On Intergenerational Constitutional Legitimacy

KIRA, Takayuki（吉良貴之）

Utsunomiya Kyowa University, Japan

jj57010@gmail.com

2014.8.22The 2014 9th East Asian Conference on Philosophy of Law

at Hankuk University of Foreign Studies

purpose of this presentation

• to articulate the conditions of constitutional legitimacy, in particular,

1) on its intergenerationl (not only synchronic

but diachronic) aspects

2) in reference of ontological time theories

How can we make legitimate decisions under (scientific) uncertainty?

• faced with the spread of disbelief to experts

– because of, for example, Fukushima Daiichi nuclear disaster, radioactive contamination, and STAP cell scandal, and so on

• cf. 2009 L'Aquila earthquake and

the following “science court”

Uncertainty

• Scientific uncertainty will be increased more and more in a long time span

• How can we know the preferences of distant future generations?

Def. Legitimacy

• “legitimacy” means not only the procedural values free from justness of decisions,

• but substantive reason that is a basis for the general acceptance.

constitutional legitimacy (1)

• “constitutional change by reinterpretation”

• The Abe cabinet has changed the article 9 of the Constitution of Japan and approved of the limited right of collective self-defense.

• This decision has been criticized by many people as “illegitimate”, but why?

constitutional legitimacy (2)

• substantive reasons: tyranny of the majority; fear of state militarism

• procedural reason: not by formal amendment but by de facto reinterpretation

• Does the uncertainty of meanings weaken the constitutional legitimacy, or rather strengthen ?

• This problem depends on the following “time perspectives.”

presentism and eternalism

• Two major time theory of analytical metaphysics– eternalism: all things are equally real in four-dimensional

time-space

– presentism: only present things are real, the world newly emerges at every moment!

• These approaches are not compatible in a strict ontological sense, but I’d like to regard them as world views (not necessarily incompatible), and articulate the implications of these views to the constitutional legitimacy.

eternalistic legitimacy -- atemporality

• J. Rubenfeld (2001) : prospective view– Constitional legitimacy is based on the reality (at least,

communal belief) of the intergenerational community that continues to the future.

• R. Dworkin (1986): retrospective (integral) view

– Holistic justification of the total legal practice of the community so far is an essential element of constitutional legitimacy.

→ integrity, continuity, persistence, prospectiveness, etc.

presentistic legitimacy -- temporality

• Th. Jefferson (1789) :

each generation’s own constitution

• Peg Birmingham (2006):

“right to have rights” for “action” (H. Arendt)

• Drucilla Cornell (2007):

freedom as an endless re-imagination of the self

and the world

→ freedom, self-decision, open future, contingency, etc.

summary

• On the basis of these two views of the world inspired by metaphysics of time, we can properly articulate the various ways of constitutional legitimacy that we usually unconsciously mix.

• For intergenerational constitutional legitimacy, it seems that we must have prospective intergenerational imagination.

• However, because our liberal democracy can be characterized as presentistic, there is much difficulty.

generational accounting (1)

• GA is a tool of visualizing the intergenerational imbalance that represent each generation’s benefit and expense in relation to their government.

• Japanese intergenerational imbalance is so acute, and other industrialized countries often show a similar tendency.

generational accounting (2)

moral implications

• Does this imbalance undermine our imagination or motivation for intergenerational corporation?

• Possibilities of generational accounting:

• negative:

intensifying the confrontation between generations

• positive:

promoting a sense of intergenerational responsibility

conclusion (1)

• Intergenerational constitutional legitimacy is multi-layered, and we can properly articulate it with a help of time perspectives inspired by analytical metaphysics (this is not exclusive way).

• Probably, we need prospective intergenerational imagination, but because our (liberal) democracy is often characterized as contemporariness, it is difficult for us to care our future, still less, faced with the intergenerational imbalance visualized by the generational accounting.

Conclusion (2)

• In Japan, however, because of the 2011 Tōhokuearthquake and tsunami disaster, it seems that Japanese national community sense has been expanded to the distant future.

• It is symbolized by a word “Kizuna” (bond) that includes future generation loosely.

• Radical uncertainty may, paradoxically, associate our presentistic democracy with the intergenerational responsibility and legitimacy.