I. Subjection: Some Clarifications

In this section, we clarify the notion of subjection at issue. Although we focus on intergenerational subjection, subjection pervades legal and political philosophy. It impinges on debates, for instance, on political obligation and the right to rule,Footnote ¹⁶ relational equality and republicanism,Footnote ¹⁷ intergenerational justice and legitimacy,Footnote ¹⁸ and democratic inclusion and the “boundary problem”—where some have argued that being subjected to the law is precisely what generates an entitlement to a democratic say over lawmaking.Footnote ¹⁹ Underneath these debates lies the idea that subjection encroaches on individual autonomy in a particularly salient way, potentially warranting, when unchecked, complaints of the kind mentioned in the Introduction. The notion of subjection, however, is not only normatively relevant. It is also crucial, for instance, to debates in legal philosophy about the nature of legal authority.Footnote ²⁰ Our paper purports to prompt a useful dialogue between these, often distant, bodies of literature, and accordingly draws on them.

In this paper, we focus on legal subjection—that is, on those forms of subjection traceable to institutionalized systems of norms, including primary rules telling us what to do or refrain from doing; secondary rules specifying how to identify, change, and adjudicate among primary rules; and designated officials playing particular roles and performing particular functions.Footnote ²¹ This may not be the only kind of subjection, though. If we keep you in a basement at gunpoint, for instance, you are in some important sense subject to our will. These additional forms of subjection undoubtedly raise important questions. Yet they do not constitute our main target because those who assume the possibility of intergenerational subjection, such as Jefferson and Otsuka, as well as those who have called it into question, such as Gosseries and Beckman, have focused on legal subjection, and we follow suit.

Legal subjection to a particular legal system obtains if the authors of the norms that comprise that system

1. i) intend to bind and guide the behavior of those subject to the norms, typically by providing or altering the subjected parties’ reasons for action,

2. ii) and can successfully do so, coercively if need be,Footnote ²²

and those subject to such norms, in turn,

1. iii) generally comply with them and see them as reason-giving and action-guiding, either because they deem the norms themselves legitimateFootnote ²³ or due to “calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.”Footnote ²⁴

When these three conditions are satisfied, a legal system acquires de facto authority, which most see as necessary for genuine legal obligations to arise in the first place. Without de facto authority, legal norms become little more than harmless strings of words. Summing up, and for the purposes of this paper, legal subjection requires that the authors of the law have the intention to guide someone’s behavior, as well as the capacity to do so, and that those subject to the law generally follow it, out of a myriad of admissible motives.

One caveat is in order, however, before we turn to inspecting whether legal subjection thus understood is possible among nonoverlapping generations. Although we assume that a legal system is in place only when a sufficient number of its participants deem it reason-giving, we remain silent on whether, in addition to being perceived as such, it must also be robustly reason-giving—that is, morally legitimate. This latter addition is both controversial and unnecessary for us because we focus, to repeat, on the question whether a certain form of legal subjection is possible in the first place—rather than on the normative question of when different forms of legal subjection (or, more generally, the legal systems that underpin them) are morally required or permissible.

II. The Mediated Subjection View: A Primer

In this section, we introduce and motivate the Mediated Subjection View. Even though our focus is on legal subjection, consider a range of cases that do not belong to the legal domain but are nonetheless useful, by analogy, to motivate our view, starting with the following:

If the above story is right, we have ended up locked in with an inefficient technology due to historical, path-dependent reasons. And yet, regrettable as this might be, we would not say that we are subjected in any sense to Christopher Latham Sholes’ will, even though he obviously had a huge impact on us. Surely, Sholes may have constrained our choices. But the example suggests, neither influence nor constraints amount to subjection. What, however, distinguishes subjection from mere influence? Consider:

Unlike users of QWERTY keyboards, Kim does seem to be subject to her bosses’ will and, we may say, de facto authority. But why is Kim, unlike QWERTY users, seemingly subjected to someone else’s will? The answer cannot just be that her bosses can influence her behavior, typically, by making deviations from their instructions costly. While this is a necessary condition, it cannot be a sufficient one, for it is also present in QWERTY. Subjection requires, we submit, the satisfaction of at least two additional requirements. First, subjection is a matter of commands (encoded as rules, norms, or just plain orders). Kim’s bosses regularly tell her which ends she should pursue—and how, where, when, and with whom she should pursue them. And they also expect the content of their commands to guide Kim’s behavior. Scholes, in turn, did not issue any command: he just unleashed certain patterns of technological innovation and consumer consumption that increasingly shaped future users’ opportunity structures. And, because he issued no command, he could not have expected to guide future users’ behavior in that way. Bosses’ commanding or directive power is something that even those who seek to deflate the distinction between being under someone else’s authority and being under someone else’s influence recognize as distinctive.Footnote ²⁶ Second, subjection also requires general compliance with the rules, norms, or orders embodying the relevant commands because these are deemed as reason-giving and action-guiding. Kim complies with her bosses’ commands on these grounds, either because she genuinely regards the relevant commands as legitimate or because she acknowledges that disobedience would be too costly for her.Footnote ²⁷ Again, this distinguishes Kim from current QWERTY users, who regard no rule, norm, or order as legitimate or reason-giving, since, again, there are no commands in the first place. Some might want to add a third feature: that, unlike Scholes, Kim’s bosses claim to possess legitimate authority. Kim’s bosses, that is, not only have commanding power, but they also regard such power as justified or warranted in the first place. So, plausibly, what distinguishes mere influence from subjection is the presence of commands, encoded as norms or rules, which are generally followed and regarded as reason-giving and action-guiding by those falling within their scope, as well as, possibly, a claim to legitimacy by the authors of the relevant norms and rules.Footnote ²⁸

But now consider:

Both LINE MANAGER and MOM AND POP STORE seem to be clear cases of subjection, rather than mere influence. But, importantly, subjection proceeds differently in both cases. Whereas in MOM AND POP STORE, Kim is directly subjected to her bosses, in LINE MANAGER Patty seems directly subjected to her line manager’s will and authority—and, indirectly, to those of her upper manager. Her subjection to the upper manager is mediated—that is, it is only possible insofar as her line manager acts as the upper managers’ intermediary. And, arguably, the line manager becomes an intermediary when she accepts the instructions of the upper manager and ensures their enforcement. Without mediation, the upper management’s capacity to subject Patty to its commands would be much weaker, or perhaps even nonexistent. In this case, in sum, we have:

This is all quite uncontroversial—and perhaps trivial as well, some readers might think. What we shall now argue, in this section and the remainder of this paper, is that this general framework, which we have illustrated with nonlegal cases involving intragenerational subjection, can be exploited to account for the possibility of intergenerational subjection among nonoverlapping generations. Consider first:

PATENTS, like QWERTY, involve costs that shape future persons’ opportunity and incentive structures. Unless we can find a significant disanalogy, we should extend the lesson we extracted from QWERTY: influence and constraints, even if exerted through the law, do not amount to legal subjection. Skeptics about intergenerational subjection will probably be happy to grant this point. The relevant question, they will rightly point out, is not whether, in the legal domain and across generations, we find cases structurally like QWERTY, but whether we find cases structurally like LINE MANAGER. We think we do. Consider:

CONSTITUTION clearly pertains to the legal domain. So let us see if the conditions of subjection developed above—particularly, those outlined in MEDIATED SUBJECTION—obtain in this case as well. First, do the members of the founding generation—or whatever the relevant agent in the past may be—seek to guide the future’s behavior? Very plausibly, they do. When drafting and ratifying constitutions, the founding generations quite often explicitly sought to bind future generations, which seems the most readily available explanation of why lawmakers rarely use tools such as sunset clauses, whereby they could limit how long the laws they enact are to be in place. Although we need not go as far as the late Justice Scalia, for whom the “whole purpose [of constitutions] is to prevent change,”Footnote ³⁰ it seems hard to deny that constitutions are typically designed to severely constrain the will of future generations—perhaps even to entirely replace it, when they introduce eternity clauses. Though skeptical that future generations can be legally subjected by past generations, for reasons to be discussed below, Ludvig Beckman has nevertheless defended something along similar lines, characterizing constitutional provisions as “instructions to be carried out by the judiciary and other officials in the future.” In this sense, he contends, “the past has the capacity for potential interference in the future by means of its instructive power.”Footnote ³¹

Second, can legal officials in the future, such as Supreme Court justices, be seen as intermediaries of past generations? An intermediary, we noted when discussing LINE MANAGER, takes a set of rules, directives, or instructions as reason-giving and action-guiding and has the power to make others comply with them, coercively if need be. Legal officials in the present do often deem the legal framework they have inherited—the past’s terms, as it were—as reason-giving and action-guiding, thereby adopting the framework’s internal point of view, and clearly have the power to make citizens comply with the rules. This is perhaps most clearly the case when legal officials follow intentionalist interpretive standards, whereby judges interpret constitutional norms by appealing to the intentions of lawmakers.Footnote ³² But it is also the case, albeit to a lesser degree, when legal officials abide by the general terms of the legal system understood, as Scott Shapiro does, as a plan extended over time.Footnote ³³ When present legal officials accept, due to genuine conviction or strategic motives, the legal framework (or particular norms) set by future generations, they adopt the internal point of view. And, in doing so, they help carry out past generations’ instructions, goals, values, and orders, thus acting as their intermediaries.

Unless we find relevant disanalogies, which later sections will discuss, we can apply and extend the lessons we have extracted from LINE MANAGER and MEDIATED SUBJECTION to outline an account of the conditions under which subjection across nonoverlapping generations could happen:

In the remainder of this paper, we discuss some potential disanalogies, based on the idea that there is something special about the legal case that cannot be applied across generations. Before turning to this, however, we close this section by clarifying five distinctive features of the Mediated Subjection View.

First, even though we have motivated the Mediated Subjection View by appealing to constitutions, we do not think the view should be restricted to constitutional norms, at least not necessarily. It could apply, for instance, to ordinary laws, provided, as noted, that their authors sought to guide posterity’s behavior and present legal officials took the past’s terms as reason-giving and action-guiding. When these conditions are satisfied, norms enacted in the past, constitutional or otherwise, can be understood as instructions that legal officials in the present carry out here and now, thus enabling the dead to indirectly exercise authority over the living. Similarly, the Mediated Subjection View need not only count judges as intermediaries of past generations. The executor of a deceased person’s will, for instance, may be seen as their intermediary, enabling the deceased person to indirectly subject their heirs to their will. To motivate the Mediated Subjected View, however, we have focused on constitutions. One reason is that constitutions often offer good enough evidence that past generations sought to guide posterity’s behavior, especially, as noted, when they are rigid or, most clearly, introduce eternity clauses.Footnote ³⁴ Another reason is that extending the Mediated Subjected View to ordinary laws, legal executors, and so on may require addressing different disanalogies, vis-à-vis the general, not specifically legal examples we have used to motivate the view, such as LINE MANAGER. Given the inevitable constraints, we therefore think it is appropriate to zoom in on one particular case and carefully inspect its specific challenges, as we do below. After all, if we can show that intergenerational subjection can obtain through constitutions and constitutional practice, we will have shown that intergenerational subjection is possible, and precisely in the domain that has historically concerned authors such as Paine and Jefferson and that still concerns democratic and constitutional theorists today.Footnote ³⁵

Second, ours is a qualified defense of the possibility of intergenerational subjection, as the Mediated Subjection View does not treat subjection as an all-or-nothing matter. Rather, it sees legal subjection as coming in different degrees, including its complete absence depending on the circumstances. On this view, for example, intergenerational subjection does not obtain if the continuity of a legal order is interrupted after a regime change or revolution,Footnote ³⁶ and it is weaker the more changes the legal order goes through—changes that typically grow in number as time passes and generations succeed one another.Footnote ³⁷ Intergenerational subjection is also weak in legal systems with flexible constitutions, when constitutional provisions are formulated as general principles, such that they can easily adapt to changing circumstances, or when judges interpret such provisions according to the “living tree” doctrine, which says that a constitution is an organic text that should adapt and evolve with societal changes and values.Footnote ³⁸ Conversely, intergenerational subjection is stronger when constitutions are rigid, have undergone few amendments, their provisions are formulated as precise rules, and judges interpret them according to originalist or intentionalist standards. Note, however, that even when this occurs, the kind of intermediacy typical of intergenerational subjection is weaker than that of intragenerational subjection, given that the dead cannot threaten currently living legal officials, as those living today surely can. These variations in the intensity of the links between past and future—and of intermediacy in general—the Mediated Subjection View is well suited to register, which is an important virtue of the view.

Third, legal intermediaries may perform many different kinds of legal action qua intermediaries. In this paper, we do not attempt to provide a complete list, and rather focus on three paradigmatic kinds of action: the application, interpretation, and coercive enforcement of the law. As far as we are concerned, it might be that, as long as the two conditions that the Mediated Subjected View requires are met, any legally relevant action—that is, any action that officials are legally entitled to perform qua legal officials—may qualify. But here we stick to the three least controversial cases of the application, interpretation, and coercive enforcement of the law, and remain noncommittal about the rest.

Fourth, legal intermediaries, as we argue with greater detail in later sections, enable past generations to exert de facto authority over future generations. This is important because, as noted in Section II, there cannot be legal subjection without de facto authority. One might wonder, then, whether future legal officials themselves can be subjected by past generations, if the ability of such past generations to subject anyone beyond the overlap is up to them. We think they can, insofar as each individual legal official remains subject to a legal framework that is partly inherited from the past and that can be enforced against them by other legal officials—who, insofar as they take the directives, norms, and rules adopted by past generations as reason-guiding, act as intermediaries of the past, too. While present citizens can, on our account, be subject to past generations through the mediation of present legal officials, legal officials themselves can be subjected to past generations through the mediation of other present legal officials. Of course, this kind of subjection across intermediaries would disappear if they jointly and unanimously disallowed the legal framework inherited from the past. As we will argue in the next section, where we discuss this possibility in great detail, this is possible in theory but unlikely in practice.

Finally, although the Mediated Subjection View appeals to normative attitudes—for legal officials must accept the legal rules or the legal framework inherited from the past—it does not depend on the moral correction of the relevant legal rules. The Mediated Subjection View, then, has no direct bearing on the question whether the intermediaries must act as such, although, of course, in order to be intermediaries at all, they must first possess certain powers inevitably derived from the legal framework in which they enter. Suppose, for instance, that present legal officials accepted morally abhorrent rules, they are under a moral duty to disobey. This, for us, would be both a case of objectionable rule-following and potential intergenerational legal subjection.

With these clarifications in mind, we are now ready to inspect the various difficulties that legal subjection among nonoverlapping generations faces, and how the Mediated Subjection View may address them. To anticipate, we will discuss four objections. The first three objections are linked to three commonly accepted features of legal systems. A legal system, first of all, must possess de facto authority—understood, minimally, as the ability to successfully engender general compliance. Second, although more controversially, some believe that the right kind of de facto authority specifically requires the ability to secure general compliance through coercive means—that is, enforcing norms, and sanctioning those who disobey them.Footnote ³⁹ And, third, many believe that, besides possessing de facto authority, legal norms must also be valid, with the validity of the norms being determined by a rule of recognition followed by legal officials.Footnote ⁴⁰ None of these features, the objection goes, obtains across generations, and thus there cannot be legal subjection among nonoverlapping generations. The fourth objection is grounded in a concern about the very possibility of intergenerational obligations, of which legal obligations would be a subset.Footnote ⁴¹ In what follows, we inspect each of these in turn.

III. Future Generations are not Subject to Present De Facto Authorities

As noted earlier, legal subjection requires de facto authority. And possessing de facto authority involves being capable of successfully guiding the behavior of those subject to a norm, who must generally comply with it—again, because they see it as genuinely legitimate, or due to instrumental calculations. But it is not clear, or so the objector will claim, whether past generations can successfully guide the behavior of future generations. Consider the following test:

A critic might hold that, whenever there is a conflict between any norm inherited from the past and any new norm future generations want to pass, that is exactly what we find: future generations will systematically prevail, while past generations cannot prevail. Norms only enjoy de facto authority if they are generally followed, which requires accepting them, or at least not actively resisting them. But future generations—including both legal officials and ordinary citizens—can at any time withdraw such acceptance. And, when that happens, there is not much that past generations can do about it. According to this objection, whether constitutions (or ordinary laws, or executors …) have authority is essentially a matter of whether we, here and now, generally accept the law of the land, for it is in virtue of our acceptance that the latter can have any bite at all.Footnote ⁴³ As Ludvig Beckman puts it, “[i]f future people do not modify [laws enacted in the past], this is presumably because they do not want to.”Footnote ⁴⁴

We think this objection is partly correct. If present generations unanimously decided to withdraw their support of, or cease to comply with, a legal system, that system would no longer be generally followed. And if present generations could do so costlessly, then it would also follow that the authors of the legal system no longer have the capacity to successfully guide the behavior of those falling within the scope of the relevant norms. Both of which, as we noted above, are conditions of de facto authority—and, by extension, of legal subjection. Present generations enjoy, in sum, a kind of veto power.

We do not believe, however, that the existence of such a veto power undermines the possibility of intergenerational subjection. Our response, developed in what follows, is twofold. First, we argue that having the possibility of unanimously withdrawing support, or ceasing compliance, with a legal system does not undermine the authority of the system while there is support and general compliance. Second, we also argue that it is indeed costly for present generations to unanimously withdraw their support of, or cease complying with, legal systems partly inherited from the past.

To see why the mere capacity to cease compliance with a set of norms does not undermine their authority, nor necessarily extinguishes subjection, let us go back to the LINE MANAGER. Like present generations, line managers enjoy a kind of veto power: should they unanimously decide not to comply with the upper management’s instructions, the upper managers would be left with no de facto authority at all. But it would seem mistaken to conclude that, because this is always a live option in every hierarchically arranged firm,Footnote ⁴⁵ then the upper managers have no authority. Similarly, rank-and-file workers can unanimously cease to comply with the upper management’s instructions. But, again, it would seem mistaken to conclude that, because this is always a live option, there is no authority within firms. In any scheme involving a pecking order of authority, we will find this kind of dependence, whereby if those in the lower ranks cease to comply with their superiors’ instructions or to abide by their terms, their superiors’ de facto authority would automatically disappear.

We suggest seeing this dependence as a general feature, rather than a bug, of mediated subjection. Mediated subjection obtains, then, when the involved parties relate, as noted, in the right way. First, the principals must seek to guide someone’s behavior. Second, the intermediaries must take the relevant directives as action-guiding and enforce them downstream. And, third, those in the lowest rung—the ultimate addressees of the commands—must also take them as action-guiding and generally comply with them. When those conditions are satisfied, and the involved parties act in the right way, there is subjection—that is, even if the different parties could, at any given point in time, act differently.

One might object, however, that in the workplace, there are mechanisms in place that make it likely that the involved parties will act in the right way, so that there is authority and subjection—mechanisms that the objector might claim are absent in the intergenerational case. This leads us to the question of whether past generations can successfully guide the behavior of present generations, including both present legal officials and present lay citizens.

There are two possible arguments the objector might offer. First, she might argue that upper and line managers, unlike past generations, can enforce their norms, rules, and so on. Second, she might argue that there are systemic factors that make it costly for line managers or rank-and-file workers to (unanimously or even very widely) stop complying with their bosses in practice, even if perfectly possible in theory. Systemic constraints, again, are allegedly lost beyond the generational overlap.

The first claim, about the possibility of intergenerational enforcement, will be carefully inspected in the next section, where we address a more general objection to the possibility of intergenerational subjection, based on the alleged necessity, for legal subjection, of a capacity to coercively enforce the law. In this section, then, we focus on the second claim, about the existence of systemic constraints beyond the overlap.

While possible in principle, both line managers and rank-and-file workers cannot unanimously stop complying with their bosses in practice, not, at least, without incurring significant costs. One could appeal, for instance, to the existence of a “reserve army of labor,” quick to replace dissenting workers, as offering a powerful incentive to support and comply with existing rules, directives, and norms—a traditional thesis of Marxist economics that authors from different traditions, such as Shapiro and Stiglitz, have also echoed.Footnote ⁴⁶ While such exact factors are, obviously, absent in the intergenerational case, different systemic constraints do nevertheless obtain. As Douglass NorthFootnote ⁴⁷ and Ona Hathaway,Footnote ⁴⁸ among others, have persuasively argued, laws have increasing returns. That is, the continued adoption of a legal pattern delivers increasing benefits and, by the same token, increases the costs of departing from that pattern. One likely result of this is legal lock-in: once a legal system has been implemented, a constitution founded, a law enacted, or a precedent in common law systems set, it will become increasingly costly to adopt alternatives. And this is relevant because founding generations are typically better equipped to determine the shape and content of a legal system than generations down the line are. For example, the nineteenth century’s patenting laws constrained, as noted above, emerging technologies in the early 2000s.Footnote ⁴⁹ And, according to some, master-and-servant laws likewise managed to survive until the twentieth century because of courts’ long-standing reliance on them.Footnote ⁵⁰ Besides laws’ path-dependent-related costs, we also find the quite familiar political costs of modifying laws, and especially constitutions, which make it harder to form broad political alliances and draft laws able to gather the assent of the involved parties. Because creating new laws is often quite costly, present generations have an incentive to defer to (or draw upon, to the largest possible extent) existing laws, thus allowing past generations to gain an edge on the issue. These observations, first, qualify Beckman’s claim that, if future people do not modify the laws enacted by past generations, it is “presumably because they do not want to.” Second, they also call into question the claim, stated above, that in cases of conflict of norms, past generations cannot prevail. And third, they show why present legal officials can have strong incentives to act as intermediaries, given the costs of deviating and/or adopting radically different legal frameworks. If the costs imposed by past generations are sufficiently high, present generations might find it very hard to twist the dead hand of the past.

Of course, creating new laws or merely changing existing ones can be more or less costly depending on many factors, such as a country’s level of ideological and affective polarization, textual and nontextual sources of constitutional amendment difficulty, the interpretive standards used by judges, or whether a country adopts a common-law or civil-law legal system. Thus, in highly polarized societies, interpartisan agreement becomes less likely; in countries with strong nontextual sources of amendment difficulty, amending the constitution can become harder regardless of the formal rigidity of their constitutional text; in common-law systems, bound by precedent, the path-dependent effects of law cast a longer shadow; and in countries where constitutional court judges employ originalist interpretative standards, deviating from the intentions expressed by the founding generation can be more difficult. Because, as noted in the previous section, we see subjection as a matter of degree, the Mediated Subjection View can nicely register these variations.Footnote ⁵¹

Present generations, in sum, enjoy a certain kind of veto power. But this does not render irrelevant the actions of past generations, nor does it undermine the idea that present legal officials can act as their intermediaries. Without the present generation, there can be no de facto authority. And, without de facto authority, there can be no intergenerational subjection. But if present legal officials act as intermediaries of the past, and citizens generally comply with the relevant norms, then the past can come to acquire de facto authority, and thus the ability to legally subject present generations, thanks, again, to the mediation of present legal officials.

IV. Future Generations cannot be Sanctioned

If legal systems must involve norms that are generally followed, as we are assuming, and if persons cannot be expected to be fully motivated to comply with legal norms, as seems plausible to suppose, then a legal system can reach no further than its capacity to enforce legal obligations, coercively if need be.Footnote ⁵² But if past generations cannot enforce legal obligations after their members die, then they cannot legally touch the future and, therefore, cannot subject them to the law. Or so the second objection to the possibility of intergenerational subjection holds. Whereas the first objection focused on the importance of present generations’ general acceptance of legal norms and systems for securing de facto authority, this second objection focuses instead on legal systems’ coercive power, which might just be another way to secure de facto authority. It is an open question, of course, whether a legal system must necessarily be coercive, which some deny.Footnote ⁵³ But we here grant that securing the effectiveness of a legal system does require a certain degree of coercion. As Hughes puts it, “it is safe to assume that an entirely noncoercive legal system would be impracticable for a large society of flawed human beings.”Footnote ⁵⁴ And, once this assumption is granted, it is plausible to argue that, given that current generations cannot force posterity to comply with their laws, the power of a generation expires when its members die. “Only the future can enforce the law on the future,” Beckman, for example, claims.Footnote ⁵⁵

The crucial question, then, is whether current generations can enforce laws in the future in any meaningful sense. One possibly uncontroversial sense in which Beckman’s above claim—“only the future can enforce the law on the future”—is true is that the most proximate enforcers of laws in the future must physically coexist with those on whom the laws are enforced. This seems necessary for at least two reasons. One is that enforcing the law can require, in some cases anyway, that those who disobey it be physically restrained, which requires physical coexistence. Another is that enforcing legal obligations also requires identifying whether such obligations have been breached, which is something that we can only know in the present. As Gosseries claims, “assessing whether a duty to act has not been complied with and deserves sanctions presupposes coexistence.”Footnote ⁵⁶

Now, if law enforcement could be reduced to the actions of its most proximate agents—that is, law enforcement officers—the claim that present generations cannot enforce the laws in the future would be correct. Exploring the analogy between nations and generations, Gosseries, for example, notes that one essential prerequisite of the extraterritorial enforcement of laws is the possibility that law enforcers move across countries—what he calls the geographical mobility of persons. Footnote ⁵⁷ But this requirement, he argues, cannot be satisfied in the intergenerational domain because persons cannot move across generations. Both in the extraterritorial and intergenerational domains, the argument assumes, enforcement is essentially and exhaustively determined by the actions of its most proximate enforcers: the persons whose geographical mobility is relevant to begin with.

We concur with the claim that law enforcement, narrowly conceived, must be carried out by coexisting agents. But we disagree with the assumption that enforcement officers’ actions exhaust the scope of legal enforcement. For such actions are best conceived of as part of a broader system of law enforcement in which many agents beside the law’s most proximate enforcers are involved. To work effectively, legal systems no doubt require agents capable of issuing threats, exerting physical force, or determining whether legal norms are complied with. But it also requires agents that establish the basic rules of the game, specify which kinds of norms can be enacted and how they are to be interpreted and enforced, and define law enforcement officers’ roles, powers, and liabilities. Both kinds of agent seem essential to a well-functioning system of law enforcement: without the former, no enforcement of the law would be possible; without the latter, no law enforcement officer would know what to enforce in the first place.

Crucially, though, whereas employing direct physical force or determining whether legal norms are being complied with must be carried out by temporally coexisting agents, setting and interpreting norms or establishing the basic architecture of a legal system can be done by agents belonging to past generations. The setting of constitutions, laws, and interpretive standards does not require physical coexistence. And, when law enforcement officers and legal officials in the present accept and apply the laws and interpretive standards set by those agents in the past, law enforcement acquires an intergenerational dimension. Under such circumstances, the laws’ most proximate enforcers can be seen, as the Mediated Subjection View would predict, as intermediaries of the dead—as agents that endorse the past’s norms and legal frameworks as action-guiding and reason-giving and who, in enforcing them, carry out the directives of past generations, and abide by the dead’s terms. When future generations enforce those laws, according to at least some of those interpretative standards and pursuant to the existing constitution, they are doing, in a sense, what past generations wanted them to do.Footnote ⁵⁸ Future generations need not be primarily motivated by a desire to follow the past’s future-oriented wishes. Perhaps they are just motivated by a desire to satisfy their contemporaries, who happen to like the laws enacted in the past, and who have the power to remove them from office. But intermediaries need not be explicitly motivated to pursue the past’s wishes. As we saw when introducing the internal point of view, laws and legal frameworks can be deemed action-guiding and reason-giving for a myriad of reasons including, as Hart put it, “calculations of long term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.” All that matters is that, at the end of the day, all the relevant agents converge into accepting the relevant norms and act accordingly.

There is a crucial disanalogy, some might object, between ordinary intermediaries and those we here posit. By definition, it is always possible for intermediaries to disobey the instructions they receive. And when principals are alive, they can threaten, sanction, or replace their rebellious intermediaries: they have, in sum, some control over them. Think, for instance, of LINE MANAGER above; although the line manager can in principle disobey the senior mangers’ directives, she will be fired if she does that. But past generations, so the objection might go, possess no comparable control over their future intermediaries: they are unable to sanction, threaten, or replace them should they disobey.

Now, although this disanalogy no doubt determines the reliability of an intermediary, it does not determine whether someone is an intermediary to begin with. There is little a deceased person can do to control the executor that will read their will to their loved ones. And yet a notary is a paradigmatic example of an intermediary that follows the instructions of someone else, acting on their behalf.

A similar version of this objection says that if we see intermediaries as representatives of the past, then we have no guarantee that they will reliably advance or follow the past’s goals and directives, precisely because the past cannot hold nonoverlapping present generations accountable. We remain agnostic about whether intermediaries are best conceptualized as representatives, although this is a fitting description on many prominent theories of representation. A notary, for instance, would count as a formalistic representative in Pitkin’s framework—that is, as someone who becomes another’s representative after being appropriately authorized.Footnote ⁵⁹ And legal officials in the present may be seen as surrogate representatives of the past on Mansbridge’s view—that is, as those who act on behalf of others with which they stand in “no electoral relationship”Footnote ⁶⁰—or as substantive representatives on Pitkin’s view—that is, as those who act “in the interest of the represented, in a manner responsive to them.”Footnote ⁶¹ Regardless of the conceptual discussion, however, we have reason to believe that future generations are reliably incentivized to partly follow the past’s directives reliably because, as argued in Section III, it is always difficult to create and coordinate new norms or build a legal framework ex novo. So, although past generations cannot sanction future legal officers if they deviate, they can nevertheless constrain their future behavior by making deviation costly.Footnote ⁶²

When discussing and ultimately rejecting the possibility of intergenerational law enforcement, Gosseries admits that if past and present generations could set “intelligent time bombs” capable of reacting to events in the future yet out of the present’s reach, then there would be a sense in which past generations can enforce their laws on the future—a possibility he nonetheless rules out as “too far-fetched.”Footnote ⁶³ But if the above argument is correct, intelligent and flexible time bombs need not be far-fetched at all. In fact, they might be all too familiar: namely, other human beings acting as intermediaries of the past, like the notary reading a deceased person’s will to that person’s heirs.

V. Future Generations Uphold their Own Rules of Recognition

Legal norms, it is widely accepted, must possess de facto authority. But they must also be valid. In The Concept of Law, H.L.A. Hart famously argued that legal systems consist of primary rules, which purport to direct people’s behavior, and secondary rules, which specify how to identify, modify, and adjudicate between primary rules. Among secondary rules, we find the rule of recognition, whose function is precisely to identify which rules are legally valid. A rule of recognition is in place when it is upheld by the legal and governmental officials enmeshed in the practice of law-validation, those who approach the practice from the internal point of view.Footnote ⁶⁴ Legal officials not only sustain a rule of recognition, but they also fix its content. Whatever makes a law valid in a given legal system and at a given point in time is determined, then, by the criteria that legal officials generally accept.

An argument against the possibility of intergenerational legal subjection follows. Each generation of legal officials, we can plausibly assume, must uphold its own rule of recognition; present generations do not seem capable, say, of rendering the Code of Hammurabi legally invalid—that is, unbinding—for those subject to it in the past. Mutatis mutandis, one could also argue that current generations can do nothing to render the laws that will subject future generations legally valid or invalid for them, once they come into existence. One way to account for this idea is to claim that the validity of a law at any given moment in time depends on the content of the rule of recognition operative at that moment, which in turn requires the general acceptance of its contemporaries and only of them. Future generations cannot be bound by laws enacted in the past, so the argument might go, because those laws will only be valid for future generations if their contemporary legal officials so accept them. In Beckman’s words, “the reason why our laws do not bind posterity is that the only laws that apply to posterity are those affirmed by future people themselves.”Footnote ⁶⁵

There are at least two ways of replying to this argument. The first, which we ultimately find unsuccessful, denies that what is crucial about subjection is successful subjection, as the argument assumes. Perhaps, one might concede, past and present generations cannot successfully bind future generations because, at the end of the day, only future generations can determine the validity of the rules to which they are bound. And yet, one might insist, they claim to subject future generations. Past generations, in other words, purport to bind the unborn, and their rules of recognition assume that they have this power even if, as a matter of fact, they do not.

But this response fails because our focus is, as noted, on forms of intergenerational legal subjection capable of supporting the kinds of complaint that concern political theorists and legal scholars. Suppose, for refutation, that my neighbor sincerely believes he is Napoleon about to conquer Europe. Would that warrant any complaint? Surely not. Claims that presuppose the impossible do not seem capable of supporting a valid complaint from those they target. Or if they can prompt a complaint, it will be one of a wholly different kind than those we are considering. Though we might be justified in condemning him as a vicious man, we would not be justified in suggesting, for instance, that an army be assembled to confront him. Similarly, if past generations cannot render the laws in the future valid or invalid, then future generations cannot possibly have any valid complaint of the kind that may warrant the responses mentioned above, such as seeking to outweigh, check, or remove the source of the complaint. At best, future generations could criticize past generations for thinking that they had such power, and for being willing to use it with no due consideration for them.

A second, more promising response is, again, to apply the Mediated Subjection View. To see why, let us distinguish between two aspects of the rule of recognition. The first is that it must be generally accepted and followed by legal officials. The second is that it involves certain standards whose content, in principle, is open-ended: that is, as long as legal officials widely accept some standards as determining the validity of legal norms within a given legal system, then those standards constitute the rule of recognition. The objection under discussion taps into the first aspect. Legal officials, the objection goes, must accept some standards for any legal norms to be valid in the first place. But, because the standards can be altered by each generation, they again possess a kind of “veto power.”Footnote ⁶⁶ Structurally, this argument is analogous to the one we discussed in the previous section, and so is our response. The Mediated Subjection View accepts, as noted, that if present generations do not generally comply with legal norms enacted in the past, then those norms lack de facto authority, and there is no intergenerational subjection as a result. Similarly, if present legal officials do not regard legal norms enacted in the past as pursuant with the rule of recognition they generally follow, then those norms lack validity and, again, there is no intergenerational subjection as a result. Present generations need not pay attention to the intentions of past generations, or work within their terms, so to speak. But when they do, then there can be intergenerational subjection insofar as, in accepting the terms of the past, they become the intermediaries of the past.Footnote ⁶⁷

And here is when the second aspect of the rule of recognition—the open-ended nature of its content—becomes relevant to our argument. For it explains how and when present legal officials can come to accept the terms of the past. Because the content of the standards constituting the rule of recognition is essentially open, they may require, for instance, conformity with a constitution drafted and enacted centuries ago. That is not only a theoretical possibility, but arguably a widespread phenomenon.Footnote ⁶⁸ In sum, the rules of recognition are constituted by the standards followed by present legal officials. But those standards can, in virtue of their content, turn present legal officials into intermediaries of the past and, in so doing, strengthen the (otherwise dead) hand of the past.

And acting otherwise might, once again, be costlier for future generations. Some believe that rules of recognition can be partially codified and that, once codified, they can have feedback effects. Matthew Kramer, for instance, claims that “[w]ithin the system to which the constitutional formulations belong, those formulations can become the foci of the enterprise of law ascertainment undertaken by the system’s officials, who may come to justify their determinations … chiefly by drawing upon the constitutional language.”Footnote ⁶⁹ Briefly put, if past generations manage to codify the rule of recognition of a legal system, future officials within that system may gravitate around those standards. But even if the standards constituting the rule of recognition are purely informal and unregulated, future legal officials may similarly gravitate around the standards followed by past legal officials, given that informal norms are stickyFootnote ⁷⁰ and, by drawing on past materials, evolve cumulatively.Footnote ⁷¹

As mentioned above, one of the intuitions motivating the argument from the rule of recognition is that there is nothing we can do in the present to render, say, the Code of Justinian or the Hammurabi Code valid or invalid for past generations. But, crucially, the Mediated Subjection View has the resources to explain why: while past generations can potentially direct the future’s behavior, and future generations can take the norms and legal frameworks of the past as action-guiding and reason-giving, future generations cannot direct the past’s behavior, and past generations cannot adopt the future’s internal point of view. Intermediation, then, is asymmetrical. But this is a virtue of our view, as it is not only compatible with the Justinian Code and Hammurabi Code intuitions but also explains them. And, importantly, it explains them in a way that does not undermine the possibility of intergenerational subjection, from the past to the future.

VI. Future Generations are not Bearers of Legal Obligations

A final objection to the possibility of intergenerational legal subjection is that unborn generations cannot be genuine bearers of legal obligations until they are born. That is explicitly stated in most, if not all, legal systems. In Spain, for instance, one can only become a bearer of legal rights and obligations by being either a physical person or a juridical person. And both statuses have clear initiation requirements: you become a physical person when you are born, and you become a juridical person when you are constituted as such following the procedures the law establishes. Granted, these requirements set necessary but not sufficient conditions for being considered a bearer of legal rights and obligations, but they seem enough to disqualify future generations, which are yet unborn, and fail to classify as juridical persons.

Legal systems typically include analogous provisions. And they are not unreasonable in doing so. To adapt an argument offered by Arash Abizadeh, who discusses the geographical, rather than generational, scope of laws, if laws were interpreted such that their requirements applied, here and now, to both present and future generations, we would have to conclude that laws are complied with either by obeying some specific injunction or by not being born.Footnote ⁷² But this is an absurd implication, as obligations are typically complied with when persons can disobey them. Would we say, for instance, that babies are complying with their countries’ tax laws simply by being peacefully asleep in their cradles? We think surely not. An objector might conclude, then, that intergenerational legal subjection is not possible because future generations are not subject right now to present laws. This objection is general and only targets the Mediated Subjection View. But it must be confronted all the same. For if the objection is sound, then the very idea of intergenerational subjection would be hopelessly nonsensical no matter how one tries to flesh it out.

This objection, however, can be answered. For it overlooks an important ambiguity at the heart of the idea of intergenerational legal subjection. On a strong reading, intergenerational legal subjection does require that future generations be subjected to present laws here and now—a condition that is undermined by the fact that legal systems routinely specify that future persons cannot be bearers of obligations until they are born or constituted as juridical persons.Footnote ⁷³

But the strong reading is not the only possible interpretation. On a weaker reading, intergenerational legal subjection only requires that future generations, once they come into existence, be subject to the laws enacted in the past in virtue of certain nontrivial connections between generations. This is not undermined by the fact that future persons cannot be bearers of legal obligations until they are born or become juridical persons.

The Mediated Subjection View is incompatible with the strong reading of intergenerational subjection, but is perfectly compatible with the weaker reading. On the one hand, the Mediated Subjection View denies, in a non-ad hoc way, that unborn future generations can be subject to legal obligations here and now. It does so because, on the Mediated Subjection View, intergenerational subjection can only obtain through the actions of legal intermediaries that are contemporaries of those bound by the relevant laws. On the other hand, the Mediated Subjection View is perfectly compatible with the weaker reading, as it is precisely an attempt to formulate the nontrivial connections in virtue of which future generations can be said to be subject to the laws enacted in the past (and, by extension, to past generations). Since the Mediated Subjection View is only committed to the weaker reading of intergenerational subjection, which is not undermined by the fact that future persons are not bearers of legal obligations until they are born, the Mediated Subjection View can aptly avoid the objection at hand.