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An Emerging Key Concept in European Constitutional Law: Sustainability 2498-5473 / USD 20.00 HUNGARIAN JOURNAL OF LEGAL STUDIES 60, No 4, pp. 332–365 (2019) © 2019 The Author DOI: 10.1556/2052.2019.00020 An Emerging Key Concept in European Constitutional Law: Sustainability ANDRÁS JAKAB* Now civilisations, I believe, come to birth and proceed to grow by successfully responding to successive challenges. They break down and go to pieces if and when a challenge confronts them which they fail to meet.1 Abstract. Sustainability, as compared to the rule of law, human rights, sovereignty or democracy, is a relatively new constitutional key concept. It is mentioned explicitly more and more in constitutional discourses, and – even more importantly – it helps to reconstruct a number of current constitutional debates under one conceptual umbrella. Sustainability comprises different responses to long term social challenges which cannot efficiently be responded to via democratic mechanisms. Democratic mechanisms are based on election terms and which are, consequently, structurally short-sighted. By ‘European constitutional law’, I mean in this paper both the primary law of the EU and domestic constitutional documents. In the present paper I am first going to sketch the nature and the types of the sustainability challenges that contemporary societies face, with a special focus on Europe (environmental, demographic and financial). In the main part of the paper, I am going to show possible constitutional responses to these challenges. Finally, I will summarise the main argument of the paper which is a suggestion to set up an economic constitutional court consisting of economists with the power to annul laws if these contradict the principles of sustainability. Keywords: suffrage for children, proxy vote, Demeny voting, Toynbee, ageing society, public finance, transparency, debt brake, deficit brake, balanced budget rule, sustainable development, protection of environment, financial crisis, paygo, language of rights, family suffrage, future generations Sustainability, as compared to the rule of law, human rights, sovereignty or democracy, is a relatively new constitutional key concept.2 It is mentioned explicitly more and more in constitutional discourses, and – even more importantly – it helps to reconstruct a number of * Univ.-Prof. DSc Dr.jur. Dr. habil. András Jakab, LLM PhD, Universität Salzburg, Kapitelgasse 5–7, 5020 Salzburg, Österreich, [email protected]. Honorary Fellow at Pázmány Péter Catholic University Budapest; External Researcher at the Institute for Legal Studies of the Centre for Social Sciences Budapest. 1 Toynbee (1948) 56. 2 I am grateful to the participants of the ‘Sustainability as a Legal Principle’ workshop at the IVR XXVIth World Congress of Philosophy of Law and Social Philosophy in Belo Horizonte (Brazil) on 22 July 2013, of the conference ‘Model Institutions for a Sustainable Future’ in Budapest on 25 April 2014 and of the workshops at the Centre for Social Sciences of the Hungarian Academy of Sciences on 11 September 2014 and 26 March 2015, and of the Dienstagsrunde on 27 July 2015 at the Max Planck Institute for Comparative Public Law and International Law, further to Carlino Antpöhler, Armin von Bogdandy, Lídia Balogh, Attila Bartha, Eszter Bodnár, Péter Cserne, Giacomo Delledonne, Róbert Iván Gál, Matthias Goldmann, Rainer Grote, Michael Ioannidis, Béla Janky, Klára Katona, Alexandra Kemmerer, Lando Kirchmair, Miklós Könczöl, Zsolt Körtvélyesi, Károly Mike, Pier Pigozzi, Ekkehart Reimer, András Simonovits, Pál Sonnevend, Ákos Szalai, Jörg Chet Tremmel, Leonie Vierck and David Wineroither. Unauthenticated | Downloaded 10/01/21 10:55 AM UTC AN EMERGING KEY CONCEPT IN EUROPEAN CONSTITUTIONAL LAW: SUSTAINABILITY 333 current constitutional debates under one conceptual umbrella.3 Sustainability comprises different responses to long term social challenges which cannot efficiently be responded to via democratic mechanisms. Democratic mechanisms are based on election terms and which are, consequently, structurally short-sighted. By ‘European constitutional law’, we mean in this paper both the primary law of the EU and domestic constitutional documents.4 In the present paper we are first going to sketch the nature and the types of the sustainability challenges that contemporary societies face, with a special focus on Europe (1). In the main part of the paper, we are going to show possible constitutional responses to these challenges (2.). Finally, we will summarise the main argument of the paper (3.). A short preliminary terminological remark: we are using the expression ‘sustainability’ instead of the more popular ‘sustainable development’.5 The concepts are almost identical, the former being slightly less ambitious: sustainability does not require an improvement, it merely requires that a situation does not deteriorate. 1. SUSTAINABILITY CHALLENGES The moral instinct and the common sense of most people would probably suggest that sustainability should be aimed for in every society. One approach that could be used to justify sustainability would be to refer to the idea of distributive justice (more precisely: intergenerational justice),6 another approach would be to refer to the long term interests of the political community. Instead of the first, moral philosophical approach, in the present paper we are going to employ the second, rather pragmatic one, in the hope of minimising overheated emotional debates. Sustainability requires nothing more than following the long term interest of the political community. ‘Long’ basically means anything that is beyond the usual four or five year election period that is the primary time span of democratic politicians.7 There are several factors that might endanger sustainability. For example, the EU Sustainable Development Indicator (prepared by Eurostat on the basis of the 2006 EU Sustainable Development Strategy) consists of 106 individual indicators (some of them being composite themselves) including education, public health, fertility rate, different aspects of environmental protection, public debt, just to name a few.8 Composite indicators imply ‘weak sustainability’, meaning the (at least partially) mutual substitutability of the different types of capitals (environmental, demographic, etc).9 We are only going to mention 3 On doctrinal reconstruction as one of the main tasks of legal scholarship see von Bogdandy (2009) 364–400; Jakab (2011) 757–84, esp. 758–65. 4 For more details on the concept of democracy see Jakab (2016) chapter 9. The current article can be considered as an additional chapter of the named book. 5 See e.g. ‘Sustainable development means that the needs of the present generation should be met without compromising the ability of future generations to meet their own needs. […] It aims at the continuous improvement of the quality of life and well-being on Earth for present and future generations.’ Sustainable Development Strategy (2006) European Council DOC 10917/06 para 1. 6 For excellent overviews of the intergenerational justice approach see Gosseries (2001) 293– 355; Lawrence (2001) 163–234; Gosseries and Meyer (eds) (2009); Meyer, L. (2008). 7 On the two different lines of justification (input and output) with a different conceptual frame (democratic inclusion vs better decisions) see Könczöl (2018) 191–210, esp. 191. 8 For further aggregated sustainability indicators see Grunwald and Kopfmüller (2012) 81–86. 9 On the concept in general see Neumayer (2013). Unauthenticated | Downloaded 10/01/21 10:55 AM UTC 334 ANDRÁS JAKAB here some aspects: those that the present author considers the most pressing ones and that have constitutional relevance.10 1.1 Environmental Challenge The concept of sustainability stems from environmental protection, or more precisely from 18th century German forest economics literature.11 The originally ethical12 and economical concept was later widely dispersed in legal thinking by UN documents in the 20th century.13 It is usually defined in environmental protection as the prohibition of the use of natural resources which would impede the satisfaction of comparable future needs (through exhaustion or through pollution).14 For our topic, this is not primarily relevant; it is mentioned only because it shows the origin and the multifaceted nature of the concept. As there are numerous analyses on this aspect of sustainability (and the fundamental scholarly opinion is probably the least divided on these issues, thus the debates are more of a technical nature), the rest of the paper will rather concentrate on other types of challenges. 1.2 Fiscal Challenge Accumulating public debt redistributes the resources of future generations amongst members of the present generation,15 and democracies actually tend to accumulate debts.16 It is normally more popular to spend than to save money, and people like to enjoy public services but they do not like to pay taxes to finance them.17 And democracies, by their nature, tend to go for popular things. As a matter of fact, the more competitive a democracy, the more likely its public deficit will grow, as in a hard competition parties feel forced to (promise to) buy votes in order to win.18 Another explanation for public debt in democracies is that they tend to be less centralised, i.e. their politics is fragmented.19 If you have fragmented politics then every political group is trying to spend the common money on its own electorate and/or supporters.20 The more fragmented politics is (i.e., coalition governments instead of one-party governments, second chambers
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