A. Introduction
I. What Sound Does a Clock Make in the Void?
In 1660, the Irish scientist Robert Boyle published a long series of scientific experiments he had performed.Footnote 1 Among them, one of the most relevant reported observations on the interaction between a mechanical pump, a receiver, and a clock.Footnote 2 In that experiment, by gradually sucking air out of the receiver via the pump, Boyle observed a significant decrease in the sound of the clock. The ticking sound became fainter and fainter until it disappeared altogether when all the air in the receiver was sucked out.
This milestone in physics helped to solve the long-standing question of sound propagation and, indeed, whether sound could be heard in a vacuum. Boyle’s experiment showed that a mechanical wave like sound needed a medium, in this case air, to propagate and thus be received. The density of the medium was somehow related to the intensity of the sound, and the absence of the former determined the absence of the latter. In other words, hearing a clock, the sound of an instrument or a cry for help is impossible without a medium in which this vibration can propagate.
This relationship between medium and waves may help legal reflections to get a clearer framework on future generations. This Article argues that in some of the most relevant climate litigations, emerge an attempt to expand the temporal boundaries of the legally relevant. By dilating the legal contemporaneity to include also the future, legal reflection is trying to set the medium through which the demand for legal protection of future generations can be finally heard by the legal system. To support this thesis, the Article is divided into three distinct yet interconnected parts.
Part B examines the crucial role of climate litigation, clarifying its importance and legitimizing the discussions it generates. This Section discusses the historical inadequacies of political and legislative responses to climate challenges. It emphasizes that climate litigation should not be viewed as a result of subversive radical judicial activism, but rather as a necessary response to a demand for protection that has been consistently neglected. To demonstrate this point, Part B will offer a historical analysis showing how political and legislative attempts to tackle climate issues, despite longstanding scientific awareness, have been constantly thwarted by certain economic intrusions.
Part C explores the profound influence of climate science on legal frameworks, particularly through climate litigation. It examines the evolving legal perspectives on temporal structures, emphasizing the increasing recognition within societal and legal systems of the importance of incorporating future considerations into current frameworks. The Section concludes by highlighting how current legal challenges, driven by climate-related issues, are reshaping the way legal systems and societies conceptualize and manage time. By expanding the contemporaneity of law, legal thought is carving out a new operational perimeter that is open to new stimuli. Drawing on Boyle’s experiment, these climate litigations are defining a new medium through which previously unheard requests for protection can now be addressed.
Both Part B and Part C fundamentally rely on Niklas Luhmann’s Systems Theory. The first Section applies Luhmann’s concept of society—defined as a network of autonomous subsystems, each differentiated by its function and lacking a centralized hierarchy—to analyze the development of the climate crisis which led to the rise of the climate litigation. This analysis explores the economic system’s sabotage of the scientific and political ones as a clash of incompatible social rationalities, and it gains support by other historical examples of similar conflicts.
Additionally, Systems Theory provides tools to understand the sudden changes prompted by early signs of climate change. These signs have made climate knowledge indispensable, acknowledged across various systems, and introduced new challenges. In simpler terms, Part B constructs a coherent and plausible narrative about the crisis leading to climate litigation.
Part C reiterates the importance of Systems Theory, offering a unique perspective through its interpretation of time as a culturally produced tool by social systems to enhance their operations. This concept highlights the significance of problematizing the role of the future in social operations. Elena Esposito’s application of the theory in an unrelated sector exemplifies this, demonstrating the profound impact of these changes on society’s dynamics. Overall, Systems Theory offers a critical lens for interpreting the debate around climate litigation, framing time as a dynamic and flexible social construct, rather than a static chronological concept.
In summary, Systems Theory provides interpretive tools to grasp a socio-legal process that cannot be reduced to a mere proliferation of climate litigation.
Part D examines the impact of society’s expanding temporal perspective on the legal significance of future generations. This Section highlights a significant shift: concern for future generations has moved from moral discourse to a legal and judicial one, particularly evident in climate litigation. Part D asks whether this shift and the expansion of social time are causally linked or merely parallel developments. To answer this question, one can either await future developments in this legal debate or apply the same theoretical framework to past phenomena. Here, the legal and philosophical elements of the transition from the Ancien Régime to the Modern Age prove decisive, particularly the rejection of intergenerational law and the reduction of the legally relevant actors.
In other words, Part D suggests that, just as Enlightenment ideas on time and relevant actors gradually undermined the Ancien Régime and ushered in Modernity, today’s increasing focus on the rights of future generations may similarly revolutionize existing legal frameworks, paving the way for a new era of intergenerational law.
B. The Climate Boil
I. The Future Has Already Begun
On 29. April 2021, the German Bundesverfassungsgericht ruled the partial unconstitutionality of the Bundesklimaschutzgesetz of the Federal Republic of Germany.Footnote 3 Although the court did not question the emission reduction targets set in the long-term federal strategy—in particular the choice to achieve climate neutrality by 2050—it censured the unequal temporal distribution of this effort.
According to the judges in Karlsruhe, an inversely proportional relationship can be delineated between an inequitable temporal distribution of greenhouse gas emission allowances and a disproportionate restrictions on rights and freedoms.Footnote 4 In other words, if the legislator is free to determine the total amount of the carbon budget—which derives from the choice of whether to set the climate target at 1.5 degrees or 2 degrees—it cannot, however, plan an unequal distribution of the reduction effort. The court bases this conclusion on the interpretative solutions used in environmental matters, in particular by extending the state’s duty to protect the environment, ex art. 2.2. German Constitution,Footnote 5 as well as the projection of this effort into the future, ex art. 20a German Constitution.Footnote 6 In this sense, article 20a plays a central role in balancing the interests, rights, and freedoms of today with those of tomorrow. The State, in fact, must also tailor its protective activity from an intergenerational perspective by considering—and protecting—those who are the youngest today and the future generations.Footnote 7
According to the German Constitutional Court, in the climate emergency paradigm today’s actions cannot be planned without taking the future into account. The interpretative horizon in which this decision is developed moves in a very special temporal dimension, a dilated contemporaneity beyond the mere present and which also includes the future,Footnote 8 whether it is shaped in the form of the future rights of present generations or as the interests of future generations.
This decision is part of a broader trend of court cases that has been characterized by a considerable expansion in recent years. This third waveFootnote 9 of the so-called climate litigation, which started with the UrgendaFootnote 10 and LeghariFootnote 11 cases, can be considered as the judicial system’s response to an ever-increasing number of requests for protection from the climate threat. In other words, in these cases emerges an increasingly widespread malaise towards political solutions that are not applied or are deemed insufficient with respect to climate change.Footnote 12
Therefore, it can be argued that issues such as climate change and the protection of future generations are becoming an increasingly constant presence in the judicial (battle)ground.Footnote 13 The fact that the “greatest challenge human beings have ever faced”Footnote 14 is also becoming relevant in the courts, or the fact that there is increasing concern about the raising of “an irreversible legal threat to future freedom”Footnote 15 is not so far-fetched. However, these widespread social and legal concerns clash when set in a broader time perspective. From this view, in fact, it emerges that the near unanimity of the scientific community on climate theory can be traced back to the late 1980s, that the first attempts to address politically climate change date back to 1992 and that the debate on the protection of future generations began almost half a century ago.
II. Climate’s Silent Drumbeat: Scientific Warnings Lost in Time
The consolidation of climate change theory within the scientific community primarily occurred between the post-World War II era and the late 1980s. Although rudimentary contemplations regarding the greenhouse effect can be traced back to the 19th century,Footnote 16 it was during the early 1950s that the methodical exploration and analysis of this phenomenon and its ramifications truly commenced.Footnote 17 Throughout this period, an increasingly robust consensus emerged among scientists concerning the correlation between greenhouse gas emissions and rising global temperatures, as corroborated by extant records from the fossil fuel industry.Footnote 18 Notably, this consensus materialized well before international climate accords such as the Kyoto Protocol or the Paris Agreement,Footnote 19 with the acknowledgement that anthropogenic activities have significantly impacted the global atmospheric composition through the pervasive use of fossil fuels.Footnote 20
This burgeoning scientific consensus on climate change-associated hazards ultimately led to a substantial turning point in the late ‘80s with increasingly significant consequences. Starting with the creation of the Intergovernmental Panel on Climate Change (IPCC) in 1988, emerged a growing synergy between scientific and political systems. This latter led to a growing number of international agreements and conventions such as the 1992 Rio ConferenceFootnote 21 and the 1994 Framework Convention on Climate Change.Footnote 22 Despite this increased awareness and political engagement, substantive efforts to combat climate change have been evaluated insufficiently from the beginning, often hindered by various challenges. The “Rio+5” resolutionFootnote 23 and the Kyoto Protocol AgreementFootnote 24 are emblematic in this sense.
In the first document there is a robust reaffirmation of the need for stabilization of greenhouse gas emissions and the identification of climate change as the primary challenge of the coming century, but there is also an acknowledgement of the limited results achieved thus far.Footnote 25
The second document can be regarded as a significant advancement in the fight against climate change. At the same time, it represents an illustrative example of the challenges and failures faced in these issues. This includes the—inducedFootnote 26 —refusal of one major emitter of greenhouse gases, the United States, to sign the agreement and the substantial time gap between the drafting of the document—1997 and its implementation—2005. The latter issue resurfaced with the Doha Amendment of 2012,Footnote 27 which only entered into force in 2020.
The blunt recognition of climate change persisted with key documents like the Millennium ReportFootnote 28 in 2000 and the Johannesburg DeclarationFootnote 29 in 2002. Although these texts highlighted the essential role of the UN Framework Convention and the commitment to stabilize greenhouse gas concentrations, they offered little in the way of specific mitigation actions.
These difficulties, however, cannot be traced back to a fully and autonomous failure of this scientific-political synergy. On the contrary, the influence of the economic system on this systematic failure is significant. Specifically, the encroachment of certain economic interests into the scientific domain is crucial for understanding the current climate crisis, justifying the vital and necessary role of the judiciary in climate protection, and explaining the parabolic rise in climate litigation in recent years.
1. Genesis and Explosion of the Climate Boil
Niklas Luhmann’s Systems Theory, in its concise version suitable for this context, portrays modern society as lacking a central authority capable of imposing a universal perspective across all social levels.Footnote 30 Instead, this functionally differentiated societyFootnote 31 comprises various functional systems, each characterized by its specific function, which process problems, sometimes simultaneously, according to their own operational logic.Footnote 32 In other words, there is no single center that processes problem Y according to a single and universal code A/-A applicable to the entire society. Rather, problem Y will be viewed differently by each system: The legal system interprets it as a matter of legal and illegal,Footnote 33 while the scientific system sees it in terms of true or false.Footnote 34 This applies equally to the economic system,Footnote 35 political system,Footnote 36 art,Footnote 37 religion,Footnote 38 and other systems.
This hyper-specialization boosts effectiveness and efficiency by taming environmental complexity, which in its raw form would be unmanageable for any system.Footnote 39 However, issues that aren’t selected and framed within the logic of a functional system remain unrecognizable and invisible to the system itself. For example, environmental damage will not register as relevant to the economic system unless it is selected and translated into that system’s terms—until such damage has a price tag.Footnote 40 This selective prowess allows systems to function smoothly and efficiently, but it also carries the risk that significant problems might be overlooked if they can’t be converted into the system’s logic.
At the same time, this framework should not be seen as precluding interaction between these subsystems. Indeed, despite the operational closure of systems, they are still able to perceive and respond to external influences. These influences, however, should not alter the autonomous way these systems operate. Without improper interference, the interaction is “healthy” and physiological. Conversely, if a system begins to sabotage or replace the internal mechanisms of another, it clearly constitutes a pathological interaction;Footnote 41 a true invasion made by one system to another. In summary, Niklas Luhmann’s theory provides the conceptual tools to analyze and explain the underlying mechanisms and reasons behind the emergence and eruption of climate crisis and climate litigation.
The “climatic” invasion can be interpreted as yet another manifestation of a deep-rooted, totalizing tendency that characterizes the functionally differentiated society. A clash of incompatible rationalitiesFootnote 42 which, in addition to causing significant interference in the functioning of one of the two systems, often ends up creating significant “collateral damage” as well.Footnote 43 Although the examples of interference by the economic system are numerous,Footnote 44 they are not the only ones. The totalitarian experiences of the 20th century, for instance, provide clear examples of a damaging expansive tendency of the political system.Footnote 45 Therefore, the invasion of the scientific system for climate issues would not represent an isolated case, but yet another example of an endogenous and perverse tendency of the system to functional differentiation.Footnote 46
Here, the fossil company network, by violating the integrity and functioning of the scientific system, tried to sabotage an existential threat to its business model.Footnote 47 In an attempt to expand its lebensraum, the fossil network gave rise to an invasion of the scientific system. A climate warFootnote 48 , planned meticulously and strategically, aimed at preventing the spread of “ineffective” information for the maintenance and development of that type of business.Footnote 49
Clearly this invasion did not manifest itself in military guise. The Manua Loa Observatory, the Jungfraujoch, the Sonnblick observatorium, or the offices of the Environmental Protection Agency (E.P.A.)Footnote 50 have not been invaded by tanks or special forces.
The infiltration techniques were different and, in some ways, more subtle. One can just think of the large-scale, systematic effort to cast doubt on climate science, spearheaded by fossil fuel companies, despite their internal acknowledgement of climate change risks,Footnote 51 like the ones profused by the American Petroleum InstituteFootnote 52 and the George C. Marshall Institute.Footnote 53
However, the spectrum of aggressive actions used in this climate war is much broader. Years before the “mud machine”Footnote 54 became a widespread phenomenon, the fuel industry employed large-scale delegitimization tactics against climate scientists.Footnote 55 The goals were to undermine scientific findings by discrediting their authors and creating a climate of intimidation. This strategy targeted the crucial role of reputation in academia,Footnote 56 effectively creating a deterrent within the scientific community.Footnote 57 The attacks against Ben Santer,Footnote 58 James Hansen,Footnote 59 Stephen Schneider,Footnote 60 Roger Revelle,Footnote 61 and Justin LancasterFootnote 62 are clear examples of this modus operandi.
Despite these significant, and costly, efforts, the sabotage of climate theory began to falter significantly in the first decade of the 2000s. Climate change, in fact, had already arrived and had done so in a brutal manner, as demonstrated by the anomalous European heat wave of 2003,Footnote 63 Hurricane Katrina,Footnote 64 and Tropical Cyclone Nargis.Footnote 65 Moreover, it had done so at an alarming rate, so much so that in 2009 a large and important group of experts concluded that the IPCC’s worst projections were coming true.Footnote 66
2. Social Climate Awakening
However, as climate change effects became more severe and evident climate science’s explanatory and predictive capabilities acquire social recognition and “legitimation.”Footnote 67 In other words, at least for a part of society, “the king was finally naked!”Footnote 68
This shift has prompted the development of more flexible and collaborative approaches to climate policy and, overall, to many more numerous political efforts to fight climate change, which can also be confirmed by the parallel chronological path between serious climate change events and climate legislation.Footnote 69
However, despite the formal recognition of climate change and the commitment to stabilize greenhouse gas concentrations, specific mitigation actions have been limited and the progress in addressing the issue remains slow. This has encouraged the search for alternatives to legislative solutions, widely considered ineffective or insufficient.
C. The Present is not Enough
I. The Vibrant Temporal Structures of Society
To sum up what has been said so far, the early attempts of climate science to address the problem of global warming went largely unheeded at the beginning. Promising synergy with international cooperation mechanisms were repeatedly and systematically sabotaged by part of the economic system. Only the brutal arrival of climate change has succeeded in socially legitimizing the global warming theory with disruptive effects still acting. The ability of climate science to explain the origins of the phenomenon, its manifestations, but also to propose refined projections and forecasts for possible future developments has assumed the role of game-changer in many social dynamics.
From a legal perspective, this has resulted in a problematization of the delicate interconnection between the present and the future. In short, our society’s temporal structures have undergone a process of substantial problematization. However, it is important to assess the feasibility of this option before entering into a specific examination of the implications of this problematization. In other words, can society’s temporal structures be changed?
According to Niklas Luhmann and Elena Esposito, they can. In their perspective, time should not be intended as an independent and autonomous element,Footnote 70 but as a tool culturally produced by the social system and functional systems to organize their operations and make them more complex and efficient.Footnote 71 Depending on the case, time can be shaped in a cyclical and, or, linear way,Footnote 72 can be fixed or dynamicFootnote 73 and past and future can coexist with the present or represent mere dynamic projections created by each present.Footnote 74 These temporal structure can be considered as social architectures of utmost importance in the development of social and functional systems.
Modernity, for instance, has been nurtured and forged by a different conception of time, more precisely of the future. Unlike the previous period, in which time was considered fixed, predetermined, and limited,Footnote 75 albeit uncertain in the eyes of men due to their nature,Footnote 76 in modernity this “ignorance” of the future is generalized and systematized.Footnote 77 It is not possible to know the future because it simply does not exist.Footnote 78 This radical change in perspective has fueled a previously unthinkable possibility of change and evolution. An open, unknown, and unknowable future opened the door to limitless projects. The idea of an open future fueled economic growth and, arguably, fostered disruptive social phenomena such as, for example, the French Revolution.Footnote 79
However, it is useful to start with a more specific application. In fact, the close connection between temporal structures and practical functioning emerges from an analysis of the recent, and discussed, evolution process of the insurance industry. This is a seemingly off topic digression, but it will prove useful in the following pages.Footnote 80
The insurance industry has made the generalized uncertainty about the future the cornerstone around which it has developed and shaped its models, functions, and social significance. And it has done so by relying on one of the most formidable tools developed to relate to, and manage, the uncertainty arising from modernity’s idea of an open future. From the 17th century onwards, the rise of probabilistic calculus created the conditions for a systematic and comprehensive approach to the future. If, in fact, the individual case continues to remain uncertain, statistics show that by collecting data from many cases and contextualizing them over a sufficiently long period of time, some sort of order can be extracted. The combined effort of more data, sampling, generalization, and probability calculus made it possible to cope with the impossibility of knowing the future, socially legitimizing the insurance industry.
This paradigm develops on two conditions of “ignorance”. On the one hand, the idea that the future is unknown and unknowable. On the other hand, “on a chronic condition of information asymmetry (the customers do not reveal to the insurer all information they possess).” Despite these limitations, the mechanism identifies collective patterns, allowing for the mutualization of risks and spreading costs to make potential damages financially bearable for everyone. Thanks to these tools, notwithstanding an uncertain future, individuals and companies can engage in risk-taking and planning with a sense of control and protection.Footnote 81
In the last ten years, however, this system has been confronted with disruptive new technological changes. Growing computational power and the flood of data have allowed machine learning algorithms to be fed and perfected, increasingly developing their capabilities. In the insurance sector this means challenging traditional probabilistic models of calculating risk and its distribution. Predictive Analytics promises to personalize insurance policies and premiums based on individual behavior and risk levels. This departs from the traditional model, which relies on the calculated uncertainty of a pool of policyholders and means everyone would pay only for their real exposure to risk. These techniques offer individualized risk forecasts, contrasting with probabilistic calculations that consider a larger population.
This development has the potential to radically change the insurance industry’s model, function, and social meaning, as it challenges the current management of uncertainty based on an open future concept. In fact, it challenges the basic logic of the insurance industry, that it is impossible to predict who will be hit by misfortune and when, prompting people to pool their risks.
What the insurance industry highlights is a possible correlation between knowledge, temporal structures, social legitimation, and social operation. That the cultural, scientific, and technological tools available, after having received social legitimation, can produce disruptive effects on the temporal structures used to organize the operations of the functional systems themselves.
1. Climate Science Legitimation and Temporal Structures
This “problematization” is also emerging in the climate issue. It stems from the social legitimization that climate theory began to receive after the first serious symptoms of climate change. This social legitimization relied on both the ability of climate science to describe and explain phenomena but also on its future projections. As in the insurance case, this interplay between knowledge, temporal structures, social legitimation, and social operation has also manifested itself in the climate case.
The evolution of early climate scenario projections, associated with diverse greenhouse gas concentrations and tracing back to the 19th century, has been significantly influenced by technological advancements. Initial models were limited by the lack of computational power and knowledge, impeding accurate calculations. However, the introduction of computers in the 1950s facilitated more complex calculations, leading to sophisticated and precise models. These “General Circulation Models” began addressing the greenhouse effect issue in 1969 and have since become integral to climate science, culminating in today’s cutting-edge tools.Footnote 82
The refinement of the climate theory has been driven by the synergy of improved computational power, increased data availability and scientific advancements.Footnote 83 Also in this case the magnitude of future uncertainty has been substantially altered, leading to considerable challenges. In other words, society started a spasmodic path, knowing that rethinking “the temporal (structures) on which the Global North has relied since the nineteenth century”Footnote 84 would constitute the necessary starting point for appropriately framing the climate challenge.
II. Unpacking the Temporal Structure Problem in Climate Litigations: A few examples
This recalibration of temporal frameworks is most prominently exemplified within the legal system. Specifically, climate litigations provide valuable insights into the intricate and demanding endeavor of adjusting the legal system to accommodate these novel stimuli.
In certain instances, the intricate nature of temporal structures becomes apparent in the interplay between time and action, particularly regarding the necessity to execute specific actions within a designated time frame. Once this temporal window has elapsed, the relevance of such actions vanishes, as the intended objectives become unattainable.
Emblematic of this attempt is the Italian case “Giudizio Universale.”Footnote 85 This legal dispute involves the Non-Governmental Organization (NGO) “A Sud,” which sued the Italian state for its inaction on climate change, endangering the plaintiffs’ fundamental rights. According to the plaintiffs, the Italian state’s actions to combat climate change are considered insufficient and inadequate. In particular, the actual reduction in emissions has been limited to about one third of the optimal scenario—that is a 92% emissions cut compared to 1990 levels.Footnote 86 The breach of Italy’s climate obligation would result in a series of violations of fundamental rights.Footnote 87 Indeed, according to the applicants, this inaction would risk undermining what could be considered the original “fundamental right”: The human right to a stable climate.Footnote 88 In other words, the plaintiffs adopt the perspective that “[… ]a stable climate system is literally the foundation of society, without which there would be neither civilization nor progress.”Footnote 89
According to the applicants, this framework would justify a limitation of the discretion of the State,Footnote 90 the necessary corollary of which would be the emergence of specific obligations on the part of the Italian StateFootnote 91 as member of a much broader and global effort. In a nutshell, the plaintiffs - relying on the most authoritative climate scienceFootnote 92 - point out that this effort is part of a more general objective of cutting global emissions in order to keep the temperature increase below 1.5 degrees Celsius.Footnote 93 Exceeding this tipping point,Footnote 94 in fact, would trigger irreversible and degenerative climate change.
However, this substantial reduction effort has also a clear boundary of execution, namely 2030.Footnote 95 In “Giudizio Universale” the qualitative assessment of the period of action takes on very particular contours: the reciprocal relationship between action and time outlined does not allow for alternatives. The same action, for example, the 92% reduction in Italian emissions, will no longer have the same effect if implemented after the time threshold of 2030. It is this countdown that acquires significance in the overall organization of the operation: the “right time” to act becomes relevant and decisive in the organization of climate change mitigation efforts.
In a way, it can be argued that this legal demand also clearly expresses a different temporal structure. This qualitative conception of time may be reminiscent of the Greek idea of kairos.Footnote 96 The latter is described by the ancient Greeks as a child-like god with “curls floating in front of his temples, so that those who meet him may lash out at them; the nape of his neck is only sparsely furnished with hair: in fact [… ] he cannot be caught after his passage however much one may wish him to.”Footnote 97 This visual representation perfectly captures the idea of the “right moment”Footnote 98 to do something—a brief glimpse of time that, once passed, is no longer retrievable.
The analogies with the subject of the “Giudizio Universale” are significant. To avert the worst and degenerative effects of climate change, our society must “grab the hair” of Kairos by 2030. Beyond this threshold, no matter how hard we try to fix it, we are doomed because the right “time” has passed and cannot return.Footnote 99 In other words, the qualitative assessment of the period of action is crucial, and the “right time” to act is akin to the ancient Greek idea of kairos, which represents a “brief” window of opportunity that, once lost, cannot be regained.
Paraphrasing a consideration on the relationship between time and evil, one could say that according to the plaintiffs:
[Unlawfulness or injustice], then, in a certain sense, means precisely not grasping the right time, not knowing how to see and also not knowing how to foresee, that is, not being wise and “prudent” in the etymological sense [… ] that is, [… ] he who sees beyond [… . ] There is, therefore, a very close link between wisdom and the question of time and, more specifically, the opportune moment. For ‘if to be [lawful or just] is not only to act as one should, but also with whom one should and where one should’ and, indeed, when one should, to be vicious is to fail in each of these directions.Footnote 100
The attempt to shape, and use, alternative time structures emerges also in other climate-litigation cases. Emblematic in this sense are two Dutch court decisions that have taken a leading role in the legal debate. In the Urgenda case,Footnote 101 the decision of the Dutch courts played the role of the forerunner of the third waveFootnote 102 of climate-litigation. In fact, the successful approach adopted in Urgenda against the Dutch State outlined the legal strategy that would later be used in almost all subsequent European claims.Footnote 103
The Milieudefensie case,Footnote 104 however represented a turning point with respect to the spectrum of actors obliged to participate in the “front line” of global warming mitigation efforts.Footnote 105 In addition to the nation states, the Dutch courts held that a private company, namely Royal Dutch Shell, is also obliged to participate in this overall effort to reduce emissions. A burden, according to the ruling, that would—potentially—also fall on other large private emitters.Footnote 106
The Dutch courts showed a remarkable sensitivity to the threats of climate change. This is evidenced by the fact that, in both the Urgenda and Milieudefensie cases, neither the lack of a current damage nor the fact that these are wide and far future risks have precluded the courts from ruling in favor of the plaintiffs.Footnote 107 This may be connected to the particular exposure of Dutch citizens to these dangers.Footnote 108 In particular, the future risks would pose a serious threat to the human rights of the Dutch citizens.Footnote 109 However, the reasoning of the Dutch judges could also be read as a successful attempt to contemporize these future risks.Footnote 110 To expand contemporaneity to include not only the present, but also “glimpses” of the future.
Another emblematic example in this sense is the Holcim Case, an ongoing climate case brought before the Court of Zug (Switzerland) by four residents of the Indonesian island of Pulau Pari against the Swiss cement corporation, Holcim.Footnote 111 Here the plaintiffs assert that Holcim should bear responsibility for its role in causing climate change, specifically the impact on sea levels and the resulting floods that have affected the island of Pulau Pari and its inhabitants. The floods have had severe consequences on the island’s activities and the livelihoods of its people. The plaintiffs accuse Holcim of contributing to the systemic conditions that led to these damages and seek compensation proportional to the harm they have suffered due to global warming.
However, their demands exceed a mere compensation of $3,600 per person.Footnote 112 The lawsuit against Holcim, based on IPCC studies, extends its time horizon to include the future, as the plaintiffs argue that without sufficient emissions mitigation, global temperatures could rise significantly with disastrous consequences for their lives. The islanders claim that if emissions remain at current levels, future projections could manifest in a problematic way, leading to the loss of the majority of the small island’s habitable area due to a one-meter rise in sea level by 2100. This scenario, in their view, would endanger their human rights and ability to live on the island. To address these issues, the plaintiffs demand that Holcim reduces its emissions more substantially than their proposed reduction plan and contribute to the adaptation costs they will incur, including measures such as planting mangroves or building dikes and breakwaters.Footnote 113
In other words, the Plaintiffs are demanding compensation for actual damages, reduction of emissions, and assistance in protecting the island from future rising sea levels. The Holcim case is yet another manifestation of a temporal organizational dimension that expands contemporaneity to include not only the present—with the damage they are already suffering—but also various fragments of the future.
These are not isolated cases but express the attempt of the legal system to cope with this problematic transition. This structuring of the problem seems to be a common feature of many climate cases, so much so that “testing climate change claims before the court is thought to make climate change tangible and immediate [… ].”Footnote 114 To put it another way, the future seems to have found its own space in the legal contemporary. A future that, although circumscribed and shaped in many different ways,Footnote 115 is nevertheless relevant in its interaction with the present for the organization of system operations.
D. Talking in the Void: Exploring the Impossibility of Contextless Demands
I. Whispers Arising from Silence: Footnote 116 The Future Generations from the 1970s
This pervasive turmoil over the temporal issue may also help to clarify the increasing legal relevance of future generations. Alongside the acknowledgement of this growing relevance, one cannot but ask: Why are future generations only now playing a central and effective role in the legal arena? Why are the demands of this voicelessFootnote 117 only now beginning to be heard?
The modern reflection on the intergenerational relationship goes back much further than one might expect, with some analysis dating back even to the 18th century. However, as relevant here, it can be emphasized that future generations have been trying to make their voices heard also in modern legal field for more than 70 years and the debate on their social and legal inclusion has been going on for decades.Footnote 118
Yet, in a nutshell, this significant debate can be traced back to a pivotal question: “Should we believe that future persons not merely will have rights, but that they presently do have rights?”Footnote 119
1. One, None, a Hundred Thousand Million: Searching for Future Generations
The answer to these questions is less simple than it may appear. The difficulty in defining the boundaries of the genus “future generations”Footnote 120 represents the first significant obstacle in this sense. This definition is only apparently clear and defined. In reality, it constitutes a genus encompassing very different species. Speaking of future generations, in fact, one can refer in general terms to all the people who will live in the future.Footnote 121 At the same time, future generations can also indicate specific groups delimited geographically or temporally.Footnote 122 But one also speaks of future generations when analyzing those who are young today and have a potential future.Footnote 123 In other words, the concept of future generations is less defined than it might appear prima facie.Footnote 124 This term presents far more nuances, potential application and problematics than expected.Footnote 125
However, without an adequate recalibration of temporal structures, the problem of future generations takes on dynamic and hazy traits. As a result, like climate theory, this issue has struggled to escape its moral and philosophical jar. From a legal standpoint, the outcomes have been mostly limited to non-binding declarations in international agreements and generic constitutional recall, which have seldom been converted into effective actions. Examples of these documents that directly or indirectly affect future generations are not lacking, indeed they abound.Footnote 126 These include, just to mention a few, the “1946 International Whaling Convention(,) the Universal Declaration of Human Rights (1948), The Stockholm Declaration on the Human Environment (1972), the World Charter for Nature (1982), the Brundtland Report (1987), the United Nations Declaration on the Rights of Indigenous People (2007)”Footnote 127 and so on. Except for a few isolated cases,Footnote 128 this “moral imperative”Footnote 129 has only grazed the realm of law without really affecting it. As has been observed “[… ] these references to future generations remain, for the most part, in preambles and not in the operative text of the instruments. There are no legally binding international law instruments specifically committing States to the protection of future generations.”Footnote 130 Nor does the situation change when analyzing the numerous constitutional provisions that directly or indirectly affect future generations.Footnote 131
Despite best intentions and significant attempts, future generations have only been considered “formally” relevant from a legal perspective without ever being able to materialize substantial protection. However, the recent emergence of climate litigation has begun to break down this “morality jar.” Although future generations and climate change are not entirely superimposable, there is no denying that climate litigation has created a suitable environment for advancing these concerns from a legal perspective as well. Footnote 132
2. Judicial Recognition of Future Generations
In addition to the already mentioned Neubauer case,Footnote 133 some relevant examples can be found around the world and in varying forms. The near-obligatory starting point is the groundbreaking Urgenda case in the Netherlands.Footnote 134
Concisely, the Urgenda case can be summarized as a successful attempt to impose more ambitious Greenhouse Gas (GHG) emission reduction targets than those set by the State through a judicial decision. The reduction targets determined by the Dutch State were overturned based on the scientific knowledge of the IPCC reports, their projections on the Dutch population and the legal translation of this scientific knowledge. The Court also concluded the government had, through these limited reduction goals, breached a duty of care to the Dutch people to preserve the climate. This duty was identified through an examination of Dutch private law under the lens of constitutional interpretation, international law, and cases from the ECHR. Finally, the Supreme Court’s decision in the Urgenda case confirmed the courts’ authority to mandate such a reduction, dispelling doubts about a possible incompatibility with the separation of powers doctrine.
Urgenda also presents significant elements of interest in the reflection on future generations. Despite some clear discontinuity on the approach between the first decision and the latter two, the relevance of these rulings remains undisputed.
First, in the District Court decision, future generations are a constant leitmotif.Footnote 135 The reference to future generations emerges first with respect to the issue of standing. According to the Court, the social purpose of the Urgenda foundation, to pursue the creation of a sustainable society, is characterized by an intergenerational dimension. Consequently, interpreting the article of the Dutch Civil Code permitting organizations to defend the public interest in this light, the Court concluded that Urgenda also has standing on behalf of future generations.Footnote 136
Second, this intergenerational dimension also emerges with respect to the assessment of State behavior. In fact, one of the main criticisms leveled at the Dutch State was that its climate goals disproportionately benefitted present generations at the expense of future generations.Footnote 137 It is precisely in the light of this principle of intergenerational equity that the State’s discretion is limited.Footnote 138
Finally, the intergenerational dimension of climate dynamics also emerges with respect to damages.Footnote 139 As has been noted, “[t]his is a clear example of a legal decision inclusive towards future generations; their rights are taken up in the balance to determine the climate-related obligations of the Dutch State.”Footnote 140 In the appeal judgement, the reference to future generations occurs only indirectly. This occurs, first of all, with respect to the issue of standing. Although the court did not grant standing on behalf of future generations to Urgenda, it nevertheless rejected an objection raised by the State which, de facto, concerned that topic. In other words, the State, by objecting to the excessive breadth of interests and persons represented by Urgenda, invoked theoretical considerations developed against the representation of future generations. By rejecting this objection, the Court of Appeal kept the door open for future generations.Footnote 141
Moreover, by accepting the climate framework of the IPCC reports—used by Urgenda and not contested by the State—the Court has projected itself into an operational dimension that recognizes the urgency of the issue and necessarily includes future repercussions and risks. Circumstances, the latter, that “[ . . . ] already the current generation of Dutch people, mostly but not exclusively the younger ones among them, will face during their lives the adverse effects of climate change [ . . . .]”Footnote 142
This perspective of time dilation capable of indirectly recalling certain types of “future generations” is also confirmed and legitimized in the Supreme Court ruling. Of particular interest here are the interpretations of Articles 2 and 8 of the ECHR. In the first case, provided that the harm can directly affect the person involved, it can also materialize in a longer time perspective.Footnote 143 In the second case, the severity of the risk for the private and family lives of persons allows for the inclusion of risks that are not located in a short time horizon.Footnote 144 The indirect projection towards future generations emerges, then, from the regulatory referencesFootnote 145 and the observation of the directly proportional relationship between today’s inaction and the magnitude of the burden of future protective actions.
Another relevant example comes from South America, specifically Colombia. The landmark case, Future Generations v. Ministry of the Environment and Others, saw twenty-five young plaintiffs sue the Colombian government. The case addressed conservation of the Amazon and the impact of climate change. The peculiarities and groundbreaking significance of this decision, despite the insufficient practical application of its precepts, call for a brief discussion of some of its most relevant aspects.Footnote 146
The plaintiffs argued the government’s inaction violated the constitutional rights of children to a healthy environment, life, health, nutrition, and water, as well as the rights of future generations. Colombia’s Supreme Court ruled in favor of the plaintiffs, recognizing the rights of future generations and ordering the government to create and implement action plans to combat deforestation in the Amazon. Adopting an unusual solution—but certainly not unknown to the Colombian legal systemFootnote 147 —the Court decided to implement these requirements by attributing a legal personality to the Colombian Amazon Rainforest. In other words, according to the Colombian Supreme Court, the best way to guarantee the protection of fundamental rights is to attribute legal personhood to the forest, thus reaffirming the need for a paradigm shift in the relationship between man and nature already recognized by the Colombian Constitutional Court a few years earlier.Footnote 148
A third key example came, once again, from the Netherlands. The “revolutionary and ground-breaking”Footnote 149 Milieudefensie v. Shell case is another paradigmatic example in this regard. Indeed, it is still unclear whether this first instance ruling will be upheld on appeal or whether other courts outside Dutch borders will follow this line of argument. Nevertheless, the Dutch courts may have once again outlined a very important contribution to the whole topic of climate change and, more specifically, to the legal trend of climate litigations.
On May 26, 2021, the Dutch district judge in The Hague upheld the claims of environmental organizations—including Vereniging Milieudefensie, which gives its name to the case—and over 17,000 Dutch citizens against Royal Dutch Shell (henceforth “RDS”), the parent company of the Shell Group.Footnote 150 The court found the Anglo-Dutch oil giant’s substantial contribution to climate change led to increased and related risks of a climate crisis. Accordingly, this lower court ruling required RDS to significantly increase its efforts to prevent climate change by reducing its emissions by 45% from 2019 levels by 2030. The court imposed two obligations, one of best efforts and one of results, with respect to the reduction of emissions caused by the Shell Group, its supply chain, and its consumers.Footnote 151
According to this decision, the effort to mitigate the effects of climate change by reducing emissions resulting from the 2015 Paris Agreement affects both nation-states and private companies. In other words, the greatest challenge ever faced by human beings requires the commitment of all.Footnote 152 More than a year after the final judgment of Urgenda, and drawing on its legal strategy,Footnote 153 this duty has also been recognized in a private company, albeit only at the lowest judicial level. The salient features of this case are many: The recognition that the drafting of the Shell Group’s corporate policy is an independent source of damage; the recognition of the global nature of the climate problem, and, accordingly, the irrelevance of the location of GHG emissions;Footnote 154 the balance between the time dilation of the relevant horizon and the reduction of the target group to Dutch inhabitants only.Footnote 155
Other relevant elements of the Milieudefensie case are: The development of a legal argument setting out an obligation to reduce emissionsFootnote 156 based on an unwritten standard of careFootnote 157 calibrated on the “traditional” ECHRFootnote 158 recall, and the innovative introduction of the UN Guiding PrinciplesFootnote 159 as an interpretative criterion; the recognition of the existence of an obligation for private companies to respect human rights,Footnote 160 also emphasizing that the company itself declares this goal as an integral part of its actions;Footnote 161 and the recalibration of temporal structures, in particular with the observation that although there is no actual harm −to date−Footnote 162 the scientific evidence of climate changeFootnote 163 outlines a proximate risk of breach of this obligation of duty of care.Footnote 164
Finally, the extension to private actors of climate change mitigation obligationsFootnote 165 acknowledges their key roleFootnote 166 in achieving the targets set in international treaties, protected by human rights,Footnote 167 and based on widely accepted scientific conclusion.
Yet, in this case, too, future generations assume a relevant role. These emerge firstly in terms of admissibility of the class actions. Although the group of people who can be protected in this decision is purely reducible to inhabitants of the Netherlands,Footnote 168 this does not mean that just the present inhabitants are included.Footnote 169
The recall to future generations emerges also with respect to the general “RDS’ reduction obligation” and its more specific, proportional reduction one. Specifically, in the first part, the court recalled the connection between environmental degradation, climate change, unsustainable development, and the risks to present and future generation’s right to life.Footnote 170 In the second part the court balanced the interests of present and future generations against the commercial interests of RDS. The compelling, common interest served by complying with the reduction obligation outweighs RDS’s potential negative consequences and the commercial interests of the Shell group.Footnote 171
Synergy between climate change and future generations has not always gained legitimacy through court decisions. Inter alia, one can recall cases from Canada,Footnote 172 Scandinavia,Footnote 173 and IndiaFootnote 174 where the claim for the protection of future generations—in an operational perimeter of climate crisis—has been rejected. The debated nature of this synergy is further confirmed by several examples of claims for judicial protection also for future generations still under examination by the courts.Footnote 175
II. The End of the Legal Exile of Future Generations?
This judicial overview offers an extremely useful picture. First, the substantial balance in the outcomes, and the heterogeneity of the argumentative frameworks used, show we are still in the midst of the debate. Second, these examples of climate litigation highlight the increasingly central role of climate science in the legal system as well, resulting in both a total acceptance of the paradigm shift and a centrality of time dilation in the development of legal debate. Third, the concept of future generations has been interpreted in different ways.Footnote 176
These differences do not hide the fact significant advancements have been realized and the legal rights and interests of future generations are being acknowledged and represented. This transition from a moral consideration of future generations to a legal (albeit intermittent) approach holds tremendous significance. Yet, despite these laudable advancements, these examples remain somewhat sporadic in the wider legal panorama; by uncovering the underlying dynamics that have brought the needs of future generations to the forefront, a shift towards a more systemic perspective can be achieved.
1. Temporal Structures and Future Generations: Connection or Mere Coincidence?
The new relevance of the future in society has been matched by a new interest in future generations. Just as the presence of air is crucial for the sound of a bell to spread and be heard, this brief digression has underscored a similar relationship in the legal field: Between the operational horizon of the law, the medium, and the hearable rights, the sound.Footnote 177 The dilatation of temporal structures and the relevance of future generations thus seem to coexist.
Just because both trends are present does not mean they are directly related. This might be a correlation without connection. Historical knowledge is essential in unravelling this Gordian knot and testing theories against reality. This approach resembles that used in climate science to assess the accuracy of scientists’ predictions of future climate. Because experiencing the future firsthand is impossible, scientists cannot directly prove future predictions created by their model. However, they can test these predictions’ reliability in various ways, including by comparing simulations of the past with historical evidence.Footnote 178 If the former consistently matches with real historical data, the models are deemed more reliable also for predicting the future.
Similarly, exploring historical social and legal changes can also shed light on the relationships explored in this Article. Instead of relying on physical climate proxies such as ice cores or tree rings, it is essential to focus on two key features of the significant shift from the Ancien Régime to modernity.
The first key change involves the recalibration of temporal structures and its impact on law as society has moved towards modernity. The second point concerns the evolution of the spectrum of legally relevant actors in this transition to modernity.
Starting with the first, we can observe that before modern times, societies expanded the space of contemporaneity by encompassing and merging past, present, and future. These different temporal dimensions co-existed, but were not equally accessible to actual human beings, whose knowledge was limited to the present.Footnote 179 Despite this limitation, individuals sought to interact with other actors from different time horizons. They employed diverse methods, ranging from engaging with the divine wisdom encapsulated in sacred texts to participating in rituals such as entrail analysis (aruspicina) and interpreting the flight of birds (auspicia).Footnote 180 Similar interactions can also be observed with ancestors and, more broadly, with the deceased.Footnote 181 By interacting with these actors, society recognizes their existence and acknowledges the presence of a time horizon beyond human limitations.
This concept of time has also influenced societal and legal norms, not just religious practices. The pre-modern legal order provides several examples in this sense. For instance, medieval English law responded to certain severe crimes with the punishment of blood corruption. This sanction had consequences beyond the individual, as it prevented the transmission of property through the “tainted” bloodline,Footnote 182 affecting his or her descendants. It was not solely a sanction for a crime; it was a measure that bound future generations on the basis of an ancestor’s actions. This expressed an intertemporal vocation for the deterrence of that criminal law.Footnote 183
In the field of inheritance law, one notable example of expanded temporal structures is the fideicommissary substitution.Footnote 184 This legal tool allows a will-maker to name an heir under the condition that he must keep the estate intact and later pass it on to another beneficiary chosen by the original drafter. This legal mechanism created an almost unalterable bond,Footnote 185 meant to preserve family wealth over generations, effectively becoming a command from the will-maker beyond his death.Footnote 186
This law of the testator, voluntas testatoris est lex,Footnote 187 means that the will-maker can limit how future generations handle the estate, essentially making heirs just caretakers rather than proper owners.Footnote 188 This allows the deceased to “control” the family’s wealth management and distribution long after their passing.
This dictatorship of the grave could span multiple time periods and generations, but it did not always require a temporal boundary. A striking example in this sense comes from the legal experience of the Venetian Republic, where testators could create fideicommissum that were perpetually binding. Through these “fideicommissary substitutions ad infinitum [. . .] the assets were indefinitely [blocked], strictly adhering to the will of the testator without any time limitations.”Footnote 189
This tension between the needs of the present and the desires of the deceased permeated all levels of society, becoming common even among the less wealthy.Footnote 190 It reflected not only a desire to protect family wealth, but also a deeper, somewhat irrational urge to control the destiny of one’s possessions after death, showing a wish to influence from the grave.Footnote 191 In other words, the deceased could still play an active role in contemporary social dynamics despite their physical death.Footnote 192
The intergenerational operational range of the law was recognized and justified during the Ancien Régime. However, the primacy of this approach was about to change. During the transition to modern society, all time has been reduced to the present, and as a result, the past and future have been expelled from contemporaneity.Footnote 193 This process has reduced them to mere projections of the present. In other words, this new perspective suggests the past and future do not exist independently but are constantly produced in every present.Footnote 194 This implies, for instance, that a non-existent future cannot be constrained by the remnants of an intangible past. Society is presented with an “open future,” full of projects and ideas waiting to be realized in the only timeframe deemed existent and significant: The present.
The compression of time to the present has had significant consequences, triggering a chain reaction in social and legal spheres. It was during the Enlightenment opposition to the concept of blood corruption emerged. The concept of intergenerational punishment—that is, punishment that goes beyond individual accountability and affects the offender’s descendants—was so strongly resisted that it was explicitly forbidden in the American Constitution.Footnote 195
The Enlightenment’s critique, however, extended beyond opposing intergenerational punishment. It engaged in a deep critique of the longstanding belief in the natural and perpetual order of such legal constructs, questioning the very essence of intergenerational law itself.Footnote 196
The French Revolution and the Napoleonic code stand out as pivotal examples that drastically altered France’s societal and legal structures, marking a clear departure from the Ancien Régime. The execution of Louis XVI and the collapse of the old society catalyzed a fundamental transformation within French society, signaling a move away from laws that bound present, and future, generations with obligations forged in the past.Footnote 197
For instance, this period championed the principle of equality, erasing the legal and social distinctions that had previously stratified the population.Footnote 198 The Revolutionary ethos questioned and ultimately dismantled the age-old belief in an immutable natural, and proper, orderFootnote 199 that justified these distinctions through hereditary status.Footnote 200 This change represented a move away from the past’s constraints, freeing current and future societies to shape their destinies without inherited obligations.Footnote 201
The harnessing of law’s intergenerationality also impacted private law legal institutions, notably through the Code Napoleon of 1804.Footnote 202 The Code’s Article 896Footnote 203 starkly rejected the fidéicommis familial, underscoring a significant shift: The law now opposes the idea one can dictate the use of their estate for several generations.Footnote 204
Echoing 18th-century critiques, French lawmakers have contested the grave’s dominion over estates, emphasizing the modern values of autonomy, freedom, and the individual will of the living.Footnote 205 They view such posthumous control as a stark violation of the social contract,Footnote 206 arguing that the deceased, detached from the material world, should not impinge upon the living’s autonomy over their property.
This emerges also by examining the nineteenth-century philosophical individualist’s approach to a core concept like property, which reveals further evidence of these notable shifts. Jurists acknowledged property rights could extend across generations. Yet, philosophical individualism anchored these concepts squarely in the present. Direct and total control over property—its use, enjoyment, and disposal—was deemed incompatible with past or future actors exercising such right.Footnote 207
Both Enlightenment observers and French legislators clearly expressed opposition to the “mad desire of individuals to control their possessions for a time when they no longer own them, having left this world,Footnote 208 “maintaining the idea of the total and free availability of assets for present generations.”Footnote 209
This new social project is also substantiated within the domain of contractual law. Explicitly, in the Code Napoleon the prohibition of perpetual commitmentsFootnote 210 was deemed indispensable to safeguard “the exercise of individual liberty over time, as perpetual commitments were perceived to perpetuate personal servitudes and feudal property.”Footnote 211 A comparable initiative to realize the post-Ancien Régime social vision is discernible in the implicit prohibition of perpetual obligations.Footnote 212 In this context, a perpetual obligation was construed as synonymous with subjugation, contravening the foundational principles of freedom and autonomy of the will in the nascent society.Footnote 213
In both instances, the framers of Napoleonic Code exercised meticulous care to preclude certain obligations from imposing unwarranted tyranny upon the future.
In essence, the dawn of the Enlightenment signified a pivotal shift towards a comprehensive reevaluation of intergenerational law, set against the backdrop of a broader recalibration of social temporal structures.Footnote 214 In Emilie Gaillard’s words:
The temporal legal framework of 19th century society […] is based on and limited to the time of one human generation. The way law is conceived and how rights are generated leaves no room for [intergenerationality and] the concept of future generations. The written reason of the 19th century, in so far as it affirms and guarantees the preservation of individual freedom, is at odds with a long, eternal time, a time that binds future generations to violations of their free will.Footnote 215
If the recalibration of Temporal Structures and its effects on the law represents the first key feature of the transition to modernity, the second concerns the spectrum of relevant actors. The pre-modern world featured a broader and more diverse array of actors deemed significant within social and legal contexts.
A relevant first example concerns the animal’s role in the social and legal landscapes before the modern era. Although typically classified as res—objects under the ownership of a legal entity—they could, in exceptional cases, own possessionsFootnote 216 or even face legal action.Footnote 217 This is highlighted by the wide range of animal trials and excommunications across different regions, from Brazil to Switzerland, involving a diverse array of animals, including pigs, moles, locusts, dogs, rats, and more.Footnote 218 These instances reveal the varied ways in which historical societies recognized animals as legal and social agents.
For example, in 1519 in West Tyrol, authorities initiated criminal proceedings against moles accused of crop damage.Footnote 219 The legal system’s decision to appoint a defender for the accused animals stemmed from the belief that these creatures deserved a chance to defend their actions in court.Footnote 220 The verdict issued demanded the animals vacate the fields but made allowances for pregnant or young animals, who were given a grace period for departure without harm.Footnote 221
Similarly, in 1659, the community of Chiavenna took legal action against caterpillars for crop destruction.Footnote 222 The caterpillars were officially summoned to court, with a defender appointed on their behalf; the summons was hung on a tree in the five woods of the territory, and the court’s decision acknowledged the caterpillars’ right to life and freedom, so long as they did not harm human well-being.Footnote 223
Yet, in medieval trials, the animals were not the only “out-of-the-norm” defendants. Even the dead were occasionally—albeit rarely and with clear instrumental purposes—brought to trial. A notable instance of this occurred in 897 with the ‘synodus horribilis,’Footnote 224 when Pope Stephen VI charged the deceased Pope Formosus, the former Bishop of Rome, with serious offenses. In an extraordinary event held in the Basilica of St. John Lateran, Formosus’s exhumed body, dressed in papal attire, was put on trial. He was accused of perjury, violating church law, and unlawfully becoming pope.
Despite the clear political motives behind Stephen VI’s actions, this trial underscores the extent to which the deceased were considered capable of participating in present reality. Formoso, in fact, was assisted and represented—albeit only by a young novice. The peculiar defendant was subjected to an intensive interrogation, which, for obvious reasons, was answered by his legal representative. All according to the rules.Footnote 225
The court posthumously found Formosus guilty, annulled his papacy, and his body was then mistreated and thrown into the Tiber River.Footnote 226
The practice of including deceased individuals in legal processes, given the context of the Ancien Régime’s widespread intergenerational law, is not that surprising. Considering that a deceased person could still influence decisions much like a living owner, the idea of them being involved in trials should not be startling.
Such concepts may perplex modern observers. However, the example of legal trials involving animals clearly shows the legal and social practices of the pre-modern era often extended beyond what we currently consider conventional. This evolving dynamism in legal and social perspectives also affects intergenerational law. The modern reassessment of the “legal relationship across generations“Footnote 227 indirectly confirms that, prior to this transition, the influence of individuals from past generations on contemporary legal outcomes was broadly accepted. However, with the advent of modernity, this influence came to be viewed as increasingly inappropriate.
In other words, the transition to modernity also affected the range of actors in society. In the same years the temporal structures of society were being recalibrated, another radical and profound change took place, narrowing the range of socially significant actors to merely human beings of the present. The emergence of “the scientific revolution, the political Enlightenment, the dominance of methodological individualism, and psychological and sociological theories”Footnote 228 led to the exclusion of animals, plants, ancestors, spirits, gods, and other entities from the circle of recognized actors in society and law.
This Article has previously highlighted how the recalibration of temporal structures impacted law, notably rejecting any intergenerational constraints. This shift towards focusing solely on the present diminished the legal and social relevance of past and future dimension and individuals. Outside their own time—beyond the bounds of their existence—their legal and social significance faded and disappeared. Footnote 229
However, the transition to modernity has further reduced the relevant actors, marginalizing others that used to coexist with humans in the present. This is best illustrated by cold numbers, as in the case of animal trials and excommunication. For instance, in the book The Criminal Prosecution and Capital Punishment of Animals, written by Edmund Evans in 1906,Footnote 230 one can observe a significant change in the distribution of cases considered by the author. Evans reported 191 cases of animal prosecution, with the first dating back to 824 and the last to 1906.Footnote 231 However, and this is the interesting point, only twelve cases occurred during and after the transition to modernity. In other words, just over six percent of the total number of relevant episodes took place between 1793 and 1906. The percentage climbs to nearly 12% when one account also for instances from the early 18th century.Footnote 232 This is a stark contrast to the 34.55% (sixty-six cases) from the 17th century, 26.17% (fifty cases) from the 16th century, and 17.27% (thirty-three cases) from the 15th century.
Summing up, one can say, with the transition to modernity, the once diverse choir of actors has been reduced to a soloist: The actual human being.Footnote 233
2. Beyond Correlation: Acknowledging the Intrinsic Bond Between Future Generations and Temporal Structures.
From these brief insights, it can be assumed the existence of some sort of connection between the range of legally significant actors and the conformation of temporal structures.
At the same time, it seems difficult to distinguish the beginning of this relationship. In a modern version of the “Hamletic dilemma” of whether the chicken or the egg came first, one would have to ask whether the actors disappeared first and the temporal dimensions later, or whether the opposite happened. One might wonder whether the temporal structure that housed those actors disappeared, causing them to asphyxiate, or whether the disappearance of all non-present-human actors emptied them, rendering them “useless.”
In any case, by assuming this connection as valid, it is possible to suggest an explanation for the “opposite” phenomenon that has been developing in recent years. Namely, that the expansion of contemporaneity towards the future created the space for future generations to become an effective, relevant actor in law, freeing them from the ether of morality in which they had hitherto been confined.Footnote 234
Expanding on Boyle’s initial experiment, it can be asserted that, before the tangible manifestation of the climate crisis, society predominantly focused on the present, leaving the future unheard and relegated to a void. However, since the early 2000s, the growing acceptance of climate science has metaphorically acted as a pump, infusing substance into the once-empty bell of the future. This expansion notably amplifies the voices of future generations, creating a crescendo of sound within it.
This substantial shift in society’s relationship with the future is evident in the surge of climate litigation. The broadening of the medium has facilitated the acknowledgment and scrutiny of requests for protection for future generations. Over the years, discussions have emerged, delving into the rights, interests, and legal considerations relevant to these future generations, initiating a refinement of their legal position.
In essence, the climate crisis functions as a metaphorical pump, creating a distinct “context” where the claims of these “voiceless” can finally be heard by society.
E. Conclusion
The social legitimization of climate science has led to disruptive consequences. The ongoing recalibration of the social operating perimeter has also brought about significant changes in the legal world. Changes that can be read as different symptoms of related and connected processes. The centrality of climate science, the problematization of temporal structures and the widening of the spectrum of relevant actors all manifest a propulsive thrust towards different legal responses than in the past.
Navigating within an expanded contemporaneity gives rise to the contentious emergence of the legal relevance of the future, prompting a reassessment of traditional balances. This imperative is currently undergoing scrutiny, as evidenced by the ongoing discourse surrounding the renewed importance and operational vitality attributed to future generations. The gradual process of their legal personification stands as a symbolic marker in this direction.Footnote 235
Yet, within the realm of legal reasoning, there remains a more speculative and hypothetical terrain—one that is nonetheless pivotal. Historical experiences suggest these substantial changes might not only be surface level but could potentially result in profound structural and systemic shifts. This speculative notion holds particular significance in today’s legal landscape, urging a judicious broadening of the analytical perspective on ecological transition and future generations. This expanded viewpoint lays the foundation for a more flexible and comprehensive systematization of legal debates in this context.
The trajectory toward recognizing an intergenerational law appears poised to become a persistent and somewhat contentious fixture in legal discourse. However, any enthusiasm stemming from this prospect must be judiciously tempered. The ongoing and impassioned debate on the subject underscores the yet undetermined final outcome of this transitional phase. Simultaneously, it is imperative to eschew the reassuring illusion that the mere adoption of new legal actors, temporal structures, and an intergenerational law could serve as a panacea for the entirety of legal challenges. Conversely, such decisions are likely to engender novel and thought-provoking issues.
In other words, should this transition be embraced, an array of challenges is likely to manifest. The envisaged profound paradigm shift carries the potential to set off a cascading impact, influencing virtually every level and facet of the legal system. The intricacies and ramifications of such a transformation necessitate meticulous consideration and nuanced navigation through the complex interplay of legal, social, and ethical dimensions.Footnote 236
In light of these premises, the analysis proposed in this Article carries the potential for ambiguity, with outcomes that may lead to rejection or, in the event of adoption, possibly engender more intricate problems than it seeks to resolve. In essence, the speculative cure might prove worse than the disease itself.
Nevertheless, this speculative proposal could also serve as the inaugural step toward addressing a profound shift, offering initial support to alleviate the overarching embarrassmentFootnote 237 characterizing the contemporary relationship between law and future generations. Perhaps, having overcome the initial shock resulting from the demolition of old certainties, the law will realize that only now that “[t]he roof has burnt down, [it will be possible] to see the moon.”Footnote 238
Acknowledgements
I would like to express my deep gratitude to Malte-C. Gruber, Michael W. Monterossi, Günther Teubner, and Andrea Vignando for their insightful input and the constructive conversations we shared on the issue. I also extend my gratitude to Francesco Drigo and Brigitte Rojan for their skilled assistance with the English translation and proofreading of the text.
Finally, I would like to thank everyone involved in the acceptance and editing process of this article at the German Law Journal for their valuable feedback in identifying errors, pointing out omissions, and improving the clarity and flow of the text.
All remaining shortcomings, inaccuracies, or errors are my own.
Competing Interests
The authors declare none
Funding Statement
This work was supported by the Swiss National Science Foundation (SNF), under the research project titled ‘Future Generations in Swiss and European Private Law. Models and Legal Institutions for Protecting the Interests of Future Generations’. The findings and conclusions presented in this paper are those of the authors and do not necessarily reflect the views of the SNF. This article was published with the financial support of the Justus-Liebig-Universität of Giessen, ensuring open access.
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