¹ Professor Weiss regards it as an obligation erga omnes that has some support in customary international law. See Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11 Ecology L.Q. 495, 540–44 (1984).

² See D’Amato, An Alternative to the Law of the Sea Convention, 77 AJIL 281, 282–83 (1983).

³ E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (1989).

⁴ Parfit, On Doing the Best for Our Children, in Ethics and Population 100 (M. Bayles ed. 1976); Parfit, Overpopulation: Part One (ms. 1976), referred to in Parfit, Future Generations, Further Problems, 11 Phil. & Pub. Aff. 113 (1982) [hereinafter Future Generations].

⁵ My restatement takes into account chaos theory; see infra text at notes 9–11. Parfit originally assumed large-scale environmental interventions, yet his thesis is in fact applicable to any environmental intervention.

⁶ In saying this, I do not assume that the human race will necessarily survive the next 100 years. Acts of cosmic stupidity are always possible: self-obliteration by nuclear war, depletion of the ozone layer, and so on.

⁷ According to chaos theory. See infra text at note 10.

⁸ What if the environment is so bad that even the act of living is a curse? Would any person choose not to have lived at all rather than to be born into a miserable and degraded situation? We can perhaps choose for ourselves, but I doubt that we have a moral right to make that choice for others yet unborn.

⁹ See, e.g., I. Peterson, The Mathematical Tourist 144–49 (1988); J. Gleick, Chaos: The Making of a New Science (1987).

¹⁰ I. Ekeland, Mathematics and the Unexpected 66 (1988).

¹¹ Both Professor Weiss and Dr. Gündling, in their replies to my essay, chide me for failing to make the argument that I have just made. Professor Weiss says that I did not make my own case as strongly as I might, because “[v]irtually every policy decision of government and business affects the composition of future generations.” See p. 206 infra. Dr. Gündling says I have “overlooked” the point that “man always interferes with history, even when he is not aware of, and taking care of, future generations.” See p. 210 infra. But my argument is that although every policy decision of government and business surely affects the composition of future generations, we are nevertheless entitled to examine each and every one of those policy decisions from a moral point of view. If some are immoral, we reject them for that reason alone. But some policy decisions are asserted to be morally required solely because they will benefit future generations. It is just these policy decisions that are subject to the Parfit rejoinder: if you undertake a policy decision only to benefit future generations, and that is its only “moral” justification, it is not morally justifiable at all because it destroys the very persons you claim to protect.

Both Professor Weiss and Dr. Gündling suggest that they are talking about group rights, not individual rights, when they talk about future generations, and hence the composition of the group does not matter too much. The reader can decide whether, if every single member of group A is wiped out and replaced by someone else, we are still entitled to call it group A and claim that at least the group has been preserved.

¹² With appropriate caveats. For example, if we bar the establishment of a McDonald’s hamburger shop directly next to the geyser Old Faithful in Yellowstone National Park, we are making a McDonald’s franchisee worse off. As with any moral consideration, we have to balance that against the aesthetic sensibilities of numerous tourists who want to view Old Faithful without updated reminders of how many billions of hamburgers have so far been made out of how many millions of cows.

¹³ Cf. Leslie, No Inverse Gambler’s Fallacy in Cosmology, 97 Mind 269 (1988).

¹⁴ R. A. Posner, The Economics of Justice 76 (1983).

¹⁵ “Wealth maximization provides a foundation not only for a theory of rights and of remedies but for the concept of law itself.” Id. at 74.

¹⁶ Frey, R. G., Rights, Killing, and Suffering 109–10 (1983)Google Scholar.

¹⁷ Lilly, J., Man and Dolphin (1961)Google ScholarPubMed.

¹⁸ Cited in D. Day, The Whale War 154 (1987).

¹⁹ See Language Learning by a Chimpanzee: The Lana Project (D. M. Rumbaugh ed. 1977).

²⁰ To be sure, we can argue that an “enlightened” Robinson might calculate that Darwinian evolution might result, 100 million years after his death, in the creation of a new human species. Hence, by not killing off various animal species, an enlightened Robinson might help speed up the evolutionary development of humans from those very animal species. Perhaps in that sense Robinson has a kind of obligation to a future to-be-evolved generation of humans. However, I would contend that this argument slyly begs the question. We can always define an “enlightened” human rights policy as including the preservation of nonhuman species. But then the same debate is reproduced as we argue about what is and what is not “enlightened.”

²¹ Parfit, Future Generations, supra note 4, at 171–72.

²² In brief, any stated moral principle may be deconstructed. Contexts always exist in which a given moral principle, if strictly applied, would lead to an immoral result. See J. Fletcher, Situation Ethics: The New Morality (n.d.); J. Fletcher & J. W. Montgomery, Situation Ethics: True or False (1972).

Consider the most morally repugnant behavior of recent times: Hitler’s policy of extermination of minority groups. This was “justified” at the time in terms of moral utilitarianism—the need to “purify” the human race. Yet even entering into the “debate” about the immorality of “Aryan supremacy” was to compromise one’s moral position—for it amounted to giving some degree of intellectual credence to the Nazi position! In other words, it wasn’t the principle of utilitarianism that was “misapplied” by the Nazis; rather, any attempt to apply a “principle” to their acts was itself perverse.

²³ Professor Weiss interprets this passage as calling for a return to “our natural instincts.” See p. 207 infra. But not everything that is preverbal is instinctual. Our sense of similarity (judging what objects are similar to others) is something we develop prior to learning the language—and may indeed be a prerequisite to language learning—without being a matter of instinct. See R. Carnap, The Logical Structure of the World §§67–109 (George tr. 1967). I suspect that much of the grounding of our developed sense of morality comes from thousands of observations of situations that we analyze morally on the grounds of their similarity to other situations.

²⁴ Quoted in D. Day, supra note 18, at 9 (from Wash. Post).

²⁵ This would be a pure example of deontological ethics in Kant’s sense. For a brief discussion and references, see D’Amato & Eberle, Three Models of Legal Ethics, 27 St. Louis U.L.J. 761, 772–73 (1983) (“a deontological theory of ethics says that some acts are morally obligatory regardless of their consequences for human happiness”).