Abstract
Keywords
Introduction
The challenge of protecting future generations’ interests presents one of the most complex problems in contemporary legal theory. 1 As courts worldwide grapple with climate litigation, environmental protection, and sustainable development cases, traditional legal frameworks often appear inadequate to address the temporal complexity and moral dimensions of intergenerational equity. 2 This inadequacy has sparked intense debate about the fundamental grounds of law, that is, the constitutive explanation of what makes legal rights and obligations obtain, and which jurisprudential approach best serves the needs of both present and future generations. 3
Legal interpretivism, as Stavropoulos argues, is ultimately concerned with identifying the grounds of law – that is, with explaining what fundamentally determines the existence of legal rights and obligations. This involves understanding how certain facts determine others in a non-causal but constitutive and explanatory sense, such that one fact obtains in virtue of another. 4 This metaphysical question becomes practically urgent when considering intergenerational equity, 5 particularly as courts develop innovative strategies for operationalising intergenerational justice in climate litigation. 6
Intergenerational equity, defined as the principle that each generation should have the right to inherit a robust planet and that the present generation has a duty to preserve natural resources for future generations, 7 demands legal reasoning that can transcend immediate temporal boundaries and incorporate moral principles into judicial decision-making. 8 The Brundtland Report's conception of sustainable development as “meeting the needs of the present without compromising the ability of future generations to meet their own needs” 9 exemplifies this forward-looking approach, though defining ‘needs’ and measuring intergenerational equity remains inherently complex and value-laden. 10
This article argues that pure (nonhybrid) legal interpretivism provides the most coherent and effective framework for addressing intergenerational equity concerns. As Stavropoulos demonstrates, pure interpretivism differs fundamentally from both orthodox approaches and hybrid interpretivism in that it “does not take the practice already to contribute norms, obligations, or any other kind of normative content” but instead holds that “moral principles determine how the practice may determine such content.” 11 This approach offers courts a methodologically sound basis for protecting future generations’ interests while maintaining judicial legitimacy. 12
The concept of ecological debt, the accrued negative impact humans have on Earth's resources exceeding its regenerative capacity, 13 illustrates the urgent need for legal frameworks capable of addressing complex, long-term environmental challenges that require sophisticated understanding of how institutional practice creates legal obligations. Quantifying and attributing this debt remain complex tasks that require sophisticated legal reasoning capable of balancing present obligations with future consequences.
International environmental law instruments, including the Rio Declaration (a non-binding declaration), 14 and treaties such as the Framework Convention on Climate Change, 15 Convention on Biological Diversity, 16 and Law of the Sea Convention, 17 establish crucial principles and frameworks for addressing intergenerational equity and sustainability. However, the effectiveness of these instruments is often undermined by weak enforcement mechanisms and the challenges of ensuring fair burden-sharing among nations. 18 Moreover, existing treaties may not adequately address emerging intergenerational issues, necessitating regular updates and the development of new norms and principles. 19 Strengthening accountability through international courts and fostering partnerships between diverse actors can enhance the impact of these instruments. 20 The effectiveness of these instruments often depends on how courts interpret their significance – a process that pure interpretivism can illuminate.
The limitations of rigid rule-based approaches become particularly evident when considering the long-term well-being of future generations, who are not represented in current legal and political processes and whose interests may not align with those of present stakeholders. 21 Traditional legal theories that emphasize clear rules and procedural formalism struggle to accommodate the ethical dimensions of intergenerational law and may prioritize present interests over broader temporal concerns.
To effectively protect the rights and interests of future generations, legal systems must embrace approaches that can incorporate ethical considerations into the development and interpretation of law. 22 Pure interpretivism, with its emphasis on constructive interpretation and principled reasoning, provides such an approach. This framework draws upon moral and philosophical insights, including Kantian deontological ethics, to establish a stronger normative basis for intergenerational equity in legal reasoning. 23
The Limits of Traditional Legal Approaches
Traditional legal methodologies often struggle to address the temporal and moral complexities inherent in intergenerational equity. Rule-based approaches, while providing clarity and predictability, can create significant challenges when addressing issues that lack clear legal codification and involve complex value judgments about future consequences.
The fundamental challenge lies in the temporal disconnect between present legal institutions and future beneficiaries. Future generations, by definition, cannot participate in current law-making processes or advocate for their interests through traditional democratic channels. This creates what scholars have termed the “futurity problem”, 24 the systematic underrepresentation of future interests in present decision-making processes.
The Orthodox Explanation And Future Generations
Traditional legal approaches face fundamental challenges when addressing intergenerational equity. On the orthodox view, as reflected in Hart's work and developed by scholars like Raz, “questions about the existence and content of legal rights and obligations are questions purely of institutional history. Legal rights and obligations arise from institutional activity.” 25 Institutions primarily create such obligations through communicative acts. When, for instance, a statute is enacted or a regulation adopted, the institution is best understood as expressing an intention to establish a normative standard – one that takes effect by virtue of that very act of expression and carries the specific content the institution intends to impose. 26
Hart's concept of law emphasizes the separation of law and morality, asserting that law is a matter of what has been posited by recognized authorities. 27 This focus on positive law provides clarity and predictability but creates challenges in addressing issues such as intergenerational equity, which often lack clear legal codification. 28 As Raz explains, this approach treats legal validity as dependent on “enactment by recognised authorities, not on its moral merit.” 29
This communicative model creates several fundamental problems for intergenerational equity. First, future generations cannot participate in the communicative acts that create legal obligations. 30 According to the orthodox view, a legal right or obligation exists because a norm recognised as part of the law confers or imposes it, ultimately grounding its existence in the authoritative act or declaration of a legal institution. 31 But future generations, by definition, cannot “say so” in present institutional communications.
Second, the orthodox view separates questions about legal content from questions about moral force. 32 Stavropoulos explains that, on this view, the moral authority of legal rights and obligations is treated as a distinct issue, one that can only be addressed after determining how those rights and obligations are constituted through institutional practices. 33 This creates what he calls a “two-stage” approach where “we first ask how the practice determines rights and obligations, which is a conceptual or otherwise nonmoral question” and then separately ask “whether rights and obligations so determined truly bind.” 34 For Hart, this separation maintains legal certainty and stability, which is crucial for a functioning society, 35 but it must be balanced against moral imperatives to consider future generations’ rights and interests. 36
The orthodox view's emphasis on clear rules and state consent may not always be sufficient to address the complex challenges of intergenerational equity and environmental protection. 37 Critics argue that this approach neglects the ethical dimensions of law and prioritizes present interests over broader moral concerns. 38 This limitation becomes particularly evident when considering the long-term well-being of future generations, who are not represented in current treaty-making and legislative processes.
The Democratic Legitimacy Problem
The orthodox view faces what Kavka terms the “futurity problem”, 39 the systematic underrepresentation of future interests in present decision-making processes. Critics argue that decisions impacting future generations should be made by democratically elected representatives, not judges. 40 However, this argument faces the fundamental problem that future generations cannot vote or participate in current democratic processes, creating what Gardiner calls “the tyranny of the contemporary” over the future. 41
The case of
The dissenting opinion in
The Challenge of Temporal Complexity And Competing Concerns
Critics like Humphreys raise important concerns about the tension between prioritizing future generations’ interests and addressing “pressing current concerns and systemic injustices.” 48 The overemphasis on the future, Humphreys suggests, can lead to neglect of urgent issues requiring immediate attention and action. 49 This critique highlights the risk of moral grandstanding and the diversion of resources away from the most vulnerable populations in the present.
By focusing extensively on future generations’ well-being, legal systems may inadvertently neglect the needs and rights of those currently suffering from the impacts of climate change and other environmental crises. 50 Humphreys’ characterization of certain invocations of future generations as ‘parochial’ and ‘hypocritical’ 51 challenges the sincerity and effectiveness of some efforts to prioritize intergenerational equity, suggesting that such discourse may be rooted in narrow, self-serving interests rather than genuine commitment to long-term sustainability and justice.
However, these concerns, while valid, point toward the need for more sophisticated legal reasoning rather than abandonment of intergenerational concerns. 52 Future generations discourse can help address both present and future concerns without falling into the traps that Humphreys warns against. 53 This inclusive approach is essential for ensuring that the pursuit of intergenerational equity is grounded in the lived experiences and knowledge of communities on the frontlines of climate change. 54
Embracing a temporal continuum that connects the past, present, and future allows inspiration to be drawn from indigenous peoples and traditional communities in addressing climate injustices. 55 This approach recognizes the interconnectedness of generations and the importance of learning from the wisdom and resilience of those who have long been stewards of the Earth. 56
Courts, especially in the Global South, could be required to incorporate obligations of international assistance and cooperation into their rulings to ensure more collective and equitable approaches to climate justice. 57 By requiring defendant states to seek assistance from major polluters or financial institutions, courts can foster more collaborative and effective responses to climate crises that recognize shared responsibility for protecting present and future generations. 58
The limitations of traditional approaches in addressing intergenerational equity and the challenges of future generations discourse underscore the tensions between parochial interests and long-term global imperatives. The unequal impacts of climate change and varying adaptive capacities of nations emphasize the need for nuanced and context-sensitive approaches to legal reasoning. 59 Engaging with climate science resonates with the limitations of orthodox approaches in addressing the dynamic and evidence-based nature of climate change.
Pure Interpretivism and The Grounds of Law
Pure interpretivism offers a fundamentally different approach to these challenges by reconceptualizing the relationship between institutional practice and legal obligations. 60
The Interpretivist Alternative
Stavropoulos characterises interpretivism as a form of natural law or nonpositivist theory, on the basis that it holds moral considerations to be necessarily involved, alongside institutional practices and potentially other non-moral social facts, in explaining the existence and content of legal rights and obligations. 61 However, pure interpretivism goes further than merely adding moral considerations to institutional facts.
Pure interpretivism takes a distinctive view of the role of legal practice in determining the content of law. While it acknowledges that institutional practice, described without invoking normative language, plays a role in explaining legal content, it denies that such practice alone is sufficient to constitute it. Instead, nonhybrid interpretivism maintains that moral principles are what ultimately determine how, and to what extent, institutional practices contribute to the content of the law. 62
This approach builds upon Dworkin's foundational work on legal interpretation, which argues that law is not just a set of rules but also includes principles that provide the best moral justification for those rules. 63 In complex cases, where rules are unclear or lead to seemingly unjust results, Dworkin suggests that judges should engage in ‘constructive interpretation,’ interpreting legal materials in the way that best fits and justifies them from the standpoint of political morality. 64
This approach has several crucial implications for intergenerational equity. First, as Stavropoulos emphasises, legal obligations are not brought into existence simply because institutions declare them, nor is their content determined solely by institutional pronouncements. 65 This means that legal obligations toward future generations need not depend on explicit institutional statements about such obligations. A legal obligation does not necessarily align with the content of official pronouncements, nor must it arise simply because an institution has declared it so. 66
Second, the aim of moral explanation is not to evaluate the authority of obligations whose content is already assumed. Rather, it is to account for how such obligations arise in the first place, and thereby to determine what their content actually is. 67 This integrated approach avoids the orthodox view's problematic separation between legal content and moral force. No question of content is assumed to be resolved in advance, and no question of normative force remains unresolved.
As Fuller argues, law is not just a set of rules but an enterprise of subjecting human conduct to the governance of rules. 68 For this enterprise to succeed, Fuller suggests that legal systems must adhere to certain principles of the ‘internal morality of law,’ including ‘generality, publicity, prospectivity, clarity, consistency, possibility of compliance, stability, and congruence’ between official action and declared rule. 69 While Fuller's principles are primarily formal rather than substantive, they have important implications for intergenerational equity.
Constructive Interpretation and Future Generations
Dworkin's theory of constructive interpretation, as analyzed by Stavropoulos, provides the methodological foundation for addressing intergenerational equity. The central claim of interpretivism is that institutional practices influence the content of law only through the mediation of underlying principles that justify why those practices should have legal significance. Interpreting legal practice involves identifying these principles, which in turn determine the normative implications of the practice for the rights and responsibilities of citizens. 70
Applied to intergenerational equity, this means that courts should ask: what moral principles best explain why institutional practice should have the power to create legal obligations, and how do those principles apply to obligations toward future generations? Rather than mechanically applying institutional communications, judges engage in principled reasoning about the moral foundations of legal authority.
Dworkin's distinction between principles and policies provides additional guidance for intergenerational reasoning. 71 Principles specify individual rights and are trump cards that generally prevail over competing considerations, while policies specify collective goals and can be balanced against other social objectives. Intergenerational equity concerns often involve both principled claims (future generations’ rights to inherit a livable planet) and policy considerations (optimal resource allocation across time).
When courts recognize that future generations have fundamental rights to environmental protection – as increasingly seen in climate litigation – they are making principled claims that should generally trump competing policy considerations. When they engage in complex balancing about optimal mitigation strategies or resource allocation, they are appropriately engaging in policy analysis that should be more deferential to democratic institutions.
As Stavropoulos explains, pure interpretivism does not limit the factors relevant to determining legal content to institutional pronouncements or to what is accepted as authoritative in settled legal opinion. 72 This opens space for considering how institutional practice affects intergenerational obligations even when institutions have not explicitly addressed such obligations. Perhaps a court said that damage caused by carelessness made a defendant liable, but might not have mentioned whether the magnitude and likelihood of damage compared to the burden of precaution were germane to the standard of care. The answer would depend on further principles explaining why and how past decisions are relevant to future cases.
These complications apply equally to statutory interpretation. Candidate factors might include the plain meaning of statutory text, actual linguistic intentions of legislators, their intentions to change legal rights in certain ways, the effect they would have intended if they had considered circumstances they did not, purposes formally announced in preambles or sponsors’ reports, and reasons given during debates. 73 For pure interpretivism, interpretive hypotheses test these considerations by appealing to principles of political morality that justify particular aspects of institutional action having roles as determinants of rights and obligations.
The Holistic Structure of Interpretation
Pure interpretivism adopts what Stavropoulos calls a “holistic structure” where “the whole of morality confronts the whole of institutional practice and determines its effect, which interpretation purports to identify.” 74 This contrasts with the orthodox view's “atomistic” approach where “institutions issue directives each of which conveys and thereby creates a valid norm” and “the impact of each individual institutional action is therefore distinct.”
This holistic approach is particularly valuable for intergenerational equity because it allows courts to consider how the entire pattern of institutional practice – including environmental legislation, constitutional commitments, international agreements, and administrative actions – collectively bears on obligations to future generations, rather than examining each institutional act in isolation. Because pure interpretivism maintains that moral principles shape the way institutional practices give rise to legal rights and obligations, it adopts the holistic character of moral reasoning itself. 75 Particular episodes of institutional practice, such as enacting new environmental statutes, change rights and obligations by changing the content of the practice and therefore its moral effect.
Green's moral impact theory of law offers additional insights into how moral reasoning can legitimately influence legal interpretation. According to this theory, legal facts can exist independently of any specific community's law practices, and fundamental moral principles can determine legal norms. 76 This perspective suggests that some moral truths – such as basic principles of fairness and justice – exist independently of specific societal recognition and can guide legal interpretation even in hard cases.
The moral impact theory's emphasis on universal moral principles aligns with the idea that intergenerational equity represents a fundamental moral requirement that should guide legal decision-making. By recognizing these universal moral principles, courts can legitimately consider the interests and rights of future generations as part of their interpretive methodology. 77 The non-communitarian argument, which posits that legal norms can exist independently of specific communities with their own legal practices, further supports the application of intergenerational equity principles in hard cases.
Why Institutional Practice Matters: The Moral Foundation
Stavropoulos identifies a crucial question for pure interpretivism: “how is it that some or other aspect of institutional practice is so relevant?” 78 His answer provides the moral foundation that makes pure interpretivism particularly suited to intergenerational concerns.
Pure interpretivism provides a fully moral account of why institutional practices carry normative significance, grounding that significance in a moral concern that justifies the role such practices play. 79 It specifically maintains that legal institutions may not legitimately enforce claims against individuals unless those claims satisfy the requirements of legality, namely, that they are properly rooted in institutional practice.
The moral concern underlying this constraint is the need to regulate the state's coercive power, its capacity to use force or direct citizens’ actions, by insisting that any demands imposed on individuals must satisfy specific conditions in order to be legitimately enforceable. 80 This creates what Stavropoulos calls “a condition of permissible enforcement of demands against a person, a special moral test that applies to any such demand.” This approach is closer to Kelsen's view that legality constitutes a boundary separating permissible coercion exercised in the name of the community from impermissible coercion. 81
A familiar hypothesis holds that the moral relevance of law stems from institutions’ effective capacity to exercise force or otherwise coercively direct the conduct of citizens. Legality constrains this power by constituting a necessary condition that demands against persons must meet to be permissibly enforced. In this role, legality is not a moral filter screening candidate norms identified by nonmoral tests, but rather a condition of permissible enforcement applying to any demand, including those entirely unfounded and those passing other moral tests.
For intergenerational equity, this moral foundation is crucial. When courts enforce obligations to protect future generations, they must ground such enforcement in institutional practice, but the relevant moral principles – particularly those requiring government to “act in line with an honest conception of justice” 82 – can justify interpreting institutional practice as creating robust intergenerational obligations even when such obligations are not explicitly stated.
The best known approach, developed by Dworkin, begins with the claim that what explains the role of institutional history in identifying and enforcing rights and obligations is that government's action should be consistent in principle – treating what's morally like alike, ultimately explained by reasons of fairness and government's special duty to treat citizens as equals. 83 This approach holds that it is wrong for government to exercise coercive power unless such exercise is allowed by law, where law works as a constraint grounded in political morality.
Government must justify coercive action by appeal to its institutional practice. The explanation for legality's role in coercive power is that government has a standing obligation to act in line with an honest conception of justice. It cannot meet this obligation unless it takes what it has said and done on pertinent issues as relevant to what it may do now. Justice is egalitarian in character, and the requirement of treating morally like alike binds government to use force consistently with how it has used or would use it in relevantly similar circumstances.
Principled consistency in the use of force does not mean government is bound to apply all promulgated norms or repeat past mistakes. Rather, the morality of coercive interaction makes institutional practice relevant to what may be done now. Government must take its other actions seriously and act in ways consistent in principle with that action taken together. Any past action that cannot be justified under the scheme justifying the rest is not relevant to what should be done now and should be set aside as mistake.
The requirement that government action be principled rather than formally consistent leads to the conclusion that legal rights and duties are grounded in those moral principles that best justify institutional outcomes and settled practices. These are moral norms that maintain the appropriate connection to institutional conduct and are therefore enforceable by the state. 84
Interpretivist Solutions in Practice
Contemporary climate litigation demonstrates how courts are employing reasoning consistent with pure interpretivism when addressing intergenerational equity concerns.
Evolving Law and Judicial Recognition
Legal systems can evolve to recognize new rights and obligations, including those concerning future generations. 85 While interpretivists emphasize principled reasoning, they also acknowledge that legal interpretation can develop over time based on changing societal values and scientific understanding. This evolution could potentially include growing recognition of the rights of future generations. Environmental regulations might be strengthened based on evolving scientific understanding of impacts on future generations.
A series of climate change litigation cases demonstrate how courts have interpreted existing laws to accommodate intergenerational equity concerns through sophisticated interpretivist reasoning.
The Dutch Approach: Principled Consistency
The Dutch Supreme Court's decision in
The court held the Dutch government partially liable for inadequate action on climate change, citing its obligation to protect the rights of future generations. 87 The court recognized the ‘present danger’ posed by climate change and ordered the government to reduce greenhouse gas emissions by 25% by 2020. It emphasized the potential for judicial action to enforce intergenerational responsibility, including the Dutch government's duty of care to mitigate climate change for future generations.
The court grounded its decision in existing legal materials – human rights law, constitutional provisions, tort principles – while interpreting their application to climate change. This reflects pure interpretivism's requirement that interpretation must fit reasonably well with established legal materials while asking what interpretation presents the legal system in its best moral and political light.
Crucially, the court's reasoning exemplifies what Stavropoulos calls principled consistency in government action. According to his account, pure interpretivism maintains that government bears a continuous duty to act in accordance with a sincere conception of justice. It can only fulfil this duty by treating its prior statements and actions on relevant matters as bearing on its current and future decisions.
European Human Rights Evolution
The European Court of Human Rights’ decision in
The Court's approach to intergenerational justice, as reflected in its interpretation of Article 8, suggests a broadened temporal scope for ECHR protection in the context of climate change, incorporating a forward-looking, intergenerational perspective into states’ positive obligations. The Court explicitly stated that Article 8 ECHR encompasses a right to “effective protection by the State authorities from serious adverse effects of climate change on life, health, well-being and quality of life.” 90
Corporate Obligations and Institutional Practice
The decision in
The court interpreted Article 6:162 of the Dutch Civil Code, which defines tortious acts as including violations of “proper social conduct,” in light of contemporary understanding about climate change and corporate responsibility. Shell was required to observe due care exercised in society, considering all circumstances of the case. 93 The court ordered Shell to reduce carbon dioxide emissions from its global operations by 45% by 2030 compared to 2019, marking the first time a court imposed such a broad mitigation obligation on a corporation.
However, the Court of Appeal of The Hague (2024) took a more restrained approach, acknowledging that Shell's duty of care extended to future climate harm but struggling to translate this into specific reduction targets without explicit legislative guidance. 94 This demonstrates the ongoing evolution of interpretivist reasoning in corporate climate cases.
Constitutional Interpretation and Future Generations
The German Federal Constitutional Court's decision in
The court emphasized that the government has a constitutional duty to protect the rights of future generations and that existing measures did not adequately fulfill this obligation. 96 The court introduced the concept of ‘advance interference-like effect’ to assess constitutional justification of interference with fundamental rights in the context of climate protection, 97 and highlighted the importance of protecting future generations’ rights to enjoy carbon-intensive freedoms while transitioning to a decarbonized economy.
However, there were concerns raised about the court's approach, as it focused on protecting emission-intensive freedom rights rather than fully addressing intergenerational and intragenerational equity. The court's perception of the carbon budget as a ‘freedom budget’ was seen as limiting its contribution to protecting natural foundations of life for future generations. 98 The court emphasized the need for international cooperation in advancing climate protection and recognized the intertemporal perspective of rights protection.
Minnerop suggests an alternative reading of Article 20a Basic Law that aligns the state's mandate to protect natural foundations of life with an international principle of intergenerational equity, emphasizing the need to go beyond protecting CO2-producing freedom rights. 99 By suggesting this alternative reading, Minnerop's argument reflects a deontological concern for upholding moral duties and principles that transcend individual interests. This scholarly dialogue exemplifies the kind of ongoing interpretive reasoning that pure interpretivism envisions.
The case illustrates how courts can play a role in extending legal principles to protect future generations, even in the absence of explicit legislation addressing intergenerational equity.
American Approaches and Youth Rights
The US Montana First Judicial District Court's decision in
The US Supreme Court's decision in
Global South Perspectives and Environmental Courts
The proliferation of environmental courts in the Global South demonstrates growing judicial capacity to address intergenerational concerns through interpretivist reasoning. In the Indian Supreme Court's decision in
In
Similarly, in the Pakistani case of
In
Ganguly et al argue that advancements in scientific understanding, changes in public discourse, and evolving legal principles create new opportunities for climate change litigation against major carbon producers. 113 They discuss how these developments create opportunities for judges to interpret existing legal requirements in climate change litigation.
The proliferation of specialist environmental courts and tribunals, particularly in the Global South, is identified as a factor contributing to the increase in climate change litigation worldwide. Examples from countries like Kenya demonstrate judicial capacity to address climate change matters and consider environmental damage as violations of fundamental rights. It highlights the importance of framing corporate inaction against climate change as failure toward the state, investors, and shareholders, opening new avenues for legal action.
Courts in the Global South increasingly incorporate “obligations of international assistance and cooperation into their rulings” to ensure “more collective and equitable approaches to climate justice.” 114 By requiring defendant states to seek assistance from major polluters or financial institutions, courts can foster more collaborative and effective responses to climate crises that recognize shared responsibility for protecting present and future generations. 115 This reflects pure interpretivism's holistic approach where courts consider how the entire pattern of institutional commitments – domestic and international – bears on legal obligations.
Private Law Evolution
Rossi and Ruhl discuss the potential for private law to address climate change adaptation challenges through interpretivist evolution. 116 They provide a compelling example of how legal systems can accommodate intergenerational equity through the evolution of law. The authors argue that by integrating principles of intergenerational equity into existing private law doctrines such as tort, property, and contract law, legal systems can better address the long-term consequences of climate change and promote sustainability for future generations.
Rossi and Ruhl highlight growing recognition among legal scholars of the need to adapt private law principles to address complex challenges posed by climate change. This indicates evolution in legal thinking, as traditional private law doctrines are being re-examined and reinterpreted to accommodate intergenerational equity concerns. The authors emphasize the importance of adapting key legal principles, such as foreseeability, to effectively address climate change challenges and provide meaningful guidance for adaptation efforts.
The focus on bilateral disputes and incremental improvements to adaptive behavior suggests that evolution of private law to accommodate intergenerational equity can occur through gradual changes and accumulation of precedents. This incremental approach aligns with interpretivist understanding of law as a system that evolves over time in response to changing social, economic, and environmental conditions.
Addressing Challenges to Pure Interpretivism
Pure interpretivism faces several challenges that must be addressed to maintain its legitimacy for intergenerational equity cases.
The Disagreement Problem
One of interpretivism's most important insights concerns disagreement about the grounds of law. 117 As Stavropoulos explains, “interpretivism about law implies the possibility of disagreement about the grounds of law, because it makes law's constitutive explanation a matter of substance – specifically, a matter of the moral justification of the role of institutional history in the determination of rights and obligations.”
This capacity for fundamental disagreement is actually an advantage for intergenerational equity. As Stavropoulos notes, “substantive investigation is indispensable to a complete explanation of the nature of the relevant object” and “often must come first, before we realize that it is indeed germane to the nature of the object.” This means that legal systems can evolve their understanding of intergenerational obligations through interpretive disagreement and development.
Dworkin anticipated that his examples of disagreement about grounds would be reinterpreted by critics as disagreement about social facts or about how to change the law, and invited critics not to rule out the possibility that disagreement might be more fundamental. He called the assumption that disagreement about grounds is impossible “the semantic sting.” 118 It is now a familiar claim in general philosophy that an account of the nature of certain objects is not built into the understanding sufficient for competent use of words that refer to them.
Stavropoulos argues that we should expect interpretive challenges to “occur with some regularity, and that arguments once widely considered not colorable may come to be taken seriously and finally to become dominant.” Climate litigation exemplifies this pattern – arguments about constitutional obligations to future generations that seemed implausible decades ago are now winning in courts worldwide. The quick transition from nonstarter to endorsement by the US Supreme Court of views about constitutional limits on legislative authority to regulate private civilian uses of firearms or federal regulatory powers illustrates this phenomenon. 119
Judicial Competence and Institutional Constraints
Critics worry that interpretivism gives judges too much discretion in complex policy areas. 120 One concern is that judges, in pursuit of intergenerational equity, might exceed their proper role by creating law rather than simply interpreting it. This could be seen as a form of judicial activism that undermines the predictability and legitimacy of law. To address this, any consideration of intergenerational equity must be tightly constrained and rooted as much as possible in existing legal principles.
However, pure interpretivism addresses these competence concerns through its constraint structure. As Stavropoulos explains, interpretation must both fit reasonably well with established legal materials and provide the best available moral and political justification for those materials. This dual constraint means judges cannot simply impose their policy preferences. They must ground interpretive conclusions in institutional practice while providing principled moral justification for their interpretations.
The separation of powers doctrine holds that the three branches of government should have distinct roles and act as checks and balances on each other. 121 When judges engage in what critics call activism, they are accused of usurping the legislative role by creating new laws or policies. This concern is particularly acute in intergenerational equity contexts, as decisions made on behalf of future generations can have far-reaching and long-lasting consequences.
For intergenerational equity, this means courts must show how protecting future generations fits with existing institutional commitments and moral principles underlying legal authority. The German Constitutional Court's approach in
The case of
Similar concerns about judicial activism have been raised in other cases involving intergenerational equity and environmental protection. In
To address these concerns, courts should ground their decisions in well-established legal principles and be transparent about their reasoning. When considering factors like intergenerational equity, courts should strive to tie their analysis as closely as possible to existing legal doctrines and precedents. Courts should also be mindful of the limits of their institutional competence and the potential unintended consequences of their decisions. 126
Democratic Legitimacy and Future Representation
The democratic legitimacy challenge requires careful consideration of pure interpretivism's relationship to democratic values. Critics argue that allowing judges to make decisions on behalf of future generations amounts to ‘judicial legislation’ that undermines representative democracy. 127 As Stavropoulos notes, pure interpretivism recognizes that “it is essential to law that the legality of a demand – its being grounded in institutional history in the right way – is a condition of its permissible enforcement.” This means interpretive reasoning must remain grounded in institutional practice, not judicial invention.
However, there are compelling arguments for why some degree of judicial intervention may be justified in cases involving intergenerational equity. One such argument is that the interests of future generations are systematically underrepresented in democratic processes, as they cannot vote or lobby for their interests. 128 This creates a risk that short-term political considerations will consistently be prioritized over long-term sustainability, leading to what Gardiner calls ‘tyranny of the contemporary’ over the future.
The systematic underrepresentation of future interests in democratic processes creates structural bias toward present concerns. Pure interpretivism can address this by interpreting constitutional and legal commitments to human dignity, equality, and justice as extending to future generations, particularly when such interpretation provides the best moral justification for existing institutional practice.
Constitutional systems specifically address this problem by enshrining certain core principles and rights protected from majoritarian override. 129 When judges interpret constitutional provisions protecting ‘life,’ ‘human dignity,’ or ‘equal protection’ to include consideration of future generations’ interests, they are fulfilling their legitimate constitutional role rather than usurping democratic authority. By enshrining certain core principles and rights protected from majoritarian override, constitutions provide legal basis for courts to intervene when democratic processes fail to adequately consider future generations’ interests.
The separation of powers is not an absolute principle, and there are many examples of courts playing legitimate roles in shaping policy through interpretation and application of law. 130 Finding the right balance will require ongoing dialogue and negotiation between courts, legislatures, and the public at large.
The Boundaries Problem
Stavropoulos addresses an important question about legal boundaries: what distinguishes legal obligations from other moral consequences of institutional action? 131 For intergenerational equity, this boundary question is crucial because not every moral obligation to future generations should necessarily be legally enforceable.
Pure interpretivism addresses this through its understanding of legality as “a condition of permissible enforcement of demands against a person.” Legal obligations to future generations are those that bear the appropriate relationship to institutional practice such that enforcing them serves the moral values underlying legal authority – particularly principled consistency in government action and equal treatment of persons’ fundamental interests.
The requirement of legality plausibly imposes procedural and other constraints on the kind of institutional action that may ground legal rights and obligations. Officials often make public announcements about their future behavior designed to shape expectations and thereby action of their intended audience. 132 When assurances are given with the purpose of inducing reliance, they commonly generate new obligations toward the recipient, including a potential duty to perform. But there is no reason to expect that action of this kind, taken by officials outside normal procedures, should in itself affect any legal right or duty.
For similar substantive reasons, it does not follow from interpretivism's conception of legal rights and duties as moral consequences of institutional action that it cannot distinguish between enforceable rights and duties that obtain in consequence of institutional action whose role serves the value of legality, and further moral consequences downstream of these rights and duties. We can distinguish between the legal duty of a business owner to purchase new, more costly health insurance for employees following enactment of health care legislation specifying minimum coverage, and the owner's further, derivative duty owed to family to reduce personal spending to make ends meet given increased business expenditure.
The business owner comes to have the legal duty to purchase the new program because, once new legislation is factored into institutional practice, that is what principled consistency in the practice dictates. The duty obtains because of the difference that legislation properly made to the law. The owner comes to have some duty of financial prudence because of the effect of these developments on finances, together with certain personal circumstances and standing obligations unrelated to the subject matter of legislation and principles governing it. There is no reason to suppose that this duty bears the right relation to institutional practice that would qualify it as genuine legal duty whose recognition and enforcement would serve principled consistency.
Alternative Paradigms and Future Development
Beyond traditional interpretivist approaches, alternative legal paradigms offer additional insights for addressing intergenerational equity concerns.
Rights of Nature and Legal Ontology
Boulot and Sterlin's call for a legal ontological turn challenges some fundamental assumptions of Western legal systems while potentially enriching interpretivist reasoning. 133 They argue that current legal systems, grounded in a ‘one-world world’ paradigm, fail to effectively prevent and remediate environmental harm and hinder progress toward sustainability. This critique highlights the limitations of traditional approaches in addressing complex environmental issues and the need for alternative legal paradigms that are more inclusive and earth-sustaining.
Their proposal for a legal ontological turn explores new possibilities at the intersection of diverse legalities, including indigenous legal thinking and ecological jurisprudence. By embracing a more holistic and inclusive legal framework that respects all beings, this ontological turn has the potential to create legal systems better equipped to address challenges of intergenerational equity and environmental sustainability.
Examples like the 2008 Ecuadorian Constitution and the Whanganui River settlement in New Zealand 134 demonstrate possibilities for incorporating diverse legal perspectives that inherently consider intergenerational relationships. These interventions, influenced by indigenous legal and ontological orders, represent significant steps toward more inclusive and earth-sustaining legal frameworks. However, as Boulot and Sterlin note, incorporating diverse legalities also presents complexities and potential issues, such as incommensurability between liberal legal orders and rooted legal orders.
The authors’ critique of the anthropocentric narrative of reason and liberalism in environmental law, and their call for inspiration from disciplines like anthropology and environmental continental philosophy, further supports the need for more holistic approaches to legal theory. By moving beyond the hegemony of empirical description dominated by natural sciences, legal scholars can develop more comprehensive legal theories that consider the encounter between different cosmologies and are better suited to addressing complex challenges of environmental protection and intergenerational equity.
These approaches can inform pure interpretivism by providing alternative frameworks for understanding temporal relationships and moral obligations. Indigenous legal traditions that incorporate concepts like the “seven generation principle” offer resources for interpreting existing institutional commitments in light of intergenerational values. Many indigenous worldviews emphasize the interconnectedness of all beings and the importance of stewardship for future generations, providing rich resources for developing legal frameworks that prioritize long-term sustainability.
Integrating indigenous insights into interpretivist legal reasoning requires careful attention to issues of cultural appropriation and legal colonialism. However, when done respectfully and with appropriate indigenous participation, such integration can enrich legal interpretation while addressing some of the temporal and moral challenges that traditional Western legal approaches struggle to address.
Relationship to Recent Theoretical Developments
Recent work by Greenberg and Hershovitz offers complementary approaches to pure interpretivism. 135 Focusing on the mechanism through which institutions can change people's normative situation, Greenberg and Hershovitz claim that legal rights and obligations are a subset of moral rights and obligations that obtain in virtue of actions of legal institutions. Greenberg argues that legal rights and obligations are a subset of moral rights and obligations that obtain in virtue of actions of legal institutions and that law is “supposed to improve the moral situation.” When legal institutions improve the moral situation, for example by taking action that secures coordination, the resulting moral obligations are legal obligations. But when actions of legal institutions give rise to obligations to resist or undo or otherwise mitigate what institutions did, the resulting obligations do not trace to institutional action in the proper way.
Hershovitz argues that the practice of legal institutions has a variety of normative consequences, moral and prudential and suggests using ‘legal’ as a label for some of those depending on context. Developing a point from Dworkin, Hershovitz argues that the idea that there is an existing body of law, which comprises all and only those rights and obligations in force in a given system, plays no role in legal practice. He argues that the better view is that practice of legal institutions has a variety of normative consequences, moral and prudential. We might use ‘legal’ as a label for some of those, depending on our purposes: for example, to mark the source of an obligation or the institution that gets to enforce the obligation.
This flexibility about boundaries complements pure interpretivism's focus on identifying moral principles that make institutional practice relevant to rights and obligations. As Stavropoulos notes, these approaches share “common ground” with interpretivism in recognizing that “the practice of legal institutions may change rights and obligations because and to the extent that it is morally relevant” and that “the rights and obligations so produced are ordinary, genuine moral rights and obligations.”
Moreover, this implies that legal institutions can exploit the fact that their action is generally morally relevant in order reliably and systematically to change what we owe to each other.
While the views in discussion focus on these implications, interpretivism concentrates on the problem of identifying the content and operation of principles that in fact make legal practice morally relevant and govern its effects on rights and obligations.
Extreme Cases and Moral Necessity
Harel and Sharon's exploration of ethical and legal dilemmas presented by extreme cases offers valuable insights into the challenge of reconciling pure interpretivism with moral necessity in hard cases. 136 The authors provide several examples of situations where traditional legal principles and procedural fairness considerations may need to be set aside in the face of imminent threats or catastrophic consequences.
One such example is the case of rogue planes, where immediate action is required to prevent potential disaster. In these situations, adherence to standard legal procedures and fairness considerations may not be feasible or practical, given the urgency of the threat. Similarly, in ‘ticking-bomb’ scenarios involving torture, the authors suggest that the necessity of averting greater harm may justify lack of procedural fairness, even if it means deviating from standard legal prohibitions. Targeted assassinations provide another example where the need for immediate action to eliminate specific threats may override considerations of procedural fairness.
These examples illustrate the authors’ argument that in extreme cases, characterized by urgent and exceptional circumstances, departures from standard procedural fairness may be justified to address immediate threats and prevent catastrophic consequences. This argument has important implications for consideration of intergenerational equity in legal decision-making, particularly in hard cases where the law is ambiguous or incomplete. Just as Harel and Sharon suggest that justification for exceptional actions in extreme cases lies in the necessity of averting disaster, consideration of future generations in hard cases can be seen as a way of upholding moral duty to ensure long-term sustainability of the planet, even when the letter of the law is unclear.
While extreme cases discussed by Harel and Sharon may seem far removed from challenges of intergenerational equity, their insights into the relationship between law and morality in times of crisis offer valuable lessons for legal decision-making in this context. By recognizing the need for flexibility and moral sensitivity in hard cases, while also maintaining core principles and values that underpin the law, judges can strive to uphold moral minimums of ensuring a sustainable future for generations to come, even within constraints of sophisticated legal interpretation.
Conclusion
This analysis demonstrates that pure legal interpretivism could provide a robust and theoretically coherent framework for addressing intergenerational equity in contemporary jurisprudence. 137 Unlike approaches that struggle to integrate moral reasoning about future generations’ interests with legal interpretation, pure interpretivism's recognition that “moral principles determine how institutional practice may determine” legal content offers a methodologically sound foundation for protecting future generations while maintaining judicial legitimacy.
As Stavropoulos demonstrates, pure interpretivism's advantages include its theoretical coherence, its capacity to address fundamental disagreement about legal grounds, its holistic structure that can accommodate complex intergenerational relationships, and its moral foundation that explains why institutional practice should matter for legal obligations. These features make pure interpretivism particularly well-suited to the temporal and moral complexities inherent in intergenerational equity challenges.
Contemporary climate litigation illustrates both the promise and ongoing development of interpretivist approaches to intergenerational problems. Cases from the Netherlands, Germany, and emerging decisions from the Global South demonstrate that courts are already engaging in sophisticated interpretivist reasoning, though with varying degrees of theoretical sophistication and institutional support.
The key insight from pure interpretivism is that legal obligations to future generations need not depend on explicit institutional statements about such obligations. Instead, courts can engage in constructive interpretation that asks what moral principles best explain why institutional practice should create legal obligations, and how those principles apply to intergenerational concerns. This interpretive process must remain grounded in institutional practice while providing the best moral justification for that practice.
Several important challenges remain. Questions about appropriate judicial restraint, democratic legitimacy, and legal boundaries require ongoing attention. However, pure interpretivism's constraint structure, requiring interpretation to both fit with institutional practice and provide moral justification, offers principled guidance for addressing these challenges.
The establishment of trust funds and appointment of guardians ad litem can provide concrete mechanisms for representing future interests within interpretivist frameworks. 138 When courts recognize the use of trust funds and guardians ad litem to represent future interests in climate litigation, they affirm institutional capacity to address intergenerational representation through legal interpretation.
Alternative legal paradigms, including indigenous approaches and rights of nature frameworks, offer additional resources for interpretivist reasoning. These approaches provide valuable insights about temporal relationships and moral obligations that can inform interpretation of existing institutional commitments.
Future research should explore how interpretivist methodology can best integrate evolving scientific understanding, what institutional reforms might support interpretive reasoning about intergenerational issues, and how international legal cooperation might enhance domestic interpretivist approaches.
Although achieving intergenerational equity through legal means presents ongoing challenges, ongoing theoretical exploration, development of innovative solutions, and collaborative efforts toward broader societal changes offer promising avenues for fostering sustainable practices and advancing intergenerational justice. 139 Pure legal interpretivism offers our best hope for developing legal frameworks adequate to these essential tasks. By recognizing that institutional practice creates legal obligations through moral principles rather than mere institutional say-so, pure interpretivism provides theoretical foundation for robust protection of future generations’ interests while maintaining the legitimacy and coherence of legal institutions in democratic societies.