Should Judges Make Climate Law?

I am delighted to feature the first guest contribution to this blog from Laura Burgers of the Amsterdam Centre for Transformative Private Law (ACT) at the University of Amsterdam, Faculty of Law. She has published a thoughtful and timely article on the role of the judiciary in shaping climate change law and policy.

Should Judges Make Climate Change Law?

By Laura Burgers

Worldwide, over a thousand lawsuits have been launched regarding responsibility for the dangers of climate change. A recent contribution to Transnational Environmental Law looks at this transnational climate change litigation trend and asks the important question: Should judges make climate change law? Since the beginning of the trend, this question led to controversy. Scholars have warned that the separation of powers is threatened where judges interfere with the politically hot issue of climate change.

The article uses political theory on deliberative democracy by the German philosopher Jürgen Habermas to reconstruct the tension between law and politics generated by these lawsuits. Habermas’ theory on what renders law legitimate in constitutional democracies leads to a thorough understanding of the role of the judiciary. The power of climate change litigation is further explicated with the aid of an intermezzo on climate change related civil disobedience. The article puts forward that the climate lawsuits form especially strong contributions to the so-called ‘public sphere’ and that they are advancing the view that climate change belongs to the legal rather than the political domain.

Even more strongly, when looking to climate change litigation through the lens of Habermas’ theory, we can better understand the so-called ‘rights turn’ in climate change litigation, i.e. the development that cases in which environmentalist won lean strongly on the application of fundamental rights as codified in national constitutions or international human rights treaties. This goes hand in hand with a movement which has been identified as ‘environmental constitutionalism’, through which the environment is read more and more into fundamental rights. The article explains Habermas’ co-originality thesis, according to which fundamental rights form the very foundation of constitutional democracies, and therefore merit judicial protection against majority decisions. It is submitted that with the movement of environmental constitutionalism, more legitimate operational space is created for the judiciary to interfere in climate change related matters.

In short, this Habermasian reconstruction affords a better understanding of the implications of climate change litigation: while the role of the judiciary as such remains unchanged, the trend is likely to influence the democratic legitimacy of judicial law-making on climate change, as it indicates an increasing realization that a sound environment is a constitutional matter and is therefore a prerequisite for democracy to be protected by judges.

The full article, published in January 2020 as an open access article in Transnational Environmental Law, is available here:

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