A. A counterfactual account of harm

The counterfactual, or ‘won't do better’, problem provides an excellent motivation for a maximizing account of harm. Suppose a couple, themselves genetically impaired in some serious way, want to have a child who is likewise impaired. Perhaps, for example, they are deaf.Footnote ¹⁷ Suppose that one of the woman's eggs has already been fertilized in vitro using her partner's sperm, and that a ‘safe and effective’ technology exists that would allow a doctor to introduce a gene for deafness into the genome of that developing embryo. The couple convinces the doctor to do just that. The baby is born, deaf, nine months later. Suppose that the baby would have been significantly better off had he or she been born without that impairment. Suppose that – in part because the cost to the parents of having non-deaf offspring is either not grave or can be mitigated – what the couple has done is wrong. Suppose, finally, that, having a deaf child is so important to the couple that, had they not taken steps to have the preferred gene introduced into the embryo, they would have had that embryo destroyed, in which case their deaf baby would never have existed at all. The bottom line, then, for this particular baby is just this: the couple won't do better for this baby than they have, even in the case where they later decide to produce still another (‘non-identical’) baby who can hear. If anything, they would only do worse.

If on these facts we think that the couple's making the baby deaf does not harm the baby, then we confront a non-identity problem: a case where a wrong (by hypothesis) has been done even though no one has been harmed. However, as the ‘shoot you in the arm or the heart’ case shows, the counterfactual test is unreliable as a necessary condition of harm.Footnote ¹⁸ In fact, any close inspection shows us exactly how the couple has harmed their baby. Regardless of whether it is an alternative the couple themselves find appealing, the fact is that the alternative existed for the couple of both not ‘knocking in’ the gene for deafness and still bringing that particular baby into existence.Footnote ¹⁹ Now, to say that the alternative existed for them is not to say that the couple was obligated to have chosen that alternative. Nor is it to suggest that they would have taken that option, or would have been inclined to take that option, had they somehow been barred from pursuing the option they in fact pursued. Rather, it is the bare existence of that better-for-the-baby alternative that plausibly establishes harm in the case where the couple both brings the baby into existence and makes the baby deaf. Likewise in the shoot-you-in-the-arm-or-the-heart case: it is the bare existence for me of the alternative of not shooting you at all that grounds the assessment that I harm you when I shoot you in the arm.

B. An objective maximizing account of harm

A maximizing account assesses harm based not on what the agent would have done but rather on what the agent could have done on behalf of a person. But the array of genuine alternatives open to an agent or group of agents at a given time is, while extensive, not unlimited. It excludes acts that secure outcomes that are themselves not accessible to the agent at that time – outcomes, or possible futures or worlds, the achievement of which is blocked by either natural law or the acts of other people that the agent has no ability to control or alter. We thus can say that:

Objective account: A person p is harmed by an agent's performance at a time t and a world w1 of an act A if and only if p exists at or after t at w1 and there exists a distinct world w2 such that (1) w2 was accessible to the agent prior to t; (2) the agent performs an alternative act B at t at w2 instead of A; (3) p has more well-being at w2 than p has at w1; and (4) the agent's performing A at t at w1 and B at t at w2 are parts of the causal sequences at w1 and w2 that end (respectively) in p's having the well-being that p has at w1 and in p's having the well-being that p has at w2.Footnote ²⁰

This account of harm, which asks simply whether agents could have created more well-being for a particular person than they have, is a maximizing account of harm. And it is an objective account of harm in the sense that the test is whether there as a matter of fact existed for the agent a way of bringing about a better-for-p outcome, regardless of whether the agent is in a position to identify precisely what he or she needs to do in order to achieve that outcome for p.Footnote ²¹

The objective account gives us a way of addressing the can't-expect-better problem. After all, there is nothing in natural law or the acts of other agents that bars the couple who produce the child as a slave from producing the very same child as a non-slave – or that bars agents from implementing conservation over depletion in a way that improves the plights of at least some members of the future generation who exist and suffer under depletion.

Now, it may be objected that the objective account supports an unnaturally broad use of the term ‘harm’. I am not sure, however, that that broad usage is not entirely natural so long as we understand harm to be necessary but not sufficient for a person's being wronged or for wrongdoing generally.Footnote ²² Thus, perhaps I do harm Bill Gates when I fail to endorse my paycheck over to him each month. But we so quickly and automatically conclude that I nonetheless do not wrong him, or necessarily do any wrong at all, when I use my money for other purposes that we never find ourselves working hard to block an obviously problematic inference.Footnote ²³

However, the objective account raises more serious concerns as well. Imagine that the woman standing next to you on the subway suddenly collapses. Imagine that her collapse is due to heart failure but that, if you were to proceed in an exactly ‘right’ way, step by step, you could perform (impeded neither by natural law nor by the acts of other agents) then and there a successful open-heart procedure using just your pocketknife, saving the woman's life and her every function. This is so, despite the fact that your medical knowledge is almost non-existent and you have no clue even how to commence any such correct procedure.

The objective account implies that you harm the woman when you fail to perform a correct procedure. But that result may seem implausible. The reality is that, if you were to attempt to do what the objective account says you must do to avoid harming the woman – if you were to get out your pocketknife and go to work – it is highly probable that you would kill her. Plausibly, you can avoid harming the woman in this case not exclusively by performing a correct procedure but also by shouting for a doctor and beginning CPR – even in the case where doing the latter rather than the former in fact creates less well-being for the woman. Plausibly, we need an account of harm that confirms that intuitive fact. Such an account of harm would make harm the kind of thing we often know how – step by step – to avoid imposing, should we choose to avoid imposing it, and thus would accord to harm the action-guiding potential that we intuitively think facts about harm surely often can provide.

C. An expectational maximizing account of harm

Under the objective account, an implication of harm arises in virtue of the fact that there exists an outcome that is accessible to the agent and better for the individual and despite the fact that that outcome is one the agent in a million years could never achieve. A better account of harm might seem to be one that would assess harm not just by reference to the constraints imposed by natural law and the acts of other agents but by reference to the various epistemic constraints under which agents must operate as well. Such an account would recognize the action-guiding function that we intuitively think that facts about harm can potentially have by generally making the matter of whether a particular alternative act contemplated by the agent will harm someone or not something that the agent can detect prior to his or her performance of that act. On the basis of that information, the agent can then choose to go forward with the contemplated act in place of some other or not. Whether harm is done or not, then, would remain something that is generally within the agent's own control.

An account that understands harm in this way will require for harm that the information necessary to decide whether a particular act will impose harm or not is information that the agent is in a position to grasp at that critical time just prior to performance. Now, the sort of information that agents are typically in a position to grasp at a time at which they have not yet implemented any particular choice comes in the form of connections between (a) the acts that exist as alternatives for the agents at that time and (b) the results, or outcomes, that we may be led to at least in part as a result of those acts being performed. Such connections are themselves probabilistic in nature. Thus, in the collapsed subway rider example, you are well-positioned, prior to performance, to grasp that your making an incision to commence an open-heart procedure will probably, in view of the untutored nature of that incision, kill the woman. If you luck out at step one and she survives, there is always step two. What you are in no position to know is how each of the many distinct alternatives for starting an open-heart procedure that exist for you prior to performance is connected with a particular outcome for the woman – which alternatives, in other words, will commence a correct open-heart procedure and which will commence a murderous sequence of acts and events that will end with the woman's death. Since the information must be had (or at least must be graspable) prior to performance, it is the probabilistic connections that this second account of harm must exploit – and the ‘actual’ connections, the connections you are able to have no real knowledge of prior to performance, that it must set aside.

It is, of course, exactly such probabilistic connections that aggregative consequentialists appeal to when they shift from actual to expected value in order to take into account the reality of epistemic constraints.Footnote ²⁴ And, indeed, the usual rules for calculating expected value can easily be adapted for person-based purposes – that is, for the purpose of calculating the expected well-being for a particular person that is generated, and ultimately the harm that is imposed on that person, by the performance of one act rather than some alternative. Thus, where the act under scrutiny is to be performed at time t, to determine the expected well-being that that act creates for a person p, we can add up, possible outcome by possible outcome, the actual well-being that p has at that outcome multiplied by the probability, calculated at a time t* just prior to t, that that outcome will obtain given the performance of that act.Footnote ²⁵

Of course, as time marches on and the epistemic situation evolves, expected well-being may itself vary. But for purposes of the expectational account it is critical that the probabilities themselves are calculated on the basis of information that the agent is in a position to grasp at that time just prior to performance regarding both the coming act itself and how the future that that act will fit into will otherwise unfold. For it is at exactly that critical time that the agent both (a) is in the best epistemic position that he or she can be in regarding the likely effects of the act under scrutiny yet (b) still has the option of performing that act or not. At any earlier time, additional information may still reveal itself. But especially important for our purposes here is that the relevant probabilities cannot be correctly calculated at any time later than just prior to performance. A requirement that the probabilities be calculated at any later time would destroy the action-guiding potential that is the whole point of the expectational account. If the assessment of harm can be made only after the performance commences or after it is complete, then that assessment will fail to give the agent timely guidance on how to avoid imposing that harm.

Timing is, then, everything, under an expectational account of harm. Now, as of that critical time just prior to performance, the body of information available to the agent may well be highly restricted. This is so, in virtue of the fact that, prior to performance, many details regarding just how the future will unfold – including details about how the contemplated act itself will unfold – remain obscure to the agent, who has no crystal ball. Indeed, prior to performance, it may not even be a determinate matter of fact that the future – or the contemplated act – will unfold in one particular way rather than another, even given that the agent makes one sort of choice rather than another. Going forward, these points will become critical. But they do not create any particular obstacle, under an expectational account, for discerning harm. Harm will simply be a matter of how much expected well-being the agent is able to create for a particular person, given the information about the future the agent is able to grasp at that critical moment just prior to performance, however highly restricted that body of information happens to be, by the performance of one act in place of some alternative act.

We can sum up the expectational account of harm as follows.

Expectational account: p is harmed by an agent's performance of an act A at t at w1 if and only if p exists at or after t at w1 and there exists a distinct world w2 such that (1) w2 was accessible to the agent at a time t* just prior to t; (2) the agent performs an alternative act B at t at w2 instead of A; and (3) the expected well-being of the agent's performance of B, calculated at t* at w1, for p is greater than the expected well-being of the agent's performance of A, calculated at t* at w1, for p.Footnote ²⁶

This principle easily generates the desirable ‘no harm done’ result in the collapsed subway rider case. Your calling for help and starting CPR clearly creates more expected well-being for the woman than your putting your scant medical knowledge to work to begin an open-heart procedure. You thus avoid harming the woman when you take the former option rather than the latter, whether or not the woman's life and every function is in point of fact eventually saved by emergency rescue workers.

As we will very shortly see, we may want to narrow this account in a certain way. But I want first to note that this test sets very stringent standards for how agents must comport themselves to avoid imposing harm. For one thing, the expectational account is itself a maximizing account.Footnote ²⁷ Under this account, your just sitting on the subway and watching the woman die would not itself be a way to avoid harming her. Second, while this account is consistent with a subjective, or an agent-relative, theory of expected well-being, it makes reference not to what the agent (who may willfully grasp little) in fact grasps but rather to what he or she is in a position to grasp at the critical time.Footnote ²⁸ The agent's saying, or believing, ‘I hadn't a clue how to go about performing CPR or whether it might help’ thus does not on its own imply ‘no harm done’.

Just as in the case of the objective account, the expectational account will no doubt seem too broad unless we understand that harming a person is not, on its own, sufficient for wronging that person or for wrongdoing generally. But even with that understanding, we may think the account is too broad. For we may think that harm is not a matter merely of a risk being imposed – which is what happens when agents create less expected well-being for a person when they have the option of creating more – but also of that risk eventuating. We may think, in other words, that harm must involve some sort of objective element, so that an act that does not lead to anyone's actually being made worse off is a ‘miss’ that, morally speaking, ‘doesn't count’. If we think that, then we are free to revise the expectational account to include such a further necessary condition on harm. We can even adapt for that purpose the objective account of harm that we earlier rejected, and take the view that that which prospectively looks like it will harm someone but that as things turn out maximizes actual – not just expected – well-being for that person is not really a harm at all. If you begin the open-heart procedure with your pocketknife and don't instantly kill the woman, and a real cardiac surgeon, horrified by the prospect of your continuing, is driven to step in and complete the procedure, saving the woman's life and her every function, we can then say, plausibly, that your ‘miss’ doesn't ‘count’ and does not, after all, impose harm.Footnote ²⁹

Even as amended, the expectational account may still seem to be somewhat broad simply by virtue of the fact that it is a kind of maximizing account. However, for purposes of addressing the can't-expect-better problem, that the account is broad in that particular way is an advantage. If the implication of ‘no harm done’ could be avoided simply by a shift from a narrow and more conventional account of harm to a maximizing account – a shift many consequentialists would be naturally inclined to make and non-consequentialists are perfectly free to make as well – then the can't-expect-better problem would lose its sway. The reason it is such a powerful problem, in other words, is just that the underlying account of harm it exploits is itself plausibly broad yet still seems to lead to the ‘no harm done’ result.Footnote ³⁰

A. An existing-person variation on the can't-expect-better problem

I want to claim that Parfit's depletion example is exactly analogous at relevant points to the lottery example that I describe in this section. They are both, in other words, instances of the can't-expect-better problem. One difference is that the classic non-identity problem challenges the claim of harm in the case of future persons while the lottery example will turn out to be a strictly existing-person case. I will argue, however, that the existing-person versus future-person difference is in the end not material. Thus, if we think we can unravel the line of reasoning that seems to lead to a ‘no harm done’ result in the lottery example, we should be able to do so in the context of the depletion example as well.

Suppose, then, that William has bought a ticket for a lottery in which balls are drawn from a bubbling ball-bouncer to determine a winning number. On each ball is written a single digit 0 through 9, with digits evenly distributed. The winning number consists of a thousand digits, and the jackpot a billion dollars. The woman standing before the cameras who is to draw the balls – the agent – first pauses for just a few moments to steal half the jackpot by ordering, via her BlackBerry, the transfer of that amount to a numbered Cayman Islands account. She then manually begins to draw the thousand-digit number, first plucking an ‘8’ from the bubbling bin, then some other number, then some other number, and so on. Lo and behold, a few hours later, William turns out to have the winning number, and he collects what remains of the jackpot.

We need to make two further assumptions. First, the stealing itself is wrong.Footnote ³¹ And, second, no one other than William is harmed, or wronged, by that stealing.Footnote ³² If, given those assumptions, the expectational account implies that the agent's stealing does not harm William, then we have in the lottery example a perfectly good, present-person, non-identity argument against the person-based intuition.

B. Calculating expected well-being under a non-stealing alternative

Did the agent's pausing for a few moments to steal half the jackpot via her BlackBerry harm William? Pre-analytically, it may seem that it did. And that is what the objective account of harm implies.Footnote ³³ After all, nothing prevents the agent – no natural law; no other agent – from creating still more well-being for William by not stealing and then drawing the identical number – William's number – that she in fact draws. But we have now said that the objective approach is more plausibly adapted as a mere necessary condition for harm. While it is nice to know that that necessary condition is satisfied in the lottery example, the harder question is whether an act existed as an alternative for the agent at the critical time that would have created more expected well-being for William than the agent's stealing does.

A sampling of plausible candidates for such an act would seem to include the agent's using her BlackBerry to make a contribution from her own personal account to Save the Children, the agent's simply standing there at the dais taking deep breaths and the agent's feigning to use her BlackBerry to steal. Since these seemingly better-for-William alternatives clearly exist for the agent at the critical time, it may appear that the expectational account safely implies that the agent's stealing harms William. But one who thinks this has ‘overlooked’, as Parfit puts it, the non-identity problem.Footnote ³⁴ One has failed to note that Kavka's point about the precariousness of existence extends to the precariousness of future events generally. In the lottery example, the stealing and William's subsequent winning have, by hypothesis, already taken place. For William to win under a non-stealing alternative, the agent must draw just those thousand digits that she in fact has drawn without any variation in order. But surely the agent's substituting in a non-stealing alternative for her actual stealing will make it highly likely that exactly such a variation will occur. After all, even the smallest change in the agent's timing or technique in plucking the balls from the bubbling bin is likely to result in some variation in which digit is drawn at which point along the way. She will pluck a ‘7’ to begin with instead of the critical ‘8’, or if she lucks out with the ‘8’ the next digit will be off. And the shift from stealing to non-stealing hardly counts as a small variation. It seems more an event of seismic proportions. Of course, if the agent does not steal, someone other than William – someone ‘non-identical’ to William – may well win a still bigger jackpot than William has in fact won. But that sequence of events will do William no good at all – and, indeed, will leave him worse off than he in fact is given the agent's stealing.

It is clear, then, that under a non-stealing alternative it is extremely unlikely – provisionally, it is something like 1 in 10¹⁰⁰⁰ – that William will win the lottery. Of course, had the agent performed a non-stealing alternative and had William, against all odds, nonetheless won the lottery, he would have been substantially better off. That fact obviously must be reflected in the calculation of expected well-being. However, when the chances of winning are as low as William's are here, and the chances that William will be left with the minimal well-being level that he starts with as high as they are here, even substantial actual well-being translates into a level of expected well-being that is only barely there.

It might be objected that this initial estimate of William's chances of winning under a non-stealing alternative cannot be exactly accurate. It fails to recognize that the agent has certain strategies available, consistent with not stealing, that would boost somewhat William's chances of winning above that base level. Thus, the agent may grasp, prior to performance, certain features in her yet-to-be-performed stealing – features that will help to decide who will win; features that will, indeed, boost to some extent the chances that the winner will be William. The agent can then engineer, or replicate, those features in a non-stealing alternative. How can she manage to achieve that result? How can she engineer features of her yet-to-be-performed stealing in a non-stealing alternative? The trick is that the very sorts of features that help to decide who will win in the end have nothing to do with the actual act's being an act of stealing.Footnote ³⁵ Being an act of stealing is obviously not a feature that can be replicated in a non-stealing alternative. But nor is it the sort of feature that on its own influences the causal order in such a way as to help decide who wins. Rather, the sorts of features that perform that latter function are the various spatial-temporal-mechanical features that the agent's actual stealing will turn out to have, whether by design or otherwise. It is those features that help to decide such matters as when the drawing will commence, that the first number drawn will be an ‘8’, etc. It is those sorts of features that serve to take some people off-track for winning altogether and leave others, like William, on. And it is exactly those features that the agent is able to replicate in a non-stealing alternative. In this way, the agent, should she happen to be so inclined, can both not steal and boost William's chances of winning.

The best examples of the spatial-temporal-mechanical features that help to decide in the end who wins and that the agent is in a position to grasp in advance are those that the agent both wants her yet-to-be-performed actual stealing to have and has the wherewithal to make her actual stealing have. For example, she may intend, for purposes of avoiding detection, to ‘hurry through’ the actual entering of the code into the BlackBerry to transfer the money; and she may have the real ability to do just that. Just as she can insure that her actual stealing will have the feature of being ‘hurried’, she can equally well, consistent with all applicable epistemic and other constraints, more or less insure that her non-stealing alternative will have that feature, too. She thus can ‘hurry through’ her act of using her BlackBerry to contribute, from her own personal account, to Save the Children. If it is true that the fact of her actual stealing being ‘hurried’ will boost somewhat William's chances of winning, then the agent after all has a way of similarly boosting somewhat William's chances of winning and yet not stealing: she can simply select a non-stealing alternative that is itself ‘hurried’.

This point has nothing to do with whether the agent is inclined to, or would, or even whether she ought to, choose any such helpful-to-William non-stealing alternative. We thus need not imagine a change of heart on the agent's part; and we are free to suppose that, if she had not stolen half the jackpot, she ‘would’ have absconded with the whole and blown up the building in which the drawing was to have been held. And no one thinks she is obligated to boost the chances that William, as opposed to any other equally deserving purchaser of a lottery ticket, will win the full jackpot. But the expectational account is strictly a test for harm. As a maximizing test, it gets to that issue by canvassing all the alternatives that exist for the agent at the critical time and comparing those alternatives to the actually performed act. On that test, only the existence of the better alternative for the agent at the critical time matters, and not whether she wants to create, or would have created, or is obligated to create, additional expected well-being. Likewise, I harm you when I shoot you in the arm, because I have the alternative of not shooting you at all, whether or not that alternative is one that I want to or would or ought to do.

The objection is, thus, in effect correct and a caveat is in order: the agent did have certain non-stealing alternatives that would have boosted William's chances of winning above the base level of something like 1 in 10¹⁰⁰⁰. It all depends on how she doesn't steal. If she performs any among the ‘best’ of the non-stealing alternatives – those alternatives, that is, that have the various spatial-temporal-mechanical features that the agent is in a position to anticipate in her own actual though yet-to-be-performed act of stealing – she will thereby succeed in boosting William's chances of winning somewhat beyond that base level.Footnote ³⁶

However, we should also realize that this caveat in point of fact takes us very little distance toward establishing that the agent's stealing harms William. Clearly, the agent will be in a position to grasp, prior to performance, very little about her yet-to-be-performed act of stealing and the many spatial-temporal-mechanical features that that act will turn out to have and that will help to decide who wins the lottery. In fact, just prior to performance, it may not even be a determinate matter of fact, for many such spatial-temporal-mechanical features, whether the particular act of stealing the agent will in the end perform will have those features or not. For example, suppose that, as things turn out, the agent steals the money using her BlackBerry in an efficient 20.73 seconds. That precise detail is not – except in an unusual caseFootnote ³⁷ – something she is in a position, prior to performance, to grasp. A stopwatch can tell her after the fact that her act endured for 20.73 seconds. But it can't penetrate that particular veil of ignorance prior to performance. That feature being obscure to the agent at the critical time, it is not one that she can replicate in a non-stealing alternative.Footnote ³⁸ At the same time, it is exactly the kind of feature that may well help to decide who wins in the end.

The import of the caveat is thus highly limited. In the end, the agent will only have the ability to boost William's chances of winning by some very small amount – from 1 in 10¹⁰⁰⁰ to something like (estimating wildly now) 1.00001 in 10¹⁰⁰⁰ – under the best of the non-stealing alternatives. Despite the caveat, then, things thus remain grim for William. If the agent doesn't steal, William almost can't win. How then can her stealing harm him?

C. Two bad inferences to a ‘no harm done’ result

All we have shown so far is how little expected well-being the agent can create for William even under the best of her non-stealing alternatives. Also critical to the harm assessment will be a comparison between that bleak prospect and the prospect that is created for William by the agents' choice to steal. The ultimate claim, of course, of the can't-expect-better argument is ‘no harm done’. But what, precisely, is the comparison that supports that result? Two possible answers to this question may seem natural here, and we may, on initial inspection, think that one or the other – or when fully under the spell of the non-identity problem perhaps we simply oscillate between the two – is at play in the can't-expect-better problem.

Argument I (‘Can't-expect-better-than-get-at-actual-outcome’ argument against harm to William):

The agent's stealing has in fact achieved for William half a billion dollars! But the amount of expected well-being that would have been created under the best of the agent's non-stealing alternatives is very low! So: (1) the actual well-being created for William, given the agent's stealing, is greater than the expected well-being created for William, given the best of the agent's non-stealing alternatives. (2) The agent's stealing is thus better for William than is the agent's performing any such non-stealing alternative. (3) The agent's stealing therefore does not harm William.

This argument assesses harm by comparing William's actual well-being, given the agent's stealing, against his expected well-being, given the agent's performance of any one of the best of the non-stealing alternatives. That actual well-being is clearly greater than are any of those alternative expected well-being levels. A bird in hand is worth two in the bush. Half a billion is more than a very small chance at a full billion. So the agent's stealing is after all better for William than are even the best of the agent's non-stealing alternatives. The agent's stealing, therefore, does not harm William.

The problem with Argument I is that the comparison it makes use of in order to move from (1) to (2) and (3) is irrelevant to the question of harm – and to the question of when one act is better than another. At least, it is not the comparison contemplated by the expectational account of harm – or, for that matter, the objective account. It rather relies on a third, highly problematic, hybrid account that decides harm by reference to a comparison between how things actually turn out for William, given that the agent steals, and the expected well-being created by the best of the agent's non-stealing alternatives. But we should question that account. In the very case at hand, we run into trouble just by adding the ‘against all odds’ assumption that William would have won the lottery had the agent not stolen. In that case, the actual well-being for William created by the agent's not stealing is quite high. But we have left all the expected values as they were before. Thus, the expected value of the agent's not stealing remains quite low, and, we can also note, so does the expected value of the agent's stealing. Since the actual value of the agent's not stealing is here greater than the expected value of the agent's stealing, the hybrid account would now seem to imply that the agent's stealing harms William. But we have already derived, applying that same hybrid account, that the agent's stealing does not harm William.Footnote ³⁹ Further excavation suggests other problems as well. Given just the anti-symmetry of betterness, for example, we cannot say both that the agent's stealing is better for William than her not stealing and that her not stealing is better for William than her stealing. But the hybrid account would seem to imply both of these results, given the ‘against all odds’ assumption introduced above. The hybrid account, in effect, allows us too much flexibility. In some cases, we can reach any result about harm we want by appealing to such an account – and when we go too far we can reach a contradiction.

A second argument may seem more credible:

Argument II (‘Can't-expect-better-than-expect-given-actual-choice’ argument against harm to William):

It has already been established that William's chances of winning under even the best of the non-stealing alternatives are very low. But – even given that the agent's stealing does not secure a win for William (it is no ‘bird in hand’) – surely the agent's act of stealing makes William's chances of winning greater than that! Surely, indeed, the agent's stealing is necessary to those chances being as high as they in fact are! And surely that boost to William's chances of winning is significant enough to balance out the fact that William will collect twice as much at any outcome at which he wins and the agent does not steal as he will at any outcome at which he wins and the agent does steal. So: (1) The expected well-being created for William by the agent's stealing is greater than the expected well-being created for William by the best of the non-stealing alternatives. (2) The agent's stealing is thus better for William than is the agent's performance of any such non-stealing alternative. (3) The agent's stealing therefore does not harm William.

Argument II relies on an expected-against-expected comparison – the very sort of comparison that the expectational account explicitly approves. And we have already agreed that the chances of William's winning under a non-stealing alternative – even in the best case, where the agent replicates all the spatial-temporal-mechanical features that she is in a position to grasp prior to performance in her yet-to-be-performed act of stealing – are very low. Surely – the argument proceeds – the agent's stealing makes the chances of William's winning significantly greater than that. So the agent's stealing must be, expectationally speaking, better for William than the agent's performing any such non-stealing alternative. The agent's stealing, therefore, does not harm William.

But Argument II is, like Argument I, defective. In Argument II, the problem is with premise (1). Premise (1) presupposes that the agent's yet-to-be-performed act of stealing somehow makes William's chances of winning greater than they are even under the best of the non-stealing alternatives. But where those chances are calculated, as they must be, at that critical time just prior to performance, that claim is not one we can accept. After all, whether the agent steals or not, she must draw a thousand balls precisely in order if William is to win the lottery. Why aren't the chances that the agent will succeed at that task unbelievably low even if the agent does steal? Why aren't the chances that the agent will succeed at that task, if she steals, no greater than they are under the best of the non-stealing alternatives?

Now, a critic may feel that there is surely something about the agent's act being an act of stealing that gives some slight, ineluctable, edge to William's winning. The critic may sense that the act's being a stealing is somehow necessary to William's having whatever very low chance of winning he has. It is that very feeling that makes the problem with premise (1) hard to detect and the argument itself a fallacy. We thus need to understand and examine this feeling carefully.

Perhaps the thinking is that the act being an act of stealing helped to decide, for example, that the act would be ‘hurried’, and that the act being ‘hurried’ was, as noted in section IV.B above, something the agent plausibly was in a position to grasp at that critical time prior to performance. Perhaps the agent grasped that her act would be ‘hurried’ because, as we noted earlier, she wanted it to be ‘hurried’ and had the ability to make it be ‘hurried’. But that means that it is correct, after all, for the probability calculation to reflect the effect of the act's being ‘hurried’ on William's chances of winning. Moreover, the feature of being ‘hurried’, as we noted earlier, is just the kind of spatial-temporal-mechanical feature that may well have helped to decide that in the end William would win. William's chances of winning thus can correctly be deemed – at the critical time – to have been boosted by the act's being ‘hurried’ – boosted, that is, beyond the base level of 1 in 10¹⁰⁰⁰. On these grounds, the critic might thus conclude that William's chances are, after all, boosted – boosted enough to make premise (1) true.

But such a conclusion would be mistaken. That a boost to William's chances of winning is created by the agent's stealing having the feature of being ‘hurried’ does not show that the act's being an act of stealing makes William's chances of winning greater than they are under the best of the agent's non-stealing alternatives. As also noted in section IV.B, certain strategies are available to the agent at the critical time, consistent with her not stealing, that would likewise have boosted William's chances of winning. On examination, those strategies boost William's chances of winning under a non-stealing alternative just as much beyond the base level as the act of stealing being ‘hurried’ itself boosts William's chances of winning. After all, the feature of being ‘hurried’ is exactly the kind of feature the agent is able to replicate in a non-stealing alternative. The agent can, for example, ‘hurriedly’ transfer funds from her own private account to Save the Children instead of stealing half the jackpot. Of course, if she is not going to steal half the jackpot, then she may have no particular incentive to make a non-stealing transfer of funds, or perform any other alternative, in a manner that is ‘hurried’. And certainly we do not think she would be particularly obligated to perform such a ‘hurried’ alternative just so that she can boost somewhat William's chances of winning. But the expectational account of harm is a maximizing account. So it does not matter that the agent would not have done things in a ‘hurried’ way; and there is no claim that she ought to have done things in that way. What matters, rather, is that she had the alternative of doing things in that way at the critical time.

The upshot is that the fact that the agent's yet-to-be-performed act is an act of stealing does not after all make William's chances of winning any greater than they are under the best of the agent's non-stealing alternatives. More generally, when we compare the chances that William will win, given that the agent steals, against the chances that William will win under the best of the non-stealing alternatives – that is, under those non-stealing alternatives in which the agent has conscientiously replicated each and every spatial-temporal-mechanical feature that she is in a position to grasp in advance in her own yet-to-be-performed act of stealing – we see no grounds to think that the act's being a stealing gives any sort of categorical advantage to William over each and every such non-stealing alternative. If, in light of the boost to William's chances of winning created by the act of stealing being ‘hurried’, 1.00001 × 10¹⁰⁰⁰ is the right number for that act, then there is no reason to think that that is not the right number – at that critical time just prior to performance –for the best of the agent's non-stealing alternatives as well.

The critic might try to press the point further, making some broad gesture toward the many additional spatial-temporal-mechanical features the agent's yet-to-be-performed act of stealing will surely have beyond those obvious and crude features (like being ‘hurried’) the agent is in a position to grasp prior to performance. It is surely correct that all those spatial-temporal-mechanical minutiae may well help to decide that William will win the lottery rather than someone else. Should we not then conclude that the agent's act of stealing after all makes William's chances of winning greater than they are under the best of the non-stealing alternatives?

No. The reality is that the agent is able to grasp, prior to performance, very little about her yet-to-be-performed act of stealing and the many spatial-temporal-mechanical features that that act will have and that will in the end help to decide who will win the lottery. We noted this point in section IV.B above for the purpose of showing just how little the agent can do under a non-stealing alternative to boost William's chances of winning. (The caveat on the claim that William had almost no chances of winning under a non-stealing alternative was, we saw, highly limited.) We now need to note that the same point applies to show just how little the effect is on William's chances of winning when the agent opts for a stealing alternative. Prior to performance, many of the spatial-temporal-mechanical features that the yet-to-be-performed act of stealing will have remain completely obscure to the agent, who has no crystal ball. Indeed, that her act will have the specific spatial-temporal-mechanical features that it turns out to have may not even be, at that critical time just prior to performance, a determinate matter of fact. But that means that the fact that the act of stealing will turn out to have those many features must be screened out of the calculation of the probability – which calculation must be made as of that critical time just prior to performance – of William's chances of winning under a stealing alternative. That those features will in the end, as things turn out, help William to win, in other words, is a fact that cannot be permitted to bear on William's chances of winning at the beginning – i.e., at that critical time just prior to performance.

Suppose, for example, the agent's stealing turns out to last exactly 20.73 seconds. That the agent's yet-to-be-performed act of stealing will have that feature is nothing that the agent is in a position to grasp prior to performance.Footnote ⁴⁰ But that means that her act of stealing's having that particular feature cannot be counted as boosting, at the critical time just prior to performance, William's chances of winning. That the act of stealing will turn out to have that feature – and many others – may well emerge after the act is performed. We, at that juncture, may be able to trace how it happened that the act's being a stealing led to the act's being ‘hurried, which in turn led to the act's lasting exactly 20.73 seconds, which in turn helped William to win. But we cannot correctly allow the calculation of how likely the agent's stealing makes William's winning – calculated at that critical time just prior to performance – to be tainted by that highly specific, after-the-fact information.

To put the point another way, the feature of being ‘hurried’ is more the exception than the rule. If the agent is in a position to grasp that her act of stealing will have a particular feature – such as that it is ‘hurried’ – then she can replicate that feature in a non-stealing alternative. If she isn't, then that her act of stealing will turn out to have a particular feature is nothing that counts in favor of that act of stealing at the critical time. What, then, of those features – such as ‘being an act of stealing’ – that the agent can grasp, in her own yet-to-be-performed act of stealing, prior to performance yet cannot replicate in a non-stealing alternative? As noted in section IV.B above, those features are not, on inspection, the sorts of features that help to decide that William rather than someone else will win the lottery. It is the spatial-temporal-mechanical features that do that important work. Hence, it does not matter that an act being an act of stealing is not a feature that the agent can replicate in a non-stealing alternative.

The upshot is that Argument II must be rejected as well. The fact that the agent's yet-to-be-performed act is an act of stealing does not after all make William's winning more likely than it is under the best of the non-stealing alternatives. If the agent, in other words, goes about not stealing in a ‘best’ way, she can create just as much of a chance, calculated at that critical time just prior to performance, for William to win – i.e. precious little – as she can by stealing.

We should thus reject the idea that the expected well-being created for William by the agent's stealing is greater than the expected well-being created for William by the agent's performance of a ‘best’ non-stealing alternative. In rejecting that idea, we have not even yet begun to exploit, but legitimately could, the fact that the jackpot, if William does happen to win and the agent does not steal, will be twice the size of the jackpot he in fact has won.

These results pave the way for a finding of harm-to-William under an expectational account. This is so even if we include in that account an objective element to reflect the idea that ‘misses don't count’. For in the case at hand there is no miss.

A. Parfit's argument to a ‘no harm done’ result

In Parfit's example, agents are to choose between two resource policies, one that favors depletion of the earth's resources and one that does not. While a choice of depletion will, if anything, benefit members of the present and the next few generations, ‘after one or two centuries’ it will also lead to a substantial decline in well-being across wide swaths of the population.Footnote ⁴¹ For that reason among others, we think (and stipulate here) that the choice of depletion over non-depletion (that is, ‘conservation’) is wrong. But at just that point at which depletion begins to exact its toll, and as a natural consequence of the fact that ‘the choice between our two policies would affect the timing of later conceptions’, ‘there would be no one living . . . who would have been born whichever policy we chose’.Footnote ⁴² But that means that the very people whose well-being levels are reduced by the depletion choice ‘owe their existence’ to that choice.Footnote ⁴³ Thus, while conservation would have made people better off, the people who are better off would also have been distinct people, ‘non-identical’ to those who suffer from depletion. At the same time, the lives of the people who do exist are, though burdened, unambiguously ‘worth living’.Footnote ⁴⁴ Thus, ‘our choice [of depletion] will not be worse [than conservation would have been] for anyone who ever lives’.Footnote ⁴⁵ The depletion choice, in other words, is bad for and harms no one at all. Yet it is still wrong. The person-based intuition must therefore be rejected.

Some of Parfit's language suggests that the depletion example is itself a variation on the won't-do-better, or counterfactual, problem. But a better reading of the argument will not understand it to rely on whether the apparent victims of the depletion choice – that specific collection of people who both exist and suffer under that choice; we can call them the ‘D-people’ – would have existed had a conservation alternative been chosen in place of depletion. Perhaps it is true in this case that, had depletion not been chosen, no D-person would ever have existed. But as we have seen we cannot infer from that fact that no D-person is harmed.Footnote ⁴⁶ Nor, apparently, is the argument intended to rely on an objective account of harm. For that account, as in the lottery example, would reject the inference to the ‘no harm done’ result. There is nothing in natural law or the acts of other agents that bars the agent in the lottery example from both not stealing and drawing a winning-for-William number. Likewise, there is nothing in natural law or the acts of other agents that bars the agents of depletion from implementing some conservation alternative that would have led – as the future unfolds at least at some worlds accessible to the agents – to the existence of at least some D-person.

The argument is thus best read to rely on the expectational account of harm. Consider a particular D-person – Jaime – who has come into existence many generations after the depletion choice was put into effect. It is surely the case that the shift from depletion to a conservation alternative would have made Jaime's coming into existence highly improbable.Footnote ⁴⁷ And it is surely better for Jaime that he enjoy a flawed existence – or better, at least, to be given a better chance of a flawed existence – than that he be given almost no chance at existence at all. From there we are to infer that the choice of depletion is not bad for and does not harm Jaime. By exactly the same line of reasoning, we are to infer that the choice of depletion is not bad for and does not harm any D-person at all.

But just as we have unraveled the inference to the ‘no harm done’ result in the lottery example, we can also unravel that same inference in the depletion example. I will thus argue that a part of why we remain confident, in both cases, that a wrong has been done is not that we accept an impersonal account of what agents ought to do but rather that we after all detect, in a way that the can't-expect-better problem camouflages and that we must work to clarify, that the depletion choice harms future people.

B. A twist away from harm then back again

In the context of the lottery example, the can't-expect-better problem leads us to understand that, even under the best of the non-stealing alternatives – those alternatives, that is, that have the various spatial-temporal-mechanical features that the agent is in a position to anticipate in her own yet-to-be-performed act of stealing – William's chances of winning the lottery are almost nothing, and thus that the agent's performance of any such alternative, in point of fact, would have created very little expected well-being for William. That understanding represents the original Kavkaian twist that the non-identity problem subjects us to when we begin to think about whether a particular morally questionable act truly does harm future persons: that William's winning the lottery is highly ‘precarious’ in the case where the agent does not steal, and hence that the agent's stealing may have been, after all, the best thing for William. We see the same twist in the depletion example. There, too, we are led to understand that Jaime's chances of coming into existence would have been reduced to almost nothing in the event that the agents had opted against depletion – and hence that depletion, after all, perhaps benefits, rather than harms, Jaime.

Once that twist is made, the can't-expect-better problem proceeds along one of two paths: the ‘can't-expect-better-than-get-at-actual-outcome’ argument (Argument I) and the ‘can't-expect-better-than-expect-given-actual-choice’ argument (Argument II). Argument I urges us to agree that the quantity of actual well-being that is created when the flawed life is secured through depletion, or when half the jackpot is won when the agent steals, is greater than that very low quantity of expected well-being that is created when an alternative is performed that yields the very great chance that one will end up with nothing at all. But we know from the discussion of the lottery example that the actual-against-expected comparison that Argument I appeals to – the hybrid approach to harm – is unreliable. And so we turn instead to Argument II.

Argument II claims that it is surely better to be given some real chance of securing the flawed life or half the jackpot than it is to be given an almost insignificant chance at the better life or the full jackpot. According to Argument II, then, the act under scrutiny – the act of stealing; the act of depletion – harms no one. But then, in the context of the lottery example, we took a hard look at Argument II, and unearthed a second Kavkaian twist – really a twist back to the understanding that Kavka's point about the precariousness of future events cuts both ways. If William's chances of winning are very low under a non-stealing alternative, they are also, calculated at that critical time just prior to performance, very low even if the agent steals. The precisely analogous point – we can now recognize – holds for the depletion example as well. The chances that Jaime himself or any other D-person will ever come into existence are also very low, not just under conservation but under depletion as well.

Now, to lay the foundation that opens the door to a finding of harm under an expectational account, the claim must not just be that Jaime's chances of existence under depletion are very low but rather that they are at least as low under depletion as they are under various conservation alternatives.Footnote ⁴⁸ A part of the support for that claim comes in the form of a clear understanding of just how low Jaime's chances go under depletion. It is not enough to note that, once the depletion act is performed, many other acts and events have to go a certain way over a century or two if Jaime is ever to come into existence at all. It is also critical to note that the choice of depletion itself may be realized through any one of a vast array of concrete depletion acts. Just as the agent's stealing in the lottery example might, at that critical time prior to performance, last 20.73 seconds, or only 15.9 seconds, or etc., so might whatever particular depletion act the agents end up performing deplete available heating oil supplies by 80.25 percent over a twelve-year period, or only 75.03 percent over a fifteen-and-a-half year period, or etc. Just which depletion act the agents will in the end perform is nothing the agents, who have no crystal ball, are in a position to grasp at that critical time just prior to performance. It may not even be a determinate matter of fact, at that critical time just prior to performance, which depletion act the agents will in the end perform. Yes, the fact that one particular depletion act rather than some other is in the end performed may well help to decide that it is Jaime rather than someone else who will come into existence a century or two later. Whether the depletion act in the end depletes at a faster or a slower rate may well bear on whether Jaime exists. But the boost to Jaime's chances of coming into existence that is created by the act's having the particular features that it eventually turns out to have is nothing that can be correctly reflected in our assessment of Jaime's chances of coming into existence as of that critical time just prior to performance. Jaime's chances of coming into existence thus remain very low, even if the agents opt for depletion.

Thus, we earlier conceded (when faced with the Kavkaian twist against harm) that variations between the depletion act in fact performed and any arbitrary conservation alternative may well take Jaime off-track for existence altogether. What the argument just made aims to show (and this is the Kavkaian twist back in the direction of harm) is that variations between the depletion act in the end performed and any arbitrary depletion alternative may take Jaime off-track for existence quite effectively as well.

Now, we still have not completed the case for the claim that Jaime's chances of coming into existence are no greater under depletion than they are under a conservation alternative. After all, consistent with the point that many features the depletion act will turn out to have cannot be grasped by agents at that critical time prior to performance, it is also the case that some features that that act will turn out to have surely can be grasped by the agents in advance. Most plausibly, those features consist of features the agents want their depletion act to have and have the ability to make their act have. Moreover, some of those features will surely help to decide that Jaime rather than someone else will exist.

We conceded the analogous point in the lottery example, noting there that the agent may be able to grasp, in her yet-to-be-performed act of stealing, various features. But, among those features, the ones that help to decide who in the end wins or who exists – the features that really do serve to boost William's chances of winning or Jaime's chances of coming into existence – are limited to those spatial-temporal-mechanical features that help to decide what balls are plucked in what order and which gametes combine with which. The fact that the agent's act of stealing, for example, will be ‘hurried’ helps to decide, in the end, who wins the lottery – but not the fact that the act itself is a ‘stealing’. Yet we also noted that it is exactly those sorts of spatial-temporal-mechanical features that the agent in the lottery example can replicate in a non-stealing alternative. But that means that any boost that such features give to William's chances of winning the lottery can equally well be achieved by the agent's performance of one of the ‘best’ of the non-stealing alternatives – one of those alternatives, that is, in which the agent has replicated the various spatial-temporal-mechanical features she is in a position to grasp, at that critical time prior to performance, in her yet-to-be-performed act of stealing.

We can now note precisely the same point for the depletion example. The very spatial-temporal-mechanical features that agents are in a position to grasp, at the critical time prior to performance, in their yet-to-be-performed act of depletion can likewise be replicated in a conservation alternative. But that means that any boost to Jaime's chances of coming into existence that is achieved by depletion can equally well be achieved under the ‘best’ of the agents’ conservation alternatives – that is, under those conservation alternatives that have the various spatial-temporal-mechanical features that the agents are in a position to grasp in their own yet-to-be-performed act of depletion. Jaime's chances of coming into existence, under depletion, are very low, as we have already seen, in any case. What we now see is that, to the extent that depletion boosts Jaime's chances of coming into existence somewhat, the agents after all have a way of not depleting that will boost Jaime's chances of coming into existence at least to that same extent.

The idea that the agents can replicate in a conservation alternative those spatial-temporal-mechanical features they are in a position to grasp in advance in their depletion act may seem controversial. We thus look at that idea more closely in section V.C below. For the moment, though, a simple example may be enough to show that it is at least plausible. Suppose that the agents of depletion grasp in advance that their yet-to-be-performed act of depletion will provide some sort of incentive for large numbers of people in – say – the United States to move from the north to the south over the next several decades as a result of severe heating oil shortages. Now, that a particular act will provide people with an incentive to make such a move is itself a spatial-temporal-mechanical feature of sorts: it is a push. And it is the fact that Jaime's forebears’ families on both sides have been pushed out of their distinct locations – a fact that ultimately increased their chances of collecting in some common location – that boosts somewhat Jaime's chances of coming into existence many decades later.

When we think about the depletion choice in that light, it seems clear that depletion offers no particular categorical advantage to Jaime over a conservation alternative. For surely agents can engineer a roughly equivalent push, one that falls well within whatever necessarily imprecise parameters they anticipate for their own yet-to-be-performed depletion alternative, into a conservation alternative. Such a push could take the form of a federal law that increases taxes on heating oil use, thereby providing northerners with an incentive to move south over a period of decades. If the depletion act is anticipated, prior to performance, to provide some still stronger incentive to move north to south, then that tax law could always be supplemented by the planning and construction of attractive, energy-efficient communities in the south that would provide an additional incentive for a move. Depletion is not, in other words, the only alternative agents have of incentivizing people to move north to south – and hence not the only way of boosting somewhat Jaime's chances of coming into existence. A range of conservation alternatives can serve that function as well.

Why, then, couldn't the agents of depletion replicate such a ‘push’ in a conservation alternative? If it is correct that they could, then it becomes implausible to deny that some conservation alternative existed for the agents at the critical time under which Jaime's coming into existence is at least as likely – that is, not very – as it is under depletion.Footnote ⁴⁹

We thus conclude that the chances of existence, calculated at the critical time just prior to performance, for Jaime will be just as great under at least some conservation alternatives as they are under depletion. But Jaime will have more well-being at any outcome at which he exists and conservation rather than depletion is performed. The best of the conservation alternatives thus creates more expected well-being for Jaime than depletion does. But that means, on an expectational account, that depletion therefore harms Jaime.

Including an objective element in the expectational account of harm does not change that result. For in this case there is no ‘miss’ – people do eventually exist and suffer as a result of the depletion choice in ways they don't at worlds that were perfectly accessible to agents at that critical time just prior to performance.

Now, there is no claim here that the agents would have trotted out – had they not opted for, or had they been barred from, depletion – to do all that they might to increase the chances of existence for Jaime. Perhaps what they would have done, or been inclined to do, instead is end civilization as we know it. And even if we think that the agents ought to have kept civilization intact and at the same time pursued conservation, we have no reason to think that they ought to have strived to figure out some way to increase Jaime's chances of coming into existence. However, the expectational test for harm is itself a maximizing test. That means that all the alternatives that exist for the agents at the critical time, including those that the agents would be disinclined to perform or would refuse to perform, as well as those the agents are not morally required to perform, are relevant to the issue of harm. The bare existence of even one conservation alternative that creates more expected well-being than depletion does for even one D-person allows us to infer harm under the expectational account.

C. How to boost Jaime's chances of existence under a conservation alternative

Just as the agent in the lottery example can plausibly grasp, prior to performance, that her yet-to-be-performed act of stealing will be ‘hurried’, so can the agents in the depletion example plausibly grasp in their yet-to-be-performed depletion act certain features as well. Moreover, some of those same features may well help to decide a century or two later who will come into existence, just as the act's being ‘hurried’ in the lottery example may well help to decide who will win the lottery.

As we have already noted, however, from these facts it does not follow that depletion makes Jaime's chances of coming into existence any greater than they are under the best of the conservation alternatives. After all, the very spatial-temporal-mechanical features that may boost somewhat Jaime's chances of coming into existence can be replicated by those same agents in a conservation alternative to the extent agents are able to grasp them in advance in their yet-to-be-performed act of depletion. It is not the fact that the agents’ act is an act of depletion, in other words, that helps to decide that Jaime will exist. It is rather the fact that it is a push: something that makes people move from one city or state or country to another and that leads eventually to the particular gametes combining that in fact combine.

The goal of this present part is to show that there is every reason to think that agents were in a position to replicate a like push in a conservation alternative. It is useful, in this connection, to think about the specific details regarding just how depletion itself managed the feat of bringing Jaime into existence. Let's suppose that agents are in a position to anticipate that their yet-to-be-performed depletion act will constitute a ‘substantial’ depletion of heating oil reserves. They are able, let's suppose, to anticipate that fact about their act given the extent of the gains they aim to produce, and their ability to reap those gains, for the benefit of their own generation. They can similarly anticipate that the effect on future generations will itself be substantial and – let's suppose – that a ‘weighty incentive’ will then exist for large numbers of people living in the north to move to the south. The push, in other words, that the depletion act will ultimately create will be a hard one.

This much the agents are able (by hypothesis) to grasp in advance. What happens then? Suppose that the act of depletion in fact performed turns out to be an act that severely depletes heating oil reserves by exactly 75.03 percent over a fifteen-and-a-half year period, which fact – when put together with many other details regarding how the future otherwise unfolds – motivates a precise number of families to move away from Maine a precise number of years later, and a precise number of families to move away from Minnesota a precise number of years later. Some of those families happen to end up in – say – Baton Rouge, where energy costs are not so high and people can both eat and stay warm. It is there that Jaime's own forebears – one, let's suppose, with family from Maine and one with family from Minnesota – eventually meet at Baton Rouge High School, marry, have children, grandchildren and, eventually, Jaime.

Now, the particularized sequence of acts and events just described includes many details about how the future unfolds – including details about how the act of depletion itself unfolds. And the fact that the future turns out to include this particularized sequence of acts and events rather than some other clearly helped to decide that Jaime rather than someone else would in the end exist. Yet that the future would unfold in just the way it has – including that depletion would be implemented in precisely the way that it was – is nothing that the agents were in a position to grasp at the critical time just prior to performance. Indeed, at that critical time, that the future would include that particularized sequence of acts and events may well have been a quite indeterminate matter of fact. That in turn means that the fact that the future would unfold in just the way it has cannot, at the critical time just prior to performance, be counted as boosting in any way Jaime's chances of coming into existence.

A way, then, of getting a clear picture of just how likely it is that Jaime will exist, given depletion, is to ask just how likely it is, at that critical time just prior to performance, that this particularized sequence of acts and events – a sequence that begins just as the act of depletion itself commences, that includes heating oil reserves being depleted by precisely 75.03 percent over a fifteen-and-a-half year period, that draws Jaime's forebears’ families to exactly the same small town and that ends with Jaime's existence – will in fact unfold, given a ‘substantial’ act of depletion that itself creates a ‘weighty incentive’ for future persons to move from the north to the south. The answer is: not very.

Now let's turn to the conservation side. What we want to do here is consider an alternative possible future, or world – but one perfectly accessible to agents at the critical time – that itself includes a particularized sequence of acts and events, one that begins with an act that is consistent with a conservation policy and nonetheless ends, like the original, with Jaime's coming into existence. Consider, then, a world at which the initial act within the sequence is a new heating oil tax that motivates a precise number of families to move away from Maine a precise number of years later, and a precise number of families to move from Minnesota a precise number of years later. Some of those families happen to end up in Amarillo, where people have come to work in an alternative energy industry (harvesting, say, electricity from windmills) and where they may live in cozy and well-swept dug-outs (cool in summer, warm in winter). There Jaime's own forebears eventually meet, now at Amarillo High instead of Baton Rouge, marry, have children, grandchildren and, eventually, Jaime.

Clearly, the particularized sequence of acts and events just described includes many details – details that the agents, prior to the performance of the conservation act that commences the sequence, are in no position to grasp. It is not, in other words, a sequence that is, at the critical time, even remotely likely. For our purposes here, however, the important fact about this sequence is that, however unlikely it may be, it is a sequence that is no less likely, at that critical time prior to performance, to unfold, given a ‘substantial’ act of conservation that itself creates a ‘weighty incentive’ for future persons to move from the north to the south, than is the sequence that in fact unfolds, given a ‘substantial’ act of depletion that itself creates a ‘weighty incentive’ for future persons to move from the north to the south. As part of both sequences, agents have created a ‘weighty incentive’ for people to move north to south. In both cases, agents have engineered a hard push – hard enough to move northerners out of Maine and Minnesota and into some warmer place. If the agents of depletion consist, for example, of legislators acting over a period of years, then, consistent with a conservation policy, those same agents might instead have put into a place the new heating oil tax that we have described. If the push the agents are able – very roughly – to anticipate in their yet-to-be-performed act of depletion is a particularly hard one, then they can combine that tax with various alternative energy projects that have their own power to draw northerners to move south. It would be no excuse for those legislators to make the argument that, had they opted for conservation over depletion, they would have been voted out of office by a public disinclined to self-sacrifice. Even if that prediction were accurate, it does not follow that a conservation alternative does not exist for those same legislators. More generally, whether depletion is better for the legislators and their contemporaries is immaterial to whether that same choice eventually harms the then-future person Jaime.

Once we take care to assess probabilities in the forward-looking way that we must if facts about harm are to have the action-guiding function that is the whole point of the expectational account, it becomes very hard, I think, to find any support for the claim that Jaime's coming into existence is somehow less likely under the best of the conservation alternatives than it is under depletion. At that critical time prior to performance, the story that we told about Jaime, his forebears and their families’ move to Baton Rouge was nothing more than a highly detailed and highly improbable sequence of acts and events. But not one bit more improbable is the story that we could tell about Jaime, his forebears and their families’ move to Amarillo. Of course, even under the best of the conservation alternatives, it remains unbelievably unlikely that Jaime will ever come into existence. But, at that critical time prior to performance, it remains just as unbelievably unlikely that Jaime will come into existence under the depletion choice as well.

The depletion choice – really a vast, protracted, complex of acts wrought by numerous agents over many years – is admittedly more complicated than is the agent's act of stealing in the lottery example. But that complexity, on inspection, cuts both ways. The very complexity of the conservation alternatives means that Jaime's coming into existence is very unlikely under even the best of those alternatives. But the depletion alternatives are every bit as complex, and Jaime's coming into existence remains very unlikely, at the critical time, under each and every one of them as well.Footnote ⁵¹ The best among the conservation alternatives thus create just as much of a chance for Jaime to exist as depletion does.Footnote ⁵²

D. Fitting the results of the expectational account into Parfit's same people/different people distinction between choices

Parfit's depletion example famously involves future persons, while the lottery example's potential victims all exist at the time the act under scrutiny is performed. But under the expectational account of that example, all persons who do or will exist at a world are, in one sense, treated equally: just as present people can be harmed, so can future people be harmed – in the comparative, ‘worse off’, sense of harm that we intuitively think is important in both moral theory and the law.Footnote ⁵³ It is this maneuver that Parfit's own account of the depletion example rules out. For him, the depletion example is an intransigently ‘different people’ case: none of the people who exist under the depletion choice are identical to any of the people who exist under the conservation choice, and so the depletion choice cannot be said to be bad for, or to harm, any of those people in any ordinary sense. My argument has been that these apparently ‘different people’ cases can, and should, be understood as ‘same people’ cases.Footnote ⁵⁴

Two points have been important to making that way of looking at the depletion example a plausible one. The first is that the expectational account itself is a maximizing account. That means that the relevant alternative acts we must scan to determine whether an act harms any person are not just two (what the agents have done and what they would have done had they not performed the act under scrutiny) but a much wider array. By taking into account all the agents’ alternatives, in other words, and not just some much narrower set, we are able to see just how particular persons have been harmed, in an intuitive, comparative sense, by the depletion act.

Second, we must be aware of how easy it is to slip into error when putting probabilities to work. Thus, comparisons between actual and expected well-being must be recognized as unreliable indications of harm. And, in calculating expected well-being, we must make sure to jettison after-the-fact information agents may be able to obtain regarding linkages between the act under scrutiny and things having turned out in the way that they did. We can then recognize that the very low chance of a given person's coming into existence being as high as it in fact is – at the critical time just prior to performance – is after all independent, under an expectational account, of the bad act's having been performed, since agents after all have other, better, alternatives for creating at least that great a chance of that person's coming into existence.