by Winfried Kluth

Definition and Idea

Belonging to a generation should not lead to disadvantages. The concept of "intergenerational justice" by John Rawls and Hans Jonas focuses on this idea. It includes both questions of social justice between different generations within the same life cycles (intratemporal intergenerational justice) and also in a long-term perspective (intertemporal intergenerational justice).

"Generation" will either mean the specific "phase of life" a person belongs to (generally the three phases are distinguished by childhood/education, employment, and retirement) or, through certain external characteristics (for example a generation of war, post-war generation, Baby-Boomer generation, future generations). According to this, the idea of generation is ambiguous and contextually dependent, but always a relational term that emphasizes distinct differences and can be used as the link for considering justice.

Intergenerational justice is thus a specific variation of social justice. The different theories and approaches in this field all depend on which theoretical approach someone in the field of social justice follows. Like with most justice theories, the principle of equality is of utmost importance.

Theoretical Framework

Questions of intergenerational justice were, and are, primarily taken up by political philosophy and brought into the political discussion. At the same time, the law has adopted the topic. In doing so, it is differentiated between the overall constitutionality debate, which is led by the sustainability debate in environmental law and the pension debate against the backdrop of demographic change, and the discussion in specialized fields of law, such as health law, inheritance law, and financial law.

Both in theoretical discourse and in the practical application, questions of intergenerational justice are closely linked with questions of sustainability. In particular, the hypothesis is formulated that states the political system, to a greater extent, must justify the significance of the long-term outcomes of current decisions. Claims for constitutional reform will also be connected (for example, family voting rights, sustainability of national objectives/intergenerational justice, sustainability council).

Since the legal system is able to a certain extent to develop and establish justice criteria, it is especially dependent upon the acceptance of concepts and criteria of political philosophy pertaining to social justice. It is now assumed that for the individual “spheres of life,” different justice criteria have to be applied ("Spheres of Justice"). For example, the national-political field should be characterized through a formal principle of equality, the economic field through a principle of equal output, the social and familial field through a principle of the need for justice. These classifications, as well as, the detailed definition of the principles are heavily disputed, and this affects the understanding of intergenerational justice.

Foundation in Constitutional Law

The definition of intergenerational justice does not literally appear in the text of the Basic Law, but in this case, it is discussed in three places:

• Most clearly in Article 20a (state objective for environment and animal protection), it explicitly discusses the "responsibility for the future generations."

• Without textual reference in Article 115, Paragraph 2 in which the so-called debt limit is standardized.

• For the field of inheritance law, it is determined through its institutional guarantee in Article 14, Paragraph 1 an objective requirement is made for an area that includes one aspect of intergenerational justice.

In this situation, intergenerational justice is also mentioned in the principle of the welfare state because the clauses of the national objective especially oblige the law makers to realize a social order of society while also considering the interests of the future generations. The prevailing opinion in constitutional law finds no direct foundation of intergenerational justice in the overall law of equality in Article 3, Paragraph 1 of the Basic Law since it does not appear at this time and grants the right to social changes by parliamentary law makers. Therefore, a responsibility for the equal treatment of different generations does not fundamentally exist.

Legislative Definition of Intergovernmental Justice in several Areas of Life

The state pension fund that is based on financing through an allocated system (the current working generation finances the pensions of the retired generation) has direct implications on intergenerational justice. This is expressed through the discussion of a (fictional) contract between generations. The individual justice relationships between the generations could be illustrated with the help of examples in the development of the legal pension fund:

(1) The pension fund was originally designed as minimum security and led to old age poverty. Only during the large pension reform of 1956/57 was the general principle of maintaining living standards established that aimed at securing one’s pension that would ensure the life standard one had acquired during his or her working life.

(2) At the same time, aligning the pensions with the development of the working population’s income was aimed at having the pensioners share in the progress of wealth.

(3) To limit the cost of contributions to pension funds by the working population,
which have risen due to the falling number of workers and the simultaneously rising number of retirees, the annuity rate was adjusted downwards and the age of retirement was raised.

(4) Furthermore, the responsibility for personal retirement planning was increased and state-sponsored (Riester-pension).

These respective measures serve to allow over time, a balance of interest between the working generation and the retired generation, and should at the same time create an approximately equal treatment of both groups.

Within families, relationships between generations are especially noticeable since substantial transfers between generations are occurring. From the perspective of the political and judicial systems, the question raised is how these transfers are "appreciated," when only a portion of the citizens are starting a family and are therefore investing in the future of the community. This finding began an intensive discussion about specific family justice within the tax system and in the social security system. The Federal Constitutional Court demanded in a decision on compulsory long term care insurance that a family’s educational performance be considered when assessing their contributions. The same applies for the recognition of parental leave for the social pension program.

One of the most serious burdens future generations face is through the current high national debt. Due to this, today's prosperity will be financed by future generations, who will not only have to pay off the debt, but also the compounding interest. Taking this into account, the federalism reform in 2008 in Article 115, Paragraph 2 of the Basic Law set a debt limit, whose effectiveness was debated. In order to illustrate the intergenerational effects of the phenomenon of national debt, a so-called generation balance was created. Protection in the fields of environmental and wildlife conservation are more advanced through Article 20a in the Basic Law, justifying a commitment to the significance of these issues. These guidelines are also protected at the European Union level.

Intergenerational Justice as a State Goal?

In order to ensure the consideration of the interest in intergenerational justice in politics and lawmaking, 36 young members of the German parliament from the four parliamentary parties, the CDU/CSU, the SPD, the Green Party, and the FDP, proposed to establish intergenerational justice as a national objective of the Basic Law in 2006:

Article 20b: Intergenerational Justice
The state must consider its actions as a principle of sustainability and to protect the interests of future generations.

This proposal, however, has yet to receive sufficient parliamentary support to date. This speaks to the intergenerational justice that comes from such a general formulation to a few concrete impulses, and in the case of intergenerational justice, the dispute in the foreground over the applicable "justice criteria," that through an abstract formulated national objective is still not decided upon.

Intergenerational Justice and Demographic Change

Due to the impact of demographic change in the different areas of social security systems, intergenerational justice appears to be growing in importance in both the political debates and in the legal assessments. Here, the legislative configuration is important since as stated in the Basic Law, only a few guidelines can be derived.

Literature / Links

Aßländer, Michael S. / Suchanek, Andreas / Ulshöfer, Gothild (2007): Generationengerechtigkeit als Aufgabe von Wirtschaft, Politik und Gesellschaft. München.

Birnbacher, Dieter (1995): Verantwortung für zukünftige Generationen. Stuttgart.

Börsch-Supan, Axel (2003): Zum Konzept der Generationengerechtigkeit. In: Zeitschrift für Wirtschaftspolitik, Band 2 2003, S. 221–226. Köln.

Jonas, Hans (1979): Das Prinzip Verantwortung. Frankfurt.

Kirchgraber, Stefan (2007): Was kann gemeinwesenorientierte Sozialarbeit zur Generationenfrage beitragen? Rubigen.

Kluth, Winfried (2009): Demografischer Wandel und Generationengerechtigkeit. In: Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer, Band 68, S. 246 - 289. Münster.

Laslett, Peter/ Fishkin, James (1992): Justice between Age Groups and Generations. New Haven.

Miller, David (2008): Grundsätze sozialer Gerechtigkeit. Frankfurt.

Rawls, John (1971): A Theory of Justice. Harvard.

Stiftung für die Rechte zukünftiger Generationen (2003): Handbuch Generationengerechtigkeit. München.

Unnerstall, Herwig (1999): Rechte zukünftiger Generationen. Würzburg.

State: August 2011

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