By Donald K. Anton
Director, Law Futures Centre
At the end of May 2019, former High Court Justice, Michael Kirby, in an appearance before the Diversity Council of Australia called once again for Australia to adopt a national Bill of Rights. His main concern was the past and continuing wrongs suffered, without personal remedy, by women, migrants, LGBTQI+ communities and Indigenous people. I could not agree more with Justice Kirby. But, I want to suggest here that an Australian Bill of Rights ought to be more expansive and include “environmental rights”.
In making this claim, I want to argue that environmental rights (and duties) bolster more traditional rights, such as those prohibiting arbitrary discrimination for which Justice Kirby convincingly argues. Without entering into the debates surrounding environmental rights, all I mean here by an ‘environmental right’ is every person’s substantive right to a healthy environment coupled with a duty to pass on a planet to future generations in no worse shaped than was received. Just as importantly, it includes attendant procedural rights to ensure the realisation of this right and duty.
Now, the essential way in which an environmental right provides added support for more traditional rights is based on the intergenerational nature of such a right. Individual, egocentric civil and political rights are important here and now, but their continuing bulwark is ensured by their carriage through time. It is all well and good for you and me to assert legally entrenched entitlements in a Bill or Rights today, but it is important that we know that our progeny will have the same rights. It is here that environmental rights shine. They are in essence, love letters to future generations.
Love letters are, perhaps, the most idiosyncratic of all writing. They are certainly some of the most intimate of tangible gifts between two people; expressive of deeply tender feelings, romantic desires, life plans and wishes, and so on. See e.g., The 50 Greatest Love Letters of All Time (David H. Lowenherz, ed., 2002); Love Letters of Great Men and Women: From the Eighteenth Century to the Present Day (C.H. Charles, ed., 1924). Love letters, however, are not ordinarily associated with foundational, long-term arrangements for the public governance of national communities found in constitutions. Yet, maybe constitutions should be thought of in these terms; or, at least maybe some constitutional arrangements should be.
The love letter has appeared as legal tool and conceptual analogue elsewhere. It features most prominently in the field of estate planning. See. e.g., Donna Pagano, Helping Clients Leave a Lasting Legacy with a Family Love Letter, 8 J. Prac. Est. Plan. 43 (June-July 2006); John J. Scroggin, The Family Love Letter, 13 Practical Tax Lawyer 5 (Winter 1999). However, the love letter and love have had other legal manifestations. Cf. Peter Goodrich, Epistolary Justice: The Love Letter as Law, 9 Yale J. Law & Human. 245, 246 (1997)(in the French female radical movement of the 15th Century, known as les précieuses, the “love letter was the trope of writ or law in the courts of love and it was in the form of letters, through correspondence, that the précieuses would map the most profound domain of human relations or interactions, that of the heart or of the carte de tender.”); Comment, Restatement of Love, 104 Yale L.J. 707, 708 (1994)(“ The Restatement of Love … is premised on the view that love, like all other aspects of human interaction, can be subjected profitably to legal analysis.”).
In particular, the establishment of altruistic first order constitutional legal rules that pre-empt or limit present activity (public and private) in favor of those who will inhabit the future can be viewed as created with something akin to sympathetic affection and empathetic concern for those to come. Of course, for some this may be more a matter of morality or ethics than a matter of love. See e.g., Stephen M. Gardiner, The Pure Intergenerational Problem, 86 Monist 481 (2003). But in either case, constitutional arrangements concerning the preservation of the natural and environmental legacy that each generation receives from previous generations and holds in trust for future generations is encompassed in concern (love or moral) for the future.
For legislators concerned with lives to come, there is significant evidence of a beneficent caring the strides the generations. Perhaps the best exemplar comes from John Stuart Mill. In 1866, Mill, as a Member of Parliament, spoke these words in support of an amendment to a Motion to reduce and ultimately repeal a duty on malt:
There are many persons in the world, and there may possibly be some in this House, though I should be sorry to think so, who are not unwilling to ask themselves, in the words of the old jest, “Why should we sacrifice anything for posterity; what has posterity done for us?” They think that posterity has done nothing for them: but that is a great mistake. Whatever has been done for mankind by the idea of posterity; whatever has been done for mankind by philanthropic concern for posterity, by a conscientious sense of duty to posterity, even by the less pure but still noble ambition of being remembered and honoured by posterity; all this we owe to posterity, and all this it is our duty to the best of our limited ability to repay. 18 Apr. 1866, Parl Deb HC (3d ser.), cols. 1526-27 (UK)(Mr. J. Stuart Mill).
Mill went on to expound how his once future generation, then in existence, was indebted to the past as he saw it:
All the great deeds of the founders of nations, and of those second founders of nations, their great reformers—all that has been done for us by the authors of those laws and institutions to which free countries are indebted for their freedom, and well governed countries for their good government; all the heroic lives which have been led, and all the heroic deaths which have been died, in defence of liberty and law against despotism and tyranny, from Marathon and Salamis down to Leipsic and Waterloo; all those traditions of wisdom and of virtue which are enshrined in the history and literature of the past—all the schools and Universities by which the culture of former times has been brought down to us, and all that culture itself—all that we owe to the great masters of human thought and to the great masters of human emotion—all this is ours because those who preceded us have cared, and have taken thought, for posterity. Not owe anything to posterity, Sir! We owe to it Bacon, and Newton, and Locke, and Bentham; aye, and Shakespeare, and Milton, and Wordsworth.”
Mill then recited Franklin’s early example of what today is called “paying it forward” in arguing that it is the duty of the present to pass on what we have inherited “not merely undiminished, but with interest, to those who are in the same relation to us as we are to those who preceded us. So shall we too deserve, and may in our turn hope to receive, a share of the same gratitude”. Id., cols. 1527-28.
That’s how it is with rights – all of them. Environmental rights, I think, shine the brightest light on this aspect. We should have them for this reason and, more importantly, for their intrinsic value.