Constitutions, Democratic Self-Determination and the Institutional Empowerment of Future Generations: Mitigating an Aporia

Is the self-determination of future generations impeded by lasting constitutions, as Thomas Jefferson suggests? In this article it is not only argued that the opposite is true, but also that the question misses the point. It is demonstrated that the very demand for future generations’ full self-determination is self-contradictory, and that it is impossible to achieve. Applying the all-affected principle to future generations, it is shown that we will always affect them, and that we should employ an attitude of “reflective paternalism” towards them. With the help of institutions reviewed in this article, the interests of future generations could be introduced into today’s political decision-making process. The role of constitutions is to provide the prerequisites for democratic self-determination and potentially also to facilitate the institutional empowerment of future generations.

Future generations will be strongly affected by political decisions made today (e.g., by the long-term consequences of climate change). According to the democratic all-affected principle, the interests of everyone affected by political decisions should be considered in the political decision-making process. Future generations cannot influence democratic decision-making, since they do not yet exist. Election-based democratic incentive systems are said to make it difficult to consider the needs of future generations today. Surprisingly, however, since the early 1990s, an increasing number of democracies have established what could be called institutional proxy representatives of future generations (proxies), i.e., public bodies with institutionalized access to government and/or parliament that introduce the construed interests of future generations into the political decision-making process. Proxies help to consider future generations’ interests alongside the interests of current constituencies. After concept building, this comparative study searches all liberal democracies and identifies 25 proxies, with heterogeneous institutional designs. By employing membership criteria, three types are distinguished: (a) expertise-driven independent guardians (type I), (b) political or administrative advisory and coordination bodies (type II), and (c) sustainability stakeholder councils or committees (type III). They vary considerably in their formal capacity to influence political decision-making (i.e., on what legal basis they were provided with what instruments to address which phases of the policy process and which branches of government). Overall, they should not be overburdened with expectations. While they are usually equipped with the tools to voice the (construed) interests of future generations, they often lack the capacity to act as watchdogs with teeth when ignored.

Call for Papers: Constitutions and Intergenerational Justice

Call for Papers: Constitutions and Intergenerational Justice

Climate Change and the Future: Discounting for Time, Wealth, and Risk

In this chapter, the issue is raised in what sense the present generation may be considered responsible for the destiny of future generations. The ethics involved is of a public nature, in particular an ethic of responsibility, as explained by Max Weber. It is argued that, in the first instance, this responsibility should be based on the idea of justice. In his A Theory of Justice, however, John Rawls only considers the question of the responsibility for the next generations, confining himself to achieve ‘just savings’ for the next. As regards future generations, problems that are more serious are involved, however, like environmental issues, climatic change, and the depletion of raw materials and natural resources. In this connection, with respect to future generations the difficulty arises that the notion of justice actually does not apply, since the conditions of reciprocity and equality that attach to this notion are by definition not involved. Apart from this, the urgent problem arises that global justice to the current generation is at variance with that to future generations. For on the one hand by reason of justice less prosperous nations of the present generation justifiably strive for greater affluence, while on the other hand, because of the serious repercussions being involved, the interests of future generations would not be served by this development. This problem is obviously of a global nature, and can accordingly only be dealt with at that level. The solution of the global problems involved is only conceivable when the conditions of equality and reciprocity implied by the idea of justice are fulfilled as regards the current global generation, that is, that the problems involved are dealt with on an equal footing. This makes it possible that a shared awareness grows that common issues and interests are involved. This not only concerns the present generation, but also the interests of future generations.

This article examines the view that the interests of future generations should be taken into consideration in decisions likely to affect them. In particular, it has been argued that the interests of future generations should be represented in local, national or international political decisions. This view is analyzed in terms of justice-seeking and democracy-seeking arguments and the extent to which the representation of future generations will promote the respective values of justice and democracy. In order to promote democracy, such representation must be consistent with the criterion of democratic inclusion. Assuming that democratic inclusion is conceptualized in legal terms, the representation of future generations is consistent with democracy only to the extent that they are likely to be bound by the decisions made today. It is shown here that future generations are not bound by the decisions made today. Thus, it follows that representing the interests of future generations in political decisions is not consistent with securing democracy for the living generation. The intergenerational problem is therefore one where the demands of justice and democracy may conflict.

Abstract. State decisions regarding a repository for high-level radioactive waste have an extraordinary intergenerational significance. The academic legal discussion has increasingly strengthened the status of future generations in constitutional law. In its recent decision on the German Climate Protection Act, the Federal Constitutional Court equally emphasised that state actors have an obligation to protect future generations. Fundamental rights of future generations thus have an anticipated effect in the present. In general, the legislator is free to choose the appropriate means to protect these rights. The interests of future generations may be promoted by substantive or procedural law. The German Site Selection Act (StandAG), however, makes use of procedural protections to a significant extent. Including the interests of future generations in the existing public participation procedures and participation bodies is, therefore, crucial for the effective protection of future generations. The presentation examines to which extent the current legal framework for the site selection for a high-level radioactive waste repository in Germany enables an effective representation of the future generations' interests. Existing publications (Appel, 2005; Rose, 2018; Kloepfer, 1993) name various characteristics of effective “intergenerational institutions”. Accordingly, these institutions should be independent, exist long-term, serve future interests solely or primarily, and have strong rights vis-à-vis decision-makers; however, German constitutional law, namely the principle of democracy, limits the design of such institutions. Not all of the abovementioned characteristics can be combined. Nevertheless, the constitution enables means to include and promote the interests of future generations in decision-making procedures, which are not fully exploited by the German Site Selection Act. The participation procedure includes several groups which could promote intergenerationally just decisions, namely environmental associations, the public and representatives of the “young generation”; however, none of these stakeholders are “intergenerational institutions” in the abovementioned sense. Subsequently, the presentation proposes various reforms: improving the sustainability impact assessment during the legislative procedure, the implementation of an “intergenerational impact assessment” and an ombudsperson for future concerns, who could be affiliated with the National Citizens' Oversight Committee (Nationales Begleitgremium).

Intergenerational environmental justice arguably requires ensuring that future generations have similar opportunities to benefit from and to enjoy the natural environment as current generations have. Direct government regulation may be insufficient to fulfill this requirement of justice, necessitating the search for additional means for controlling environmental harm. I argue that expanding the fiduciary duty of directors under corporate law to include a duty to minimize the corporation’s environmental impacts is one way to fill the gap left by direct government regulation. This approach challenges the shareholder primacy approach to corporate governance dominant in North America. The shareholder primacy approach would foreclose any role for corporate directors in reducing the corporation’s environmental impacts beyond ensuring compliance with government regulations. This paper calls into question the assumptions underlying shareholder primacy in order to open up the parameters of the debate about the role of corporations and their boards of directors in fulfilling our obligations to future generations. Although the shareholder primacy approach may be less dominant outside of North America, the global reach and influence of transnational corporations based in North America gives this question international relevance. The arguments made here in favor of a fiduciary duty to future generations may also be more widely applicable to other corporate governance regimes.The predicted environmental impacts of climate change and ongoing loss of biodiversity mean that current generations can no longer assume that the benefits to future generations of today’s economic development will outweigh the costs of the long-term environmental harm. Our increasing understanding of these environmental harms and their long-term consequences require that we move away from traditional approaches to intergenerational justice, which allow for the substitution of destroyed natural capital with man-made capital so long as total 'capital', both natural and man-made, passed on to future generations is not depleted. A more just approach is one that requires current generations to ensure, to the greatest extent possible, that future generations have the same opportunities to benefit from and to enjoy the natural environment as current generations have. Direct government regulation of private economic activity, even if properly enforced, may be insufficient to meet the demands of this new understanding of intergenerational justice for two main reasons. First, as a by-product of otherwise desirable conduct, environmental harm is difficult to regulate by prohibitions. Second, the information required by regulators to control adequately the environmental harm caused by corporate activity is more easily obtained by officials or employees within the corporation. Filling these gaps requires corporations to play a greater role in controlling their own environmental impacts.One way in which corporations could be required to play this role is by expanding the fiduciary duty of directors to include a duty to future generations to minimize the corporation’s environmental impacts. This suggestion is a direct challenge to the shareholder primacy approach to corporate governance, currently dominant in North America. Under this approach to corporate governance, the role of corporate directors and managers is to maximize profits and the role of corporate law is to try to ensure that they do so; it is the role of government to take into account and regulate the broader social impacts of corporate activity. It is nonsensical, under this approach, to speak of the board of directors as having any legal duties to anything or anyone other than to the corporation and its shareholders. The shareholder primacy approach to corporate governance therefore appears to foreclose completely the possibility of requiring the corporation to play a greater role in reducing its own environmental impacts.The principle argument in favor of shareholder primacy is that it is the best way to maximize social wealth or welfare. I suggest that, given the delay between the causes and effects of many environmental problems, shareholder primacy may not be maximizing wealth, but merely transferring it from future generations to present ones by externalizing the costs of environmental harm onto future generations. Another argument in favor of shareholder primacy is that focusing directors and managers on maximizing profits ensures that assets are allocated to their “most valued use”. This argument is also problematic from the point of view of intergenerational environmental justice, since markets may undervalue many environmental goods and services. Moving resources to their “most valued use” according to existing market values therefore may work against fulfilling our obligations to future generations. For these reasons, it cannot be said that shareholder primacy maximizes wealth or welfare when the interests of future generations are taken into account. By challenging the primary assumptions underlying the shareholder primacy approach to corporate governance, I hope to expand the range of policy options for filling the gap left by direct government regulation to include a duty to future generations to minimize environmental harm as something conceivably within the scope of corporate governance and corporate law.

The laws and policies of today may have historically unique consequences for future generations, yet their interests are rarely represented in current legal systems. The climate crisis has shed light on the importance of taking into consideration the interests of future generations, while the COVID-19 pandemic has shown that we are not sufficiently prepared for some of the most severe risks of the next century. What we do to address these and other risks, such as from advanced artificial intelligence and synthetic biology, could drastically affect the future. However, little has been done to identify how and to what degree the law can and ought to protect future generations. To respond to these timely questions of existential importance, we sought the expertise of legal academia through a global survey of over 500 law professors (n=516). This Article elaborates on the experimental results and implications for legal philosophy, doctrine, and policy. Our results strongly suggest that law professors across the English-speaking world widely consider the protection of future generations to be an issue of utmost importance that can be addressed through legal intervention. Strikingly, we find that law professors desire more than three times the perceived current protection for humans living in the far future (100+ years from now), roughly equal to the perceived level of current protection for present generations. Furthermore, the vast majority of law professors (72%) responded that legal mechanisms are among the most predictable, feasible mechanisms through which to influence the long-term future, with environmental and constitutional law particularly promising. These findings hold true independent of demographic factors such as age, gender, political affiliation, and legal training. Although future generations have not been granted standing in any cases to date, responses indicated that law professors believe there is a plausible legal basis for granting standing to future generations and other neglected groups, such as the environment and non-human animals, in at least some cases. Other topics surveyed included which constitutional mechanisms were perceived as more able to protect future generations. Finally, we outline some limitations of the study and potential directions for future research. For example, one might doubt legal scholars’ ability to estimate the long-term impact of law and legal systems, due to the conjunction fallacy and availability bias. In that regard, future research could survey forecasters, who have expertise in evaluating and predicting the future more generally.

The present contribution aims to clarify the notion of “future generations”, reflecting on the extent to which this notion takes into consideration children’s rights, particularly with respect to the environment. After laying the foundations of the analysis, this work will shed light on the potential advantages of using the children’s rights framework to strengthen the promotion of the rights and interests of future generations. Notably, the ambition to enhance future generations’ protection through the children’s rights framework presents several challenges. The first is the risk of downplaying child-specific environmental rights. To overcome this possible tension, the present work argues that the monitoring body of the Convention on the Rights of the Child (CRC) should play a more proactive role. In this author’s view, the Committee on the Rights of the Child (CteeRC) appears to be the body best suited to strengthening commitment to future generations and guaranteeing a correct balance of competing positions and perspectives.

As societies become more concerned with their impacts on future generations, the question of how to translate that concern into greater consideration in contemporary decision-making is coming to the fore. Despite growing societal acceptance of the ethics of obligations to the future – as reflected in record-high number of future-sensitive constitutions and international treaties – present generations’ promises to future generations remain unfulfilled. This article explains why and offers an alternative approach to future-proofing. After providing a systematic account of the multiple efforts at aligning the actions of decision-makers with the interests of future generations, it argues that achieving the inclusion of future generations’ interests in contemporary policymaking requires more than their legal codification and the establishment of new and typically scattered institutions, mechanisms and procedures. It rather calls for a more holistic, future-orientated and proactive approach by all public authorities. These must increasingly be expected to create the conditions not only for policymakers to consider the temporal dimension of their decisions, but also for all stakeholders – including new dedicated institutions – to hold present people accountable to currently non-existent future generations. To do so beyond the environment and climate space is a matter of urgency. This is the spirit animating this Special Issue devoted to long-term risks and future generations: to nurture a more imaginative theorisation and operationalisation of the recognition of future generations’ interests in contemporary policymaking beyond today’s institutional and conceptual models.

As the assumptions of perpetual economic and population growth no longer stand, the welfare systems built on such promises are in peril. Policymakers must reallocate the responsibility for providing care between generations. Democratic theories can help establish procedures for finding solutions, particularly in ageing democratic countries. By analysing existing representative and deliberative democratic theories, this paper explores how the interests of future generations could be included in such procedures. A hypothetical social health insurance scheme with the pay-as-you-go financial arrangement is selected as an illustrative case. This paper argues that due to the intrinsic bias towards the current generation, both representative and deliberative democratic health policymaking are limited in making decisions that account for future generations. Instead, their interests could be at best represented by benevolent representatives.

This article argues that the representation of future generations is likely to remain inadequate because of the lack of accountability mechanisms characteristic of representative relations among contemporaries. Two problems pertaining to the representation of future generations and their interests are distinguished, namely misrepresentation and negligence. Misrepresentation refers to ill-informed, biased, and purposive interpretations regarding the interests of future generations, whereas negligence involves future interests not being properly considered in policymaking. While these two problems are often intertwined, misrepresentation is a problem of epistemic and normative judgments, whereas negligence is a motivational problem. The interests of future generations are especially likely to be neglected in cases of so-called intergenerational conflict, that is, situations of welfare tradeoffs between present and future generations. Inclusive democratic deliberation is a remedy for misrepresentation, but its capacity to address negligence may be more limited. Finally, the article remarks on the role of future-regarding deliberation in representative democratic systems.

The Fundamental Law of Hungary has a special focus on sustainable development, the protection of the interests of future generations and the common heritage of the nation. The ombudsman for future generation is a special and unique institution, responsible for the safeguard of these issues. The primary mission of the ombudsman is to remind the state, including all the state organs and levels, of this task and responsibility, also to propose legislation and to examine individual complaints. In this article we provide a breif overview of those part of the Fundamental Law, which are well-equipped by the decisions of the Constitutional Court. Among others is is clear from the above cases, that everyone has a three-fold obligation towards the interest of the future generation: conservation of options, conservation of quality, and conservation of access. These are supported by the principle of non-derogation and also by the wide interpretation of precautionary principle, in connection with the fundamental right to the environment.