Distributive justice is an essential element of social justice. When discussing distributive justice in private law, one important question is: a fair distribution between whom? For example, is a consumer protection instrument that strengthens the position of societally strong consumers, but is less important for weak ones (like much of the information paradigm), ‘social’? The answer is not self-evident.
A particular theme in the analysis of patterns of distributive justice is the relation between generations. This temporal perspective on social justice appears in many contexts. It can be discussed at least in relation to technology, nature and economy (as affected by demography).
Technological development has different impacts on different generations. For some, the first thoughts may go, for example, to the so-called digital illiteracy of many elderly and its social consequences. As this problem falls under the heading of protection of the weak and the vulnerable that is already covered (to some extent) by existing European private law, I will not discuss it – and other issues in which future generations seem to be in a more advantageous position – further here.
With regard to the temporal aspect of social justice, the most intense debates relate to the relationship between society and nature. The argument concerning protection of future generations is often referred to in relation to the grand environmental challenges, such as climate change and loss of biodiversity, and rightly so. One could claim, however, that the nature is valuable an sich, and that one does therefore not necessarily require any additional generational argument so support climate and biodiversity regulation and litigation. Anyway, they are extremely important and offer useful examples on how the issue of generational fairness can be introduced in private law.
What has been less discussed so far are the legal consequences of the fact that society in the future (the perspective here is 2044) both should not and probably will not be characterised by economic growth, but rather the opposite. Not only the limits of natural resources, but also the lack of human resources appears lead to such a situation. In the middle of the present century, the population of most Member States of the EU have started to shrink, and with present birth rates, the shrinking can be relatively rapid (if not counteracted by immigration). As far as this is the case, society seems to resemble a pyramid scheme. Those that have entered the scheme earlier may collect the earnings, whilst the newcomers tend to lose their investments.
What does that mean for a socially just private law? How can one achieve some form of fairness between those who have won and the newcomers who tend to loose? What would a critical approach to private law mean in such a context?
The Need for a Radical Experimentalism
As the future is hard to predict, it is difficult to build a substantive and coherent private law approach to the issue of fairness between generations. Therefore, the first requirement for a law that strives to cope with inter-generational fairness is that it should be open for radical learning processes.
This openness is a general requirement of contemporary private law. As societal uncertainty is growing, because of increasing weight of a variety of grand challenges, of technological and societal complexity and of loss of ethical consensus, it is generally hard to imagine the possibility of a coherent detailed critical stance to contemporary law. In an uncertain world, the need of experimentalism grows. As is stated in the first Manifesto on Social Justice in European Contract Law ‘Europe must also leave space within its multi-level governance system for variation, experimentation, and innovation.’ The need for a dynamic learning law is even more acute in the increasingly turbulent world of today. I have analysed this further in my book Free Movement of Legal Ideas: Towards a Dynamic Europeanisation of Private Law (Hart, 2024).
In other words, critical private law has to be contextually critical. For example, what is critical and radical in one jurisdiction might be established and uncontroversial in another. Even when looked at in the joint European perspective, what works in one context may seem dysfunctional in another one. One has to look at the particular issues of social justice raised by the question at hand.
Adding a temporal aspect to the societal analysis increases the difficulty of the assessment. What seems distributively just in a short-term perspective may be less advisable, when long-term effects are taken into account. Even though less affluent people on the countryside, dependent on transport by cars, may experience it as socially just that the fuel costs are kept low, in the longer term such measures clearly affect us all negatively, contributing to climate change.
The focus on the needs of future generations stresses the importance of an experimental approach. As the shrinking society of the future represents a new societal situation, in contrast with the traditional welfarism that is built on the presumption of a continuous growth, there are no ready-made and coherent solutions for the problems it generates. The grandness of other challenges affecting our societies also forces law to accept new and creative solutions. The rapid growth of climate litigation, with thousands of cases around the globe, is a good example of an active use of experimental approaches to law.
A Private Law with Representation of Future Generations
In the uncertain world of today, it is important to underline the principle of fairness between generations. It is worth discussing what this could mean in private law.
As there are no ready-made solutions and the approach has to be experimental, one has to focus on methods for the recognition of the interests of future generations in the experimental legal processes. Looking in particular at private law (thereby disregarding issues like political representation) one may formulate as the second requirement for a private law that strives at inter-generational fairness the creation of sufficient representation of future generations.
In private law, the legal machinery is kept in motion by predominantly private actors. The issue of representation and standing are therefore in a key position, when developing the protection of future generations. How can future generations be given a voice in private law? With regard to environmental issues the radical solution has been giving nature itself, or rather pieces of nature, a legal voice, the keyword being ‘Should trees have standing?’ (Christopher D. Stone, already 1972). The present topicality of the discussion is shown by the appearance of examples in which such constructions are used. The legal subjectivity of particular objects considered worthy of protection, like the Whanganui River in New Zealand (2017) and the Canadian Magpie River (2021), has been recognised by the authorities.
In a more traditional conceptuality this could mean the support of the role of various kinds of foundations with a future-preserving cause.
Without going as far as acknowledging legal subjectivity to new entities, aiming at protecting their future, procedural solutions might empower non-profit organisations or groups to fulfil this role. Various kinds of collective and representative actions have been introduced by legislation in the areas of environmental and consumer law and courts have also acknowledged such rights. The topical example is the path-breaking Dutch climate case ‘Urgenda’, brought by an organisation (with its name derived from ‘urgent agenda’) representing 886 Dutch citizens.
This kind of approach is relatively established in environmental and consumer law. It is still too early to tell, how it could be applied in other intergenerational conflicts of interest. It is not immediately clear how those facing a shrinking economy could be represented in a private law setting. An experimental approach might reveal possible inroads for new thinking in private law.
A Principle of Fairness between Generations?
Experimentalism and innovation may of course also produce other instruments to cope with the need of future generations. Substantively, rules on compulsory sharing (compulsory contracting), including the setting of priorities and the combatting of discrimination, could function as interesting concretisations of the generational fairness principle. A clearer emphasis on the future in the application of need-rational approaches in private law would be another example. In general, more focus should be directed towards long-term contracts and the need of new rules on changed circumstances. These are just examples. They only indicate that a generational fairness principle could be an interesting part of a new substantive Manifesto. More experimental experience is needed concerning its possible concrete expressions.
In other words, the need for contextual experimentalism does not prevent the law from being built on more general principles guiding the assessment of the issues at hand. A principle of fairness between generations, representing the need to take care of the future of our world, should be included in the principles on which social justice in private law is based.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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