n Existential Justice and Freedom: The First Obligation |

The following is a summary of the thesis of new book by Carter Dillard titled Justice as a Fair Start in Life: Understanding the Right to Have Children (Eliva 2021). The book was recently recommended reading by leading constitutional law professor and political theorist Larry Solum at the University of Virginia. 

There is a particular and fundamental mistake in our language and behavior that impedes freedom. It’s called the constitutive fallacy, or mistaking the first obligation or principle (the grundnorm) as anything downstream from the norm that should create us. 

Put simply: When we have kids, the act has to be child-centric and fair because having children is what most determines the fair society we should orient from. The collective act of having children creates the people around us, and through their development, largely makes them the people they will be. As will be argued below, then, fairness in our creation is thus the first obligation, or grundnorm (because we are before we do, and because who we are is the product of the norms that create us); its praxis means we will be coming from a just place.

There is another way to say this. Before we can have anything like a written constitution, iconic representatives, or lists of human rights, we would first have to be physically constituting ourselves as free and equal people who can self-determine (much the way we would in a popular constitutional convention), relative to an absence of being determined by others, or a zero-baseline. If government derives its power from the people and people derive from their creation, ensuring a creation norm that maximizes consent — again, imagine a dynamic constitutional convention — acts as a sort of “first election” to bring in future persons as new members (who always constitute the majority of persons) before we ever elect any representatives. And we have to constitute ourselves as if for town halls — with fewer and highly developed people — rather than as crowds of consumers for shopping malls, because the former regulate the latter. 

This truly self-determining state of affairs requires, despite our temporal myopia, 1) conceptualizing of power as any form of human influence, and 2) temporalizing our conception of human beings to first assess fairness in the first creation — or procreation — of power relations. These moves constitute us as free and equal people by limiting and decentralizing the power that others have over us. This form of intergenerational justice subsumes all other forms, including distributive, retributive, and ecological, by factoring them into our creation. To the extent we have considered justice in the abstract, we have hidden the fundament: how justice and injustice make us who we are.

How do we know we are moving in the right direction, and that this is happening? Our relative self-determination will be directly inverse to the number of people in our democracies, and those democracies should divide into others at particular thresholds to maintain the baseline.

This dynamic process resolves the fallacy and unifies values like justice, relative autonomy, nature, freedom, equality, etc., at the most fundamental structure of human power. It’s also a pathway to qualitatively determining optimal populations using very specific and current legal standards to determine the values above. We simply cannot create a person without simultaneously impacting all these qualitative values. By seeing freedom as akin to the dynamic emancipation of children, we eliminate false generations of rights that divide values like development and welfare from liberty and we find that truly becoming a citizen requires at a minimum being sufficiently other-regarding to constitute future democracies through collective and child-centric family planning. 

Assuring this level of empowerment and equity begins with policies that 1) fulfill minimum levels of welfare approaching birth equity for all future children 2) ensure each child a meaningful voice in their future democracies. This is not about people as numbers, or as population. It’s about making people matter, politically, and freeing them from others’ power — or physical influence, from disparate inherited wealth to ecological impacts — so that they may actually consent or become relatively self-determining. The closest analogy to this, in our current lexicon, is the freedom to associate.  

We fund these policies by taking wealth (one form of influence) from the top of the economic pyramid as a matter of right, and thus limiting and decentralizing the power others have over us. This is obligatory, given the irrefutable facts that this wealth 1) was created using an unsustainable and unjust system of growth that violated multiple human rights including the Children’s Convention, environmental rights, the right to equal opportunities in life, and the right to an influential role in one’s democracy, 2) foisted its costs, including the loss of freedom, on future generations, and 3) is most comprehensively and effectively redressed using Fair Start family reforms and redistribution of wealth as equitable family planning incentives. The economic pyramid was built by moving the locus of power and control to the top in the form of wealth and political control (based on the threat of violence), rather than forward into future generations, and to preserve relative self-determination must be redirected. 

Again, this is not about population or consumption; it’s about becoming existentially just and abandoning the fallacious reasoning that life is not fair because our creation is not fair — and can’t be. 

This shift, which means humans will matter politically, will eliminate the misconception of procreative autonomy in favor of procreative justice. Procreative autonomy largely derives from religious autonomy. But note how it would violate obligations to separate church and state to live under a world defined by others’ religious beliefs, including the ideas that life is not fair because God and creation is not fair.

Consider also traditional political borders: the line on a map between two nations. Existential justice moves past this archaic conception toward a real and primary border of human power — our creation — and accounts for how it determines our freedom, or more accurately, our relative self-determination. Our current political borders mask the way true personal sovereignty is directly inverse to growth, and in ways other political models would not

The fundamental difference between preconstitutional systems like polities and economies, as opposed to legalities, involves the latter limiting and decentralizing power in the constant recreation of their constituents to make obligations relatively self-reflective. That is what it means to constitute. Any policy that does not start with a Fair Start or comparable transition does not come from a just place, is overridden by Fair Start and is fundamentally illegitimate. The proponents of such policies, precons, will be unable to account for how basic values, such as nature, welfare, equity, and democracy, and the actual people impacted, should relate. 

There are many pathways to ensure existential justice, and these include a simple discourse of constituting ourselves as free and equal people. That discourse puts future generations into the stream of power and places their demands upon the living, a move that might have averted the climate crisis had the United Nations properly interpreted its human rights obligations. Regardless, the goal of existential justice is to become part of optimal world populations, qualitatively, that are relatively self-determining and therefore free. 

Here are some examples of how to apply Fair Start, practically: 

1. Urge the United Nations to interpret Article 16 of the Universal Declaration of Human Rights, the right to have children, in a way that is intergenerationally fair, and compensates future generations for the harm we have already caused them from unfair prior interpretations. 

2. Support a recent call for a federal executive order that would require disclosures of past, present, and anticipated family planning and population policies, and their multiplying impact on a variety of factors within the current federal reporting Environmental, Sustainability, and Governance guidelines. 

3. Oppose abortion bans as a violation not just of privacy, but of governments’ historic human rights and democracy obligations to ensure every child has an ecosocial Fair Start in life.

4. Promote our universal right to restored, natural and nonhuman habitats and communities, including restorative climate policies, and the freedom these things create.  

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