«Anche nell’interesse delle future generazioni»? Un’indagine sul richiamo alla posterità

«Also in the interest of future generations»? An investigation into the appeal to posterity

Abstract

The introduction of Article 9 of the Constitution’s reference to future generations has sparked a debate in legal studies regarding their presumed legal subjectivity. This article
calls for a theoretical-constitutionalist investigation, including a comparative analysis, with particular focus on the reference to ‘künftigen Generationen’ in Article 20a of the German
Basic Law (introduced in 1994) and German constitutional jurisprudence (most recently, through an analysis of the Klimabeschluss of March 2021). The perspective should extend to other legal cultures that have dealt with similar issues, from the ‘derecho de las generaciones futuras’ to the ‘générations futures’ of French administrative experience. The investigation shows that the reference, while necessary and meaningful for rhetorical purposes, repeats, in terms of application, the limitations identified at the theoretical level. In this sense, the Neubauer case of 2021 offers several prompts for constitutional reflection. The perspective of preserving the status quo towards an indistinct posterity shows several criticisms: it assumes the idea of a future humanity identical to the present one in terms of needs, employed resources, and the number of individuals, which is an anti-historical and perhaps naïve image; the idea of preservation, of passing the baton between generations, underestimates the dynamic burden on present generations in creating a better environment (active, not just conservative). The observation of the emergence of environmental damage, in fact, demands a criticism towards vagueness of rhetorical clauses and requires an increasingly incisive cultural shift and a search for dogmatic categories that will be suitable for achieving sufficient effectiveness.