oriented and individual-focused ethics that overcomes many of the problems typically invoked by sceptics of the rights of future persons.¹ The point is that even if we do accept piecemeal that future persons cannot have rights, we do not have to fall back necessarily on impersonal ethics or on the rights of present persons in order to recognise specific moral entitlements in future persons—and much less to throw our hands in the air and give up on the future. Some normative instruments protect interests located in the future without relying necessarily on rights and without resorting to depersonalised ethics. The notion of expectancy is such a normative instrument.

I divide the argument into four parts. The first draws on the notion of expectancies present in inheritance law and maintains that it is possible to formulate a rule of prospective beneficiaries that correlates with entitlements and legitimate claims without necessarily acquiring the status of rights. Secondly, I extend the notion of expectancies to future persons and conclude that the latter can be considered present holders of such currently binding entitlements. In the third section, I take on the difficult task of inquiring whether democracies are bound to a principle of fidelity towards expectancies in such a way that outweighs current people’s rights in cases of conflicts. Unfortunately, the response does not prove to be particularly future-beneficial in such cases. I conclude, however, in the fourth and final section, with an assessment of why expectancies still carry a crucial moral weight in democracies, one that is not sufficiently established by depersonalised forms of future-oriented ethics.

1 In Between Impersonal Ethics and Rights: Expectancies

An expectancy is an anticipation of the outcomes that are likely to be produced if certain conditions (such as specific events or courses of action, for instance) are met—it is a forward-looking attitude which can be used for action. This anticipation is epistemically a ‘foresight’, a qualitative scenario-based approach to the future, as opposed to a ‘forecast’, which is typically a quantitative model of prediction (Poli 2017: 67). As foresight, expectancies can have many functions: a statistical function, according to which the foresight operates as an instrument of measurement, such as in ‘life expectancy’; a cognitive function, insofar as the foresight itself is a psychological motivation for behaving (or failing to behave) in accordance with pre-established beliefs about the value of the pursued goals, such as occurs in ‘expectancy-value theories’; a legal function, whenever the foresight justifies a minimum level of legal protection not covered by rights, such as in the ‘expectancy of inheritance’ derived from classical Roman law. These functions differ in a meaningful way. Whereas the statistical and psychological dimensions use foresight as explanatory devices (of population health and motivations, respectively), the ‘expectancy of inheritance’ is mostly a normative institute. Insofar as it protects a specific present regard for the future, it is worth exploring in the context of cross-temporality. It is at least surprising that the growing literature on moral responsibilities towards the future has failed to do so.

The expectancy of inheritance is the anticipation of receiving assets through (testate or intestate) succession. A living person has no heirs, and most legal systems recognise her liberty (more so in common law than in civil law traditions) to dispose of her property, including what happens to it after her death. Whether expressed in a will or established by statutes, the law of succession applies when the person dies. The proprietor’s death is the fact that gives rise to the inheritance. Only then, in light of the valid rules that apply to each particular case (which typically follow the formula ‘When a death occurs, persons with characteristics ABC established by a will or by law will be called to the succession’), are certain persons identified as possible beneficiaries and called to accept or refuse the inheritance. But that does not mean that the inheritance beneficiary is determined from scratch on the person’s death. On the contrary, it is possible to ascertain the existence of prospective beneficiaries while the proprietor lives—not an heir, but an heir apparent. This is obtained by anticipating that someone will die and that characteristics ABC will be met by certain persons who may survive the proprietor.

This anticipation is not a legal interest in the sense that it grounds a claim-right to the inheritance. An heir apparent has no cognisable interest in an expected inheritance before the proprietor’s death. The proprietor is typically immune to any power or legal action derived from the anticipation of the inheritance that persons with characteristics ABC may have. She can write and re-write a will that introduces new beneficiaries or reduces or eliminates the prospective beneficiary’s potential inheritance; the assets in question can be sold or spent; the beneficiary might predecease the will’s testator; creditor claims might reduce the estate. All of which can occur without the involvement or consent of the prospective beneficiary.

Nevertheless, even though it falls short of grounding a right, the anticipation of inheritance is more than a mere prediction or hope of receiving something by succession. In specific cases, the anticipation is worthy of legal protection and is called an ‘expectancy’. Institutes such as ‘simulation’ in civil law traditions and ‘tortious interference with expectancy of inheritance’ (in the US) are causes for bringing action against fraudulent or tortious changes in the proprietor’s estate performed while she was still alive and aimed at preventing and harming the anticipation of the inheritance. The expectancy provides legal grounds for considering the changes in the estate as null and void or for justifying reparations for non-heirs who were legitimate prospective beneficiaries. This means prospective beneficiaries have no right to an inheritance before the proprietor dies but also that their status as prospective beneficiaries imposes limits on the actions of others.

The legal protection of an expectancy implies something more than the simple anticipation that someone will die and that characteristics ABC will be met by certain persons who may survive the proprietor. It is not an imaginative operation of the kind ‘as-if we applied now the rules of succession that will be applied in the future’. Rather than merely designating the anticipation of the legal rules that will apply in the future event of the proprietor’s death, expectancy is the present legal entitlement of the prospective beneficiary and is, therefore, the object of a legal rule currently in force. More specifically, expectancies follow from a secondary rule defining prospective beneficiaries.² The enforcement of such a rule concerns solely the application of the rules prohibiting simulation and tortious interference with the expectancy of inheritance. This rule has the following formulation:

The Rule of Prospective Beneficiaries (RPB): A prospective beneficiary is someone who, during the author’s lifetime, could be called to her succession if her death occurred in the meantime.

This rule is a definition of prospective beneficiaries with the formula a → b, where a stands for ‘References in normative statements to prospective beneficiaries’, → stands for ‘must’, and b stands for ‘be understood as meaning someone who, still in the author’s life, could be called to her succession if her death occurred in the meantime’. An expectancy is a feature of meeting the criteria for being called to a succession, contingent on (i) the potential author still being alive and on (ii) the possibility that she could die presently. A different formulation of the rule is:

The Rule of Prospective Beneficiaries (RPB): Whenever, during the author’s lifetime, someone meets the criteria for being called to intestate succession if the author’s death occurred presently, she will be considered a prospective beneficiary.

This formulation of the same rule has the formula N_i(x) ((F1 ˄ F₂ ˄ F3)(x) → OGx), which may be read as ‘It is true of all (x) that if someone (x) meets the criteria for being called to intestate succession (F₁) during the author’s lifetime (F₂) if the author’s death occurred presently (F₃), she will be qualified as prospective beneficiary (G)’.

The RPB is a constitutive rule in any of these formulations because it creates a new institutional fact that offers specific normative protection. What is distinctive about this rule is that the antecedent describing the legal facts—N_i(x) (F1 ˄ F₂ ˄ F3)(x)—includes the actuality, in the present, of a counterfactual about the future. Inheritance rules, like all legal rules, are conditional—the status of an heir is contingent on an event in the past, namely the proprietor’s death. But expectancy rules are conditional in a different sense—the status of prospective beneficiaries is contingent on the fulfilment in the present of a counterfactual about the future (F₃). The legal fact F₃ that must occur for the rule to apply is a counterfactual. We know the proprietor will die sometime in the future—the counterfactual consists of the (present) ‘as-if’ actuality of the possibility that her death occurred now.

The counterfactual F₃ is a possibility about time rather than about eventuality. It actualises in the present what is sure to happen in the future. The proprietor’s future death will give rise to an inheritance, and persons with characteristics ABC established by a valid testament or by statutes will then have a right to become beneficiaries of the inheritance. In the present, though, no such right exists. The counterfactual produces nothing but the expectancy. What the institute of prospective beneficiaries protects is not the interest in receiving a deceased person’s estate—that is the interest that grounds the right to inherit—but rather the present interest in having a future interest in receiving a deceased person’s estate.

For this reason, expectancies do not qualify as rights in any of Hohfeld’s senses. The prospective beneficiary has no claim-right to the inheritance because the proprietor has a privilege or liberty to her own estate while she lives. The institutes of ‘simulation’ and ‘tortious interference with expectancy of inheritance’, at first glance, might seem to entail that proprietors have no absolute immunity to manage their estates as they see fit since they are prohibited by law from changing their estates or their wills in a fraudulent way aimed at harming prospective beneficiaries. In this view, the expectancy would be a power or ability of the prospective beneficiary in the Hohfeldian sense. However, a closer inspection of how the institutes work shows that expectancies cannot be powers. Both simulation and ‘tortious interference with expectancy of inheritance’ are grounds for bringing action against the estate only after the proprietor dies, which means the expectancy is merely a condition (a prior legal fact) of the Hohfeldian power that prospective beneficiaries acquire only when the inheritance comes about.³

Moreover, while the proprietor lives, the prospective beneficiary’s future right to inherit is merely possible since it may never come to exist. Even if the proprietor has a slight disability (in Hohfeldian terms) towards her estate, she has no disability towards changing the status of prospective beneficiaries. In other words, prospective beneficiaries have no immunity to remaining prospective beneficiaries, and correlatively proprietors have the power to identify and change whatever characteristics should count to assess prospective beneficiaries.⁴

In the end, an expectancy is more than a hope and less than a right. It is more than a hope because it benefits from legal protection aimed at ensuring the future acquisition of the right to inherit as much as possible. It is less than a right because it falls short of being the right to inherit. Instead, the expectancy is the right’s foreshadowing or advanced guard, the embryonic state of the (possible) (future) right to inherit. Expectancies are legally constituted grounds for limiting the actions that proprietors have at their disposal to manage their estate to the detriment of what is likely to happen in the future to others.

2 Can Future Persons Have Expectancies?

Expectancies are exclusive to the law of succession. They do not migrate easily to the cross-temporal context since the inheritance paradigm does not necessarily frame the relations between non-overlap** generations. For instance, the famous saying (often quoted as an old Native American proverb) ‘We do not inherit the earth from our ancestors, we borrow it from our children’ reproduces the instruments of loans rather than inheritances. Furthermore, the analogy between private estates and what present generations pass on to subsequent generations can only extend so far. Many aspects of intergenerational justice hardly fit into the comparison to estates (e.g., which political institutions are preserved), and future generations have no liberty to reject the benefits and burdens left by previous generations.

Still, two reasons justify introducing expectancies into cross-temporal relations. First, the law of succession is often attentive to the yet unborn. In most legal systems, if the proprietor dies before her already conceived child is born, the child acquires a right to the estate with her birth. In this case, an expectancy can be attributed to her in the period between the proprietor’s death and her birth. In some legal systems, it is possible to draft wills in which posthumous descendants (conceived only after the proprietor’s death) are named as legatees; the unborn child can therefore inherit insofar as the testator has considered her as an heir. Her right arises only with her birth, not with the drafting of the will. But the will constitutes an expectancy in favour of an indeterminate future person.⁵

Second, the RPB includes a counterfactual about the future in the list of legal facts that activate the rule. This (normative) originality about the future is worth exploring. However, the content of the counterfactual cannot be the same in the case of intergenerational relations. In the expectancy of inheritance, what is protected is the present interest in having a future interest in receiving a dead person’s estate. With regard to members of generations to come, their future interests in what they will receive from previous generations are difficult to determine. The intergenerational basket is filled with the components which make up a capital, in the broadest sense of the word. The exact components of the intergenerational basket to which future persons can invoke entitlements are often debatable—e.g., less financial and ecological burdens, better welfare conditions, reparations for past wrongs, etc. But whatever the object of the entitlement, the question always boils down to whether persons to be born in the future will have rights to what the intergenerational basket comprises. The content of the counterfactual that matters today about future people is whether they are expected to become right-holders to whatever is passed on to them as a result of actions performed in the present. The RPB can be reformulated to encompass this interest. A new rule ensues:

The Rule of Prospective Right-Holders (RPR): Whenever someone meets the criteria for holding rights against someone else if her birth occurred presently, she will be considered a prospective right-holder.

The formula N_i(x) ((F₁ ˄ F₂˄ F₃)( x) → OGx) may then be read as ‘It is true of all (x) that if someone (x) meets the criteria for holding rights (F₁) before her own lifetime (F₂) if her birth occurred presently (F₃), she will be qualified as a prospective right-holder (G)’. The antecedent conditions (F₁) and (F₂) are not facts per se except as legal presumptions that there will be persons in the future and that, as persons, they will meet the criteria in force today for being considered a right-holder. The rule anticipates, as a fact, that people in the future with characteristics ABC will be born and that they will meet the criteria accepted today for holding rights. What is distinctive about this rule, though, is (F₃)—the present counterfactual condition that facts (F₁) and (F₂) could happen simultaneously in the present.

The awkward feature of any statement about counterfactuals is that it takes the form ‘If p then q’, where the antecedent p is false. The truth conditions of the counterfactual statement include a recognisable falsity. The conditions established in the antecedent are met not because the facts included actually happened but because we actually imagine them to have happened. The mere possibility that such facts could happen is sufficient (and necessary) to apply the rule as if they had happened. Despite its awkwardness, a counterfactual can make sense inside a rule insofar as the ‘facts’ alluded to are checked against some form of plausibility. This is precisely the case of the RPR—it does not seem farfetched to conceive of persons who will live in the future with characteristics that meet the criteria adopted today for recognising right-holders.

Expectancies avoid some of the problems that follow from attributing rights to future persons.

• A. Present (not future) expectancies. Expectancies are the moral status of prospective right-holders. The counterfactual included in the RPR actualises in the present an event that is likely to occur in the future. By definition, expectancies are presentist normative elements. They are present moral entitlements that ground present moral duties. They remain thus unaffected by problems related to correlativity regarding future rights, such as the non-identity problem, the nonexistence argument, and the no-satisfaction accusation.

• B. Future expectancy-holders. Due to the non-identity problem, a rights approach to the future should recognise as right-holders only futurible persons since those are the ones who can be identified at the present moment t₁. Future persons (the merely possible persons at t₁ who will actually exist at a future non-overlap** moment t₂) and particular persons in the future moment t₂ are yet indeterminate at t₁. Right-holders at t₂ are particular persons in the future and, at t₁, there are still no right-holders who will also be right-holders at t₂. Expectancies sidestep this problem. The counterfactual condition that triggers the application of the RPR creates a new fact. This rule is a constitutive rule because it creates anew, in the present, something that did not exist before, namely the status of ‘prospective right-holder’. The very nature of this status is counterfactual: it exists solely as a result of the application of the rule, based on a counterfactual (‘if persons in the future existed now’) and not on actual facts (‘persons of the future exist now’). Only merely possible persons qualify as prospective right-holders. The fact that many of these merely possible persons at t₁ will never come to exist at t₂ does not invalidate the activation of the counterfactual at t₁. It, therefore, provides no objection to the creation of prospective right-holders at t₁.

• C. No need for personal identity. Since prospective right-holders are merely possible persons rather than future persons, expectancies are immune to the non-identity problem. The counterfactual condition that activates the RPR is independent of the fact that right-holders exist in the world. In point of fact, the rule applies only if persons in the future do not yet exist. Prospective right-holders materialise without the existence of actual persons—they are types whose entitlements are valid without tokens.⁶ The law of succession offers an example of how this is not particularly troublesome. Unborn children typically do not qualify as legal persons, and those still to be conceived have no identity at all. This detail does not prevent most legal systems from recognising that their interests in becoming right-holders to a dead person’s estate are worthy of protection. Expectancies provide such protection, albeit pending on actual persons being born in the future.

• D. Infringement. One of the reasons why it is often difficult to conceive of the rights of future persons being violated is that the violation would require a focus on the moral situation of t₂ (the existence of present rights against past persons) rather than on the moral situation of the present moment t₁ (the existence of present duties to future persons). In cases involving depletion of the contents of the intergenerational basket, this is troublesome in light of the difficulties in equating with absolute certainty present actions likely to lead to depletion in the future and actual depletion in the future. However, because they are presentist normative elements, expectancies steer clear of this problem by privileging the moral situation of t₁ rather than t₂. It does not matter whether resources are actually depleted at t₂; what matters is the counterfactual at t₁ of the likelihood to generate depletion if the foresighted t₂ occurred at t₁. I develop this question of infringement and the potential application of the no-satisfaction objection to expectancies in section 4.

3 Democracy’s Fidelity to the Moral Entitlements of Future Persons

Suppose expectancies do have a binding force on people in the present and that problems expected to generate existential risks to members of future generations are caused by current societies and can still be mitigated (perhaps even prevented) by their immediate actions. Is this sort of moral entitlement binding on democratic regimes? And are democratic governments legitimate only to the extent that their basic institutional structure is at the service of a cross-temporal (intergenerational) conception of justice that necessarily recognises moral entitlements in future persons?

Liberal democracies typically qualify as legitimate if they pass some benchmark of moral acceptability.⁷ This benchmark is chiefly normative, not factual, and refers to the justification of coercive political power or authority. Instrumentalist conceptions of democracy consider that this benchmark is passed by reference to the potential outcomes of using it. The broader input of participants in democratic procedures, when compared to other decision-making methods, is regarded as the most effective means of protecting fundamental interests or of reaching specified goals. Classical utilitarians, for instance, who have no room for a value theory of intrinsic fairness or of egalitarian distributions of political power, but focus instead on maximising utility, are likely to regard democratic procedures as the friendliest environment for preference-seeking relations. The cross-temporal element counts, albeit little. Whether the genuine outcomes of democratic procedures correspond to an independent criterion of fairness or goodness, such as utility maximisation, can only be determined fully a posteriori. In the succession of moments comprising the democratic procedure itself, legitimacy derives merely from the (present) likelihood of producing the best outcomes overall. This constitutes a relatively weak notion of legitimacy with regard to the non-overlap** future.

Few people would deny that democracies must be subject to some evaluation regarding the outcomes of their institutions and decisions. Because of the difficulties in evaluating democracies cross-temporally by their (still potential) consequences, democracies tend to be assessed intrinsically by reference to qualities inherent in the decision-making method. To the extent that the procedure establishes a distribution of authority and political power among the various participants, it is already at the service of a normative notion of fair distribution, regardless of whether it can lead to unfair results (Dahl 1989: 163–175). In other words, political decisions are not morally redundant when they have a democratic origin, given the presumed value that the democratic procedure assumes to access moral reasons when it satisfies certain conditions.

Nonetheless, pure proceduralist conceptions of democracy also fall short of providing satisfactory answers to the problem of the moral cross-temporal limitation of democratic procedures in view of the fact that participation in democratic procedures depends on the application of criteria originating outside the procedure itself. A presentist view of proceduralism might claim that current democratic procedures conducted in accordance with principles of equal and free participation are sufficient to guarantee legitimacy, even if they are conducive to unfair results in the future. But non-presentist views of proceduralism might claim that current democratic procedures are unfair precisely because they fail to include equally and freely those who will live in the far-off future and will have to withstand the effects of decisions made today. From a strict proceduralist point of view, the criticisms levelled against the inclusion of future persons in current democratic procedures do not hold.

The benchmark of justification in liberal democracies extends beyond mere proceduralism and includes non-instrumental values in the cross-temporal context. Determining who is to be considered a member of a democratic procedure follows from criteria that are binding on the procedure and yet are valid independently of the procedure. Furthermore, the ideal of treating people as equals in collective decision-making, on which the democratic principle itself is based, is not respected if the application of this principle ultimately ends up producing and implementing decisions that contradict the reasons considered by participants as decisive in light of their respective convictions. What is at stake is whether the institutions of a liberal democracy can be content with the use of procedures to achieve fair decisions or whether, on the contrary, they must resort to substantive conceptions of justice in sha** those decisions. In the latter case, liberal democracies only meet the moral benchmark of legitimacy when they aim to protect (or are limited with regard to) non-instrumental values such as liberty, equality of treatment and respect, and independent citizenship. Theories of intergenerational justice grounded on respect for these values with regard to future people can be included in the moral content of the benchmark mentioned above and become substantive standards of legitimacy. In this sense, it is perfectly reasonable to expect some sort of moral limitation on the laws and policies decided and implemented by current democratic institutions. Moral entitlements such as expectancies can easily be regarded as sufficient grounds for such limitations.

The gist is that while expectancies can be considered specifications of non-instrumental values to which democracies can and should be attentive and respective, there is not much that a theory of intergenerational justice based on moral entitlements such as expectancies can impose on democracies. The reason is that a strong moral content in favour of the long term is likely to conflict with the non-instrumental values pertaining to current participants in democratic procedures, which are more robust than those pertaining to people who will live in the future. At least four instances support this claim. First, expectancies are attributable to merely possible persons, not future people per se. The coming of those who will live in a future moment t₂ has undoubtedly been ‘expected on earth’ (Benjamin 2019: 197), but expectancies at the present moment t₁ are independent of (the necessity of) such a coming. Non-instrumental values endorsed by liberal democracies can hardly be interpreted as prioritising non-ever-actual persons against actual persons in the present.

Second, liberty and individual citizenship involve civil and political rights, not expectancies. Any respect for moral responsibilities grounded on expectancies that entails devaluing or violating rights held by actual persons fails the moral test that is part of the benchmark of justification. Simply put, rights trump expectancies. The same applies to impersonal (cross-temporal) moral principles. For instance, the inclusion of future people in present democratic procedures, which is likely to produce cases of supermajorities against current people, would entail giving equal weight to rights and expectancies, thereby curtailing the impact of actual rights to autonomy and political participation when compared to expectancies. The moral priority should be given to rights, not expectancies.

Third, the standard liberal conception of democracy as consisting of ‘government of the people, by the people, for the people’, following Abraham Lincoln’s words in the Gettysburg Address, reveals an ideal of self-government that privileges presentism. Insofar as their ontological and moral status falls short of incorporating rights-holding, future persons can hardly be members of a demos on equal terms as those who are its members in the present, at least for the purposes of assessing majority rule in collective decision-making. Additionally, obligations towards members of future generations, by and large, have an effectual minimal range. Nobody knows which merely possible persons will become actual members of the demos, how long a particular demos can last, and how the criteria of membership of the demos might evolve. Even if future persons were considered members of the demos in the present, membership would only ground obligations to future members of the same demos, not to future inhabitants of the same world (whereas expectancies seem to have a universal moral range). Moreover, history shows that demoi come and go. And even if current demoi were immune to such dangers and guaranteed to endure indefinitely, the possibility of future demographic fluctuations overtly increasing certain demoi and decreasing others (due to phenomena such as altered birth rates, excessive mortality, and migrations) would likely make obligations towards future persons too unpredictable and unbearable to certain societies.

Fourth, the idea that, to use Stephen Macedo’s formulation, the ‘moral lodestar of liberalism is … the project of public justification’ (Macedo 1991: 78) ends up attributing a more significant moral status to present persons with actual rights than to potential persons who will live in the future. This conclusion follows equally from different conceptions of justificatory liberalism, whether based on consensus or convergence.

In a consensualist theory of public justification, such as Rawls’ political liberalism, justification occurs ‘when all the reasonable members of political society carry out a justification of the shared political conception by embedding it in their several reasonable comprehensive views’ (Rawls 1993: 387). It is understood in terms of publicity, that is, it refers to the process of making an overlap** consensus public (or, at least, publicly available). This involves a view of collective decision-making as a public justification procedure based on the consideration that (access to) knowledge of the reasons and purposes behind political decisions is a condition for realising the citizens’ liberty and independent citizenship. The conception of the democratic political procedure as a process of public justification applies to citizens when they exercise their political rights and to the different constituted powers, regardless of the branch that exercises authority. For political institutions, publicity requires the transparency of the reasons and of the means by which political decisions are made.

Publicity has the advantage of being coherent with cross-temporal ambitions—what is made public is registered to posterity. However, in the Rawlsian perspective, public justification is ultimately the product of reflective equilibrium, a method in moral deliberation in which we work back and forth between our judgements (or beliefs, intuitions, considerations, etc.) about particular instances and the principles (or reasons, theoretical considerations, rules, etc.) that bear on accepting such judgements, revising any of the elements when necessary to achieve a reasonable coherence among them. Reflective equilibrium relies on typical moral judgements on particular cases to be revisable and focuses on the outcomes of the challenges posed to existing judgements by arguments that derive from diverse positions in ethics (Rawls 1999: 43). Under a developed notion of overlap** consensus (Rawls 1993: 386), reflective equilibrium allows that the rationale for moral action arises from distinctive features of different, albeit sufficiently comprehensive, moral views. Different moral agents might support the same kind of action that leads to a revised conception of some morally relevant object, even if for entirely different reasons stemming from different theoretical backgrounds (e.g., a Kantian, a Millian, a religious person, etc.), which in turn are also revisable. Ultimately, reflective equilibrium consists of a coherent defence of moral justification. Coherence arises not only when judgements are in line at all levels of generality but also when they provide support for other judgements—coherence is the relation of consistency between the broadest set of judgements and beliefs and the moral principles that support them. After appropriate revisions, moral judgement is justified if it coheres with the rest of one’s judgements about the right action. Public justification depends on actual participation in the process of reflective equilibrium, that is, on aiming at a minimum level of consensus among reasonable people who already have moral judgements on particular cases, thereby excluding merely possible persons from this process.

In the case of non-necessarily-consensualist theories of public justification, justificatory reasons can be no more than reasons that citizens regard as justified in light of generally accepted standards without needing to endorse those standards themselves. What matters is the convergence of individual reasons with the (publicly justified) structural mechanisms that seek to protect and are engaged in a continuous process of public justification, such as the rule of law, judicial review, and constitutionalism (Gaus 1996). Consensus is never really necessary—in fact, it seems to come into collision with the liberal project of guaranteeing the conditions for non-paralysing disagreement between reasonable actors (Vallier 2014; Gaus 2011).

The starting point of convergence views of public justification is that it is challenging to justify anything conclusively in societies that tolerate and are intended to protect reasonable disagreement, such as liberal democracies. But since justification remains the benchmark of legitimate democratic authority, convergence views maintain that the very inconclusiveness that is typical of liberal environments leads to the justification of adjudicative institutions that carry on the justificatory project. This position has temporal consequences. The process of public justification can only be conducted by institutions whose reasons to exist boil down to settling reasonable disputes that are going on in the present between reasonable persons. The notion that there can be actual disagreement between reasonable persons of the present and reasonable persons of the future is illusory since people in the present have no idea whatsoever of what people in the future (if they are to exist) will believe in and uphold. If that is so, not even inconclusiveness applies, except in conflicts between short-termist reasons held by persons of the present and long-termist reasons held by other persons of the present. And only in the prospect of inconclusiveness are current adjudicative institutions justified at all in convergence views.

In the end, the confluence of these different (descriptive and normative) conceptions of legitimacy and of the arguments that support value-laden instrumentalist and non-instrumentalist versions of liberal democracy leads to a conception of democratic legitimacy that can and must be attentive to the moral entitlements of future people, but not overly so. Fidelity to such cross-temporal entitlements only binds within the confines of complete compatibility between expectancies and the moral entitlements of current people (which have a prominent role in democratic legitimacy). Beyond those confines, fidelity fades away, as in cases of intertemporal trade-offs involving the sacrifice of short-term benefits (protected by rights) to generate long-term gains (protected by expectancies).

4 Taking Expectancies Seriously

Insensitivity to the moral entitlements of future persons can be seen as a form of moral corruption that threatens the very foundations of democracy. It is hard to disagree with this perspective. Still, it comes at a high price: recognising that the response to such entitlements is not a government for the same people that exercises government (by the people) and therefore requires an argument from intergenerational fairness rather than from democracy. The moral commitment to democracy entails a fragile fidelity to the moral entitlements of future persons when the latter conflict with the fundamental satisfaction of government by and for the people.

When they do not conflict, though, infidelity to expectancies by democracies seems contradictory and self-defeating. Contradictory because democracies are legitimate forms of government insofar as they are sensitive to individual-centred values (such as autonomy, human flourishing, equal respect, welfare, etc.), as those expressed by expectancies. Self-defeating because the overt disrespect for such moral entitlements equates to an utter neglect of the core values that make liberal democracies (substantively and procedurally) democratic in the first place.

The democratic predicament, though, is that access to the resources in the intergenerational basket sometimes seems to establish a conflict between the non-overlap** members of a present moment t₁ and of a future moment t₂. Investment in safeguarding the non-overlap** future must often be paid upfront by those who will get to live at the time such investments are likely to generate benefits. If people alive today claim to apply available resources to the primary (and perhaps sole) care of their needs and preferences, how useful are expectancies in such instances, then?

In inheritance law, expectancies may provide grounds for considering changes in estates as null and for justifying reparations for non-heirs who were legitimate prospective beneficiaries. This seems exactly the kind of task that expectancies held by future persons can meet in current democratic settings. Even if prospective beneficiaries are considered to have no rights today over the intergenerational basket, their very status in the present imposes limits on the actions of those who live today.

What the RPR protects is the present interest in having a future interest in receiving the intergenerational basket. The RPR constitutes expectancies about rights, not rights in the Hohfeldian sense. What seems worthy of protection by the rule is some kind of interest in the future interests that will be worthy of protection by rights. Since a prospective right-holder is prima facie not a right-holder, the RPR does not impose direct limitations on the actions of present persons. Still, it does provide grounds for limitations as a secondary rule. In this light, there are grounds for conceiving certain moral restraints on the actions of present persons or institutions vis-à-vis future persons.

The contents of expectancies have a normative referent based on actuality: the rights held by persons in the present to resources that can be passed on to people who will live in the future. This referent is a baseline threshold. Social progress, the requirement that people in the future will be in a better situation than people in the present, is not congenital to expectancies. However, the constraint that people in the future will not be deprived of the rights to the components of the intergenerational basket that people have today is indeed congenital to expectancies.

The referent of cross-temporality employed here is the status of right-holding to resources that outlast a human right-holder’s lifespan. For this reason, the status of right-holding in the present can function as the referent for the contexts of expectancies in the present about the future. What matters is not that present and future right-holding are equal but that expectancies refer to future right-holding not being inexistent or unsatisfiable.

Thus, expectancies do not ground general duties of generational savings regardless of the amount and content of the intergenerational basket in the present. For example, they do not ground an obligation for the present generation to leave to the subsequent generations a set of resources greater than the one it received from the previous generation. Still, expectancies can justify certain kinds of prohibitions of dissavings (e.g., when one generation leaves to the subsequent generations a set of resources smaller than the one it received) insofar as dissaving consists in actions aimed at eliminating or seriously endangering the rights that future persons are expected to come to have to the intergenerational basket.

One problem that arises, however, is that, unlike rights, and because expectancies have no direct correlative duties, expectancies cannot, strictly speaking, be violated. At best, they can be frustrated. But even then, the ‘when’ factor is problematic. Only prior expectancies are subject to frustration. The institutes of ‘simulation’ and ‘tortious interference with expectancy of inheritance’ exemplify this clearly: they are grounds for bringing action against the estate only after the proprietor dies; the expectancy is then a condition (a prior legal fact) of the Hohfeldian power that prospective beneficiaries acquire only when the inheritance comes about. The same occurs with future persons: expectancies are frustrated only when future persons are born, that is, when they stop being future persons and become actual persons in a present moment. Whether adopting a person-affecting or a threshold conception of harm, it is impossible to determine liability for harms that have not yet occurred.

This conclusion would render expectancies utterly useless to cross-temporal relations and no different from the language of rights (that is, subject to the ‘no-satisfaction’ objection) were it not for an essential difference between expectancies and rights. Even though expectancies cannot be violated, and their frustration comes about only when future persons are born, the duties whose justification depends on expectancies can be infringed.

Suppose, for instance, a prohibition of depletion of available resources grounded on expectancies of prospective right-holders:

Expectancies of Non-depletion Rule: It is prohibited to act in a way conducive to the depletion of resources to which future persons would have rights if they were alive today.

This rule can be transgressed today by actions aimed at depleting those resources in the future. The infringement occurs before expectancies are frustrated, but it occurs because of expectancies likely to be frustrated. In this sense, expectancies call for the liability of present persons, and compensation can ensue not for actual harms done to future persons but for the counterfactual that harm would be done to future persons if they were alive today.⁸

Who can be compensated, then, given that the holders of expectancies are merely possible people? And how can one compensate for harms that are as yet to occur? The RPB provides the framework for a tentative answer by focusing our attention on counterfactual actions and counterfactual people. The non-observance of rules such as the ‘expectancies of non-depletion rule’ can generate compensation if the latter proceeds by actions that also depend on counterfactuals and which are aimed to prevent the first counterfactual from ever taking place. The prohibition of depletion can then have a new formulation: ‘Every one who acts in such a way that is conducive to the depletion of resources to which future persons would have rights if they were alive today is liable to compensation’, where compensation involves acts conducive to avoiding the depletion of resources to which future persons would have rights if they were alive today.⁹ This emphasis on compensation does not rely on the distinction between prevention and reparations. Expectancies have a preventive dimension since the possibility of sanctioning their violation operates as a deterrent. But they can also be justifications for reparations, not of the harm that will come into existence in the future, but of the likely consequences of the potentially harmful activity.

In this sense, there is no reason for not extending the application of the rule to cases involving non-renewable resources, any consumptive use of which necessarily results in their depletion. The rule provides solid reasons for disallowing current use of such resources. This might seem too strong a claim, but its harshness is bypassed by the prohibition of depletion’s connection to compensation. If consumption is sufficiently justified in overriding the prohibition of depletion (e.g., grounded on some basic right held by people in the present which would be violated if it were not for the consumption of such resources), compensation still ensues with regard to the status of future right-holding to the intergenerational basket. Thus, rules concerning the sustainable maintenance of resource stocks also have to address issues of proportional substitutability justified within the reparations framework.¹⁰

Within this frame of reference, democracies should be sensitive to such normative requirements regarding the non-overlap** future and implement institutional mechanisms (politically and legally) that promote respect for expectancies held by future persons. Still, the democratic difficulty remains unresolved: sometimes, compensation for infringement of expectancies related to non-depletion seems to conflict with the rights of present persons insofar as the very triggering of compensation would consist in a restriction on some rights held by present persons. This would ultimately lead to the emptying of binding force in expectancies.

However, democracies do not have to be so dramatic when weighing present rights against present expectancies. True, when there is a conflict between rights and expectancies, especially one that puts at risk the fundamental rights of those alive today, expectancies seem to lose moral relevance like a deflating balloon. Is that really the standard situation in liberal democracies, though? Except for so-called absolute rights (regardless of whether there are any), all rights are limited in some way in their exercise—their limits are encapsulated in the constitutive rules of the rights themselves. And the more so regarding property rights, the paradigm for rights to the intergenerational basket. So, there seems to be no prima facie reason why present persons’ rights to the intergenerational basket cannot be made to coordinate peacefully, as a default rule, with future persons’ expectancies to the same intergenerational basket.

5 Concluding Remarks

The idea that future persons have rights on equal terms with people alive in the present faces a series of objections that render it unattractive to many who attempt to provide a moral justification for forward-looking action. Impersonal duties or present special rights about the future are viable alternatives. Still, proponents of these alternatives undervalue the justificatory robustness of preserving a subjective dimension (moral entitlements) that does not lose sight of the future and does not necessarily fall back on some form of presentism. Expectancies help to maintain such a dimension. They do not disprove arguments in favour of impersonal duties about the future, nor is their scope of application exceptionally wide. Instead, they offer an alternative that preserves the viability of attributing moral entitlements to future persons, such as grounds for enforcing present prohibitions of depletion of resources (already) available in the intergenerational basket.