Uppsala University Department of Philosophy
A Critique of Anna Stilz’ Fair-use Proviso
The moral significance of future generations in legitimizing territorial claims
William Bådagård Practical Philosophy C Spring, 2020
Supervisor: Folke Tersman
Table of contents
1. Introduction and abstract 3
2. The pre-institutional primitive right of occupancy and Stilz’ fair-use proviso 4
2.1 The occupancy right 4
2.2 The fair-use proviso 7
3. An objection to the proviso, drawing on Ypi’s Permissive Theory of Territorial Rights 13
3.1 The objection from scarcity 13
4. Four strategies of rebutting the objection from scarcity 15
4.1 First strategy: Claiming that the objection misfires 16
4.2 Second strategy: Biting the bullet 18
4.3 Third strategy: Interests of future generations will be satisfyingly considered 18 4.4 Fourth strategy: Adapt the proviso as to include the interests of future generations 20 5. Problem with considering the interests of future individuals 21
5.1 Parfits analysis of the non-identity problem 22
5.2 The implications of the non-identity problem in the context of Ypi’s objection 23
5.3 A possible adaptation of the objection from scarcity 24
6. Conclusion 27
7. References 29
1. Introduction and abstract
In this essay, I will examine the theory of territorial rights developed by Anna Stilz. The overarching project of hers is to defend a system of territorially sovereign states, the defense of which is grounded in the natural rights of individuals to personal autonomy and
self-preservation. She begins her theoretic project by arguing for the plausibility of the preinstitutional occupancy right, intended to grant individuals usage-rights over the earth, existing irrespective of social or moral conventions, formally defined as follows: “Occupancy Rights. A person has a preinstitutional right to occupy a particular area if (1) access to spaces in that area is fundamental to his located life plans and (2) his connection to the territory was established without any wrongdoing on his part, involving (at a minimum) no expulsion or wrongful interference with prior occupants or infringement of others’ claims to an equitable distribution of geographical space.” 1
The condition of equitable distribution expresses a concern for proportionality. It seems as if Stilz believes that no territorial holding will be legitimate unless it is of an appropriate scale, with regard to the holdings of others. This condition is referred to by Stilz as the fair-use proviso.
The fair-use proviso concerns the occupancy claims made by individuals. Stilz also introduces conditions for a legitimate global distribution of territory, named as the full proviso. Stilz’
defines the full proviso as follows: (conditions for a legitimate global distribution of territory):
“The full proviso hold that a just distribution of the earth’s spaces must (i) satisfy everyone’s basic territorial interests and (ii) grant groups with shared practice-based interests the right to use geographical space in ways that reflect these interests, so long as the groups are of sufficient size, and so far as this is institutionally feasible.” For an individual occupancy claim to be legitimate 2 is simply that it is consistent with the conditions for a legitimate global distribution of territory, i.e. the full proviso. The full proviso and the fair-use proviso are thus inseparable parts of a whole. In what follows, if not specified otherwise, I will alternate in referring to the fair-use proviso as the fair-use proviso or simply the proviso. The full proviso will always be italicized when discussed.
1Stilz (2019), p. 84
2Stilz (2019), p. 174
The purpose of this essay is to investigate whether the fair-use proviso is satisfying in the face of some criticism. In completing this task, I will draw on an objection put forth by Lea Ypi.
The objection as formulated by her is not in direct response to Stilz, however I believe we might draw on her work to formulate a powerful objection from scarcity to Stilz’ fair-use proviso. The question at stake in this essay is thus if the objection of scarcity is successful against Stilz’
fair-use proviso. I will now provide a short summary of the disposition of the essay.
In section two I develop the defense of the two central concepts: the occupancy right, and the fair-use proviso. In section three I introduce an objection from scarcity, drawing on Lea Ypi’s work, which in short claims that the fair-use proviso fails to accommodate the morally relevant interests of future generations. In section four I investigate four potential rebuttals of the objection, finding them all to be unsatisfactory. In section five I discuss whether the non-identity problem may render the objection from scarcity as untenable. I argue that we may re-interpret the objection as to avoid running into the problem of non-identity, thus levelling legitimate and valid criticism at Stilz’ proviso. Lastly, I conclude that Stilz’ proviso as currently construed is
unsatisfactory in at least some cases, which is enough for our purposes.
2. The pre-institutional primitive right of occupancy and Stilz’ fair-use proviso
2.1 The occupancy right
One central concept within Stilz’ theory is the notion of the pre-institutional primitive occupancy right. The occupancy right is a moral right for each and every person to make use of some, appropriately large, part of the earth, whether the world be commonly owned or owned by no one in the state of nature. In what follows, I will refer to this concept as the occupancy right.
Stilz provides us with the following formal definition of the right.
“Occupancy Rights. A person has a preinstitutional right to occupy a particular area if (1) access to spaces in that area is fundamental to his located life plans and (2) his connection to the territory was established without any wrongdoing on his part, involving (at a minimum) no
expulsion or wrongful interference with prior occupants or infringement of others’ claims to an equitable distribution of geographical space.” 3
The occupancy right is fundamentally grounded in the ‘natural’ right of each person to personal autonomy and self-preservation. Such rights are according to Stilz essential and universally shared preconditions for living a decent life. These rights are coupled with 4 corresponding natural duties to respect the personal autonomy and self-preservation of others.
Stilz argues that any plausible moral theory will claim that we are bound by some restrictions and duties to respect the autonomy and self-preservation of other people. Stilz conceives of 5 these duties as existing prior to any social conventions regarding our moral rules of conduct. She points out that she does not necessarily intend to endorse some specific meta-ethical view when making use of the notion of a natural right, rather, what is important for Stilz’ purposes is that the primitive occupancy right can logically precede a legal system. Some readers may want to 6 object to the very notion of a natural duty, but for the purposes of this essay, it is not of the utmost importance to investigate this notion further, nor to scrutinise the concept of natural rights as commonly conceived of. In what follows, I will continue to make use of the term natural duty/right, keeping in mind these considerations. Stilz notes that this natural duty, which itself is taken to be self-evident, would be impossible to satisfy unless we sometimes, or perhaps even oftentimes, extend its prescriptive reach over external objects. For example, some moral right to occupy territory and make use of external goods seem fundamental for every person’s
self-preservation and personal autonomy. It is hard to conceive of a way of life that does not concern the usage or possession of external objects in some way. For example, in satisfying some of my interests of self-preservation, I necessarily require some external objects of the world in order to nourish my body. Thus, it would seem as if an natural obligation of some other person to respect my self-preservation entails the obligation to respect my usage of some external objects of the world. Such a moral right to make use of external objects would be what Stilz, following the 17th century philosopher Hugo Grotius, refers to as a primitive and
pre-institutional right. It is pre-institutional because it exists prior to any social or political
3Stilz (2019), p. 84
4Stilz (2019), pp. 40-1
5Stilz (2019), pp. 61-2
6Stilz (2019) p. 39
institution governing the (il)legitimacy of moral claims to property. Stilz names this
pre-institutional primitive usage right that each person is naturally entitled to the occupancy right. 7
Stilz further argues that while the occupancy right may grant one exclusionary moral rights over a particular external object, the extent of these exclusionary claims are limited. Stilz distinguishes the occupancy right from the concept of full liberal ownership. Some of the disanalogies between the two include that an occupancy right does not grant one contractual power over the object, nor does it grant one the right to sell it, or expect to hold the object under possession indefinitely. Usually, we conceive having full liberal ownership over an item allows one having permanent discretionary ownership of it. Whereas the legitimacy of the occupancy right is subject to change as other facts about the world change. If an object under my legitimate occupancy claim ceases to be fundamental to my central life plans, I may not expect to possess unqualified and exclusionary access to it. Or if another person happens to form central life plans concerning the very same object, I may be required to share in the possession of the object, as the occupancy right views each person as moral equals with regard to their entitlements and weight of their interests. 8
Stilz’ occupancy right is meant to reflect the realization that all persons have a general interest in being able to make use of parts of the earth. However, Stilz argues that the right to occupancy only holds if it is reciprocally justifiable. That is, my moral usage claim to a piece of territory derived from my natural right of personal autonomy and self-preservation can only be legitimate if it does not harmfully interfere with anyone else’s natural right of personal autonomy and self-preservation. Thus, Stilz introduces the Lockean notion of a fair-use proviso in her theory. The thought being that any moral claim to territory must not exceed the fair-share to which one is entitled. In order for my moral occupancy claim over a particular territory to be legitimate it has to leave enough and as good for others to make use of. On Stilz’ view, the 9 foundational title of a state ultimately consists of a bundle of individual’s occupancy rights,
7Stilz (2019), pp. 60-1
8 Stilz (2019), pp. 69-71
9Stilz (2019), p. 63
which in turn relies on the plausibility of the fair-use proviso. Thus, a large part of Stilz’ system 10 hinges on the defense of that proviso, which is what this essay will be primarily concerned with.
We should note that the fair-use proviso is only a necessary condition for legitimacy of occupancy. If we recall the passage quoted on page four: “Occupancy Rights. A person has a preinstitutional right to occupy a particular area if (1) access to spaces in that area is fundamental to his located life plans and (2) his connection to the territory was established without any
wrongdoing on his part, involving (at a minimum) no expulsion or wrongful interference with prior occupants or infringement of others’ claims to an equitable distribution of geographical space.” , we notice that it is not enough for an occupancy claim to satisfy the fair-use proviso as 11 contained within condition (2), since condition (1) must be satisfied as well in order for the occupancy claim to gain full legitimacy. However, the scope of this essay is limited to examining the plausibility of the fair-use proviso. I will therefore omit any discussion regarding condition (1) and proceed to flesh out Stilz’ defense of her fair-use proviso.
2.2 The fair-use proviso
Stilz does not offer us a formal definition of the fair-use proviso with regard to the conditions for the legitimacy of an individual occupancy claim over some particular territory. What she does offer us a formal definition of is a proviso containing the conditions for a legitimate global distribution of territory. Stilz’ names this proviso the full proviso. However, as I will argue, we must understand that what it means for an occupancy claim to satisfy the (individual) fair-use proviso is simply that it is consistent with the conditions posed by the (global) full proviso.
Stilz’ full proviso (conditions for a legitimate global distribution of territory): “The full proviso hold that a just distribution of the earth’s spaces must (i) satisfy everyone’s basic territorial interests and (ii) grant groups with shared practice-based interests the right to use geographical space in ways that reflect these interests, so long as the groups are of sufficient size, and so far as this is institutionally feasible.” 12
10Stilz (2019), p. 58
11Stilz (2019), p. 84
12 Stilz (2019), p. 174
The first observation we might make about the proviso is that what is to be proportionally guaranteed for each individual is the satisfaction of some interests, namely (i) basic interests and (ii) practice-based interests. The conjunction of these two categories is what Stilz refers to as our fundamental territorial interests. Moreover, Stilz intends for this proviso to express sensitivity 13 to the many different conceptions of the good life expressed across cultural and regional borders.
The second observation we might make is that the proviso does not claim that each person
14
holds an entitlement to a spatially equal piece of territory, rather, Stilz seems to conceive of the right to territory to be of instrumental value. I will return to these points in what follows. 15
I believe we might acceptably make the interpretation that Stilz believes that any individual occupancy claim is legitimate only if it is consistent with the conditions for a legitimate global distribution of territory, as those conditions state that under a legitimate distribution of territory, each individual, or set of individuals, will hold proportionally
appropriate claims over territory. This means that in my interpretation, in every case where the fair-use proviso is satisfied with regard to some individual occupancy claim, that same
occupancy claim is necessarily consistent with the full proviso as well. Furthermore, this entails that even in a state of affairs where the total global distribution of territory does not satisfy the conditions for legitimacy, meaning that the full proviso is not entirely satisfied, some of the individual occupancy claims may yet be consistent with those conditions, by satisfying the fair-use proviso, and thus be held as legitimate.
The general thought of Stilz’ fair-use proviso is that a moral occupancy claim over territory cannot be legitimate if it exceeds the proportions of a fair-share. At first look the proviso seems to imply that each person is viewed to be entitled to a proportional share of
something. This something is not territory in and of itself, as Stilz argues that territorial rights are merely of instrumental value to us. It is thus not a proportional share of actual proportional 16 territorial areal that we are entitled to, as such a view would have quite intuitive implications, and give expression to a form of fetishization of an external good without any obvious intrinsic value. Rather, Stilz suggests that we are entitled to a fair-share of the values or interests which
13Stilz (2019), p. 167
14Stiz (2019), p. 165
15 Stilz (2019), p. 163
16Stilz (2019), p. 61
can be provided or secured through permanent access to territory. This leads us to the question of what these values and interests consist of. What exactly are we entitled to a fair-share of? The answer to this question is of great importance, since it is whatever is to be distributed by the fair-use proviso.
Stilz notes that the human interest in territory seems to be both general and highly particular. I have a general interest in exercising my right to personal autonomy. However, I seem to be able to satisfy this general interest in several vastly different ways. Once I have been born into a specific place on the earth and established local connections to people and joined in certain socioeconomic practices, I might have an interest in exercising my right to personal autonomy in a particular way, and in a particular place. The general and particular territorial interests possessed by all persons are what Stilz refers to as our fundamental territorial interests.
She divides these fundamental territorial interests into two categories, (i) basic interests, and (ii) practice-based interests. The basic interests are generic, non-particularized interests, such as the 17 interest in food, water, shelter and basic health. Stilz also includes some social interests in the category of basic interests, such as the interest for basic justice. They are non-particular because, for instance, the basic interest in food is not conceived of as to concern some particular food, rather it is a general interest in some food. It is thus an interest which conceivably could be satisfied in many different imaginable places on the earth. The practice-based interests are of a more particular nature. Oftentimes they serve to satisfy the basic interests, but in a particular way, and in a particular place. For example I might have a practice-based interest in eating some certain types of food significant and exclusive to the culture which I grew up in. My basic interest of having access to some food may be satisfied in any place on the earth, my
practice-based interest in having access to this particular food may not. If I was forcibly moved from my place of birth without qualification, and therefore rendered unable to continue with my chosen social practices and customs, my life would take a turn for the worse. This seems to be the case even if opportunities to participate in the social practices of the place where I am now (unwillingly) situated were to be presented to me. Stilz would say this is because my
practice-based interest of being able to live my life according to my own conception of the good
17Stilz (2019), p. 167
life was upended, which is not easily compensated for by simply presenting me with alternative social customs to practice. Once we have settled for our conception of the good life, it is difficult to radically change that conception. Stilz therefore argues that we have moral reasons to try to satisfy both the basic interests and practice-based interests of all persons. 18
In the case of competing claims regarding a specific territory, what metric does the fair-use proviso employ in order to decide what claim is to be prioritized? Recall that we noted how territorial rights on Stilz’ view are instrumentally valuable rather than intrinsically valuable.
Territorial rights are of interests to us because of its ability to help satisfy our fundamental territorial interests. It is thus these fundamental territorial interests of (i) basic interests and (ii) practice-based interests which a fair-share of territory is meant to be defined with reference to. 19 In other words, a legitimate global distribution of territory will (probably) not end up being a simple equal division of total global inhabitants N over total global territory T, this is because the fundamental territorial interests of persons will vary with respect to how much territory they seem to require in order to be satisfied. Thus, there is no inherent value in the territory which is 20 then equally distributed, rather, one might say that what is to be distributed equally is the
satisfaction of the fundamental territorial interests.
An integral part of Stilz’ theory is that the concept of fundamental territorial interests helps Stilz establish an objective criterion by which she can compare the value of different territories for people. A reason for the importance of the objectivity of this criterion is that there are many different commitments to and conceptions of what a good life consists of, and various ways of relating to the territory which you inhabit. From nomadic tribes to urban city dwellers, central life projects vary greatly across cultures. Stilz believes we should avoid a criterion for measuring the value of territory which inherently privileges certain ways of life over others, and instead opt for one which expresses sensitivity to the variations of (morally legitimate) life plans an individual, or society, might endorse. Stilz intends for her criterion to be abstract enough to 21 accommodate this need. By ignoring the particularities of people’s different conceptions of a good life, and instead focusing on what all such conceptions have in common, i.e. pursuing the
18Stilz (2019), pp. 168-9
19Stilz (2019), p. 158
20Stilz (2019), pp 160-1
21Stilz (2019), pp. 162-3
satisfaction of our fundamental territorial interests, we might plausibly compare the value of territorial holdings across cultures. We might say that what is important according to Stilz is 22 that people are afforded the possibility to pursue their chosen ends, not what those ends happen to be, as long as they are morally legitimate. This is essential to the fair-use proviso, since we now might have a tool through which we can define what a fair-share of territory is, by appealing to how useful that territory is in providing opportunities for satisfying one’s fundamental
territorial interests. 23
To exemplify this, we can imagine a case where two distinct groups of people inhabit a certain area. For clarity’s sake assume this area is an island, and that these two groups are the only ones who assert some moral occupancy claim for that specific territory. The first group enjoys a nomadic lifestyle which requires moving over vast distances. The second group enjoys a more stationary lifestyle, significantly less spatially demanding than the nomadic lifestyle.
Assuming that each population is of the same size, one might at first glance believe that a fair distribution of the island's territory would be an equal split. However, notice that this would require infringing upon the practice-based interests of the nomads, without benefiting the stationary group in any morally significant way. Stilz’ proviso would here advocate for a distribution which better satisfies the territorial interests of the nomads, even if such a
distribution would be unequal with regard to spatial size, since it seems to not infringe upon the territorial interests of the stationary group. What is important according to Stilz is that the 24 distribution of satisfaction of the fundamental territorial interests are equal across both groups, not that the territorial holdings are equal in size, market value or any other metric we might suggest.
Another important remark about the proviso, is that it implies that the moral occupancy right is not conceived of as to be permanent once established. Just because my occupancy claim was deemed legitimate by the proviso at the time of my appropriation, does not mean I can expect the legitimacy of my claim to be permanent. To see why, we can again consider the case described above with the nomadic and stationary groups of people. Assume the stationary group
22Stilz (2019), pp. 173-4
23Stilz (2019), p. 174
24Stilz (2019), p. 160
has to flee their residential territory from some climate catastrophe which has rendered the territory uninhabitable. These people are now left without a territorial base to occupy and are therefore unable to satisfy their basic territorial interests. The nomadic group remain unaffected by the change in climate, having both their basic interests and practice-based interests
comfortably satisfied. In this case, Stilz would argue that some redistribution of territory is morally required in order to provide the group of climate refugees some territorial base to rebuild their lives, despite the fact that this could harm the practice-based interests of the nomadic group currently occupying the territory. This is because the group of refugees do not enjoy the
fair-share of satisfaction of their fundamental territorial interests which they are entitled to. The urgency of the interests of the refugees simply outweigh the interests of the nomads already settled in the area. This example also helps us note that in a conflict of basic interests and
practice-based interests regarding a specific territory, basic interests will always take precedence.
25
To sum up Stilz’ account so far. We begin with the natural duty, and corresponding right, to respect the self-preservation and personal autonomy of others. We then observe that we cannot fulfill this duty without sometimes respecting people’s claims over external objects of the world.
One such object can be territorial holdings. The claim does not amount to full ownership, it only implies a right of usage without unjustified interference. Moving on, territorial rights seem to be of instrumental value to us. What we are truly interested in, and what is protected by holding a moral right over territory, is what Stilz refers to as our fundamental territorial interests. Fulfilling these interests are vital to living a fulfilling life, and are thought to be universally shared. Such interests can be divided into (i) basic interests and (ii) practice-based interests. With reference to the fundamental territorial interests, we can develop an objective criterion for comparing the value of territorial holdings. The fair-use proviso is then conceived of as to guarantee each person a proportionate share of opportunities to satisfy their fundamental territorial interests. If my moral occupancy claim over a specific territory is of unreasonable proportions, thereby causing someone else’s fundamental territorial interests to be frustrated to a higher degree than others, then my moral occupancy claim is illegitimate.
25Stilz (2019), p. 175
3. An objection to the proviso, drawing on Ypi’s Permissive Theory of Territorial Rights In her article, A Permissive Theory of Territorial Rights, Lea Ypi offers an alternative theory of territorial rights. We need not concern ourselves with the specifics of her theoretic project, as 26 such an endeavour lies outside of the scope of this essay. However, Ypi shares several worries about theories such as Stilz’ that require answering. Since Ypi’s article was published a few years prior to the publication of Stilz’ book, the objection we will discuss is not formulated in direct response to Stilz’ fair-use proviso. However, I believe that we might draw on the objection presented by Ypi and subject Stilz’ proviso to it nonetheless. In what follows I will describe the objection, and then offer suggestions as to how Stilz might respond to them.
3.1 The objection from scarcity
The objection from scarcity is concerned with the scope of those subjected to and protected by the fair-use proviso. Ypi points out that any theory which concerns itself with issues of
acquisition and moral claims over objects, such as territorial holdings, needs to explain the moral relation between the person performing the act, and those who are affected by it. This seems 27 especially to hold for theories which rely on provisos similar to Stilz’, as the legitimacy of an act of occupancy is determined by the effect, or lack thereof, it has on the situations of other people.
If we understand Stilz’ proviso as to roughly imply the following: my occupancy of a particular territory is legitimate if and only if it does not impede the opportunities of others to pursue and fulfill their fundamental territorial interests, then a central question is how to understand who those other people are? How do we determine the scope of the proviso? Who is to be guaranteed a fair-share of opportunity to fulfill their fundamental territorial interests? Note that this is not a trivial matter. The answer might have great effects on what, if any, territorial claims will be legitimate.
26 Ypi (2014) “A Permissive Theory of Territorial Rights”
27Ypi (2014), p. 294
Ypi argues that a proviso which only considers the interests of currently existing people, which seems to be the case with Stilz, - thus excluding the interests of future generations - will be unsatisfying, as such a proviso could license distributions of territory which are legitimate with reference to the people currently existing, but has morally objectionable effects on future generations. 28
“Even if we conceded that the scarcity of geographical space does not affect all other living human beings, nothing guarantees that future generations will not suffer the consequences of a past unilateral distribution.” 29
Might we conceive of a possible case where a distribution of territory is deemed
legitimate by Stilz’ proviso, yet yields unintuitive implications regarding the eventual frustration of the interests of future generations? It does not seem outlandish to imagine a case where a person A, in her assumed legitimate appropriation of a particular territory, also consumes some of the resources within that territory to further her ends. For example, person A might cut down some trees, of a type nearly exclusive to that particular territory, in order to build a house, use as firewood, and other ways of satisfying interests which seem necessary in order to lead a good life. Also suppose that this type of tree does not house any animals or other organisms we might think possess some inherent moral value, so that in cutting the trees down, person A does not subject any other living organism to harm. One might here want to object that the tree could possess some inherent moral value, and that cutting the tree down is in and of itself a wrongful act, but I believe most are willing to accept that this potential harm is offset by the moral goodness of the satisfaction of the human interests of person A. Another supposition is that no one else has any interests in the preservation of these trees, thus there is no conflict of human interests concerning these trees. The cutting down of the trees thus seems to be rather morally uncontroversial, both intuitively and according to Stilz’ proviso. Assume then that in the future, a group of people will come into existence, in the same territory, that ascribes these trees a near divine value. Unfortunately for them, person A has cut down almost all of the existing trees, leaving only a few for the religious group to adore. This severely impairs their opportunities to pursue their practice-based commitments. Had person A not been entitled, through his proviso
28Ypi (2014), p. 293
29Ypi (2014), p. 295
sanctioned occupancy right, to cut down the trees, this group of people would have flourished.
Such a possibility surely shows that there existed some morally relevant reason for person A not possessing the right to cut down the trees, namely the interests of future persons. If so, it would seem that we are inclined to believe that the interest of future generations holds some relevant moral weight in determining the legitimacy of current occupancy claims. But if we interpret the scope of Stilz’ proviso as only concerning the interests of existing people, future individuals are left out to dry, their interests not included in the calculation. Stilz might here respond that in cutting down the trees, person A satisfies some of her basic interests. She has to survive the cold winter nights somehow, and if burning the wood is the only way, her right to do so takes
precedence over the practice-based interests of others. In the face of this answer we might simply alter the thought experiment, so that the cutting down of the trees is not necessary for the
survival of person A. Then it would seem as if we have a conflict between the practice-based interests of person A and the practice-based interests of the future group of individuals. The objection does not have to assume that the interests of the future generations will take
precedence, perhaps the interests of person A are of greater urgency. The point however, is that intuitively the interests of the future generations hold at least some moral weight, but based on our current understanding of Stilz, she believes they do not. Because of this implication, Ypi would conclude that Stilz’ proviso is unsatisfying.
4. Four strategies of rebutting the objection from scarcity
Before engaging with the question of whether or not any of the different strategies of refuting the objection from scarcity is successful, one clarificatory remark is appropriate. In section 2.1 we noted that the fair-use proviso only seems to constitute a necessary and not sufficient condition for the legitimacy of some occupancy claim. A careful reader may thus have noticed that an objection directed at the proviso as not appropriately considering the interests of future generations may not be devastating against Stilz’ theory of territorial rights, as she could in theory introduce some other necessary conditions intended to protect those future interests.
While certainly a theoretic possibility, Stilz herself does not express any such intention, as the sufficient conditions for legitimacy are clearly formulated in the earlier quotation. As I 30 interpret Stilz, the fair-use proviso is meant to do most of the work in guaranteeing that the distribution of territorial claims does not harmfully infringe upon the interests of others,
assuming that condition (1) is satisfied. Thus, even if the objection from scarcity in theory could be dealt with by introducing further necessary conditions for legitimacy of occupancy, such a concession would have to yield that the objection is successful against the proviso as we currently interpret it. Prior to such a concession it is appropriate to direct attention to other potential strategies of refuting the objection from scarcity.
4.1 First strategy: Claiming that the objection misfires
The first strategy in attempting to answer the objection from scarcity is to simply hold that it is unsuccessful against the proviso as such. The objection seems to assume that within the range of the occupancy right, some right to consume the external goods is included, if not in conflict with the fundamental life interests of other people. In the described case with person A who consumes the special type of branches situated within her legitimately appropriated territory, the objection from scarcity assumed that the permanent consumption of the specific trees was licensed by the proviso, as the action did not seem to interfere with the interests of any currently existing person.
In turn giving Stilz no option but to hold that the consumption of the trees was legitimate, despite the harmful effects the action had on some future generation. But perhaps Stilz could avoid this unintuitive implication. She could possibly claim that the occupancy right does not grant one any mandate to permanently consume external goods to the point where the goods in question are depleted. As mentioned earlier, Stilz conceives of the occupancy right as rather limited with respect to the rights it can guarantee a particular person. Here it is helpful to recall the 31
disanalogies between the occupancy right and full liberal ownership. This line of reasoning could instead hold that a right to permanently consume certain goods relies on the further establishment
30“Occupancy Rights. A person has a preinstitutional right to occupy a particular area if (1) access to spaces in that area is fundamental to his located life plans and (2) his connection to the territory was established without any wrongdoing on his part, involving (at a minimum) no expulsion or wrongful interference with prior occupants or infringement of others’ claims to an equitable distribution of geographical space.” Stilz (2019) p. 84
31Stilz (2019), p. 69
of social institutions and moral conventions. This means that the action of person A was illegitimate, not because it violated the proviso, but because it violated the constraints of the limited occupancy right. For the sake of clarity, we could say that the occupancy right contains a clause of non-depletion. Thus, we conclude that due to the limited extent of the rights contained within the occupancy right, no such case as the one described will ever be subject to the proviso, since the occupancy claim has already been judged as illegitimate by another necessary condition for legitimacy. If this is correct, then the proviso will never be ‘forced’ into a wrongful verdict, saving it from the scrutiny of the objection from scarcity.
Is this answer to the objection plausible? I do not find it entirely satisfying, and I do not think Stilz would subscribe to it either. Some right to consume the external goods we hold an occupancy claim over seems reasonable to accept. The usage-right possessed by me through my assumed occupancy right of a particular area surely grants me the capacity to engage in some kind of agricultural activity for example. Such activity may require small-scale deforestation, which in turn may render the living conditions of some small organisms inhabiting the area as untenable. After some harvests, the nutrition of the earth may have lessened, forcing me to expand my agricultural venture. While some of the consequences following my actions may seem prima facie objectionable to some people, is the harm wrought by them enough to render my usage-right as illegitimate? I believe Stilz would say no, as we have to compare the harms wrought by the occupation with the normative weight of my interests in using the area.
Presumably, my interests weigh heavier, thus granting my usage-claim legitimacy. Of course, in some cases, the harm to the environment of some usage of an area might be critical enough to render an occupancy claim as illegitimate, but Stilz does not specify whether she believes this to be the case. Nor does she ever claim that consuming a resource to the point of depletion will always, all things considered, be morally wrong.
Thus, we seem unable to refer to such a claim in order to categorically explain why occupancy claims which happen to result in great detriment to the interests of future generations are wrong. What is required in order to refute this strategy of rebutting the objection from scarcity, is simply to find one example where the proviso seems to give the wrong verdict about
the legitimacy of an occupancy claim, and where the referral to some external moral regulation, such as the suggested one of non-depletion, fails to save the proviso from the objection.
4.2 Second strategy: Biting the bullet
The next possible way of answering the objection from scarcity, is to bite the bullet and simply claim that the interests of future generations hold no normative weight. After all, it would seem as if having normatively relevant interests presupposes existence, but the future generations seem to not exist, precisely because they are future generations. If this is correct, it would seem as if referring to the interests of future generations is nonsense, as we are referring to something which does not in fact exist. Similarly to how we do not take seriously the claim that ghosts and fairies have normatively relevant interests, since we do not believe they exist. Something which does not exist does not seem to be able to possess any significant normative weight. Thus, the only morally relevant considerations are the interests of people currently existing, implying that the objection from scarcity is unsuccessful, since it assumes that the interests of future
generations have some normative weight.
This refutation of the objection from scarcity has, I believe, enough unintuitive
implications that we can entirely dismiss it. While perhaps difficult to specify exactly what it is we are talking about when we are referring to the interests of future generations, and of how to conceive of them, the conclusion that the interests, or well-being of future generations has no normative weight is too absurd to accept. Under the assumptions that the interests of future generations are entirely irrelevant for the moral status of current occupancy claims, and that the permanent consumption of some resources will not categorically be, all things considered, morally wrong, then given that it lies in the interests of those currently living, Stilz’ proviso may license large-scale neglect about the preservation of resources for the sake of future generations.
But this is surely absurd enough to reject, the interests of future generations, while perhaps difficult to specify their metaphysical status, simply must hold some normative weight. For this reason, I believe we should look elsewhere for a strategy to rebut the objection from scarcity.
4.3 Third strategy: Interests of future generations will be satisfyingly considered
The third possible strategy in answering the objection from scarcity is to claim that the interests of future generations actually will be satisfyingly considered, although not internally by the proviso. A possible defense of this claim could proceed as follows. The proviso is meant to safeguard the interests of others when any one person stakes a moral claim over some piece of territory. But who are these others? One interpretation yields that these others are those who are practically affected by the particular occupancy claim. It is hard to conceive of how a person who does not currently exist could be practically affected by an occupancy claim, since it seems as if existence is a necessary prerequisite for being affected by anything. Thus, the interests of future generations will carry weight as they arise, namely when the generations are born.
But what do we make of the fate of the future generations in our current state of affairs?
If their interests do not carry any moral weight in the proviso as interpreted, are we thus granted the permission to do what we please with the earth without having to consider the consequences this might have on the prospective situation of the coming generations? Not necessarily, as it is probable that one of the commitments that will be held in common among the residents of the earth as a part of what a good life consists of, is that we are to preserve the earth in an acceptable condition for the sake of future generations. The interests of the future generations are thus not protected internally by the proviso, but will most certainly be protected by the interests of
currently existing people, as part of their commitments to what a good life consists of. While this position might initially seem a bit strange to some readers, a proponent of this view could ask if it is probable that any conception of a good life which does not consider the preservation of the earth and its resources for the benefit of future generations as an integral commitment would gain any traction amongst groups of people? It is at least difficult to conceive of such a conception of a good life, lending support to the conclusion that while perhaps not internally protected by the proviso, the interests of future generations will be protected as part of the central life commitments of currently existing populations.
Is this a plausible answer to the objection from scarcity? While not obviously
unsatisfying, it does not seem obviously satisfying. I am inclined to agree that most reasonable
conceptions of the good life would include some commitment to preserve the earth and its resources, thus aiming to protect and help satisfy the interest of future generations. However, it remains a matter of contingency, the protection of the interests of the future generations rely on it being viewed as desirable by the persons currently existing. Since there is no internal guarantee for such protection, and since it is conceivable, yet improbable, that such a commitment could be abandoned by the currently existing persons, a preferable theory would aim for some internal warrant for the protection of future interests. Thus, I believe we should continue to look elsewhere for an answer to the objection from scarcity.
4.4 Fourth strategy: Adapt the proviso as to include the interests of future generations The final strategy in answering the objection from scarcity I will explore is to attempt to adapt the proviso in accordance with the critique. This strategy is thus not as much of a defense of the proviso as it is a concession that the objection is significant enough to require remedy of the proviso. This means yielding that the proviso as currently construed fails in satisfyingly
recognising the interests of future generations. The adaptation will therefore try to accommodate the interests of future generations by incorporating their interests in the fair-use proviso. Thus, the proviso would state that in order for an occupancy claim to be legitimate, it has to both be consistent with the conditions for a legitimate global distribution of territory, i.e. the full proviso, and not illicitly infringe upon the interests of future generations.
On this interpretation it is unclear of how we should conceive of the interests of future generations, as they do not, at least obviously, seem to be practically affected by current
occupancy claims. But perhaps we might interpret Stilz differently, as to claim that the interests which are to be safeguarded by the proviso belong to those who might possibly be affected by any particular occupancy claim. Should we adopt this possible interpretation with respect to the scope of those considered by the proviso, future generations might be satisfyingly considered.
The consumption of trees by person A in the thought experiment discussed in section 3 would on this interpretation have been illegitimate since it harmed the prospective situation of some people who might possibly have been relevantly affected by the action (in the future), despite the fact that no interests of anyone currently existing were violated.
Is this a plausible line of reasoning in answering the objection from scarcity? I believe not. It is a bit unclear of how we should conceive of this possible scope. If we are to consider the interests of anyone who might possibly be affected by some particular act or occupancy claim in determining its normative status, or whether or not it is sanctioned by Stilz’ proviso, we seem to run into a problem of infinity. For who might possibly be relevantly affected by any particular act or occupancy claim? Well surely that is anyone who might possibly come into existence, at any given point in time. The amount of people who might possibly come into existence, at any given point in time seems to be infinite. This is due to the fact that the number of people who will exist in the future is necessarily contingent upon our actions. It is conceivable that for any person in the future who does exist, there are countless people who could have possibly existed.
This leads us to the conclusion that the fair-use proviso has to protect the interests of an infinite amount of people. Combined with the finite nature of the earth and its resources, we seem to have run into a problem. How could we ever conceive of an occupancy claim being legitimate on Stilz’ proviso, if the interests of an infinite amount of people have to be considered as morally relevant, and as having significant claim rights of their own? To me it would seem as if to lead us to the conclusion that any territorial claim will be illegitimate. Perhaps this is not wrong, but it is certainly not what Stilz had intended, since she wants to defend the claim that some, or even many, occupancy claims will be legitimate. If this line of reasoning has been correct, this interpretation does not seem promising for Stilz’ purposes.
Arrhenius is another author who has suggested that talk about infinitely large groups of persons should be suspended due to the uncertainty of our intuitions in such cases. Again, perhaps the interpretation of the possible scope is correct, but even if this is the case, following Arrhenius, I argue we have sufficient epistemological reasons to abandon such a line of
reasoning when attempting to establish a proviso of territorial rights meant to govern the way in which we distribute territory. Since Stilz intends for her proviso to provide grounds for political 32 legislation, it seems epistemically unreasonable to offer a proviso grounded in the appeal to interests of an infinite amount of persons, since, as Arrhenius points out, we have notoriously
32 Arrhenius (2000), p. 32
unrealiable intuitions in such cases. Thus, I conclude that the fourth strategy fails in satisfyingly answering the objection from scarcity.
5. Problem with considering the interests of future individuals
Throughout this essay, we have frequently been referring to the concept of human interests, both present and future. Within her theory, the appeal to human interests plays a large role. The same goes for the objection from scarcity, which might be summarized in the claim that Stilz’ fair-use proviso fails to satisfyingly account for the interests of future generations. But perhaps this is misguided, perhaps the strength of an appeal to the interests of future generations is questionable on some other grounds. In exploring this question I turn to the work of Derek Parfit, whose analysis of the so-called non-identity problem I believe lends support to the conclusion that we should hold the objection from scarcity, formulated as suggested in section 3, as unsuccessful against Stilz’ fair-use proviso. However, I believe we might reformulate the objection from scarcity slightly, avoiding the problem of non-identity. In what follows I will describe the issue at stake, why the non-identity problem poses a problem for Ypi’s objection from scarcity, and how she might go about avoiding it.
5.1 Parfits analysis of the non-identity problem
Parfit begins his analysis of the non-identity problem by asserting a general claim that the identities of future people will depend on when they are conceived. The same goes for every currently existing person. We are all a product of a combination of particular cells. If another combination of cells had combined, then other persons, not identical to ourselves, would have been born. While not obviously true, Parfit argues this claim is not controversial. For the sake 33 of agreement, we might even lessen the strength of the claim somewhat. We could instead claim the following: had our parents decided to wait a few months before conceiving the combination of cells resulting in our own births, then we would not have existed. If recognized, this helps us realize that our action will not only affect the state of affairs of future generations with respect to
33Parfit (1984), p. 351
the number of people existing, but also the very identities of these people. This seems to have some implications for the debate about the interests of future generations.
Parfit has us imagine a case of a young woman who decides to have a child. She faces the choice of either (i) having the baby as soon as possible, or (ii) waiting a couple of years before having the baby. In the case of (i) she would not be emotionally or economically prepared for the burdens of parenthood. The upbringing of the child would be lacking in many ways, causing detriment to the child’s quality of life. Had the young woman waited a few years before having her child, she would have been in a position to provide a far superior start to the child’s life.
When being asked which choice is preferable, most would probably answer that the woman should wait a few years before having her baby. Therefore, if she chooses to have her baby at a 34 young age, we believe she acted wrongly, but on what basis? Parfit points out that we cannot appeal to the rights or interests of the baby having been violated, since the particular baby who is born in the case of (i) would not have benefited in any way if the mother had chosen (ii), since in that case, an entirely different baby would have been born. Surely it is in the interests of the 35 baby in outcome (i) to exist when comparing it to the prospects of non-existence, even if the welfare level of the baby is not as high as desired. For the reader yet unconvinced that the baby having been born in outcome (i) does not have some relevant objection to the choice of his mother, Nils Holtug argues that the property of ‘being worse (better) off’ cannot apply to persons if they do not exist. Thus, the baby in outcome (i) cannot reasonably claim that he would have 36 been better off in outcome (ii), since any such talk presupposes the existence of the same particular child in both outcomes, which as we previously saw, is highly unlikely.
Does this lead us to the conclusion that the mother did not act wrongly? Parfit believes it does not. Our evaluated belief that it would have been better if the mother had opted for 37
outcome (ii) is too rigid to abandon just yet. But since we cannot appeal to the interests of the particular baby in explaining why, we need an alternative explanation.
34 Parfit (1984), pp. 358-9
35Parfit (1984), p. 359
36Holtug (1996) p. 77
37Parfit (1984), p. 359
5.2 The implications of the non-identity problem in the context of Ypi’s objection In the context of the discussion regarding Stilz’ fair-use proviso, I believe Parfit’s analysis has the following implications. Recall the claim of the objection from scarcity that Stilz’ fair-use proviso failed to satisfyingly consider the interests of future generations, since it seemed to possibly allow occupancy claims which could render great harm to the interests of future generations. We are inclined to say that the future generations would have benefited, had the particular appropriation or occupancy claims which resulted in the detriment to their interests not been sanctioned by the proviso. But if we assume that Parfit’s analysis of the non-identity
problem is correct, then the appeal to the interests of future generations is fruitless in explaining why some particular occupancy claim should have been deemed as illegitimate. To see why, we might imagine a current state of affairs A where a certain occupancy claim is made by some individual or group of people. The proviso faces two options, to either permit the occupancy claim, which would result in the future state of affairs B, or the disallow it, resulting in the future state of affairs C. Suppose that the occupancy claim in question is legitimate in accordance with Stilz’ proviso with respect to the interests of the currently existing persons. Now suppose that in the future state of affairs B, the interests of the existing people are somewhat impeded due to the lack of a certain resource which was consumed as a result of the allowed occupancy claim under the original state of affairs. Thus, our intuition tells us that they seem to have some morally relevant claim against the legitimacy of the occupancy right afforded in A, and that they would have benefited if the occupancy claim had been disallowed, resulting in the preferable state of affairs C, where the satisfaction of the interests of those existing had remained at a greater level.
But notice that the people who exist in state of affairs B, do not actually seem to have any reason to claim that they would have benefited if state of affairs C had been realized, since, in that case, they, or at least some of them, would not have existed. In state of affairs C, a population of people with (presumably) different identities would have been born, since our identities are contingent upon the moment of conception. Thus, our appeal to the interests of the population in state of affairs B is entirely fruitless in explaining why the occupancy claim in state of affairs A was illegitimate. But how do we then explain our apparent preference of state of affairs C?
Since Ypi’s objection seems to rely on the appeal to the interests of future generations having been frustrated in retroactively explaining why a previously occupancy claim should have deemed as illegitimate, the claim that such appeals are entirely fruitless spells trouble. It seems as if her objection becomes untenable, perhaps even nonsensical. Is there anything she might do to remedy this?
5.3 A possible adaptation of the objection from scarcity
We have now recognized that Parfit’s analysis of the problem renders Ypi’s objection to Stilz’
proviso as untenable as currently interpreted by us. The reason being that Ypi’s objection relies on the appeal to the interests of particular members of future generations. But as we just saw, such an appeal is problematic since it does not consider the fact that the identities of these supposed future generations are affected by our current choices. Yet Ypi’s objection might be salvaged. For it does not seem as if her claim that Stilz’ proviso fails to give the correct answer in some cases, relies on the non-identity problem having been entirely solved. For guidance in dealing with this, I suggest that we once again turn to Parfit.
In approaching the non-identity problem, Parfit introduces a principle which he calls Q:
“If in either of two outcomes the same number of people would ever live, it would be bad if those who live are worse off, or have a lower quality of life, than those who would have lived.” 38
Parfit himself intends for this principle to avoid appealing to specific interests of specific future generations, instead opting for a more abstract comparison of future state of affairs.
Perhaps this principle aids us in our troubles. By appealing to Q, Ypi might explain why the occupancy claim made within the state of affairs A was morally wrong, and why state of affairs C should have been realized, because choosing state of affairs C would have resulted in an outcome where those existing enjoyed a higher level of satisfaction of their fundamental life interests. At first glance, this seems enough for Ypi’s objection to be successful.
However, Parfit himself concedes that this principle Q is limited in its capacity for solving the issue of how to understand the moral importance of future generations. Parfit makes a distinction between what he calls Same Number Choices and Different Number Choices. Same
38 Parfit (1984), p. 360
Number Choices arise when we are faced with the choice of two or more alternatives which will affect the identities of the future generations, but not the number. Same Number Choices can, according to Parfit, be appropriately solved by appealing to Q. Different Number Choices complicate things, since Parfit believes that Q does not entirely solve them. So if we again 39 recall the thought experiment most recently described. With the help of Q, we could motivate why state of affairs C was the more desirable outcome compared to state of affairs B. However, this is under the assumption that the number of people exiting in both outcomes are equal in numeral size. But if we assume that in state of affairs B more people would have existed, living lives worth living, the positive value (or however you should want to express it) of these added persons might render state of affairs B as preferable to state of affairs C, all things considered.
Thus, Parfit concludes that we need additional principles, which will be consistent with Q, in guiding our thought about how to measure the comparative value of future generations. 40
This may be the case, but Ypi is not required to make sense of how to approach the issue of Different Number Choices, rather, it is enough for her, and our, purposes to show that Stilz’
proviso will fail in some Same Number Choices. Surely a prerequisite for accepting a proviso dictating our global and local distribution of territory should not contradict some of our considered beliefs, such as the one that the prospective situations of future generations holds some normative weight for the question of the moral righteousness of our current occupancy claims. Therefore, it is enough to successfully suggest that Stilz’ proviso will fail in some Same Number Choices in order to cast some doubt on the plausibility of the proviso as a whole.
In order for Ypi to accomplish this, she seems compelled to reformulate her objection.
Instead of claiming that Stilz’ proviso fails to accommodate the interests of future generations, she could claim that Stilz’ proviso fails to accommodate the following principle, which is an adaptation of the principle suggested by Parfit, namely Q. We might name this adaptation Q*.
Q*: If in either of two outcomes the same number of people would ever live, it would be worse if the fundamental territorial interests of those who live are satisfied to a lesser degree, than those who otherwise would have lived.
39Parfit (1984), p. 361
40Parfit (1984), p. 378
I believe this principle to be plausible, and I would expect Parfit to agree, as it is but a slight reformulation of his original principle Q. Leaning on the plausibility of this principle, Ypi can maintain that Stilz’ proviso fails in some Same Number Choices precisely because it does not adhere to the principle Q* as we have now formulated it. Thus, it is not because the proviso fails to satisfy the particular fundamental territorial interests of particular members of some future population, as the original objection claimed, that the proviso is unsuccessful, but rather because the proviso fails to provide us with the correct verdict in at least some cases where the different verdict, in line with principle Q*, had been intuitively preferable. If correct, this leads us to the conclusion that Stilz’ proviso seems liable to be intuitively unsatisfying in at least some cases. For Ypi’s purposes, and for the purposes of this essay, this conclusion is enough to cast some doubt on the plausibility of Stilz’ proviso.
6. Conclusion
To conclude, in section two I described how Stilz’ occupancy right, grounded in our primitive and pre-institutional rights to personal autonomy and self-preservation, is conceived of how to function. We saw that Stilz believes we are entitled to use parts of the world in the state of nature, regardless of the lack of social conventions governing property rights and the like.
However, such usage-rights are subject to the fair-use proviso, which holds that any distribution of territory must satisfy, as far as possible, the fundamental territorial interests of all existing persons. Thus, any individual occupancy claim must be consistent with the conditions for the conditions for a legitimate global distribution of territory, limiting the possible extent of the rights granted by the occupancy right.
In section three I introduced a worry about the proviso, drawing on Ypi’s theory of permissive territorial rights, namely that Stilz’ proviso only seems to consider the interests of currently existing person’s, thus potentially neglecting the fundamental territorial interests of future generations, leading to some unintuitive implications. We named this the objection from scarcity.
In section four, we considered four different strategies in answering the objection from scarcity, finding them all unsatisfactory, before pointing out, in section five, that there seems to
be a fundamental problem in attempting to refer to the interests of future generations. This problem is contained in what Parfit refers to as the non-identity problem, namely that we seem able to not only affect the living conditions for future generations, but also their identities. This realization amounted to problems for Ypi’s objection, since it relied on the referral to the interests of particular members of the future generations having been frustrated.
Be that as it may, I argued that this does not save Stilz proviso from legitimate scrutiny, as we saw that Ypi’s objection did not have to rely on having solved the non-identity problem. In fact, we seemed able to slightly alter the objection as to avoid referring to the frustration of the interests of particular members of the future generations. Instead, the objection took a
counterfactual form, claiming that Stilz’ proviso in some cases will license occupancy claims which intuitively should have been sentenced as illegitimate. In doing so, I concluded that Ypi’s objection is in at least some cases, successful against Stilz’ proviso, which is enough to prove that Stilz’ proviso is not entirely satisfying.
Whether or not this spells the end for Stilz’ proviso is a question which lies outside the scope of this essay. Perhaps Stilz’ proviso could yet be saved by some intervention not
considered by me. I will also avoid speculating about what consequences this conclusion has for the rest of Stilz’ project.
7. References
Arrhenius, G. Future Generations: A Challenge for Moral Theory, pp. 23-34, Uppsala University, 2000
Holtug, N. “In Defence of the Slogan”, pp. 64-89 in W. Rabinowicz (ed.), Preference and Value:
Preferentialism in Ethics, Studies in Philosophy, Dept. of Philosophy, Lund University, Vol. 1, 1996
Parfit, D. Reasons and Persons, Oxford: Clarendon press, pp. 351-381, 1984
Stilz, A. Territorial Sovereignty: A Philosophical Exploration, Oxford University Press, 2019 Ypi, L. "A Permissive Theory of Territorial Rights", European Journal of Philosophy, vol. 22, no. 2, pp. 288-312, 2014
