Literature Review

Democracy is prone to what may be called presentism – a bias in the laws in favor of present over future generations. I identify the characteristics of democracies that lead to presentism, and examine the reasons that make it a serious problem. Then I consider why conventional theories are not adequate to deal with it, and develop a more satisfactory alternative approach, which I call democratic trusteeship. Present generations can represent future generations by acting as trustees of the democratic process. The general principle is that present generations should act to protect the democratic process itself over time. They should try to make sure that future citizens continue to have competent control over their collective decision‐making.

Intergenerational ethics is the study of our responsibilities to future individuals—individuals (human or not) who are not now alive but will be. The term “future” characterizes, not the kind of a thing, but rather the temporal perspective from which it is being described. Future people, as such, therefore differ from us neither intrinsically nor in moral status. Our responsibilities to them are best understood by attempts to see things from their perspective, not from ours. Though intergenerational ethics takes various forms, the credible forms in conjunction with known facts yield two great practical conclusions: we must reduce human population, and we must keep most fossil fuels in the ground. The demandingness of these conclusions is no objection against them, but rather an accurate measure of the moral burdens of our godlike knowledge and power.

Although John Rawls’ A Theory of Justice does not deal specifically with the ethics of environmental concerns, it can generally be applied to give justification for the prudent and continent use of our natural resources. The argument takes two forms: one dealing with the immediate effects of environmental impact and the other, delayed effects. Immediate effects, which impact the present society, should be subject to environmental controls because they affect health and opportunity, social primary goods to be dispensed by society. Delayed environmental impacts, affecting future generations, are also subject to control because future generations have a just claim upon our natural resources-the generation to which a person belongs is an arbitrary contingency which should not exclude persons not yet born from consideration in the original contract of society.

Any attempt at thoroughly exploring issues of green constitutionalism requires a close look at the interactions between constitutions and our concern for justice towards future generations. It is crucial to understand at the outset that, far from a convergence, there is a fundamental tension at work between two types of concerns for future generations as they translate at the constitutional level. On the one hand, by incorporating substantive and/or procedural guarantees in the constitution, one may well aim at reinforcing the protection of the coming generations against actions of generations preceding them and deemed problematic. Yet, on the other hand, the more we rely on constitutions—as opposed to less rigid legal instruments—the more we threaten the generational sovereignty of future generations. Taking seriously the renewal in theories of justice as well as the development of environmentalism in the 1970s and 1980s, one may be tempted to assume that constitutions can only serve future generations. Yet, exactly two centuries earlier, in the late 1780s and early 1790s, the concern of authors such as Jefferson (1789) and Paine (1791) was just the opposite. Constitutions can thus constitute double-edged swords from the perspective of intergenerational justice. The tools used in a constitution to offer even stronger guarantees to the rights of future people simultaneously restrict the sovereignty of coming generations. Constitutionalization is thus not straightforwardly compatible with the demands of intergenerational justice.

This chapter examines whether Rawls’ theory provides an argumentative basis for the rights of future generations. First, we ask what are the rational devices to conceive of justice between generations within the realm of Rawls’ A Theory of Justice, and we explore whether the systematic foundation of these devices is convincing. Specifically, we investigate Rawls’ attempt to derive the notion of rights out of a conception of reciprocal arrangements to enhance the individuals’ self-interests. Second, the chapter portrays important modifications in Rawls’ advocacy for sustainability in his later works, pointing out difficulties in harmonizing Rawls’ antifoundational theoretical make-up in Political Liberalism with the notion of intertemporal justice. Third, as it becomes evident that Rawls’ theory cannot provide a satisfactory foundation for the rights of future generations, we investigate how to establish the unconditional as well as asymmetrical obligations that correspond to such rights.

In Morals by Agreement David Gauthier proposes four criteria for classifying a society's advancement toward ‘higher stages of human development.' Significantly, these criteria — material well-being, breadth of opportunity, average life-span, and density of population — do not include as an equally valuable achievement the society's capacity to sustain its standard of living (288). Nonetheless Gauthier presents three arguments intended to show that a community founded on his distributive theory will view depletionary resource policies as unreasonable and unacceptable. I shall contend that these arguments do not succeed in motivating sustainable rates of resource exploitation. Furthermore, I argue that if truly just and rational resource use policies can be arrived at, such policies could only succeed by employing a conception of property rights substantially different from Gauthier's.

This article focuses on some very fundamental threats to future generations' leaving, and considers whether most essential interests of future persons not to be harmed can be construed as rights, and in particular as human rights, as much as present persons'. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of disposability and non-disposability principles. Finally, the article shows the reasons for separating what we owe to future persons under the challenge of those threats for humanity, i.e. a matter of justice, from our right to hand down our cultural heritage, and eventually from paternalistic imposition upon future generations of our irreversible choices (even eu-genetic pre-design of future persons identity).

The claim that the public “owns” natural resources or public spaces is an event that has recurred in the past decade in Israeli social and environmental struggles and campaigns. Analyzing two high-profile issues – the Palmachim beach and the controversies over the offshore natural gas revenues and export – this paper argues that the rhetoric of public ownership reveals an emerging “commons sense,” a public consciousness of collective ownership of natural resources and public space, interwoven with a sense of responsibility for their long-term preservation and for future generations. The paper shows that the rhetoric of public ownership is best accounted for by The Commons discourse, which conceptualizes resistance to enclosure (privatization), reclaiming public rights and affinity with future generations. The paper surveys various conceptions of the commons discourse and its possible integration with human rights. So far, discussion of the Commons with relation to human rights emphasized the rights to subsistence and to a healthy environment, i.e. derivatives of the basic human rights for life and health, the standard list of environmental rights. However, in order to conform to the sentiments of Israeli “commoners,” commons rights should also affirm public ownership rights over natural and shared resources which, when understood as inherently diachronic and trans-generational, implicate also sustainability and long-term social and intergenerational justice. These rights may conflict with the Lockean conception of private property as curved off the commons. Therefore, conceptualizing such rights necessitates rethinking the idea of private property versus public and future-generations’ collective good.

After sketching out four positions on the rights attributable to future generations, I identify some salient feature of rights. I will then argue against the first, third and fourth positions and argue for the second.

In April 2018, the Colombian Supreme Court reached an historic decision concerning the deforestation problem in the Colombian Amazon Rainforest. The case STC 4360-2018 raises many legal dilemmas concerning the relationship between deforestation and constitutional rights recognised by the Colombian constitution, including the right to life, the right to human health, and the right to a healthy environment. In this analysis, we discuss how the Supreme Court’s ruling represents heterodox legal reasoning grounded in ‘de-colonial’ thinking; the impact of international environmental law on the Court’s findings; and the implications that the judgment may have on the Colombian legal order, focusing in particular on the way that the Court seems to promote the protection of collective rights over private rights.

On July 30, 1993, the Supreme Court of the Philippines, granted standing to a group of children who had sued to uphold their environmental rights and those to future generations. The children, represented by the Philippine Ecological Network, a Manila environmental group, sought to stop the logging of the nation's dwindling old-growth rainforests. The children argued that continued deforestation would cause irreparable injury to their generation and succeeding ones, and would violate their constitutional right to a balanced a healthful ecology. The Court held that the children had standing to defend their generation's right to a sound envrionment and to perform their obligation to preserve that right for future generations. The case was noteworthy because it most likley was the first time that a nation's highest court has explicitly granted legal standing to representatives of future generations. The Children's Case reflects an emerging principle of international environmental law that present generations have a duty to pass on a sustainable environment to their successors. Vital to this principle of intergenerational equity are legal mechanisms to ensure the expression and consideration of the interests of future generations. This case comment will discuss how the reasoning and arguments in Oposa could be used to advocate the environmental rights of future generations in the United States. This paper will focus on the United States; with its long tradition of environmental citizen suits and innovative expansion of traditional common law rights, this nation likely would be more hospitable to the representation of future generations that other countries. If recognized by Congress and the U.S. Supreme Court, standing for representatives of future generations could be used by environmental groups as a means to bring suits, aimed at preventing long-term damage, that otherwise would be blocked by the injury requirements of current standing doctrine. Part I of this case comment will discuss the facts and argments in the plaintiffs' case and the reasoning of the court. Part II will recount the growing international support for intergenerational equity found in international agreements, foreign constitutions and legislation, cultural traditions, and America law. Part III will note the generational objections raised to legal standing for representatives of future generations and sicuss teh hurdles erected by the U.S. Supreme Court's standing decisions. Finally, Part IV will explore possible mechanisms to promote the environmental interests of future generations in the United States.

The purpose of this note is to examine the notion of obligations to future generations, a notion that finds increasing use in discussions of social policies and programs, particularly as concerns population distribution and control and environment control. Thus, it may be claimed, the solution of problems in these areas is not merely a matter of enhancing our own good, improving our own conditions of life, but is also a matter of discharging an obligation to future generations. Before I turn to the question of the basis of such obligations the necessity of the plural is actually doubtful-there are three general points to be considered: (1) Who are the individuals in whose regard it is maintained that we have such obligations, to whom do we owe such obligations? (2) What, essentially, do obligations to future generations oblige us to do, what are they aimed at? and (3), To what class of obligation do such obligations belong, what kind of obligation are they? Needless to say, in examining a notion of this sort, which is used in everyday discussion and polemic, one must be mindful of the danger of taking it-or making it out-to be more precise than it is in reality.