¹ Derek, Parfit, Reasons and Persons (Oxford, 1987), p. 363Google Scholar.

² The bare fact that agents act in a way that diminishes well-being for, or harms, a person does not imply that that act is wrong. After all, in conflict situations, agents may be forced to decrease well-being for one person in order to increase well-being for another. But we do not think that agents have wronged the one person, or have done something wrong, if the tradeoff was made in some correct way. The plausibility of a person-based form of consequentialism will depend on whether plausible provisions governing conflicts can be formulated. If we find the basic maximizing insight attractive, then we would want to start out, at least, defining those provisions in a way that remains true to the spirit of maximization. Leximin, according to which agents must first create additional well-being for the least well-off, then for the next least well-off and so on, seems to meet this condition but remains highly controversial. For further discussion, see Roberts, ‘A New Way of Doing the Best That We Can: Person-Based Consequentialism and the Equality Problem’, Ethics 112 (2002), pp. 338–49. As Broome has shown, some ways of translating the person-based intuition into a consequentialist framework are problematic (John Broome, Counting the Cost of Global Warming (Cambridge, 1992), pp. 125–30). However, consistent formulations of the intuition within the context of maximizing consequentialism are also available. See Roberts, Child Versus Childmaker: Future Persons and Present Duties in Ethics and the Law (Lanham, Md.: 1998), pp. 45–85; and ‘Is the Person-Affecting Intuition Paradoxical?’, Theory and Decision 55 (2003), pp. 5–15.

³ Traditional, aggregative consequentialism provides that it is not enough to maximize well-being for each person if the alternative exists of leaving those people as they are, or leaving them out of existence altogether, and creating additional people whose individual well-being levels make the greater contribution to total aggregate well-being. But it is, pre-analytically, odd to think agents are obligated to maximize the well-being of individuals en masse, including by way of constructing whatever mass of individuals it is that maximizes total aggregate well-being. Post-analytically, matters get still worse, since that same aggregative reading opens the door to a number of particularly penetrating criticisms. Thus, aggregative consequentialism arguably gives rise to (1) especially virulent forms of Parfit's repugnant conclusion problem; (2) Vallentyne and Kagan's infinite population problem; (3) implausible duties to procreate when we as individuals would rather not; and (4) equality problems that cannot reasonably be ignored. See Parfit, Reasons and Persons, pp. 381–90; Peter Vallentyne and Shelly Kagan, ‘Infinite Value and Finitely Additive Value Theory’, Journal of Philosophy 44 (1997), pp. 5–26; and Roberts, ‘A New Way of Doing the Best That We Can’, pp. 322–3.

⁴ Some forms of consequentialism recognize a plurality of values in an attempt to overcome the deficiencies of traditional, aggregative consequentialism. Such theories take into account goods in addition to the good of aggregate well-being, including, for example, equality. See, e.g., Larry, Temkin, Inequality (New York, 1993), pp. 222–7Google Scholar; Jeff McMahan, ‘Wrongful Life: Paradoxes in the Morality of Causing People to Exist’, in Rational Commitment and Social Justice: Essays for Gregory Kavka, ed. Jules L. Coleman and Christopher W. Morris (New York, 1998), pp. 208–47; John, Broome, Ethics out of Economics (Cambridge, 1999), pp. 116–18Google Scholar; Broome, Counting the Costs of Global Warming, pp. 41–44; and Amartya, Sen, Inequality Reexamined (Cambridge, Mass., 1992), pp. 7–8Google Scholar, 129–52. A concern is that any theory that holds that additional well-being in itself makes a significant contribution, however small, to the overall good will be vulnerable to extreme versions of the same old problems. Temkin, Inequality, pp. 224–5, accordingly, has proposed that there may exist an upper limit on the contribution that additional units of well-being make toward the overall good. This capping proposal, though it runs counter to the idea that it is by virtue of some value that additional units of well-being independently have that they normally increase the overall good, seems potentially useful. The evaluation of it is, however, beyond the scope of this article. Some theorists, in addition, have proposed that the distinction between (1) whether a particular person's existing contributes to the overall betterness of an outcome and (2) whether, from the person's own point of view, the existence is worth having, can help to overcome some of those obstacles, in particular the repugnant conclusion. See, e.g., Broome, Weighing Lives (Oxford, 2004), pp. 210–14; and Fred Feldman, ‘Justice, Desert, and the Repugnant Conclusion’, Utilitas 7 (1995), pp. 189–206. But see too Feldman, Pleasure and the Good Life (Oxford, 2004), pp. 205–6.

⁵ Consequentialist approaches (including those mentioned in n. 4) that work to avoid the challenges that face traditional, aggregative consequentialism take it for granted that the non-identity problem, as well, must be skirted. More generally, the impersonal, aggregative approach is considered to have the advantage of inherently avoiding the non-identity problem. Moreover, Temkin uses a version of Parfit's depletion example – what Temkin calls the ‘live for today’ problem – to undermine the ‘leveling down objection’ against the egalitarian position that he articulates. Thus, he argues that the leveling down objection is most persuasive for those who think that an option that is better for each person, while worse for none, is the morally better option in all morally significant respects. Since the non-identity problem undermines that person-based idea, the leveling down objection, Temkin argues, correspondingly loses force. See Temkin, ‘Equality, Priority and the Levelling Down Objection’, The Ideal of Equality, ed. Matthew Clayton and Andrew Williams (Basingstoke and New York, 2002).

⁶ The non-identity problem has also motivated some non-consequentialists to formulate a range of impersonal accounts of wrongdoing. Thus, an account that condemns acting ‘wrongly toward’ a particular person in some cases in which it is clear that agents have in every way acted for the good of that person, and with a good outcome for that person, is in a position to explain how it can be that an agent can do something wrong while technically wronging, or harming, no one. This suggestion was made by Kavka in response to the non-identity problem (Gregory Kavka, ‘The Paradox of Future Individuals’, Philosophy & Public Affairs 11 (1981), pp. 105–6). A related approach calls for the bringing into existence of a better-off person in place of a worse-off person in certain cases without suggesting that the worse-off person has been either harmed or wronged. See Allen Buchanan, Dan W. Brock, Norman Daniels and Daniel, Wikler, From Choice to Chance (Cambridge, 2000), pp. 247–57Google Scholar. Still other theorists have attempted to retain the semblance of the person-based approach while defining ‘harm to persons’, or alternately ‘wrong to persons’, in a non-comparative way, i.e. one that disconnects those notions with how well-treated or well-off a given person is, given the alternatives. One such proposal suggests that we deem a given person to have been harmed when the only means by which agents can increase well-being is to bring some better-off but distinct person into existence in place of that one. On that account, harms are avoidable ‘by substitution’ of one individual for another. See Philip G. Peters, Jr., How Safe is Safe Enough? Obligations to the Children of Reproductive Technology (Oxford, 2004), pp. 20–39. Peters’ approach allows us to talk in person-based terms, but the theory that underlies that talk seems impersonal in nature. Others propose to simply define ‘harm’ to include pain, hardship or deficiency (beyond a certain threshold) even in cases in which well-being has been maximized and agents have no option for improving the individual's situation. See Elizabeth, Harman, ‘Can We Harm and Benefit in Creating?’, Philosophical Perspectives 18 (2004), pp. 89–113Google Scholar, esp. p. 93; and Bonnie Steinbock, ‘The Logical Case for Wrongful Life’, Hastings Center Report 16 (1986), pp. 15–20. See also Cynthia Cohen, ‘Give Me Children or I Shall Die! New Reproductive Technologies and Harm to Children’, Hastings Center Report 26 (1996), pp. 19–27. A somewhat different tack proposes that a person can be wronged even in a case in which he or she has not been harmed. See Rahul, Kumar, ‘Who Can Be Wronged?’, Philosophy & Public Affairs 31 (2003), p. 112Google Scholar; James, Woodward, ‘The Non-Identity Problem’, Ethics 96 (1986), pp. 804–31Google Scholar; and Woodward, ‘Reply to Parfit’, Ethics 97 (1987), pp. 805 (defining the extent of a ‘wrong’ as the difference between a person's actual state and an ‘unobtainable baseline’ in which that person's rights are ‘not violated’).

⁷ Aggregative consequentialists, for example, cannot rest content avoiding the non-identity problem. They must address other serious problems as well, including the repugnant conclusion. See n. 3.

⁸ If we do end up with theories that are too complex, vague, nuanced and indefinite to be assessed or applied, or are so narrow that our acceptance of them must be tentative pending an understanding of how they fit into a broader theory, there will be practical implications. For example, we would surely need to suspend hope that moral theory might have some advice to offer courts as they struggle to decide hard ‘future person’ cases in the law. And there is a deeper problem: a moral theory stripped of the person-based intuition will not even be cognizable within the law. The common law of torts and constitutional privacy law are inherently person-based; without a radical restructuring of the law, wrongs will not be recognized in the absence of a genuinely (not stipulatively) harmed person. Thus, constitutional principles protect privacy interests when the activity at issue harms no one and the state is therefore unable to justify regulation or prohibition; and tort law principles reject complaints in negligence, for failure to state a claim, in the absence of harm. Of course, we might completely revolutionize those person-based branches of the law. But we should be hesitant to advise that course, in view of the fact that impersonal alternatives, at this juncture, come with their own challenges.On the other hand, if an important type of non-identity problem is indeed incorrect, then it is important to recognize that fact earlier rather than later. If we no longer have to tiptoe around that problem, then consequentialists, including pluralists, can revisit the aggregative, impersonal aspects of their views and address the repugnant conclusion and other challenges in new ways. The intuitive ‘levelling down’ objection against the ideal of equality will no longer be undermined by Temkin's ‘live for today’ example. See n. 5. For the non-consequentialist, the connection between ‘acting wrongly toward’ and wronging persons can be re-established. Harm-to-a-person can be left harm-to-a-person instead of giving way to the failure-to-substitute-a-better-off-person. And, finally, we will have no need to give up useful distinctions between imposing pain on and harming a given person, and between harming and wronging a given person. See n. 6.

⁹ See sect. III. The shoot-you-in-the-arm-or-the-heart example derives from Feinberg's ‘two schoolyard bullies’ example. See Joel, Feinberg, ‘Wrongful Life and the Counterfactual Element in Harming’, Social Philosophy & Policy 4 (1988), pp. 150–2Google Scholar. See also Child versus Childmaker, pp. 160–4.

¹⁰ See sect. VI.

¹¹ See Parfit, Reasons and Persons, pp. 361–4; Kavka, ‘The Paradox of Future Individuals’, p. 100; and George, Sher, ‘Transgenerational Compensation’, Philosophy & Public Affairs 33 (2005), pp. 185–200Google Scholar. See also Kazuo Ishiguro's story of clones brought into existence only to serve as organ donors: Never Let Me Go (New York, 2005). The three types of non-identity problem I review in this article do not exhaust the kinds of non-identity-like arguments that have been put forward to show ‘no harm done’ to persons whose existence is in some way within the agent's control. Some of those arguments, however, raise no genuine question of harm at all and should simply be set aside. See n. 54.

¹² Parfit and Feinberg both retain an intuitive, comparative, person-based criterion of harm. Thus, Parfit writes that acts that are ‘clearly better for’ a given person do not harm that person in a ‘morally relevant’ sense (Reasons and Persons, pp. 373–4). Feinberg likewise argues that harm to a person depends on the comparison between what things are in fact like for that person and a certain ‘baseline’ (‘Wrongful Life and the Counterfactual Element in Harming’, p. 147). Other theorists reject a comparative approach. See n. 6.

¹³ See Child Versus Childmaker, pp. 87–133; and ‘Is the Person-Affecting Intuition Paradoxical?’, pp. 21–34 (focusing on Kavka's ‘slave-child’ example). I have also discussed the non-identity problem as it arises in connection with some variations on the repugnant conclusion. See ‘Person-Based Consequentialism and the Procreation Obligation’, The Repugnant Conclusion: Essays in Population Ethics, ed. J. Ryberg and T. Tännsjö (Dordrecht, 2005), pp. 99–128.

¹⁴ Kavka, ‘The Paradox of Future Individuals’, pp. 93–112.

¹⁵ Kavka, ‘The Paradox of Future Individuals’, p. 93. See also Doran Smolkin's discussion of the ‘Acme chemical company case’ in ‘Toward a Rights-Based Solution to the Non-Identity Problem’, Journal of Social Philosophy 30 (1999), pp. 195–6 (citing James Woodward, ‘The Non-Identity Problem’, Ethics 97 (1986), p. 813).

¹⁶ Reasons and Persons, pp. 361–6.

¹⁷ If the assumptions of this example, including the assumption that the choice is wrong, do not seem plausible for the case of deafness, one can adjust the case, so that the impairment is not deafness but rather cystic fibrosis, Huntington's disease, etc. – any genetic or other disorder, including, for example, impairments associated with aggressive uses of fertility therapies leading to supernumerary pregnancy, where the life that results, assuming that the care that is owed is provided, is unambiguously worth having.

¹⁸ This objection to the counterfactual test, which leaves open the use of the counterfactual test as a sufficient condition for harm, is described by Feinberg. See n. 9. Theorists sometimes use counterfactuals in describing how they reach a ‘no harm done’ result in the context of the non-identity problem. But often the language is probably shorthand for the sort of expectational account of harm described below. Kavka, however, expressly brings probabilities into the picture (‘The Paradox of Future Individuals’, p. 93 and esp. p. 100 n. 15). Other theorists mix counterfactual language with what seems at base to be the sort of objective account of harm described in sect. III.B below. See Smolkin, ‘Toward A Rights-Based Solution to the Non-Identity Problem’, pp. 195–6. There, Smolkin considers, as an example of a case in which the agent performs an act that is ‘necessary’ for another's existence, the Acme chemical corporation case. He then writes that, had the plant not continued in operation, A and B ‘would never have met’ and C ‘would never have existed had the corporation not dumped the chemicals’. See also John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton, 1994), pp. 121–2 and 168–9 (applying different types of the non-identity argument in the context of new reproductive technologies); and ‘Procreative Liberty and Harm to Offspring in Assisted Reproduction’, American Journal of Law and Medicine 30 (2004), pp. 13–17 (applying a more clearly maximizing approach to the issue of harm).

¹⁹ Issues of personal identity do not arise in this context except for those theorists who accept a highly questionable genetic identity theory of personal identity.

²⁰ The objective account provides an account of when an agent as an individual harms a person. Agents can also impose harm not as individuals but rather as participants in a group. The concept of group-harm becomes particularly important in addressing the problem of ‘causal overdetermination’. For our purposes here, however, we will assume that our non-identity cases (e.g. the depletion example) are not complicated by that further problem. We will thus assume that an outcome that is accessible to a group of agents (e.g. the present generation) is also accessible to each agent as individual. For further discussion, see Roberts, ‘Supernumerary Pregnancy, Collective Harm and Two Forms of the Non-identity Problem’, Journal of Law, Medicine & Ethics 34.4 (2006), pp. 776–92.According to the objective account, people who are merely possible at a world w1 – people, that is, who do not and never will exist at w1 – cannot be harmed at w1. Another option would be to accept that not bringing a person into existence may harm that person but then to stipulate, in our account of when a person is wronged, that any person who does not and will not exist at w is not wronged at w.The objective account does not require that p exists at the time the act itself is performed; if it did, we would immediately lose the potential to address any form of the non-identity problem. Nor does it require that p exist, at some time or another, at the distinct world w2 at which the agent creates additional well-being, since we want to be able to say that an agent in some cases harms a person by failing to avoid bringing that person into existence – as when, for example, the life is, as a function of a genetic or chromosomal defect, one that is less than worth living.I leave the causal relation referred to in clause (4) unspecified. But it is intended not to import a counterfactual test of causation. Its purpose is rather to insure that an act A that in fact does not harm a given person p is not deemed to harm p by virtue of the fact that some second act is performed that, despite A, really does make things worse for p. We need not dwell on these technicalities, however, since the cases of interest here all easily meet the condition. Thus, the couple's having entered into the slave-child contract is, at the ‘actual’ world, part of a causal sequence that ends in the child's being born a slave; likewise, the couple's taking a sip of water instead of entering into the slave-child contract is, at a distinct accessible world, part of the causal sequence that ends in the child's being born a non-slave; etc.Whether a given person will exist or not and be harmed or not as a consequence of a given act's being performed will often depend on how the future otherwise unfolds. To insure cogency, both the objective and the expectational account that follows relativize inferences of harm to worlds, where, for any given existing or future person, it is a determinate matter of fact whether that person exists, at least eventually, or not, and if so how things turn out for that person. Nothing said here, however, implies that agents can make the inference, at or just prior to t, that an act performed at t harms any particular person who does not exist at t, since, at t, agents are in no position to know, for any particular person, that he or she will exist at some future time and then suffer. Indeed, it may not even be a determinate matter of fact at t for any particular person who may be affected one way or another by the act under scrutiny that that person will exist. It all will depend on how the future unfolds. On the other hand, agents do not need to make any such inference for any particular person in order to consider whether, or know that, what they are about to do will harm some person or another. They, after all, can figure out perfectly well that, if they do A, then whether the future unfolds in one particular way rather than another, so that one collection of people rather than another exists, someone will be harmed.Woodward explicitly appeals to a maximizing approach in many of the variations on the non-identity problem that he considers. But he then unaccountably declares the risky policy to be a ‘necessary condition’ for the existence of those people who exist and suffer hundreds of years later and describes the situation in which any of them are made better off as an ‘unobtainable baseline’. See ‘The Non-Identity Problem’, pp. 812 and 817–18. At points, Parfit seems to concur. See ‘Comments’, Ethics 96 (1986), p. 855.

²¹ In describing the account as ‘objective’, I mean to indicate that it is not probabilistic and not (just) forward-looking. This is not, however, the best term, since as I understand it the expectational account as well can be developed as an account that is itself objective and not merely subjective in nature.

²² We are, after all, accustomed to relativizing, implicitly or explicitly, the sorts of comparisons that would support a finding of harm to a limited number of alternative scenarios that we think are important for one reason or another and then using the term ‘harm’ to rank those scenarios in a way that seems natural. For example, it seems natural to say that a particular beneficiary of Save the Children has been harmed compared to how well off he or she would have been had many people given more than they have to that organization. But if that use of ‘harm’ is legitimate, then it seems that the sense of ‘harm’ generated by the objective account may be in line with ordinary usage after all. We can think of that latter sense of ‘harm’ as the existentially quantified version of the former, comparative claim: the child is harmed because he or she is harmed compared to how well off he or she would have fared had people been more generous.

²³ I owe this example to David Wasserman.

²⁴ Kagan describes a ‘subjective account of rightness’ that may help to respond to the objection that consequentialism is not useful. See Shelly Kagan, Normative Ethics (Boulder, 1998), pp. 64–9. A number of theorists outline how probabilities and outcomes can be put together to define ‘expected utility’. See, e.g., Mark, Timmons, Moral Theory: An Introduction (Lanham, Md., 2002), pp. 122–6Google Scholar; Graham Oddie and Peter Menzies, ‘An Objectivist's Guide to Subjective Value’, Ethics 102 (1992), pp. 512–33, esp. pp. 513–16; and Frank Jackson, ‘Decision-theoretic Consequentialism and the Nearest and Dearest Objection’, Ethics 101 (1991), pp. 462–7. Feldman critically discusses the ‘epistemic objection’ to an ‘objective’ theory of utility in ‘Actual Utility, the Objection from Impracticality, and the Move to Expected Utility’, Philosophical Studies 129 (2006), pp. 49–79.

²⁵ For these purposes, I assume that an outcome at which the person never exists assigns to that person a zero level of well-being.

²⁶ I am grateful to a referee for this journal for pointing out the need to include the requirement that ‘p exists at or after t at w1’ in the expectational account.

²⁷ Thus, modifying the objective account of harm in favor of an expectational account does not resurrect a counterfactual approach to harm.

²⁸ Several issues of clarification arise at this juncture. Should the agent be held to a ‘reasonable person’ standard, or an ‘ideal person’ standard, or some still more objective standard? See Oddie and Menzies, ‘An Objectivist's Guide to Subjective Value’, p. 517 (arguing that a moral theory cannot ‘provide a practical guide to action’ ‘without according a privileged position to the notions of objective chance and, by virtue of that, objective value’). Should we, moreover, understand the ‘information’ that the agent is in a position to grasp at a given time to exclude inaccurate information? For purposes of this present article, I put those issues aside.

²⁹ An interesting issue is how much harm is created – the very small amount that is represented by the difference between the expected well-being in fact created for p and the maximal expected well-being that could have been created for p, or the more significant amount represented by the difference between the well-being created for p and maximal actual well-being that could have been created for p. I will not try to resolve this issue here, but rather just note that we are free to appeal to some appropriately limited objective element as a measure of the amount of harm actually done, and to understand expected well-being to represent the causal element in harming that Feinberg noted. See n. 9 above.

³⁰ In part to give credit where credit is due and in part to suggest that the concept of harm isolated by the expectational account is not sui generis, I note that similar probability issues arise in negligence law (specifically, in medical malpractice) and that some courts have accepted claims of harm when those issues arise even while forced to operate within the person-based framework on which the law is premised. See Herskovits v. Group Health Cooperative of Puget Sound, 664 P.2d 474, 475 and 487 (Wash. 1983) (medical malpractice case in which the plaintiff claimed that the defendant had failed to promptly diagnose lung cancer, reducing the decedent's chances of survival from 39 to 25 percent). The majority opinion in Herskovits treated the question as one of causation rather than harm, finding that the defendant's conduct was a substantial factor in the death. However, a concurring opinion treated the issue as one of harm. While the concurrence did not suggest that the harm for which the defendant should be held liable was the whole of the decedent's death, it is nonetheless significant that the court recognized the presence of an ‘actionable injury’. See also Kallenberg v. Beth Israel Hospital, in which the court allowed the jury to consider the issue of the defendant's liability for the death of the decedent in a medical malpractice case in which the decedent, the victim of a series of strokes, would have had, had she been properly treated, a ‘20, say 30, maybe 40% chance of survival’ (45 A.D.2d 177, 179 (1975) (holding that the jury would be permitted to consider that the decedent ‘might have improved sufficiently, even after August 22, to undergo surgery and make a recovery’; emphasis added). Other courts have been similarly reluctant to accept the ‘doomed either way’ defense against a claim of harm and have favored a ‘loss of chance’ approach. See, e.g., Jorgenson v. Vener, 2000 S.D. 87, P 17, 616 N.W.2d 366, 371 (2000). The ‘loss of chance’ doctrine has also been suggested as a possible correction to the U.S. Supreme Court's treatment of statistical evidence in McCleskey v. Kemp, 481 U.S. 279 (1987). See Henry Louis Gates, in Statistical Stigmata in Deconstruction and the Possibility of Justice, ed. Durcilla Cornell (New York, 1992), p. 338 (citing notion of probabilistic harm described by K. A. Appiah, unpublished manuscript, 1989).

³¹ Thus we assume that, if one is going to run lotteries, one ought not run them in the way the lottery is run in the current example. (Given the size of the jackpot, it might be noted that a lottery that gives the holder of the ticket a one in 10¹⁰⁰⁰ chance of winning a billion dollars is itself pretty unfair unless the tickets are available at a very small cost. But we set that point aside for purposes here.)

³² Obviously, others may have been harmed, or wronged, in addition to William. Thus, losing players hold tickets that are, in effect, worth transiently less than they should be during that period between the agent's stealing the money and the selection of a number other than their own. But any such loss is irrelevant to the overall argument of the present article, given the analogy between the purchasers of losing lottery tickets on the one hand and those persons who could have, but never in fact do, come into existence on the other. We can take for granted here that those who never exist at all cannot be harmed, in any morally significant sense, or wronged. One might think that one person who surely has been harmed by the agent's act is not William but rather the person who ‘would have won’ had the agent opted not to steal. The difficulty with the application of that (counterfactual) test is that no one person ‘would have won’ had the agent performed some non-stealing alternative and then proceeded to draw some winning number or another. It all depends on just how the agent refrains from stealing and moves step by step through the draw.

³³ This assumes, of course, an implausibly direct connection between money and well-being.

³⁴ Reasons and Persons, p. 367 (writing in the context of the depletion example).

³⁵ This is not, I think, just a coincidence, but rather something we recognize intuitively and pre-analytically, and the basis for our thought that William, the slave-child and people who exist and suffer under depletion have been harmed.

³⁶ Contributing to Save the Children instead of stealing is just the sort of ‘dummy’ act that is better on its face for William but that is the sort of alternative in which the agent is able to replicate the spatial-temporal-mechanical features that she is able to anticipate in her actual act of stealing. So is feigning to steal, or just standing there taking deep breaths. However, should the agent perceive midcourse that the Save the Children contribution seems to be taking longer than she had projected for her stealing, she has the option of aborting that sequence and moving to some other non-stealing, better-for-William act instead, such as just standing there.Of course, no plausible normative theory will require that the agent not steal in a way that replicates how she would steal if she were going to steal. And there is no reason in the world why the agent might want, or be inclined, to not steal in that particular way. Nor do we have grounds to accept the counterfactual that, if the agent were to have chosen not to steal, she would have not stolen in way that gives some advantage to William's winning. But under an expectational account or any other maximizing account, those points are irrelevant to the question of harm. Harm is decided, rather, on the basis of what alternatives existed for the agent at the critical time. The fact that the agent performed an act that created a certain amount of expected well-being for a given person when she had the alternative of performing an act that would have created more is therefore directly relevant to the question of harm. And it is relevant to the question of harm even if the agent would not have, does not want to and morally need not perform that alternative act.

³⁷ In the unusual case in which the agent does happen to anticipate that her stealing will take exactly 20.73 seconds – perhaps because she wants it to last exactly that long and has the wherewithal to make it last exactly that long by keeping a close eye on the stopwatch – the points just made will not hold. If the agent knows in advance her stealing will take exactly 20.73 seconds, then she can replicate that feature – using the same stopwatch – in a non-stealing alternative. By doing so, the agent will thereby boost William's chances of winning to the same extent that the fact that the agent's stealing lasts exactly 20.73 seconds boosts William's chances of winning. Nonetheless, we can be sure that, even in the unusual case, the agent's yet-to-be-performed act of stealing will inevitably have many other spatial-temporal-mechanical features that help to decide in the end that William will win but that the agent cannot anticipate – and thus cannot replicate – in a non-stealing alternative.

³⁸ More precisely, she is in no position to grasp in advance that the particular act of stealing that she will perform, among the many concrete alternatives that fall under that general heading and have the spatial-temporal-mechanical features that she is in a position to anticipate in advance, will be one the duration of which is 20.73 seconds.

³⁹ It might be argued that, since the act of not stealing – more precisely, the act of proceeding to draw the balls without stealing – is not performed, it has no ‘actual value’. But that act does have a perfectly determinate value for William, if it is performed, given the ‘against all odds’ assumption. And it is that counterfactually established determinate value that is sometimes relied on by those theories that take an actual value approach to betterness and moral obligation generally. For example, in their description of ‘actual-outcome value’, Oddie and Menzies write that ‘the value of an option in the case in which it is realized is the value of the actual outcome the option (usually in conjunction with external chance factors) produces; and in the case in which the option is not realized, its value is the value of the outcome the option would have produced had that option been chosen’ (Oddie and Menzies, ‘An Objectivist's Guide to Subjective Value’, pp. 512–16).

⁴⁰ Of course, there may be the unusual case in which that assumption does not hold, and the agent is able to grasp in advance, and it is a determinate matter of fact, that her act will last exactly 20.73 seconds. But we have already worked through what to say about that case. If the agent does happen to grasp in advance that her actual stealing will last 20.73 seconds – if, for example, she wants it to last exactly that long and uses a stopwatch to insure that it lasts exactly that long – then her act lasting exactly that long becomes the sort of spatial-temporal-mechanical feature she can replicate in a non-stealing alternative. See n. 37.

⁴¹ Reasons and Persons, pp. 361–3.

⁴² Reasons and Persons, p. 361.

⁴³ Reasons and Persons, p. 361.

⁴⁴ Reasons and Persons, p. 362.

⁴⁵ Reasons and Persons, p. 363.

⁴⁶ In fact, a counterfactual reading of the depletion problem substantially weakens the force of the argument. After all, whether any particular D-person – and we need show harm only to one such person – ‘would have existed’ under conservation or not depends on just how agents implement conservation. And there surely existed some way of implementing conservation that ‘would have’ led to the existence of at least one such D-person. So Parfit's claim would have to be that agents ‘would have’ implemented conservation in some other way – some way that would not have brought any D-person into existence. But that claim itself is perilously close to the objectionable won't-do-better problem.

⁴⁷ Kavka's reference to probability is more explicit than Parfit's. Thus, Kavka notes that it is ‘enormously improbable’ that agents would have produced the same child as a non-slave ‘even if they had tried’. See ‘The Paradox of Future Individuals’, p. 100 n. 15.

⁴⁸ We could say here, in place of ‘at least as low’, ‘just about as low’, in view of the fact that expected well-being turns not on just the chances of Jaime's coming into existence but also on the actual well-being he has at those outcomes at which he does exist. But I do not think, in the end, that we will need to invoke this technical point since I think we can conclude that Jaime's chances of coming into existence are ‘at least as low’ under depletion as they are under the best of the conservation alternatives.

⁴⁹ I have elsewhere described a version of this argument. See n. 13 above.

⁵⁰ Argument II fails, as noted earlier, because the premise that the act under scrutiny creates a greater chance of existence for a particular person than any alternative act does is false in the context of the depletion example. In other contexts, however, the analogous premise will be true. It has been reported, for example, that in vitro fertilization (IVF) is associated in rare cases with significant birth defects. See Robertson, ‘Procreative Liberty and Harm to Offspring in Assisted Reproduction’, pp. 9–10. If in such a case (1) the particular use of IVF makes conception more likely (looking ahead from that critical time just prior to performance) than it is under any facially better alternative that then exists for the agents, thereby making the existence of the new person into whom the zygote eventually develops more likely than it is under any alternative, and (2) the anticipated defect is not generally so severe that the overall, life time level of well-being for that person will fall into the negative range, then, under an expectational account, the use of IVF will not harm that new person even if the risk of defect eventuates. This analysis supposes that the case is one in which it is the IVF itself that causes the defect and not an inherent genetic or chromosomal defect that the application of IVF is less likely than nature to rule out. If, in contrast, the case is one in which the defect is an inherent genetic or chromosomal defect, then the case should be treated as a can't-do-better problem, a type of problem discussed briefly in sect. VI below.

⁵¹ If, in that sense, the depletion act is after all necessary to Jaime's extremely poor chances of existence being as high as they in fact are, then the only way to escape the ‘no harm done’ result under the expectational account would be to rely on the fact that the actual well-being created by conservation for Jaime at a world where Jaime exists will be greater than the actual well-being created by depletion for Jaime. While that fact is one we can legitimately exploit, it is not, or so I argue, at all obvious that we will need to do so here.

⁵² We can give an analogous account of harm in Kavka's slave-child case. In that case, as well, we suppose the ‘bad’ act to have taken place, and the couple to have brought a child, say, Anna, into existence as a slave. Clearly, the couple there had the alternative of feigning to enter into the slave-child contract and then proceeding to conceive a child, building into the full sequence all those spatial-temporal-mechanical features that they can grasp in advance about their future act of entering into the contract and producing the child. If they anticipate their actual signing to be quick, they can quickly feign signing as well. If they anticipate they will then repair to a nearby hotel to conceive a child, they can likewise perform a ‘non-signing’ alternative under which they then repair to the same nearby hotel to conceive a child. It is implausible to think that, as of that critical time prior to performance, the feigned ‘entering into the contract’ that replicates, as nearly as agents are able, the actual entering into the contract would have made Anna's chances of existence any less than they are under a bona fide ‘entering into the contract’. This is in part a function of the fact that how the agents go about entering into the contract itself may unfold in one way rather than another; the entering into the contract, as of the critical time prior to performance, may be implemented by the agents through the performance of any number of concrete acts that equally fall under that heading. Exactly which they shall perform is not something they can anticipate in advance. Moreover, it may not even be a determinate matter of fact. The upshot is that the entering into the contract is not necessary to achieving that very low chance of coming into existence that Anna has at the critical time. Other, better ways exist that give her that same very low chance. Since existing as a non-slave is better than existing as a slave, the agents can do more for Anna than they do when they enter the slave-child contract. They have therefore harmed Anna when they do less. As in the depletion example, including an objective element in the expectational account of harm does not change those results since Anna's well-being, given that she is a slave, has not been maximized.

⁵³ As noted earlier, the expectational account plausibly excludes merely possible people – those who do not and never will exist – from harm. Maybe it is cogent to say that merely possible people can be harmed – as when, for example, they are left out of existence. But if so the harm that is done to them in that sense would not be deemed morally relevant under any sort of person-based approach. See sect. III.C above.Claims of harm, under the expectational account, are relativized to worlds, where, for any given existing or future person, it is a determinate matter of fact whether that person exists, at least eventually, or not. Resolving the can't-expect-better problem, then, is a matter of coming to a correct calculation that agents can just as easily (not very) achieve a world where Jaime exists and has more well-being as a result of conservation than they can achieve a world where Jaime exists and has less well-being as a result of depletion.

⁵⁴ The three types of non-identity problem I describe in this article do not exhaust all of the arguments that have been associated one way or another with the non-identity problem. A non-identity-like analysis is sometimes used, for example, to construct an argument that an apparently harmful act performed after the individual whose plight we are concerned with has already come into existence does not harm that individual. Such arguments, which involve explicitly ‘same-people’ choices, often arise, for example, in the context of discussions of the ethics of meat-eating. Has the pig who is humanely butchered at the end of a couple of years of fattening by a kind and caring farmer been harmed by having been butchered? Of course. In this context there is no argument to be made that the butchering of the pig was itself something that benefited the pig or avoided harming the pig by virtue of the fact that it secures existence for the pig or at least confers a substantial chance of existence on the pig. The pig has already come into existence, and refraining from butchering the pig is not going to have any causal influence over that fact. Now, what may make a causal difference to the pig's coming into existence is the farmer's plan or program of bringing one or more pigs into existence, caring for them and ultimately butchering them for meat that can then be consumed or sold. Such a plan or program, since it is adopted prior to the pig's existence, would be fair game for the non-identity problem. For then we do have a case in which a seemingly harmful act, because it plays a role in bringing the pig into existence, can be argued, under a non-identity analysis, not to impose harm on the pig. At that juncture, however, we also have a version of the can't-expect-better problem – a case with respect to which, I have argued, we can on closer analysis discern harm. But at least in the case of the plan or program the argument against harm itself warrants the title ‘non-identity problem’ – a compelling problem we have to work to unravel. Not so in the case of the simple butchering of the pig. Even those theorists who otherwise uncritically accept any and all variations on the non-identity problem and just about any tenable account of harm (even a counterfactual account) should concede that that latter, after-the-fact act clearly counts as one that harms the pig.Whether the human clones Kazuo Ishiguro imagines in his Never Let Me Go are harmed can be analyzed in precisely the same way. The clones begin their lives at Hailsham, where they are kept safe, well-fed and segregated in the countryside away from mainstream society, all so that they can better serve society as organ donors. Once the clones mature, organs are taken from them once, twice, thrice or until they ‘complete’, that is, die, after living about half a normal life span, or are otherwise “switched off” when important organs have been taken but death does not come. Are they harmed when the surgeon takes that first kidney from their bodies? Of course – and no interesting variation on the non-identity argument says otherwise. Does the plan or program, developed prior to their existence and forming part of the causal sequence that leads eventually to their existence, harm the clones? In answering this question, we do face a legitimate non-identity problem. But here again the type of problem we face is the ‘can't-expect-better’ problem – which means that we can after all, on close analysis, discern harm.

⁵⁵ Parfit's ‘two medical programmes’ example has been especially influential in this case. Reasons and Persons, p. 367. Peter Singer discusses what he calls the ‘prior existence view’, tentatively discarding it in favor of an impersonal approach. See, e.g., Practical Ethics, pp. 185–91. See also Buchanan, et al., From Choice to Chance, pp. 247–57.

⁵⁶ I am very grateful to Fred Feldman, Alan McMichael, Peter Vallentyne and David Wasserman, and to anonymous referees for this and another journal, for their extremely insightful comments on earlier versions of this article.