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EUI Working Papers LAW 2007/07 EUI Working Papers LAW 2007/07 Reasons for Justice, Rights and Future Generations Gianluigi Palombella EUROPEAN UNIVERSITY INSTITUTE DEPARTMENT OF LAW Reasons for Justice, Rights and Future Generations GIANLUIGI PALOMBELLA EUI W orking Paper LAW No . 200 7/07 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. The author(s)/editor(s) should inform the Law Department of the EUI if the paper is to be published elsewhere, and should also assume responsibility for any consequent obligation(s). ISSN 1725-6739 © 2 007 Gianluigi Palombella Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy http://www.eui.eu/ http://cadmus.eui.eu/ Abstract 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). Keywords Law – Justice – Rights – Legal Philosophy – Moral Philosophy Summary: 1. Introduction: reason and history, law and moral reasons. 2. Distance in time, fundamental threats and justice. 3. Justice and reason. 4. The issue of rights for future generations. 5. Intervention and principles of disposability. 6. Non disposability of the future and the critical case of liberal (eu)genetics. Reasons for Justice, Rights and Future Generations Gianluigi Palombella 1. Introduction. Reason and history, law and moral reasons. Future generations are the beneficiaries of the heritage of the past, which simply forms part of their present. We are not born in a state of nature, we cannot choose the culture and material civilisation we inherit. As Karl Marx wrote in the “18 Brumaire of Louis Napoleon”, the tradition of all dead generations weighs like a nightmare on the brains of the living 1. Great scholars of the “science of history”, such as Vico 2 or Dilthey 3, testimony, however, that this condition humaine is not our curse, but our natural quality: history and its related contingencies are a source of autonomy and freedom: the historical animal finds itself in someone else's script, but this is exactly the reason why it can write its own part of history. This is how it is possible to distinguish, by contrast, the stillness and the immobility of nature. This concept of history resurfaces only vaguely in modern tradition of reason and morale, from Bacon to Hume, to Kant. Kant's reliance upon the inscrutable plans of nature when he makes reference to future generations means in fact that they end up beyond the scope of our justice commitments 4, in the hands of providence. They escape the control of reason, which in turn suffers the sense of history and claims its own universality, since it cannot be affected by contingency, space and time. However, it is indeed this 'limit', this character of reason, that enables to 'imagine' future generations. It allows us, beyond the historical sentiment or the empathy for our descendants, to the pursuit of moral reasons, to raise issues of justice that transcends both our historical sentiment and our rhetoric of solidarity. 1 The complete sentence, at the starting of the I chapter, is as follows: ”Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past. The tradition of all dead generations weighs like a nightmare on the brains of the living”. See it in the translation by Daniel De Leon, in Project Gutenberg, On Line Books Page, at http://digital.library.upenn.edu/webbin/ gutbook/ 2 G. B. Vico, The New Science , transl. by Thomas Goddard Bergin and Max Harold Fisch, Ithaca, Cornell Un. Press, 1984. 3 W. Dilthey, The Formation of the Historical World in the Human Sciences , ed. with an introduction, by Rudolf A. Makkreel and Frithjof Rodi, Princeton, N.J. : Princeton University Press, 2002. 4 I. Kant, Idea for a Universal History from a Cosmopolitan Point of View (1784), transl. by Lewis White Beck, in Id., On History , Indianapolis, The Bobbs-Merrill Co., 1963, Eighth Thesis. Gianluigi Palombella The "Declaration on the responsibilities of the present generations towards future generations" 5, expresses this "responsibility" both as a precondition and an objective 6. A number of normative documents highlight the extent of such responsibilities 7. International law takes future generations into account in the many provisions concerning the protection of the environment and of human rights, so much so that one might think, as Richard Falk wrote, that the rights of future generations have reached the 'status of international law customary rules'' 8. Behind a general convergence towards the dignity of human beings and future generations 9, we are still uncertain about the ground and the moral status of such a responsibility. Of course, if we do not want to deal with the normative issue of justifications, we might prefer to rely on factual circumstances, without asking questions of justice: human beings have repeatedly shown that they have a stable, 'natural' impulse to protect future generations. As Richard Epstein 10 wrote, a genetic connection induces us to protect them. It is certainly what evolutionary biologist Richard Dawkins defines a genetic interest, a 'selfish gene' that tends to be widespread in the natural world and that ensures the survival of our DNA 11 . 5 29t h session of the "General Conference of the United Nations Educational, Scientific and Cultural Organisation" meeting in Paris from 21 October to 12 November 1997. 6 «Mindful of the will of the peoples, set out solemnly in the Charter of the United Nations, to ‘save succeeding generations from the scourge of war" (…) Concerned by the fate of future generations in the face of the vital challenges of the next millennium, \ Conscious that, at this point in history, the very existence of humankind and its environment are threatened, (…) Asserting the necessity for establishing new, equitable and global links of partnership and intragenerational solidarity, \ Recalling that the responsibilities of the present generations towards future generations have already been referred to in various instruments (…)\ Bearing in mind that the fate of future generations depends to a great extent on decisions and actions taken today, and that present-day problems, including poverty, technological and material underdevelopment, unemployment, exclusion, discrimination and threats to the environment, must be solved in the interests of both present and future generations, \ Convinced that there is a moral obligation to formulate behavioural guidelines for the present generations within a broad, future-oriented perspective (…)». 7 Lastly, the European Constitutional Treaty says, in the Preamble: “ Convinced that, thus ‘United in diversity’, Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope”; art. I-3 affirms that “(the European Union) shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child”. In the preamble, Part II, the Chart of Rights proclaims: “Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations”. Art. II-97 concerning Environmental Protection: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. 8 R. Falk, Human Rights Horizons. The Pursuit of Justice in a Globalized World , New York- London 2000, p.193. 9 Article 3 of the Unesco Declaration, entitled “Maintenance and perpetuation of human kind”, states: "The present generations should strive to ensure the maintenance and perpetuation of humankind with due respect for the dignity of the human person. Consequently, the nature and form of human life must not be undermined in any way whatsoever” . 10 Richard Epstein, Justice Across the Generations , in Peter Laslett, James S. Fishkin (eds.), Justice Between Age Groups and Generations, New Haven 1992, p. 89. 11 Richard Dawkins, The Selfish Gene , II ed, .Oxford- New York 1989, pp. 19-20; Richard Dawkins, River out of Eden : a Darwinian View of Life, London 1995, p. 105. See Shorge Sato, Sustainable Development and 2 EUI WP LAW 2007/07 © 2007 Gianluigi Palombella Reasons for Justice, Rights and Future Generations However, the question of whether there are indeed issues of justice to deal with cannot be answered in factual terms (which include both our biological interests and our historical sentiment). Secondly, these interests explain our behaviour towards our successors in biological terms, but cannot provide a solution to problems of equity or define the terms of our responsibility; moreover their strength, just like our sensitivity, tends to halve with every subsequent generation.
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