"Intergenerational Subjection" - Pablo Magaña (Trinity College Dublin) & Iñigo González-Ricoy (University of Barcelona)
Legal Theory, 2025 (published online)
The Dead Hand of the Past Is Alive and Kicking
By Pablo Magaña and Iñigo González-Ricoy
It’s a cold January night in Portsmouth, 1944. Helen Duncan, a Scottish-born medium, is holding one of her regular scéances. The spirits, unfortunately, have neglected to tell her that, before the night is over, she will be arrested by the police in a surprise raid, eventually becoming the last person to be convicted under the UK’s 1735 Witchcraft Act.
That Duncan was prosecuted under a law enacted two centuries earlier, however, is the least remarkable feature of the case. For, worldwide, most of us live under legal norms we have never signed up for. No living US citizen, for instance, was alive when the American Constitution was ratified in 1788, and until 2005 the Swiss couldn’t legally drink absinthe due to a constitutional ban passed in 1910, long before most absinthe drinkers were even born. Whatever we think of Duncan’s supernatural abilities, in sum, she and so many of us might have indeed been haunted by some ghosts: those of long-dead lawmakers and constitutional framers.
But perhaps we shouldn’t be so haunted by the “dead hand of the past,” as Jefferson famously referred to it. For, as some philosophers have recently argued, legal subjection among generations that do not overlap might not be possible to begin with. We should not spend much time discussing how concerning this kind of subjection is, they claim, because the ghosts of long dead lawmakers are, at the end of the day, as real as those Duncan claimed to invoke in her living room. This sort of skepticism, forcefully championed by Ludvig Beckman and Axel Gosseries, rests on a simple observation: past generations, once gone, cannot do anything to enforce, authorize, or implement the laws they enacted. For Beckman and Gosseries, although we are no doubt subjected to laws enacted in the past, we are not (and cannot be) subjected to the will of past generations.
Consider the following example: in 1951, the 1735 Witchcraft Act was repealed. There was nothing, however, that those who enacted the Act two hundred years before could do to prevent it. Now, the skeptics hold, if the dead hand of the past can be so easily twisted, maybe it was never there in the first place. Perhaps, all alleged cases of intergenerational subjection—that is, of past generations subjecting future generations—are really cases of intragenerational subjection—that is, of present generations subjecting themselves to norms which just happened to be enacted decades, even centuries, ago.
In a recent paper, we argue that intergenerational subjection among nonoverlapping generations is, indeed, possible. Beckman and Gosseries, we concede, are partly right: past generations, once gone, cannot themselves do anything to bind or sanction future generations. But people living in the present can. And, under certain conditions, they can be seen as acting on behalf of past generations, as their intermediaries. Let us go step by step. The people we have in mind include legal officials, such as judges, and law enforcement officers, such as police agents. Intergenerational subjection, we suggest, is possible when past generations seek to guide the future’s behavior, and legal officials in the future deem the norms and legal frameworks inherited from the past as reason-giving and action-guiding, and have the effective power to enforce them. This is the gist of the mediated subjection view, as we label our account.
To better motivate our view, think about the following: many of us are subjected to the authority of the state, or of our bosses, indirectly. Legislators may pass laws, just as the upper management of a company may issue directives, but both of these will be worth little more than the paper they are written in unless they are effectively enforced by judges and police officers, in the case of laws, or line managers, in the case of corporate policies. Should judges, police officers, or line managers unanimously disobey, there is nothing their superiors could do—they would have just lost their authority. A lot of the time, however, that does not happen. Judges, police officers, and line managers quite often accept the authority of their superiors. They take their superiors’ directives, instructions, commands, etc. as action-guiding and reason-giving, and have the power to enforce them—most vividly, by sending lay citizens and rank-and-file workers to the county jail and unemployment line, respectively. In these cases, the ultimate authorities, like legislators and the upper managers, possess authority because others act as their intermediaries. And there’s mediation when the ultimate authorities seek to guide someone’s behavior, and the intermediaries take these directives, commands, norms, etc. as action-guiding and reason-giving, and can also enforce them.
The mediated subjection view adds that these conditions hold across generations. Past generations, clearly, often want to guide the future’s behavior. Otherwise, legal norms would, by default, include sunset provisions, which terminate the norm after some specified time unless specifically renewed. Sunset provisions, however, are far from ubiquitous—with many constitutions including, in fact, eternity clauses, which cannot be amended, such as the German Constitution entrenching the inalienability of democracy or the rule of law. And, crucially, present legal officials quite often take the norms and legal frameworks inherited from the past as action-guiding and reason-giving. This is especially, but not solely, the case in common law systems, in which legal officials are guided (and bound) by precedent.
Thus, just as line managers extend (in fact, enable) the agency of the upper managers, so can present legal officials enable the agency of past generations. Or so we argue in our paper. The dead hand of the past might not be as strong as some might have assumed. But it is not biteless either, as skeptics argue. Helen Duncan might, after all, have been haunted by a ghost in those months of 1944 when she was convicted of witchcraft. Just not of the kind she thought.