Ethics and Law of Sustainability – Especially of Freedom, Human Rights, Democracy, and Balancing in a Reinterpreted Perspective

Abstract

Non-sustainable societies can therefore be explained descriptively, but can sustainability be justified as a normative goal? The factual influence of values on our behaviour is limited. But when we ask what is normatively right, talking about values is the crucial level. Sustainability, in the sense of intertemporally and globally tenable ways of life and production, is a normative requirement. In order to justify this ethically and legally, a new foundation of universal justice is necessary. Common ethical approaches, which are intended to show the possibility of objective normative statements, prove to be not very convincing on closer inspection. The present theory of universal justice explores the limits of normative rationality and demonstrates that there is considerable scope for balancing without rendering normative questions purely subjective. Furthermore, the area of good living proves to be rationally intangible.

The variant of universal justice developed here as the basis of ethics and law and thus also the concretisation of sustainability is a heterodox discourse ethics. It is designed as the basis of a revised ethical and right-interpretive conception of liberal democracy with human rights and separation of powers at the national, European and international level. In particular, the argument that there is no alternative and an elenctic argument justify (a) the possibility of reason in questions of about what is supposed to be and (b) human dignity, i.e. the respect for the autonomy of the individual, and impartiality as (the only) universal principles of justice that logically cannot be denied without self-contradiction. This proves right not only in discourse, but also in practice and also vis-à-vis merely hypothetical discourse partners, i.e. vis-à-vis all human beings. These principles provide the basis for a comprehensive universal right to liberty, which is not limited to certain areas of life, to a democracy with separation of powers, and to a duty to guarantee all this legally.

This entire approach, centred around the liberal-democratic basic principles of reason, dignity, impartiality and freedom (and democracy with separation of powers), which in their (still unclear) connection appear for the first time with Kant, can be read as crucial modification of classical discourse ethics. In contrast, contextualistic, metaphysical and skeptic (including empiricist, e.g. utilitarian and cost-benefit-analytical) approaches which compete with a liberal-democratic universalism of discourse-ethical character prove to be unconvincing. This also applies to other versions of liberal-democratic theory such as those of Rawls or Sen. In order to determine concrete sustainability contents, an interpretation of the concept of sustainability itself or of topoi such as a legal “state objective for environmental protection” is not very promising, because it remains too vague. Rather, a new ethical and legal interpretation of human rights in the sense of overcoming a primarily economy-oriented understanding of freedom makes sense. This provides an ethically and legally stable basis for sustainability while at the same time overcoming the incompleteness of liberal-democratic philosophies. All statements on justice are statements on the social level. Ethical obligations of the individual that go beyond the obligation to bring about a just – including sustainable – social order are difficult to imagine inter alia due to a lack of concreteness under the auspices of sustainability problems as quantity problems. This is one of the reasons why human rights are always conveyed through public authority, even if their origin lies in the relationship between individuals.

In general, human rights prove to be rights to freedom and to the elementary preconditions of freedom. A distinction of negative and positive freedom does not work. The ethical and legal interpretation that human rights only protect selected, supposedly particularly valuable freedom activities, is equally unconvincing. The humandignity principle (understood as the required respect for the autonomy of the individual, i.e. the principle of self-determination) and the impartiality principle understood as the required independence from specific perspectives) are not fundamental rights, nor are they intended to say anything at all about a concrete ethical or legal individual case. Rather, they are the basis for justifying and interpreting freedom and thus also for a sustainability-oriented reinterpretation of freedom, of the rules of balancing, and of democratic institutions. All this and more applies to liberal-democratic nation states, to the EU and also to international institutions and organisations – also based on a further developed figure of general principles of international law.

Ethically and legally (also on a transnational level), as normative essence of sustainability, there is a right to the elementary preconditions of freedom. This means conditions such as life, health, subsistence level in the form of food, water, security, climate stability, elementary education, absence of war and civil war, etc. The protection of other freedom-promoting conditions, on the other hand, has no ethical or legal human-rights status, but nevertheless deserves recognition, albeit not the duty of the public authorities to act. This is where sustainability concerns are located if they are not elementary to freedom. – The possible alternative to the existing concept of freedom, which would be an ethics of capabilities or need, is rejected due to a number of logical and legal issues, problems of application, and illiberal tendencies.

The freedom outlined in this way, including its elementary preconditions, deserves legal and ethical protection also intertemporally and globally, and thus leads to a human-rights-based theory of sustainability. In particular, arguments for this intertemporal and global extension can be formulated under aspects of potentiality and freedom protection where freedom is endangered. Counterarguments against an intertemporal-global protection of fundamental rights such as the future-individual paradox or the reference to unknown preferences of future generations are ultimately not convincing. The precautionary principle can be classified as a sub-aspect of human rights; it reflects their protection even in uncertain, long-term and multi-causal risk situations. Furthermore, freedom also contains protection by the state, not only defense against the state. These insights are not rendered irrelevant by certain widespread objections to such a multipolar understanding of freedom (e.g. in relation to democracy and the separation of powers). The classical distinctions of action and omission and also deontology versus consequentialism thus latently lose their object. Only in view of all of these steps it is possible to interpret human rights in a manner which includes the protection against climate change, dwindling resources, etc. and thus concrete normative sustainability criteria become conceivable.

Environmental-ethical pathocentrism or eco-centrism can make no additional contribution to the normative theory of sustainability issues, since these approaches prove to be untenable at closer inspection. Nevertheless, environmental protection has a comprehensive ethical and legal justification. In general, freedom is limited only by freedom and the preconditions of freedom of other people, not by any form of common good or the like, which should rather be rejected as a concept. Questions of the good life elude regulation, which is why the ethical and legal justification of sustainability measures does not refer to the subsequent possibly greater happiness of those whose freedom is restricted. Discourses on frugality and nudging, for example, are often based on false assumptions in this respect. Main issues of the welfare state can be identified as sustainability phenomena, taking the threat of climate change into account, although the possibility of objectively answering distributional questions is often overestimated.

Ethical and legal decisions can only be understood as a balancing situation (between various freedoms, elementary preconditions of freedom, further freedom promoting conditions and everything that can be derived from all of the above). Any sustainability decision is thus marked by normative and factual uncertainties (which is usually overlooked). Concrete problems such as “strong versus weak sustainability” or the relevance of a specific argument can only be meaningfully resolved within this theoretical framework.

The ethical and legal theory of sustainability is also developed as a transformed theory of democracy and of balance of powers. The main victims of today’s unsustainability are not voters of today’s parliaments and governments, but future generations and people in other countries. Sustainability is thus in conflict with democracy, to which it – on the other hand – has an affinity because of the necessity of discourses and learning processes (which also rules out any kind of ecodictatorship).

Institutional innovations compared to the existence of democracies based on separation of powers are only indicated to a limited extent in the context of sustainability. The most important point is to establish liberal-democratic institutions on an international level in addition to the national sphere. The right balancing rules, which are the very basis for normative sustainability statements, can be obtained through a legal and ethical balancing theory, which goes beyond traditional legal and ethical approaches and sociological risk theory. These balancing rules outline the scope normatively rational statements which are possible to make e.g. on sustainability and which are based on liberal-democratic principles. Rules of procedure and fact-finding rules can also be derived, as can a new human-rights understanding of the precautionary principle in law and ethics. There are also rules for taking new findings in valuations and facts into account. In the interplay of the powers (nationally and transnationally), the violation of balancing rules leads to an obligation to make a new decision in compliance with the previously violated rule – and thus ultimately to an obligation to (significantly) more sustainability. Violated rules in terms of sustainability concern e.g. the factual basis of climate policy to date and the polluter pays principle. The most important rule for the context of sustainability is the prohibition to ruin the basis of balancing as such by depriving its physical foundations. In spite of all remaining leeway, this already carries a human rights obligation similar to the extent of the temperature limit in Article 2 para. 1 PA. A partly similar statement can be made for other resource and sink challenges, but not for all of them. If using further balancing rules such as the polluter pays principle and economic capacity, it is also possible to give some indications as to how the efforts and costs of mitigation and adaptation should be distributed globally.

All this is also meant as an alternative to the economic cost-benefit analysis, which ultimately represents an empiricist ethics in disguise. It is not only based on a (hidden) untenable normative basic theory and has unsolvable application problems. It also finds itself in insoluble conflicts with a liberal-democratic legal system that does not allocate rights according to solvency and does not primarily organise votes as plebiscitary snapshots.