Courts must look to the future, not just the past, writes Edward Waitzer
There is a long-standing debate among judges, academics, rights advocates, and others about the sources of judicial legitimacy in a democracy. The time has come to think beyond the traditional goalposts.
At one extreme are the “originalists,” who argue that the plain meaning of a statute’s text is all that matters – they have no interest in divining the legislators’ intent when the statute was enacted. Somewhat farther along are the “textualists,” who argue that the statute’s language should have priority over purpose (which, if relevant at all, should only be as an indication of what the text means rather than of what outcomes were intended by the legislators). The justification for these schools of thought lies in consistency, predictability, and a view that policymaking is beyond the proper limits of judicial power.
In Canada, particularly since the Charter, courts have tended to adhere more closely to a purposive or “living tree” view of statutory interpretation where (as stated by the former chief justice of the Supreme Court of Canada) “the meaning of a right or freedom guaranteed by the Charter is to be ascertained by an analysis of the purpose of such a guarantee; it is to be understood, in other words, in light of the interests it was meant to protect.” Put more forcefully by another SCC justice, textualism “creates a risk that, over time … rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold.”
Many climate-related lawsuits are being brought on behalf of future generations in courts worldwide. The notion of intergenerational equity articulated in the 1987 Bruntland Report is that sustainable development “meets the needs of the present without compromising the ability of future generations to meet their own needs.” This implies a step beyond the purposive approach that requires statutory interpretation to consider the interests of those in the future who will be affected by judicial determinations but lack a voice.
Such an extension of the living tree view might give additional meaning to the basis of democracy – as a system in which everyone affected by a decision should have a right to participate in the decision-making process by acknowledging the imperative (and challenges) of intergenerational justice. Our courts can help address the gap – a role largely beyond political leadership’s capacity, given their increasingly short-term pressures.
It’s challenging to think about our stewardship responsibilities when struggling under the weight of systems that favour short-term solutions. As Groucho Marx said, “Why should I care about future generations – what have they ever done for me?” Yet, if it’s wrong to plant a bomb that will kill children in front of us, it’s equally bad to do so on the other side of the world, or in 10 hours, or 10 years. Spatial and temporal distances shouldn’t affect moral imperatives.
Changing our thinking about intergenerational equity should extend to the judicial process. Looking ahead will raise many thorny questions. Who can speak for the future? What degree of certainty is required for an issue to be justiciable? What duties should we legally owe our descendants? What remedies can best enforce such legal obligations? How should we balance future interests with current entitlements?
Most “sustainability” claims have been based on tort principles, which require a clear causal connection between some “wrongful conduct” and demonstrable/quantifiable damages. This focus may be insufficient when harms will materialize only in the future, are challenging to attribute causally, and are non-monetary. A more helpful approach may be the law of unjust enrichment, which focuses on improper gains – often immediate, monetary, and highly concentrated – irrespective of whether the causal conduct was wrongful.
The starting point is legitimizing the notion of our courts’ willingness and obligation to address these issues. Doing so would serve as a counterpoint to the traditional view that justifications for legal decisions are to be found in precedents – which are, by definition, rooted in history. The basis for chains of legitimacy extending backward in time remains necessary but is no longer sufficient.
In a world facing certain systemic (and potentially existential) risks, the Hippocratic maxim, “First, do no harm” might be a helpful constraint on those who would interpret statutory rights by seeking justification solely from the past. If we are genuinely committed to sustainability, we must train ourselves to refocus on the future.