by Ylenia Guerra (Luiss Guido Carli)
Published on 08 March 2025
The objective I intend to pursue revolves around the following question: does the constitutional revision—specifically, the textual inclusion of the phrase “future generations” (R. Bifulco 2008, A. D’Aloia 2016)—require a rethinking of the fundamental elements of constitutional balancing, particularly from a temporal—or more precisely, intertemporal—perspective? If the answer to this question is affirmative, then the constitutional revision would require that future generations be taken into account in the specific dynamics of constitutional balancing (first by the legislator, and, potentially thereafter, by the Constitutional Court).
To address this question, multiple methodological approaches are available. One could, for instance, search for an answer in the case law of the Constitutional Court following the revision (see the Priolo judgment), while also adopting a comparative perspective, considering steps taken by other constitutional courts. The March 2021 decision by the Bundesverfassungsgericht is well known in this regard. Less known, however, is the recent French case decided by the Conseil Constitutionnel (judgment no. 2023-1066 of 27 October 2023), or the Spanish case (Tribunal Español, recurso de inconstitucionalidad no. 8583-2022, decided on 20 November 2024). One could also attempt to reconstruct the constitutional discourse on balancing by re-examining some fundamental theoretical nodes, such as the very definition of constitutional balancing and the consideration of future generations as a constitutive element of the constitutional concept of people (and not nation—though there is not enough time here to retrace the theoretical reasons for this distinction). In this framework, future generations would become a necessary component of any balancing, particularly in environmental matters, and perhaps not exclusively.
I will try to combine these two methodological perspectives.
It is worth recalling—by way of introduction—that the environment, understood as a super-constitutional legal good, or rather as a meta-value, offers a conceptual lens through which legal scholars can explore many of the most important current theoretical issues: technical decision-making versus political representation; time and the Constitution (and thus, the intertemporal Constitution); “political” law and jurisprudential law. Within the specific domain of constitutional balancing, the question becomes whether, beyond the already established jurisdictional tendency to transcend spatial-political borders (e.g., the extraterritorial protection of fundamental rights), it is now time to consider transcending temporal borders—especially with regard to goods whose protection or violation will impact people in the distant future.
We can define balancing—mostly in descriptive terms—as the technique of resolving conflicts between interests and/or rights, not only of constitutional nature (R. Bin 1992; A. Morrone 2014). However, today I will focus on two dimensions of the debate within the constitutional framework.
The term environment has more than one meaning—it is a polysemous word. Its legal qualification is also multifunctional.
Over time, and especially in the abundant case law, it has been defined as a cross-sectoral matter (Corte Cost., judgment no. 407/2002); as a constitutional good or even as a primary and absolute value (Corte Cost. judgments no. 617/1987 and 367/2007); and as both a fundamental right of the individual and a fundamental interest of the community (Corte Cost. judgment no. 210/1987). This definitional plurality has clearly influenced the legal protection techniques implemented by the legal system and their respective consequences.
Environmental protection—now explicitly recognized in the Constitution—is inextricably linked to the legal consideration of future generations, which directly brings the temporal element into constitutional dynamics (T. Martines 1978; M. Fichera 2023; V. De Santis 2023). This is, in my view, not a novel element.
Why, then, does time become a factor that could prompt a reconsideration of the constitutive elements of constitutional balancing?
When environmental issues are at stake, political decision-makers—and, potentially, the Constitutional Court—must take into account not only the general future impact of a specific choice, but also, and in connection with it, the legal implications such choices may have for future generations (Bundesverfassungsgericht, 24 March 2021, ECLI:DE:BVerfG:2021:rs20210324.1bvr265618).
The underlying reasons are, in my view, fairly straightforward and primarily concern the concept of the political community and thus of the people. From a constitutional perspective, the people may be understood—as supported by the historical-political studies on the concept of nation (P. Pasquino 1989, C. De Fiores 2005)—as an intertemporal political community, meaning that its composition includes future generations. This can be theorized both as an objective element (which is relatively simple) and as a subjective one: namely, as those individuals not yet present whose legal status nonetheless requires protection (or at least consideration) in the present.
Thus, thinking of the Constitution in prescriptive terms, especially in relation to temporality, means assigning it normative force that obliges institutions to project decisions into the future. For the institutions of the Republic, this textual guidance requires that decisions not only have temporal justification but also integrate an intertemporal balancing approach—taking into account the specific legal position of future generations as an additional element in the balancing exercise.
This view was clearly articulated in the Bundesverfassungsgericht’s reasoning nearly four years ago, when it reviewed the German climate law. The Court, responding to the short-term focus of political decision-makers, reasoned that constitutional balancing must necessarily be intertemporal: the burdens and sacrifices required to meet climate goals cannot be disproportionately deferred to future generations (see also the European Court of Human Rights, Case of Verein Klimaseniorinnen Schweiz and Others v. Switzerland, 9 April 2024, ECLI:CE:ECHR:2024:0409JUD005360020).
From the perspective of general legal theory, protecting the environment “also in the interest of future generations”—especially given its location within the fundamental principles of the Constitution—supports the thesis of an intertemporal constitutional pact among generations. This entails the need to re-theorize political representation (H. Hofmann 1974; H. Fenichel Pitkin 2017) and to imagine new instruments to ensure effective protection of the legal status of future generations (D.F. Thompson 2010; I. González-Ricoy, A. Gosseries 2017 and, further back, R. von Jhering 1865).