URGENDA VS. THE DUTCH STATE THE CASE FOR ETHICAL JUDICIAL ACTIVISM

Abstract

This thesis has a twofold aim: to argue that judicial activism in the face of climate change is morally just thereby demonstrating the moral soundness of the verdict in the Urgenda lawsuit against the Dutch state. To be more precise, the claim that will be made is that judicial activism as a means for combatting climate change is morally justified and that the reservations usually in place against judicial activism should be omitted in the face of climate change. In order to do this, the issue of climate change will be examined by describing the fact of the court case, after which Gardiner’s three moral storms will be used in order to show the need and potential for the judiciary to take an active attitude towards solving climate change. Afterwards, the verdict of the court will be investigated to set the stage for possible counterarguments to my claim, which mainly revolve around Montesquieu’s doctrine of the separation of powers. This doctrine, the application of it in the Dutch constitution and the counterarguments will be the topic of the next section, in which the relevant counterarguments will be rejected if necessary. Following this, I will present my own arguments that validated the moral rightness of the judicial activism used in the Urgenda case. These four arguments are the harm principle argument, the international law argument, the previous examples of just judicial activism argument, and the final resort argument. In the one but last section I show that the issue of climate change fits all these arguments, making judicial activism a valid and morally just alternative in the fight against negative climate change. Finally, the paper will end by looking back one last time on the potential issues that judicial activism has and the ways in which this can be overcome, and second, by analyzing my position as an applied ethicist in the field of environmental ethics.