Paper summary––Protecting future generations: A global survey of legal academics

This is a summary of the paper "Protecting future generations: A global survey of legal academics" by Eric Martínez and Christoph Winter. The summary was written by Riley Harris.

As longtermists, we believe it is crucial to shape the long-term future for the better. Legal longtermists are particularly interested in how the law can be used to safeguard the interests of future generations and improve the lives of people in the coming centuries and millennia. In “Protecting future generations”, Eric Martínez and Christoph Winter find that legal academics tend to believe that future generations deserve greater legal protections.

Do future generations deserve more protection?

Longtermism is the idea that we should focus on making the future better. This is because the future is incredibly important — and if we can make it better in predictable ways, then we could impact the lives of billions or trillions of people. Legal longtermists focus on how legal systems can protect future generations and improve the long-run future. This survey looks at a few open questions in legal longtermism — for example, can and should the law protect future generations? To answer these questions, Martínez and Winter surveyed 516 legal experts from top English-speaking and common-law universities around the world.^[1]

Legal systems tend not to protect future generations.^[2] For example, in the United States, cost benefit analysis is used to make regulatory decisions — but the process “discounts” away the interests of future generations^[3] in a way seems unjustified to most philosophers.^[4]

In the legal system, one of the most important rights is the ability to take legal action. In the United States, this right can be invoked when you are harmed or placed in immediate danger. Harms to future generations don't fit this criteria.^[5] However, over two-thirds of surveyed legal experts thought there was some legal basis for people in the next 100 years to sue, in at least some cases. Strikingly, more than half also thought the same was true for those living more than 100 years from now. This may indicate opportunities to assert the rights of future generations with the right cases and arguments.^[6]

However, future generations have never been allowed to sue (Bogojević, 2020), and legal experts think that future generations should be protected more than they are today. On average, future generations are only protected a third as much as they should be — according to legal experts. They thought that the current generation should be protected more than they are now, and more than future generations should be. They also found that other groups, like animals and people from other countries, are not protected as much as they should be, but future generations are by far the most neglected by the law.

Protecting future generations

The law sometimes has long-term effects, for example, ancient Roman law still influences many civil law systems (Watson 1991). In other cases, effects may be short or unpredictable.^[7] For the legal longtermist, everything hinges on whether the law provides predictable and feasible ways to help future generations. Legal experts think the law can provide protection to future generations, and that it is one of the best ways to predictably help future generations. Martínez and Winter estimate^[8] that around 74% of legal academics somewhat agree that the law can help people more than a century from today. While about 73% somewhat agree that legal methods are among the most predictable and feasible ways of doing so. About 41% somewhat agree there are even ways for the law to protect people who are a millennium away!^[9]

Next, Martínez and Winter explored the most promising areas of law from the perspective of legal longtermism. Many show at least some promise — for each area in the survey at least half of legal academics would somewhat agree that area could be helpful. However, legal academics were most confident in environmental law and constitutional law. The most promising constitutional mechanisms are ensuring that 1% of GDP goes towards safeguarding humanity against existential risks or giving explicit legal standing to future generations.^[10] However, the differences here were small.

Finally, they asked about causes that longtermists tend to find important, to identify the most promising ones for legal intervention. Although at least half of the academics thought all the areas might be helped, they had lower confidence in artificial intelligence (56%) than the others — for instance, climate change (84%).

Conclusion

Eric Martínez and Christoph Winter surveyed legal academics and found that they generally believe that future generations deserve more protection. The law provides a promising avenue for providing these protections — in particular environmental and constitutional law. Future research could explore the attitudes of different groups towards legal longtermism, try to compare specific policies rather than broad areas of law, or investigate other legal concepts such as personhood.

Sources

Renan Araújo & Leonie Koessler (2021). The Rise of the Constitutional Protection of Future Generations. Legal Priorities Project Working Paper No. 7-2021.

Sanja Bogojević (2020). Human rights of minors and future generations: global trends and EU law particularities. Review of European comparative & international environmental law 29/2.

John Broome (1994). Discounting the Future. Philosophy & Public Affairs 23/2.

Tyler Cowen & Derek Parfit (1992). Against the Social Discount Rate. Philosophy, Politics, and Society: Volume 6, Justice Between Age Groups and Generations. Yale University Press. Edited by Peter Laslett & James S. Fishkin.

Moritz A. Drupp, Mark C. Freeman, Ben Groom and Frikk Nesje (2018). Discounting Disentangled. American Economic Journal: Economic Policy 10/4.

Thomas Ginsburg, Zachary Elkins, and James Melton (2009). The Lifespan of Written Constitutions. The University of Chicago Law School.

Andreas Mogensen (2019). Maximal Cluelessness. Global Priorities Institute Working Paper No. 2-2019.

Office of Management and Budget (2003). Executive Office of the President, Circular A-4: Regulatory Analysis.

Derek Parfit (1986). Reasons and Persons. Oxford University Press.

Alan Watson (1991). Roman Law and Comparative Law. University of Georgia Press.

1. ^{^}

   Most of the participants were professors (88.6%), and they came from Europe, Oceania, and the Americas, with some from Asia (9.3%) and Africa (5.2%). Most were at least somewhat liberal (80.4%). Some questions were answered by fewer participants, but they were unlikely a result of chance. Results were also mostly consistent across different demographics — but some questions were answered differently by participants living in Asia.

2. ^{^}

   One exception to this tendency is constitutional law. Around one third of all constitutions mention future generations, usually for environmental protections — but even in countries with strong constitutional protections, these protections are not enforced. See Araújo and Koessler (2021).

3. ^{^}

   Office of Management and Budget (2003).

^{^}

See Parfit (1984), Cowen & Parfit (1992), Broome (1994) and Mogensen (2019). Many economists also agree, see Drupp et al. (2018).

^{^}

Other places have different requirements, but nowhere explicitly allows future generations to sue.

^{^}

It's also possible that there are similarly strong arguments against the legal basis for future generations to sue, or that judges are applying the law incorrectly.

^{^}

For instance, constitutions only last around 17 years on average, and several of the founding fathers were sceptical that the US constitution would last more than a generation. See Elkins et. Al. (2009).

^{^}

Here they randomly sample from the responses to correct for certain distribution types — using a bias-corrected and accelerated bootstrap to generate confidence intervals.

^{^}

Interestingly, 55% thought that environmental law — one of the most promising areas — had a hope of protecting the further future. This perhaps indicates that when these questions were asked in an abstract way experts tended to underestimate how helpful the law could be.

^{^}

They also asked about protecting future generations from discrimination, spending 1% of GDP to protect against existential risks, granting explicit standing to future generations, creating a commision to oversea the protection of future generation, and establishing the explicit state goal of protecting the future.

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