La giustizia costituzionale salverà il mondo? Obblighi di protezione e discrezionalità politica nell’Antropocene

Will justice save the world? Positive obligations to protect and political discretion in the Anthropocene

Abstract

Will constitutional justice save the world? Positive obligations to protect and political discretion in the Anthropocene - Can courts without democratic legitimacy be charged with preserving the natural basis of life for present and future generations? This contribution investigates how, in the new geological era of the Anthropocene, the relations between judicial review and political discretion are shifting. To do so, it examines two European climate litigations to see how the ECHR and German doctrine of positive obligations has been applied to ground the state’s obligation to combat climate change and what standard of judgement has been employed to assess its compliance. In the end, it draws on Alexy’s distinction between structural and epistemic discretion to show that, in a state based on the rule of law, a certain degree of appreciation on the part of democratic authorities remains unavoidable.

Keywords: Climate litigation; Constitutional justice; Law & Anthropocene; Positive obligations; Separation of powers.