6 Rule change and intergenerational justice Axel Gosseries and Mathias Hungerbühler Introduction Constitutions have attracted the attention of intergenerational justice spe- cialists for at least two reasons.Activists have defended the need for con- stitutionalizing the rights of future generations (see Tremmel in this volume). And theorists have stressed the problematic nature of constitu- tions insofar as their rigidity allows earlier generations to impose rules that later ones may otherwise not have chosen (see Jefferson 1789; Holmes 1995, ch. 5; Otsuka 2003, ch. 7). Examples include requirements of qualified majority to modify constitutional provisions or the introduction of restric- tions such that provisions could only be revised by a legislature if they were included in a list by the previous legislature. Such mechanisms are at times a solution (for example for those who want it to be hard to question a concern for future generations that would already be embodied in a con- stitution) and at other times a problem (insofar as generations may disagree with each other on constitutional matters). Constitutional rigidity is thus a double-edged sword from the perspective of intergenerational justice. In contrast to constitutional rigidity, rule change – including constitu- tional change – has not attracted much attention, be it from philosophers in general (see the following exceptions: Campbell 1973; Fried 2003; Murphy and Nagel 2002, pp. 128–129) or from those concerned with intergener- ational justice in particular. People make choices on the basis of expecta- tions regarding the degree of stability of legal rules (for example urban planning or tax regimes). In non-traditionalist societies, rules are changing constantly. Tax reforms affect our disposable incomes. Changes in environ- mental standards leave us with more or less freedom to proceed with pol- luting behaviours. Each time, either some lose and others gain, or some lose or gain more than others. The question then arises as to whether transition losers should be compensated (possibly through taxing transition winners) for such losses. When a natural disaster affects a region, it seems obvious to most people that some solidarity should operate. Why not when new rules are being imposed by a majority, to the detriment of at least some of us? From the losers’ perspective, rule change can very well be regarded as one among other exogenous changes in the environment in which we live. This chapter aims at identifying the extent to which rule change in general, and reforms with a marked intergenerational impact in particular, 106 M456 TREMMEL TEXT M/UP.qxd 8/6/06 11:43 AM Page 106 Phil's G4 Phil's G4:Users:phil:Public: PHI