The decision of the German Constitutional Court on multiple claims regarding the Federal Climate Change Act (Bundes-Klimaschutzgesetz, KSG) has been deemed “historical” by journalists and scholars. The judges established that the amount of emissions allowed until 2030 under §§ 3 and 4 of the KSG violates fundamental rights by shifting the burden of reducing greenhouse gas emissions onto the future after 2030. This restricts the constitutionally protected freedom of people living after 2030 by effectively imposing stringent restrictions on them in order to achieve the goal of climate-neutrality by 2050.
This intertemporal balance of freedoms is based on Art. 20a of the German Basic Law (Grundgesetz, GG), which states that “mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals […]”. Since the decision often refers to this concept of justice considering responsibilities towards future generations, it’s worth exploring what this notion means. What exactly is “Intergenerational Justice”? Why do future generations have rights and why do we have obligations towards them? And how exactly can we consider rights of future generations when evaluating policies or courses of action?
By Jonathan Mehlfeldt
Providing an overview on this extensive philosophical topic, we wanted to introduce two of the bigger problems: asymmetries in power between generations and the Non-Identity Problem.
People living in the present can exercise a certain power over circumstances that influence the reality of future people – while the latter do not have such a power over current generations. The choices of living people affect not only the details of the future, but also the very identity of future individuals, the number of future people and even whether they will exist at all.
This is exemplified best by the fact that I would have been born a genetically different person, had I been conceived in February or April, rather than March. On a larger scale, present choices influence who will meet whom and how many children will be born. A mass-extinction event would even influence whether there will be future people at all. Choices of living people can therefore affect the identity of future people and can have different people as their outcomes, which is why they are called “different people choices”.
Choices of living people can affect other living people only regarding the part of their identity that is dependent on their experiences, not their genetic make-up. Living people can also only affect the lifespan of other living people, but not their existence itself, since dead people will have existed before they died. These choices are therefore called “same people choices”.
Living persons can exercise power over circumstances that significantly affect the reality of future persons.
On the other hand, later generations can neither affect the identity nor the number or existence of people that have existed before them.
This asymmetry of power in our relationship to future generations has implications for their ability to hold rights against us.
Some theories suggest that, as non-existing people, future people cannot yet have existing rights. The Will Theory of Rights states that for person F to have a right towards person P, F has to be able to exercise her right towards P’s conduct and control her will. Following this theory, the asymmetry of power between non-contemporaries would exclude F’s ability to hold rights against P if F was a future person and P a present person.
Others oppose the presupposition that only an existing right can constrain an action and instead suggest that the future rights of future people will be informed by their interests and that present actions can already affect these interests. This Interest Theory of Rights states that P would already be under an obligation towards F if and insofar as the future right of F preserves one or more of F’s interests because P has the duty to provide for F’s interests. The interests of F could already be affected by P’s conduct, even if F was a future person.
Therefore, the asymmetrical relationship between present and future generations would not restrict the ability of future people to hold rights towards present people if we suppose the Interest Theory of Rights.
The Non-Identity Problem
Another problem in Intergenerational Justice is based on the notion of “different people choices”. Its explanation will show that the much-quoted motivation of stopping climate change “for the sake of our children’s children”, implying that by allowing climate change we harm future generations, is – counterintuitively – problematic at a conceptual level.
In 1984, British philosopher Derek Parfit explains the basic configuration of the Non-Identity Problem with an example from his book “Reasons and Persons”: “The 14‐Year‐Old Girl: This girl chooses to have a child. Because she is so young, she gives her child a bad start in life. Though this will have bad effects throughout this child's life, his life will, predictably, be worth living. If this girl had waited for several years, she would have had a different child, to whom she would have given a better start in life.”
Would our advice have saved child A from harm? Or rather: did the girl´s decision to have a child at a young age harm child A?
If the girl gave birth to child A at a young age with a “bad start in life”, but a life worth living, would we have been right to persuade her not to have a child at a young age? If the girl had followed our advice, child A would never have existed. If the girl had waited and had given birth to child B at a later time, this child B would have been different to child A, even genetically. The question is: Would our advice have saved child A from harm? Or rather: Did the girl’s decision to have a child at a young age harm child A?
If we follow the diachronic notion of harm and say that we harm a person if they are worse off after our action, the girl’s decision did not harm child A because child A did not exist before the action. Its state of well-being did not change. But if we instead follow the subjunctive-historic notion of harm and say that we harm a person if she is worse off after our action than she would have been had we not acted, the girl’s decision still did not harm child A because it would not have existed without the girl’s decision (at least we suppose so; harming by causing to exist is a different philosophical problem).
The result is that the girl’s decision did not harm child A and that we would not have had any moral reason to try to persuade her to wait. But doesn’t this seem counterintuitive? Herein lies the Non-Identity Problem.
„Threshold Conception of Harm“
There are different approaches to solving the Non-Identity Problem in its different configurations. The one most relevant in our example is the so-called “Threshold Conception of Harm”. It states that we harm a person if she is worse off after our action than she ought to be. While this notion of harm solves the Non-Identity Problem by comparing the person to a state of well-being rather than the same person or the same person in a different scenario, it entails the question of how to specify that state of well-being; the threshold below which we consider persons as being harmed. Here again, different philosophers employ different principles.
People who would live on a polluted earth in 300 years are not the same people that would live on a non-polluted earth in 300 years.
Coming back to the statement of protecting the environment “for the sake of our children’s children”, this motivation could be considered conceptually wrong because our actions affect the identity of our children’s children. British philosopher Fiona Woollard explained that the people who would live on a polluted earth in 300 years are not the same people that would live on a non-polluted earth in 300 years. Assuming that the lives of the people in both alternatives are worth living, our actions will not make them worse off, even if we do not stop or even perpetuate climate change.
Only if we specify a standard of well-being across generations, it becomes possible to conclude that our actions effectively harm future people. A rights-based approach to such an objective standard could, for example, be seen in establishing a right to live in a healthy and protected environment, as discussed in a different article on our blog.
Even though the notion of intergenerational justice can lead to conceptual problems, we are obliged to assume a duty to respect the rights or at least the interests of future generations. And we need to be aware of this responsibility when considering the fairness of policies and measures adopted to mitigate the effects of climate change. In its decision from 24.04.2021, the German Constitutional Court has now argued accordingly and established: “The Constitution obliges, under certain conditions, to secure constitutionally protected freedom over time and to proportionally distribute opportunities to freedom across generations”