The Rawlsian Intergenerational: Exposition and Australian Curial Potential

As Rawls memorably counselled, “severe if not impossible tests” attend reflection on “justice between generations”. The ‘intergenerational’ denotes transtemporal concerns, and implicates future generations and their interests. It assumed great significance for Rawls – his explorations of “justice between generations” are actually wider than his well-recognised just savings principle. This thesis offers, as its major key, an exposition of the Rawlsian intergenerational, in both its political-philosophical and constitutional senses; its minor key introduces the Rawlsian intergenerational’s potential in Australian constitutional law. A prime aim is to illustrate the complexity of the Rawlsian intergenerational, and its dimensions as an intellectual resource. Broadly, the thesis develops by first delineating the senses and dimensions of the Rawlsian intergenerational, then addressing a bridging question (the curial incorporation of philosophy), and finally introducing the potential for the Rawlsian intergenerational’s resonance in Australian constitutional law. Zuckert’s distinction of old Rawls from new Rawls is adopted to denote the movement in Rawlsian justice as fairness from the comprehensive to the ‘political’ – relevantly, political liberalism’s ‘political not metaphysical’. Specifically, this thesis proceeds in three Parts. A critical question is whether the Rawlsian apparatus is too limited or inchoate to usefully effect an intergenerational vision. The answer proposed is no, although the Rawlsian intergenerational is, at times, underdeveloped or, alternatively, developed within the American constitutional system. This has implications for its recognition in Australian constitutional law. Part One locates the intergenerational on the canvass of three overlapping senses, dubbed the political-philosophical, constitutional, and environmental. Given Rawls’s lack of attention to the environment, this last sense is invoked as a point of critique. Rawls’s political-philosophical sense of the intergenerational develops the just savings principle. Wider dimensions include the natural duties to justice, and the international duty of assistance. Rawls’s attraction to the theme of institutional preservation and maintenance is apparent. Part Two develops Rawls’s constitutional sense. The theme of preservation and maintenance appears in aspects of Rawlsian constitutional design, adjudication and interpretation. Rawls’s constitutional positions are informed by his various intellectual infrastructure – in particular, the principles of justice, four-stage sequence, reflective equilibrium and public reason – and his via media in the originalism versus anti-originalism debate. Constitutional questions with intergenerational significance emerge. Are formally-valid, but substantively noxious, constitutional amendments legitimate? What informs constitutional interpretation and the constitutional essentials? In answer, the Rawlsian position, at times, assumes radical constraints, and introduces substantive and procedural limits on the curial interpretive power. Finally, Part Three, an extended coda, focuses on the prospects for the Rawlsian intergenerational to enrich or illuminate Australian constitutional law. The analysis canvasses prospects for the curial use of philosophy, and then examines potential directions for the High Court’s treatment of issues with intergenerational dimensions. The focus is on Rawls’s opposition to comprehensive doctrines, and his support for future generations’ claims, the rule of law, and an evolution of rights and principles. The conclusion is that Rawlsian subject-centred, institutionally-directed justice seems to have a broad resonance with Australian directions in (procedural) fairness, the “evolution of representative democracy”, and the ratcheted-up status of the franchise in Australian constitutional law. The Rawlsian intergenerational, then, is a position of potential.