Between Climate Cases and Legitimacy A Discourse Theoretical Perspective on Judicial Climate Decisions

The author considers how, and whether, discourse theory can legitimise judicial decisions in climate cases. Taking into account the role of courts in a democratic society, the implications of distinguishing between discourses of application and discourses of justification, and the proper elaboration of the system of rights, the book evaluates the possibility of justifying climate decisions using discourse theory. Building upon Kuhli and Günther’s (2011) adaptation of the discourse of norm application to a discourse of norm identification, as well as their criteria for legitimate judicial law-making, it elaborates upon this justification. Ultimately, the theory is applied to climate-related decisions in Neubauer v. Germany and Verein KlimaSeniorinnen Schweiz v. Switzerland.