(Mis)conceptualizing the Future: On the Temporality of the Future in Rights-Based Climate Litigation

Abstract

Discourses on future generations have been of increasing interest to legal scholarship and practice in recent years. This article aims to make sense of the temporal complexities involved in those discourses. Drawing on Hans Lindahl’s critical phenomenology of legal ordering, I argue that the representational dynamics within future-based climate litigation requires taking into account the fundamental strangeness of the future to the present. As such, I caution against interpretations that merely seek to include future generations as present rights-holders. Instead, the article argues that the strength of future-based climate litigation is its fundamental disruption of the normality of legal ordering. Joining hands with recent efforts in critical legal theory on the priority of obligations over rights, the article contends that in this disruption lies the possibility to effectuate a more future-oriented present: that is, a present which recognizes its asymmetrical responsibility to the future.