Summits, emergencies and crises—the primary focus of most of the media debates and political discussions. Generally, they are also the consequences of decisions that were taken (or not), a long time ago. These debates or discussions could have been avoided if we had thought earlier to act in the interest of future generations. Because for men as for other living species, for individuals as for nations, only mutual help is redeeming; only altruism is rational; only empathy is intelligent; only generosity is intelligently selfish. And in particular, altruism for future generations.
But in a market democracy, no procedure or institutional mechanism leads to such action; selfishness and individualism are glorified. If, in families, one still generally maintains, throughout the world, the idea that one must act in the interest of his descendants, it is not, or at least not yet, the case, in most other human groups: only family-owned businesses, or businesses otherwise owned by a community, manage to escape—sometimes—the tyranny of the markets. Only dictatorships are in a position to neglect the whims of public opinion.
Naturally, a dictatorship in which companies belong to the state or to a few families is not an ideal model of society; moreover, such society is always very quickly misled in the interest of those who lead it.
It is therefore necessary to find a solution to the difficult, and so essential, question for the future: how do we ensure that market democracies are concerned about the interests of future generations?
Many solutions, in theory, are possible: we can count on an education effort of all, or on the creation of a new ad hoc parliamentary chamber. All this deserves to be attempted—and it was.
But, nothing beats having, in the existing institutional system, someone in charge of embodying the long term; who can impose on everyone a decision on behalf of the interests of subsequent generations. This is the role played recently by the President of the Italian Republic, who imposed on the government (one that is in passing), the respect of Italian commitments to the European Union, which engage the long-term future of the country. But we cannot rely on such a shield in all cases.
A solution, more practical than the others, has not yet been tried: entrust to the supreme judicial authority the responsibility to speak on behalf of future generations. Better than any other branch of government, if they accepted this mandate, these institutions could gradually lead the courts, then legislators, to take into account the interest of subsequent generations in their decisions.
In France, for example, the Constitutional Council (and the other two supreme instances, the State Council and the Appeal Court) should make it a key element of their jurisprudence.
The Constitutional Council is still far from doing it. And yet, it would have the means, if it wanted to, without any legal novation, relying only on the Constitution and its annexes, which it is responsible for enforcing.
For example, Article 11 of the preamble to the 1946 Constitution states: ” Tout être humain qui, en raison de son âge, de son état physique ou mental, de la situation économique, se trouve dans l’incapacité de travailler a le droit d’obtenir de la collectivité des moyens convenables d’existence (Every human being who, because of his age, his physical or mental condition, of his economic situation, is unable to work, has the right to obtain proper means of existence from the community.)” It would suffice, through a very audacious change in case law, to interpret the term “human being” as also referring to those who have not yet been born, so that the responsibility of judges extends to future generations. The last recital of the preamble to the Environmental Charter is even more explicit: “afin d’assurer un développement durable, les choix destinés à répondre aux besoins du présent ne doivent pas compromettre la capacité des générations futures et des autres peuples à satisfaire leurs besoins (in order to ensure sustainable development, choices aimed at meeting present needs must not compromise the ability of future generations and other peoples to satisfy their needs) ”
Everything is thus said. And if the Supreme Courts of democracies confer on themselves the mandate to enforce these requirements by laws and decrees, our societies would end up acting in the interest of the future. There is still time. And if necessary, in France, a constitutional reform would be welcomed and leave a true mark on history.