Farewell address Marc Loth: On our legal duty to past and future generations

“Those who are about to be born salute you.” With these word, J.H. Nieuwenhuis drew attention to future generations in civil law thirty years ago. Since then, those generations have been knocking increasingly louder on the doors of civil courts. It was also on their behalf that the Dutch State was ordered by the courts to step up its climate policy. Moreover, the voices of past generations seeking remedies for historical injustices have joined the chorus of those seeking justice. For instance, the State was held liable on behalf of all Dutch citizens (including those who had already passed away) who had suffered under the Japanese occupation in the former Dutch East Indies. It seems our ancestors are also making themselves heard.

Lack of knowledge

‘What do the civil courts have to offer them?’ Marc Loth asks in his farewell address. Do we owe our descendants and ancestors anything? Do we have a duty of care towards future and past generations? And if so, what does it consist of? Although the courts are faced with these questions more and more frequently, there is a lack of knowledge on this issue at a theoretical level. Loth will make a first attempt at closing this gap by showing under what conditions a duty of care with respect to future generations and past generations may exist. And then pass on the baton to future generations.

Intergenerational interests

Loth answers the question of whether we have duties of care to future and past generations in the affirmative: we have the general duty to take the legitimate interests of future and past generations into account and that general duty of care may in certain circumstances condense into concrete, legally enforceable duties of care. These duties of care are rooted in a structure of intergenerational interests and expectations that stretches over multiple generations and becomes stronger the more intensive social and economic relations between generations become.

At present there is ample room to establish duties of care towards future generations, but for duties of care toward past generations, Loth sees little basis, that is, via the civil courts. However, duties to future generations are connected to those towards past generations. ‘Climate justice’ is hardly conceivable without redress for the consequences of colonialism and slavery.

Redress by taking care of the future

Therefore Loth (echoing Van Reybrouck, among others) advocates restoring the broken world of the past by working for a more just world in the future. In practical terms this means: no large-scale reparations at the expense of our descendants but a corresponding additional contribution to the burden of reducing greenhouse gas emissions for the benefit of all.

Marc Loth (1956) is retiring as Professor of Private Law at Tilburg University. Since his appointment to this Chair in 2014, his teaching and research has focused primarily on (the foundations of) Private Law and Tort Law, in addition to numerous community activities (including memberships of the Advisory Board of the Court of Rotterdam, the Fortis Disputes Commission, and the Verheij Commission for non-pecuniary damages following the exploitation of the Groningen gas field).

Before that, he was a justice at the Supreme Court of the Netherlands between 2009 and 2014. From 1997 to 2009, he was affiliated to the Erasmus School of Law, first as a Professor of Introduction to Law and Legal Theory, later also as Dean. In addition, he worked as a deputy justice at the Amsterdam Court of Appeal. He was a member of, among other things, the Disputes Committee for the Legal Profession (Commissie Advocatuur, 2006), and the Advisory Board of the Center for International Legal Cooperation (CILC). He was also involved in projects for strengthening the rule of law in the Czech Republic, China, Indonesia, Rwanda, and Vietnam.

Between 1993 and 1997, Professor Loth was a member of the Joint Court of Justice of the former Netherlands Antilles and also taught at the University of Curaçao. From 1991 to 1993, he was a judge at the Court of The Hague. Before that he was affiliated as an Assistant and Associate Professor to the Department of Jurisprudence at Leiden University (1983 – 1991), where he earned his PhD based on a thesis entitled Handeling en aansprakelijkheid in het recht in 1988.

He began his career as a researcher at the then Tilburg Catholic Academy in 1981. Between 1975 and 1980, he studied Dutch Law at the University of Nijmegen.

Farewell address

Professor Marc Loth holds his farewell address on Friday, June 16, 2023, at 16:15 hrs. in the Tilburg University Auditorium. The address is entitled: Stemmen door de tijd; over intergenerationele zorgplichten in het aansprakelijkheidsrecht [Voices through Time. On Intergenerational duties of care in Dutch tort law]. The address can be watched in person as well as via a livestream.