Judging without railings: an ethic of responsible judicial decision-making for future generations

ABSTRACT

Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system. Judiciaries around the world often turn to process-based review when dealing with such uncertainties. In process-based review, judges focus on ensuring that decision-making procedures are fair and inclusive of all relevant interests, instead of on substantive policy choices. However, in the case of climate litigation, it appears that where judges wish to use process-based review to avoid substantive judgments in the face of uncertainty, they cannot escape uncertainty about who to include and exclude from the processes. We argue that judges engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process by judicial decision. This ethic of responsibility focuses on the moment before and after the judicial decision, calling the judge's attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly.

KEYWORDS:

• Ethical decision-making
• uncertainty
• process-based review
• climate litigation
• future generations
• reflective judge

The climate crisis is one of the most significant, global challenges to humanity and to our environment. In addition to governments, companies and private individuals who must grapple with this crisis, courts face legal challenges that the climate crisis produces. Potentially injured parties are increasingly turning to domestic courts where a judge uses a variety of national, international and transnational norms to address this global problem. Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system.

To deal with such uncertainties, judiciaries around the world often turn to process-based review. Process-based review acknowledges that some uncertainties in law and facts are unresolvable by legal decision-makers, and therefore allows the judge to show deference to democratically legitimated political bodies on these issues. The judge focuses her review solely on the process of this decision-making. She limits herself to ensuring that the process included all relevant actors and that participation was fair and equal in a legal operationalisation of the all-affected principle.

However, we argue that while this method claims to legitimately deal with uncertainties by deferring substantive decisions to democratic bodies and focusing only on the inclusiveness of the process, it ignores an underlying uncertainty in the all-affected principle. In climate cases, it is often unclear who exactly will be affected, where the affected parties live, when the effects will occur and how the affected interests should be weighed. These uncertainties make it difficult to decide who will be affected enough to be included to participate in the democratic process. The all-affected principle itself cannot answer these questions. Instead, this principle is ‘open to a plurality of reasonable interpretations’ that the judge must still decide between.¹

As we will argue, the question of who is included and excluded is a particularly uncertain question in regard to transboundary, complex issues. These issues cross borders of time and jurisdictions, in both their causes and effects, making a prima facie case for individuals outside traditional political boundaries to be affected by current decisions. The complexity of the interrelationships between different aspects of these issues makes it empirically difficult to predict who will be affected, how they will be affected and to what extent.

This leads to the following, problematic sub-conclusion: in cases where a judge wishes to use process-based review to avoid normative and empirical uncertainty, she is actually faced with the highest uncertainty about who to include and exclude from the process; whose inclusiveness and fairness she focuses on guaranteeing. The rest of the article is spent exploring how a judge can deal with the challenge this poses.

This article proceeds as follows. Section I is devoted to detailing the uncertainties caused by transboundary, complex issues and situating these in a destabilising model of adjudication. It does so by exploring one specific transboundary and complex issue: the rights of future generations to a healthy and liveable environment. While certainly not the only possible example (issues of public health, technological advancements and migration also give rise to transboundary, complex challenges), particular attention is warranted for future generations due to their specific and severe vulnerability to actions taken today and – conversely – their severe lack of ability to influence these actions. Moreover, the issue of climate change is, arguably, the most fundamental challenge to continued well-ordered co-existence on this planet. This makes it, in our view, a useful and imperative example to illustrate the challenges adjudication will face increasingly in coming years.

Section II presents process-based review as a potentially fruitful way of dealing with empirical and normative uncertainties. By employing process-based review, the judge signals her acknowledgment and acceptance of these uncertainties and thus (partially) embraces a destabilising account of adjudication. Instead of presenting a view of the law that solves or denies these uncertainties, the judge can put forward a view of the law that recognises law's instability. However, we conclude Part II by showing that the fundamental uncertainty of who is relevantly affected by decisions on transboundary, complex issues presents a judge with a problem. In the case of future generations, it is uncertain how many future generations should be included in the process, from which regions of the world they will come, and how strongly their interests should weigh. The judge must take a stance in these issues when applying process-based review.

Section III advocates that a judge engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process, due to judicial decision. This ethics of responsibility focuses on the moment before and after the judicial decision, calling the judge's attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly.

I. The uncertainties of rights of future generations

The increasing transboundary and complex nature of contemporary phenomena confronts the judiciary with normative and empirical uncertainties. The first part of this article starts by setting out the difference between two models of adjudication: one that assumes certainty within the law is attainable (‘stabilising model’) and another that accepts that the law is inherently uncertain (‘destabilising model’). Next, it details the normative and empirical uncertainties attendant to one specific transboundary, complex issue: the rights of future generations to a healthy and liveable environment. We show how the realities of these uncertainties trouble the assumption that a judge can always determine the right answer to legal questions based on clear laws and certain facts. Instead, we argue, that these uncertainties are best captured with a destabilising model of adjudication.

Certainty and uncertainty in law

Within legal perspectives on adjudication, there is a schism between those who assume that a judge can attain a just and certain verdict, and those who believe that just adjudication is irredeemably threatened by uncertainty. The former, more traditional models of adjudication have adhered to a ‘stabilising’ model to adjudication,² in which law is understood as a coherent system that can always provide a rational answer to legal questions.³ Dworkin uses the half-god Hercules as metaphor to assume that even in hard cases there is always a ‘right choice’ that a judge can and should make.⁴ While Hart, notably, acknowledged the existence of some uncertainty related to the ‘open texture’ of language, this uncertainty was relegated to ‘the margin of rules’.⁵ According to Hart, the practice of law consists to a ‘very large extent’ of determined rules that do not require such choices.⁶ Uncertainty is only present ‘at the fringe’.⁷ Although Dworkin does not fully deny that uncertainty in the law exists, he argues that the law should be treated as though it were a ‘seamless web’; a coherent set of rules and principles with a particular inner logic.⁸ This stabilising model has a reassuring effect on legal institutions, on litigants and on the judge. Accordingly, there is always a right answer possible, although you have to be a half-god to actually attain it.⁹ Furthermore, because judges are bound by a seamless and comprehensive system, individual judges’ will and character play no significant role in the legal decision.¹⁰ There is no room for the judge to ‘strike out in some new direction of his own’.¹¹ If the law is imagined as a ‘seamless web’, there is no space for uncertainties that cannot be solved within this all-encompassing system.

Alternatively, a ‘destabilising model’ of legal adjudication highlights that these uncertainties are inherently part of the law and of our empirical assessment. It understands the law not as ‘an ordered whole of explicit propositions that together form one coherent system’ but instead it accepts that it is inherently messy, unintelligible, morally ambivalent and painful.¹² Uncertainty is therefore – inescapably – a part of the nature of adjudication. Influential here is Jacques Derrida's ‘radical hermeneutics’ with which he relativises the idea of stability.¹³ According to Derrida, all ‘conventions, institutions and consensus are stabilizations’; they are attempts to stabilise meaning that is essentially unstable.¹⁴ Like railings on a bridge these stabilizations provide support and guidance and need to do so precisely because ‘stability is not natural’.¹⁵ Instead of trying to find a final certain or stable ground in laws or facts, Derrida holds that, in the face of uncertainty, decision is required. The decision is an act of force that includes some, while excluding others. The decision cuts, it divides.¹⁶ It is a moment of madness that cannot be purely justified by the law.¹⁷ As such, the judge retains her moral responsibility for the choice she makes because she cannot base her decision purely on a certain law or fact. We return to this responsibility in Section III.

In the following part, we detail the uncertainties that are present in transboundary, complex issues like the rights of future generations to a healthy and liveable environment. Because these issues are shrouded in uncertainty, a model of adjudication that acknowledges these uncertainties has a clear advantage over a model that denies uncertainty. Not only does such an approach make better sense in a world where uncertainties exist and will continue to exist, but as we show in Section II and III, it presents the judge with a method for taking these decisions responsibly.

Transboundary issues and normative uncertainty

Climate cases regarding the health and lives of future generations are transboundary. We refer to issues as transboundary to the extent that they are subject to regulation by legal norms that are not neatly confined within boundaries of stable legal jurisdictions. The norms governing the rights and interests of future generations cross boundaries of legal orders as their origins and interpretations are intertwined with various legal orders and law-creating actors. They are a product of, and subject to, a transnational ‘stream of normativity’ through which norms are created and interpreted by multiple actors, at multiple locales.¹⁸ Below, we deal with, respectively, their transboundary origins and transboundary interpretations.

Firstly, the norms pertaining to rights of future generations are transboundary in origin. This results from the cross-border creation of legal norms and their mutual intertwinement.¹⁹ Burchardt uses this concept of normative intertwinement in norm creation to show that:

this process does not exclusively occur within the framework of a single legal order or regime […] instead, norms can be – and are – created on the basis of legal standards and normative elements originating from different legal orders and regimes.²⁰

To the extent that rights of future generations stem from human rights norms,²¹ their origins are intertwined as human rights themselves have transboundary origins. Human rights norms transverse both the international and domestic realm, because they arise from international obligations and from domestic legislation implementing these obligations.²² This way, their conceptual history is linked to an international culture of rights²³ but also to indigenous rights-based histories and traditions.²⁴ Something similar is at hand with other legal norms for future generations such as intergenerational equity. These legal norms exist in multiple legal orders, domestic and international, stemming at once from international law while also being part and parcel of the constitutional order. This intertwinement leads to a ‘two-fold’ origin of the norm; it is both national and international.²⁵ When concepts such as ‘intergenerational equity’ or the ‘right to life’ are common to multiple legal orders, they act as ‘bridging mechanisms’ for intertwinement;²⁶ they ‘bridge the apparent gap between what are traditionally understood to be different legal orders’.²⁷

When adjudicating in such cases, the judge is faced with uncertainty regarding the applicable legal norms, their hierarchical order, and the interpretation of these norm(s). Multiple transnational legal norms from different legal orders are available for application. Constitutional norms, international human rights norms and environmental principles operate in a common space, while supplementing and interacting with each other – but often without a clear hierarchical relationship between them.²⁸ They form a dynamic assemblage of legal norms that ‘overlap without fully supplanting each other’.²⁹

Secondly, the rights of future generations are subject to interpretive practices – such as judicial dialogue and consistent interpretation – that cross the boundaries of legal orders and lead to further normative intertwinement. Judicial dialogue in the area of human rights law has been well documented. A judge interpreting human rights norms looks to courts in other jurisdictions for inspiration and derives support for her own reasoning from other courts’ arguments or, conversely, distinguish her line of argumentation from other courts.³⁰ As the rights of future generations become, increasingly, topics of litigation, it can be expected that a similar trend will be visible between courts grappling with the implications of these rights for their own legal system. When courts dialogue on how to interpret rights that exist in multiple systems, these norms become further intertwined.³¹ Consistent interpretation of domestic norms with international law and the use of common principles is another way in which interpretation of norms gains a transboundary character.³² When domestic norms – say on the right to equality – are interpreted in conformity with international environmental law concepts – say intergenerational equity – the content of those domestic norms is affected. ‘The individual norm becomes, to some extent, detached from its exclusively domestic content and is opened towards being complemented, or even modified, by international law’.³³ This results in an intertwinement between different legal orders.

These dynamics reveal the interdependence of legal orders via the intertwinement of individual norms and the uncertainty about which interpretation is correct. Intertwinement results in a ‘trans-border stream of normativity’, which in turn ensures a continuous, fluctuating reservoir of meaning for norms. The meaning of a norm ‘in one legal space is influenced, complemented and ultimately modified by the normative content of the norms stemming from another legal space’.³⁴ The meaning of a legal concept in a particular instance is thus constantly in flux and interdependent with the meaning of that concept in other legal orders. This leads to uncertainty regarding interpretation of legal norms. Adding to the uncertainty is the fact that among these interdependent legal systems, ‘no single organ possesses the “final word”’ on interpretation.³⁵

Whereas a stabilising model of adjudication holds that a judge must approach the law as if it were a ‘seamless web’ with a coherent animating will, these transnational dynamics undeniably lay bare that such coherence is fiction. Transnational streams of normativity lack a central legislator and instead have multiple norm-creating and norm-interpreting actors, many of which are not in hierarchical relations with one another. This undermines any assumption of a coherent legal system with a unified will.³⁶ Attempts to find stable meaning in light of these uncertainties will result in decisions that cannot be grounded in the (uncertain) law and are instead an act of force. A destabilising model of adjudication acknowledges this and explores another ground for these decisions; not within the confines of the law but by embracing the ethical responsibility of the judge. According to a destabilising model, a judge cannot use the law to shield herself from moral responsibility, but must take responsibility for her choice for the application of one norm over another and for the choice for one interpretation over another. We will return to this in Section III.

Complexity and empirical uncertainty

Climate cases regarding future generations are also characterised by complexity. We consider issues to be complex when the elements of a system are interdependent. This means that altering one element of the system impacts the system as a whole.³⁷ Global climate change is such a complex system. Manipulation of one element of the climate, for example by increasing carbon emissions or, alternatively, by capturing carbon through technology, affects many other elements, and the system as a whole, in ways that are not completely predictable. Moreover, developments within the climate system often interact with other complex systems, such as public health or governance.³⁸

To illustrate how these complexities interact, consider the environmental and societal effects of a large flood. The flood may damage crops, leading to shortages of food and malnutrition. At the same time, the flood can contribute to the spread of water-borne diseases, thus threatening public health. The combination of food shortages and disease, in turn can affect political developments, like instability within the national state or (mass-)migration to other parts of the world. Together these create a compound risk in which the net effects are larger than the sum of the parts.³⁹ When assessing how climate change impacts the rights of future generations, we must do more than simply account for the risks of changing climate. We must understand the ‘synergistic influences’ between the interconnected areas of environment and society.⁴⁰

This complexity gives rise to empirical uncertainties. There are two types of such empirical uncertainties: epistemic and ontological empirical uncertainties. Epistemic empirical uncertainties pertain to matters that are knowable in principle but are uncertain at a particular moment due to ‘problems of measurement or diagnosis’.⁴¹ This uncertainty can arise, for example, from a lack of research that sufficiently takes complexity into account. Indeed, according to the Intergovernmental Panel on Climate Change, many of these complex interactions have so far been understudied.⁴² While efforts are being made to devise new quantitative and qualitative models to understand these risks, many projections still fail to take them into account.⁴³ Moreover, epistemic uncertainty results from problems of urgency. While contemporary research into the effects of climate change is becoming more adept at accounting for the complex interactions between different systems, waiting until full information is available to make a decision with more certain facts is not always a desirable option. In regard to climate change, it is expected that the longer a decision is postposed, the fewer options will be available for curtailing the negative effects of climate change. By the time full data is available, the damage has already been done.

In addition to these epistemic uncertainties, which can in principle be reduced, there are also empirical uncertainties caused by ontological uncertainty. This type of uncertainty results from inherent variability in the system under study and cannot be fully remedied.⁴⁴ Ontological empirical uncertainty does not mean to say that it is uncertain whether climate change is happening, nor that the scientific community lacks knowledge about how to reduce climate change. It means that as the climate system changes there will also be unintended and unanticipated interactions within the climate system and with other related systems of public health, governance, etc.

When adjudicating matters characterised by empirical uncertainty, the judge is faced with a dilemma. Accurate facts are necessary to render a just and deliberate judgment. Yet, judgment cannot wait until those facts are available. Indeed, justice requires an urgent decision now – while the effects of climate change may still be reversed. The absence of necessary facts troubles the ability of the judge to rationally apply law to facts. This absence reveals the decision as a ‘finite moment of urgency […] acting in the night of non-knowledge’.⁴⁵ While stabilising models of adjudication are inclined to deny or resolve such moments of uncertainty with judgment that relies on the best available information or on consensus between parties, a destabilising model calls the judge to acknowledge this uncertainty.

This Section showed how the normative and empirical uncertainties caused by transboundary, complex issues trouble judicial decision-making. The judge is placed before choices that she cannot make based on conclusive facts or laws. The following Section explores what the judge can do – and often does – in such situations: she finds her recourse in process-based review. After presenting this solution, we identify one major problem that process-based review continues to pose to adjudication in cases of uncertainty.

II. Adjudicating under uncertainty: process-based review

Transboundary, complex issues like the rights of future generations challenge stabilising models of adjudication, which assume the law to be a stable, coherent web of meaning that a judge can apply to knowable facts in order to find a correct and just answer. A destabilising model, however, recognises that answers to legal questions are fundamentally riddled with uncertainties that ‘cannot be “solved” by reasoning alone, no matter the caliber of the judge or, indeed, philosopher’.⁴⁶ Instead of tasking the judge with deciding on the substantive matter under adjudication, a destabilising model of adjudication encourages the judge to avoid the temptation of ‘solving’ the uncertainty. The judge should go through, what Derrida terms, the ‘ordeal of the undecidable’ by acknowledging the uncertainty at hand,⁴⁷ attempting to calculate the incalculable, and finally embracing the fact that uncertainty is unavoidable.

In this Section, we will show how the adjudication method of process-based review goes some way toward meeting the call of acknowledging uncertainty. Judges around the world use this method, recognising the fact that certain substantive decisions are not for the judiciary but are best left to the political branches of government.⁴⁸ The judge avoids reviewing whether the substantive answer was ‘correct’, instead acknowledging uncertainty and leaving decisions on these matters to the political branches. Using the method of process-based review, the judge limits her focus to reviewing how the political branches made their decision. While this method of adjudication goes some way toward operationalising a destabilising model of adjudication, we argue at the end of this Section that in transboundary, complex cases, process-based review still confronts the judge with uncertainty over who to in- and exclude from the decision-making process. This uncertainty remains ‘lodged as a ghost’ in every decision and must be faced head-on by the judge in her decision-making process.⁴⁹ In the third and final Section we provide some suggestions for how the judge is to decide responsibly given this irreducible element of uncertainty.

Judicial acknowledgment of uncertainty with process-based review

Process-based review is a ‘cross-national phenomenon’ in which a judge shows deference to political branches on substantive matters,⁵⁰ limiting their assessment to ‘public authorities’ decision-making processes in light of procedural standards’.⁵¹ Courts evaluate for example whether the decision-making process has been sufficiently transparent, whether decision-makers have based their decision on available data, whether all relevant parties were able to participate in the decision-making process and whether these parties’ interests were actually taken into account by the decision-makers.⁵²

Process-based review can be used as a strategy to avoid deciding on the merits of normatively or empirically uncertain issues. Early support for process-based review is often traced back to John Hart Ely, who not only identified its use by judges but also championed process-based review as it allows judges to decide cases without interfering with hard choices on normative issues that should be made by the legislature or executive.⁵³ Tribe explains that the US Supreme Court uses this method of review to deal with normative uncertainty instead of making ‘controversial judgments about substantive issues left open by the Constitution's text and history’.⁵⁴ This view is supported by Gerards, who notes that ‘arguments of a procedural nature surface in particular in this category of “dilemma-cases”.’ According to her, these are the ‘hard cases […] in which it is very difficult to arrive at one rational or legal conclusion’.⁵⁵

In addition to cases characterised by normative uncertainty, process-based review is employed when a judge faces empirical uncertainty. At the European Court of Human Rights, judge Robert Spano is of the opinion that focusing on the process taken by parliamentary decision-makers ‘will be particularly important in cases where the Convention right in question involves the assessment of complex and novel issues’.⁵⁶ Spano seems to be referring to the empirical uncertainty created by new and complex phenomena. Gerards comes to a similar conclusion, noting that in addition to process-based review being used when normative uncertainty is present in the ‘dilemma-cases’ mentioned above, process-based review is also applied in ‘cases relating to complex choices in socio-economic policy fields’.⁵⁷ The German Constitutional Court echoed these sentiments in its 2012 ruling on the constitutionality of the German membership of the European Stability Mechanism. In this case, complex risks relating to the entire economic and social system were claimed by the state. The Court applied a process-based review, noting that the assessment of these risks was ‘the subject of great controversy among economic experts’ and therefore that the Court ‘may not replace the legislature's assessment by its own’.⁵⁸

Employing process-based review in cases of normative or empirical uncertainty acknowledges that these uncertainties are not solvable by judicial reasoning alone. Process-based review sees such choices as ones best left to the democratically-legitimated political branches.

Calculating the incalculable: legitimately dealing with uncertainty

While process-based review acknowledges that decisions in the face of normative and empirical uncertainties are best left to the political branches, it does not allow the judge to abdicate her decision-making responsibility completely. Process-based review adheres to the destabilising model of adjudication's assumption that there are better and worse ways to organise decision-making processes dealing with uncertainty.⁵⁹ While there may not be only one right answer, this must not ‘serve as an alibi’ for giving up on the commitment to look for better answers.⁶⁰ As Derrida puts it, ‘incalculable justice requires us to calculate’.⁶¹

In process-based review, the judge centres her decision on that which she is especially skilled at and uniquely positioned to do: calculating whether the decision-making procedures used by the political branches were open and fair.⁶² The judge focuses on these procedures as a referee monitors the rules of a game. She only intervenes when one team gains an unfair advantage, not because the ‘wrong’ team has scored.⁶³ In the judge's case, the game is the democratic political process. In order to protect this process, process-based review focuses on ensuring the participation of groups that have trouble fully participating in society or politics or whose interests have been overlooked, especially if this is systematically so.⁶⁴

The concern for protecting the democratic process is the animating force behind the judge's intervention in process-based review. According to Ely, the primary task of the judge in a democracy is to police ‘the mechanisms by which the system seeks to ensure that our elected representatives actually represent’.⁶⁵ While Ely based his standpoint on his reading of the normative underpinnings of the US Constitution, a similar conviction is found in other proponents of process-based review. Huijbers gives a succinct overview of those scholars who view process-based review as a ‘democracy-enhancing approach,’⁶⁶ including Hubner Mendes classifying judges as ‘warden[s] of democratic deliberative processes’ and Popelier and Patino Alvarez concluding that process-based review must ‘remove th[e] blockages’ of decision-making processes.⁶⁷ This view of the judge's role in process-based review is further supported by how courts actually rule.⁶⁸ The German Constitutional Court, for example, explicitly sees its duty as to ‘ensure that the democratic process remains open and that legal re-evaluations may occur on the basis of other majority decisions, and that an irreversible legal prejudice to future generations is avoided’.⁶⁹

It is easy to see how future generations could be identified as a group that has trouble fully participating in politics and whose interests are systematically overlooked in political decision-making. Current democratic institutions limit the participation and representation of future generations. Most democratic institutions are designed to favour current generations.⁷⁰ Because only currently living individuals are able to vote in elections, and because democratic institutions are designed to be sensitive to electoral politics, the political branches will favour the interests of current generations over those of future generations. This results in ‘inadequacy of democratic institutions to face a society's obligations towards future people’.⁷¹ Other factors that contribute to the democratic branches’ short-term bias are the rising age of the median voter and the outsized lobbying influence of groups with mainly short-term interests such as the fossil fuel and automobile industries.⁷² Using process-based review, a judge can instruct the political branches to facilitate the representation and include the interests of future generations in their deliberations.

Process-based review allows the judge to avoid making a decision on uncertain normative and empirical issues related to the rights of future generations and climate change, while still taking responsibility for ensuring the decision-making process as a whole remains open and fair. Yet, while process-based review seems like a promising tool for dealing with empirical and normative uncertainty, it places the judge before yet another uncertainty: who, exactly, has a right to be included in participation on which decisions and how? These questions return the judge to a place of uncertainty.

The uncertainty of who is affected

In process-based review, the value of democratic participation is interpreted along the lines of the all-affected principle. According to this principle, democratic decision-making is legitimate if it allows for the participation of all those whose interests will be affected by the decision.⁷³ The concern is not whether every person in existence was able to participate in a particular decision-making process, but specifically whether the process included sufficient participation and representation of those who are affected by the decision and included sufficient consideration of how those interests would be affected.⁷⁴

This succinct description masks at least three underlying ambiguities in the all-affected principle: When is someone sufficiently affected to claim participations rights? How much influence should those affected have on the decision-making process? And, what type of participation is required?⁷⁵ We will briefly address each ambiguity and show how they are particularly fraught in relation to rights of future generations to a healthy and liveable environment.

Firstly, the all-affected principle does not provide a clear answer for what it means to be affected by a political decision.⁷⁶ While there is a prima facie case that future generations’ lives will be influenced by today's decisions on climate,⁷⁷ uncertainty remains about the extent to which this influence results in a claim to be included in today's decision-making procedures. As Karlsson Schaffer points out,⁷⁸ ‘an objective approach to affectedness would require that we be able to specify, measure and assess the burdens and benefits inflicted upon individuals by political institutions, policies and decisions’ to decide whether these burdens and benefits are weighty enough to result in participatory rights. Problematically, these issues are the subject of the very empirical uncertainty the judge is trying to avoid. Moreover, assessing whether the burdens and benefits are sufficiently weighty depends on one's normative theory of affectedness. Is an individual affected enough to have participation rights when their autonomy is negatively affected by a decision or only when one's legal status is directly affected by the decision?⁷⁹ On the first conception of affectedness, future generations would have a right to participation or representation in decisions relating to the environment, on the second they would likely not. Even if future generations’ rights are sufficiently affected to have participation rights, for how many generations into the future is this the case? Should all future generations’ interests be taken into account or only some amount that is reasonably conceptualizable – say our grandchildren's children?

Secondly, the all-affected principle does not provide an answer for how much everyone affected should be able to influence decision-making.⁸⁰ Should all affected have equal influence or influence proportional to their level of affectedness? Should the interests of future generations – either individually or collectively – weigh more heavily than those of current generations, given that there are more future than current generations and their interests will be more severely affected by current decisions, if those current decisions ultimately lead to an uninhabitable world? Or do current generations’ rights deserve more consideration because their lives are most directly and proximately affected?

Thirdly, there are questions of what kind of participation is sufficient to count as enough participation. Does participation require direct voting rights? If so, future generations are incapable of ever participating sufficiently in the decision-making process. Perhaps, instead, participation is sufficiently achieved if current political decision-makers take the interests of future generations into account. Alternatively, some form of representation might be required, whereby certain political decision-makers are chosen for the purpose of championing the rights and interests of future generations. Still, without the possibility of these representatives being held accountable by future generations, it remains unclear whether any form of representation of future generations would be sufficiently democratic.

In summary, when judges are confronted with legal cases concerning the rights of future generations, they often turn to process-based review in order to show deference to the democratically legitimated political bodies. In process-based review, not the normative content of the decision is discussed, but only whether all affected parties are heard during the process leading up to this decision. However, in cases concerning the rights of future generations, this raises new challenges, of which we discussed three. When the judge has to assess whether all affected parties are sufficiently heard, she has to make a decision regarding who is affected, in what way and how their interests should be weighed. These challenges set us back to step one; the judge is again faced with great uncertainties because her decision in process-based review depends on how she interprets the all-affected principle.⁸¹ The judge cannot escape the uncertainty on this matter ‘of fundamental political disagreement’ if she is to fulfil her duty of deciding under process-based review.⁸² Drawing the boundary between those who deserve inclusion and those who will be excluded is a political decision,⁸³ ‘an exercise of power’ not determined by facts or law but by act of will.⁸⁴ The final Section of this article sets out an ethics of responsible decision-making for the judge who must take responsibility for this act of will. Here, due to constraints of space, we will focus mainly on the first challenge: how can a judge decide who is affected when interpreting the all-affected principle? This first challenge is foundational because the judge must decide who is affected before she can assess in what way they are affected and how their interests should be weighed.

III. An ethics of responsible decision-making

The inherent ambiguity of the all-affected principle means that the judge cannot escape uncertainty, even in process-based review. Adjudication is haunted by an underlying instability that cannot be resolved by the logical application of legal rules or principles to facts. Instead, an adjudicatory practice is revealed as a practice in flux, from which ‘all railings and gangways [have] fallen into the water’.⁸⁵ It requires decision without the luxury of a banister to steady yourself with.⁸⁶

Does this mean that adjudication is an arbitrary exercise in which anything goes and there are no criteria for better or worse judgment? While critics of a destabilising model of decision-making conclude as much,⁸⁷ Derrida explicitly refutes this conclusion,⁸⁸ as do we. In fact, for Derrida, uncertainty is the very condition of responsibility.⁸⁹ Responsibility starts when you ‘don't know what to do’.⁹⁰

Andrade illustrates how responsibility is the product of uncertainty in his application of Levinasian ethics to autonomous vehicles’ traffic decisions.⁹¹ Andrade uses the concept of ‘naked streets’ to argue that uncertainty increases drivers’ responsiveness and makes the road safer for all.⁹² Andrade explains that, according to Hamilton-Bailie,⁹³ these ‘naked streets’ are streets from which most ‘of the familiar characteristics associated with the highway, such as road markings [and] traffic signals’ that usually serve as railings have been removed. What remains is ambiguity about which road has priority, what speeds are safe, and where other road users might appear and attempt to cross the road. This ambiguity leads to uncertainty for the driver. The driver must then pay extra attention and engage in an active imaging of the other road users (including those users he might be surprised by, like a child on a skateboard who juts out between parked cars), who they might be, where they might come from, and what they might need to stay safe.⁹⁴ Whereas ‘a wide road with a lot of signs […] say[s] go ahead, don't worry,’ a naked street evokes anxiety and forces the driver to take personal responsibility for how his actions affect all others.⁹⁵

Like plentiful road markings and traffic signals, a belief in certain facts and clear laws provides the judge with railings that allow her to adjudicate without feeling responsible for the outcome of her decision. This belief acts as a railing that stabilises by reassuring the judge that, as long as her decision is based on certain laws and facts, the verdict can and will be just. However, once this belief in certainty falters, the railings disappear, evoking anxiety over the right decision. Now, like the driver on naked streets, the judge must take responsibility by paying greater attention and actively imagining how others can be harmed or excluded by her decision.

In the final Section of this article, we encourage judges to cultivate this responsibility. This ethic of responsibility focuses on the moment before the decision – in which the judge enhances her receptiveness to the other – and on the moment after the decision – in which the judge reflects on the ‘moral remainder’ caused by her decision. In this way, while the very moment of decision may be madness,⁹⁶ the judge takes responsibility over that which she can control: the preparation of her decision and self-critically reflecting on the outcome of her decision.⁹⁷

Becoming receptive to the call of the other

Before deciding who is affected enough by the decision at hand to have a claim to rights of representation or participation in the decision-making process, the judge must become receptive to all the possibly affected parties at hand. It is, after all, the current procedural enactment of this consensus that the judge is called on to review in order to ensure a well-functioning democratic process. The judge must not merely reproduce the lines of in- and exclusion in the current political constellation, but engage in a ‘fresh judgment’.⁹⁸ The judge must suspend the current lines of in- and exclusion and reinvent them in each case anew.⁹⁹

Luckily, the judge is particularly well-positioned and uniquely skilled for this task.¹⁰⁰ As an organ of government that is not directly dependent on electoral success, the judge is a relative political outsider who can use her independent position to assess whether the current majority is abusing its power by excluding others from the political process. The problem is, however, that recognising those who are currently excluded from the political imaginary as potentially affected claimants is not simple. Their claims must first be understood as claims. Yet, as these claims often rely on ‘novel connections between actions and interests’ that are not currently recognised as causal, proximate or serious enough,¹⁰¹ they are at risk of being dismissed as nonsense.¹⁰²

Thus, to prepare her fresh judgment, the judge must develop a particular sensitivity to those others who are excluded from the current conception of who is affected. The judge's responsibility lies in her becoming sensitive to the unknown, unheard voice of the other. For Levinas this in itself is the basis of ethical conduct. Responsibility is ‘responsibility for the other’ and this other must be the starting point of every ethical decision.¹⁰³ When the other is recognised, its appearance by definition ‘breaks, pierces, destroys’ one's current conception of the world.¹⁰⁴ A responsible judge is one who is willing to be surprised by the arrival of the other and is willing to let this other transform the judge's conception of reality.¹⁰⁵

For the judge to decide responsibly whether future generations are affected enough to be included in the political process, the judge must thus first cultivate her own receptivity to the interests and voices of future generations. Recognising the other as a potential rights holder becomes particularly difficult when those excluded – future generations – do not currently exist and thus cannot directly petition the court. There are various ways to cultivate such receptivity: Henderson has identified the possibility of using amicus curiae briefs and other scholarship has extensively explored the use of literature in this way.¹⁰⁶ Here, we focus on one specific recommendation that will prove particularly important to climate litigation: the expansion of locus standi rules to include representatives of future generations.

The doctrine of locus standi, or standing, varies greatly per jurisdiction. We use the definition provided by the European Parliament's Directorate General for Internal Policies in its 2012 report on locus standi in EU countries. Locus standi includes provisions and doctrines ‘regulating the identification of the (groups of) persons and the conditions they should meet in order to bring a claim’ to court.¹⁰⁷ These rules often come down to some variation of the principle ‘no interest, no claim.’

In climate litigation the limitation of standing has proven a particularly contentious battleground. As recently as March of 2021, the Court of Justice of the European Union held inadmissible a claim against the EU brought by ten families from around the world all particularly affected by climate change.¹⁰⁸ This case addressed the interests of people already affected by climate change and dismissed them as not having sufficient interest. It is clear that future generations will have an even more difficult time gaining standing under this approach. Outside of the EU context, various limitations on standing also impose restrictions on the ability of future generations’ interests to be represented in court.¹⁰⁹

We identify four different actors that can take on the role of bringing claims on behalf of future generations or for whom rules of standing should be relaxed: interest groups, (sub)state actors, individuals and the judge herself.

First, standing should be liberally granted to public interest groups acting on behalf of future generations.¹¹⁰ The rights of public interest groups to bring cases varies greatly across jurisdictions. While standing rules for these groups have been relaxed for civil cases in many of the EU member states, these rules remain restrictive in administrative cases and before the CJEU and ECtHR. Even where standing rules are more relaxed, prohibitions on action popularis type claims often make it difficult for public interest groups to obtain standing.

Second, the state or sub-state actors should be able to represent future citizens in disputes that affect those future citizens’ interests. The US Supreme Court allowed the federal state of Massachusetts standing to represent the citizens of Massachusetts in a dispute against a federal agency regarding the current and future effects of climate change. The Supreme Court used the already-existing doctrine of parens patriae (parent of the state) which allows the state to represent its citizens to protect their health and welfare. This case showed the potential for expanding this doctrine to allow the state to represent its future citizens as well.

Next, the judge should consider granting specific individuals standing to represent the rights of future generations. Here the options range from allowing standing to particular appointed officials, such as an ombudsman for future generations, to appointing an individual to act as a guardian for future generations. Similar to minors whose interests are affected by disputes before the court but who are unable to represent themselves, future generations could thus be represented by specific individuals whom the court recognises as able to speak for those who cannot yet speak for themselves.

Finally, while not technically an issue of standing, the judge herself can take a role in recognising interests on behalf of future generations. The court could assume a specific duty toward the interests of future generations by taking their interests into account ex officio, similar to the court's duty to make the interests of the child a primary consideration. In Justice Weeramantry's famous dissenting opinion in the Nuclear Tests Case, he explores such a role for the court.¹¹¹ In this case, Justice Weeramantry argues that the ‘Court must regard itself as a trustee of those [intergenerational] rights in the sense that a domestic court is a trustee of the interests of an infant.’ Another possible way of realising this is by including an ethical duty to protect future generations in judicial codes of conduct. This relates to what Couso suggests.¹¹² Couso proposes to include an ethical duty to protect the environment in the American Code of Judicial Conduct.¹¹³ According to Couso this would encourage judges to disregard their judicial duty to apply the law, if it contradicts their ethical duty to protect the environment.¹¹⁴

While each of these suggestions increases the judge's receptivity to the interests and claims of others, each individual proposal also has certain limitations. It is only in combination that these modes of standing can ensure that the range of claims considered is as wide and representative as possible. In this way, the judge's courtroom is opened to the ‘face of the other’ and the judge's receptivity and responsibility to the other is increased.

Reflecting on the decision's moral remainder

After the judge prepares her decision by increasing her receptivity to the excluded other, the judge decides who is affected enough to have a right of participation or representation in the political decision-making process. Inevitably, this decision will be detrimental to some interests or another. Even if the judge rules that ‘everybody’ has a right to participate, such a decision disadvantages those whose interests would weigh heavier if some subset of ‘everybody’ was excluded. Fixating too much on one appeal implies exclusion of all others. Conversely, distributing your attention over too large a group of people, will dilute the available aid to such an extent that it dissolves.¹¹⁵ This way, the judge's decision will always fall short for one or more parties.

To those excluded by this act of will and those doing the excluding (the judge), the idea that the law required this exclusion can provide no comfort. Unlike in a stabilising model of adjudication, the excluded other and the judge are both confronted with the knowledge that it could have been otherwise.¹¹⁶ A different judge, in a different place or time might have drawn the line – between who is and who is not affected – differently. The harm that results from the judge's choice to exclude some in favour of including others, is not the ‘bare harm’ that Dworkin identifies as having no moral relevance.¹¹⁷ Our destabilising lens on adjudication attributes moral relevance to this exclusion and to the harm it causes. Following van Domselaar we use Williams’ term ‘moral remainder’ to denote this harm.¹¹⁸ This harm is not the justifiable consequence of applying the all-affected principle, but rather the result of a decision that, in the final instance, was not fully determined by this principle. This harm has moral relevance. In the face of the force done by the judicial decision, the judge is not morally innocent and must assume responsibility for the harm her decision causes.¹¹⁹ This lack of moral innocence does not mean that the judge is guilty or should be held liable for her decision. Rather, it can be described as a ‘guilt without fault’,¹²⁰ meaning that the responsibility originates in a fictional past: ‘as if the other were always something to me, as if his condition of being a stranger concerned me precisely’.¹²¹ The notion of responsibility precedes a notion of guilt. Even though she has not caused the harm done to the other, the judge is, first and foremost, personally responsible for how she responds to it.

Assuming responsibility for the ‘dirty hands’ a judge will get, even when she fulfils every part of her professional duty, demands a reflective judge.¹²² The judge can be responsible by recognising the contingency of her answer, by engaging in a ‘constant self-questioning that maybe [she] hasn't gotten it right’.¹²³ Even after a case is closed a reflective judge will be burdened with a persistent self-doubt whether she has made the best possible decision. Despite her best attempts, the judge must recognise that she ‘can never be completely satisfied that [she has] made a good choice since a decision in favor of one alternative is always to the detriment of another one’.¹²⁴ She must acknowledge that she has ‘not done enough’.¹²⁵ The judgment might be wrong and thus, instead of closing the debate on the matter, the judge must leave space for future reconsiderations. To be clear: this does not mean the judge refuses to decide or that the judge avoids the question of who is affected. Rather, it means that while answering this question, the judge acknowledges the contingency of her answer. Concretely, this can mean that the judge explicitly indicates that the judgement should be reviewed after a certain amount of time or that the judge invites the legislature into a dialogue about her interpretation of the all-affected principle.¹²⁶

This is precisely where ethical decision-making can take place. Wolcher elucidates ethics as ‘what remains morally troublesome’.¹²⁷ Unlike the stabilising model, this model for decision-making will result in judicial anxiety that ‘nags [at the judges’] conscience’ in a way that prevents a good conscience. But, as Wolcher states, ‘a good conscience is by definition a self-satisfied conscience’ which is ‘ethically stupid’ and a form of ethical self-delusion.¹²⁸ Judicial anxiety, on the other hand, enables the judge to be ‘more willing to consider alternatives outside the range of the familiar and comfortable’.¹²⁹ The experience of anxiety makes the judge carefully consider non-dominant interpretations and makes her more attuned to voices that are usually not heard or understood. This anxiety should not cause paralysis, but it should inspire and motivate to keep on looking and searching for better answers. This way, anxiety about the outcome of the judicial decision heightens judicial receptivity to the call of the other in future judicial decisions.

The process of responsible judicial decision-making under uncertainty is thus a cyclical one (see Figure 1). It starts with the judge doing what she can to increase her receptivity to the other in preparation for her decision. She is sensitive to the unknown, unheard voice of the other and open for a different conception of reality. Then the judge decides. Without the railings provided by the certainty of laws and facts, this decision might be an act of madness, but it is nonetheless an act for which the judge must take responsibility. This responsibility takes the form of judicial reflection, fuelled by anxiety over the moral remainder of the judicial decision. As a result, the judge is left with a nagging conscience and a sense of guilt. However, these feelings are at the heart of making ethical decisions; the nagging conscience demonstrates an ethical conscience and the guilt is without fault. Therefore, these very feelings lead to humility about the final decision, a willingness to re-visit the decision in future cases and an openness to the excluded other as the decision-making process starts anew.

Figure 1. Judging without railings.

By experiencing the anxiety-ridden moment and embracing the responsibility that this anxiety thrusts upon the judge, a course – however unstable – is revealed that mediates between law and justice.¹³⁰ Paradoxically, it is by experiencing the final lack of any stable path forward that the judge finds a way to judge ‘without railings’.

IV. Conclusion

Especially in complex cases, judicial decision-making is challenged by uncertainties. Normative and empirical uncertainties are particularly intractable in cases characterised by transboundary, complex relationships like the rights of future generations to a healthy and liveable environment. When a judge is confronted with such complex, uncertain but highly important cases, judicial restraint seems in place. Therefore, a judge often engages in process-based review as a way to show deference to democratically elected bodies. In process-based review, the judge does not assess the decision of the democratic body itself, but only whether all affected parties where sufficiently heard in the process leading up to the decision. However, we have shown that even under process-based review, the judge cannot escape making a normative decision about who is affected, in what way and how their interests should be weighted. These challenges torpedo the judge back into uncertainty; she has to decide without railings. To do so responsibly, the judge can develop her receptivity to the other and engage in constant self-questioning and reflection. Deciding without railings may be uncomfortable and scary, yet, ethically speaking, it is an excellent starting point. By approaching uncertainty in this manner and acknowledging that a judge can never be certain that she has made the right decision, the judge avails herself of an opportunity for more careful decision-making and contributes to the pursuit of a more just law.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 Nancy Fraser, ‘Reframing Justice in a Globalizing World’ (2005) 36 New Left Review, 83.

2 Iris van Domselaar, The Fragility of Rightness. Adjudication and the Primacy of Practice (diss., University of Amsterdam 2014); Iris van Domselaar, ‘Zelfbevestigende’ versus ‘Ontregelde’ Rechtspraak’ (2011) Nederlands Juristenblad 795.

3 Ronald Dworkin, Taking Rights Seriously (Bloomsbury 1977).

4 Dworkin acknowledges that the judge might need to have recourse to moral theory to find the right answer, but that this moral theory is derived from the system of law itself, see Joshua R Geller, ‘Truth, Objectivity, and Dworkin's Right Answer Thesis’ [1999] UCL Jurisprudence Rev. 83.

5 H.L.A. Hart, The Concept of Law (Claredon Press 1961), 128–35.

6 ibid 135.

7 ibid 154.

8 Dworkin (n 3) 141–45); See also Thom Snijders, ‘Virtuous Judges, Politicization, and Decision-Making in the Judicialized Legal Landscape' (2023) Legal Ethics, 1–28.

9 Dworkin later relativized his right answer thesis to provide more room for uncertainty. However, as Geller discusses, Dworkin's theory maintained that the judge is ‘obliged by the legal process to aim towards the right answer’; Geller (n 4) 97.

10 Van Domselaar 2014 (n 2) 34; Van Domselaar 2011 (n 2) 3.

11 Ronald Dworkin, A Matter of Principle (Harvard University Press 1985), 159.

12 Van Domselaar 2014 (n2); 267; 310.

13 John Caputo, Radical Hermeneutics: Repetition, Deconstruction and the Hermeneutic Project (Indiana University Press 1987).

14 Jacques Derrida, ‘Remarks on Deconstruction and Pragmatism’ in Chantal Mouffe (ed), Deconstruction and Pragmatism (Routledge 1996), 83.

15 ibid.

16 Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ in Drucilla Cornell, Michel Rosenfeld and David Gray Carlson (eds), Deconstruction and the Possibility of Justice (Routledge 1992), 24.

17 ibid 26.

18 Dana Burchardt, ‘Intertwinement of Legal Spaces in the Transnational Legal Sphere’ (2017) 30 Leiden Journal of International Law 2, 305, 319.

19 ibid 312.

20 ibid.

21 Sanja Bogojević, ‘Human Rights of Minors and Future Generations: Global Trends and EU Environmental Law Particularities’ (2020) 29 Review of European, Comparative and International Environmental Law 2, 191, 193.

22 Burchardt (n 17) 313; See also Elaine Mak, ‘A Code of Judicial Ethics as a Signpost and a Beacon: On Virtuous Judgecraft and Dutch Climate Litigation' (2023) Legal Ethics, 1–29.

23 Sally Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 5, 869, 827; Constitutional norms of environmental protection for future generations and natural law obligations are often expressed in terms of principles of sustainable development and intergenerational equity, the origins of which can be traced back to international (soft) law sources such as the 1972 Stockholm Declaration and the 1986 Brundtland Report and to the transnational coalition of actors’ influence on domestic politics; Joshua C Gellers, The Global Emergence of Constitutional Environmental Rights (Routledge 2017), 16–17 & 75.

24 See for a similar development ‘environmental constitutionalism’ as noted by Elaine Mak, ‘A Code of Judicial Ethics as a Signpost and a Beacon: On Virtuous Judgecraft and Dutch Climate Litigation' (2023) Legal Ethics, 1–29.

25 Burchardt (n 17) 313.

26 N Walker, ‘Sovereignty and Differentiated Integration in the European Union’ [1998] ELJ, 355, 375.

27 Burchardt (n 17), 318.

28 Sabine Müller-Mall, Legal Spaces: Towards a Topological Thinking of Law (Springer 2013), 12.

29 Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law & Social Science January, 1, 19; Müller-Mall (n 27).

30 Elaine Mak, ‘Why Do Dutch and UK Judges Cite Foreign Law?’ (2011) 70 Cambridge Law Journal 2, 438; Alec Stone Sweet, ‘A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe’ (2012) 1 Global Constitutionalism 1, 53; Cian C Murphy, ‘Human Rights and the Challenges of Explicit Judicial Dialogue’ (2012) 10 Jean Monnet Working Paper 12.

31 Müller-Mall (n 27) 40.

32 Burchardt (n 17) 316.

33 ibid.

34 ibid 324.

35 Stone Sweet (n 29) 55.

36 Rhonda Ferguson, The Right to Food and the World Trade Organization's Rules on Agriculture: Conflicting, Compatible, or Complementary? (Brill 2018), 65–67.

37 Müller-Mall (n 27) 26–27.

38 Michael Oppenheimer and others, ‘Emergent Risks and Key Vulnerabilities’ in Climate Change 2014: Impacts, Adaptation, and Vulnerability (Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press 2014), 1050–51.

39 ibid 1057.

40 ibid.

41 Stephanie Tai, ‘Uncertainty About Uncertainty: The Impact of Judicial Decisions on Assessing Scientific Uncertainty’ (2009) 11 Journal of Constitutional Law 3, 671, 677.

42 Oppenheimer and others (n 37) 1057.

43 ibid.

44 Tai (n 40) 678.

45 Derrida (n 15) 26.

46 Aruna Sathanapally, ‘The Modest Promise of ‘Procedural Review’ in Fundamental Rights Cases’ in Eva Brems and Janneke Gerards (eds), Procedural Review in European Fundamental Rights Cases (Cambridge University Press 2017), 44.

47 Derrida (n 15) 24.

48 Leonie Huijbers, Process-Based Fundamental Rights Review: Practice, Concept and Theory (diss., Utrecht University 2019); Huijbers’ extensive study on process-based review in fundamental rights cases identifies this method of review being used in courts in the United States, New Zealand, Germany, South Africa, Colombia, Canada, Australia, Denmark, the Netherlands, the United Kingdom, Argentina, Spain as well as by the Court of Justice of the European Union, the European Court of Human Rights, the Inter-American Court of Human Rights and the UN Committee on Economic, Social, and Cultural Rights.

49 Derrida (n 15) 24.

50 Ittai Bar-Siman-Tov, ‘Semiprocedural Judicial Review’ (2012) 6 Legisprudence 3, 271.

51 Huijbers (n 47) 100.

52 ibid.

53 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980).

54 Lawrence H Tribe, Constitutional Choices (Harvard University Press 1985), 9.

55 Janneke Gerards, ‘Procedural Review by the ECtHR: A Typology’ in Janneke Gerards and Eva Brems (eds), Procedural Review in European Fundamental Rights Cases (Cambridge University Press 2017), 147–48.

56 Robert Spano, ‘The Future of the European Court of Human Rights: Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18 Human Rights Law Review 3, 473, 491.

57 Gerards (n 54) 146.

58 Case No. 2 BvR 1390/12 2021, Bundesverfassungsgericht, para. 271.

59 Sathanapally (n 45) 44.

60 Derrida (n 15) 28.

61 ibid.

62 David Prendergast, ‘The Judicial Role in Protecting Democracy from Populism’ (2019) 20 German Law Journal 2, 245, 255.

63 Hart Ely (n 52) chap. 4.

64 Janneke Gerards, ‘Wisselwerking Tussen Wetgever En Rechter - Naar Een Betere Dialoog?’ in R de Lange (ed), Wetgever En Grondrechten (Wolf Legal Publishers 2008), 179.

65 John Hart Ely, ‘Toward a Representation-Reinforcing Mode of Judicial Review’ (1978) 37 Maryland Law Review 3, 451, 485.

66 Huijbers (n 47) 200; Spano (n 55).

67 Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (Oxford University Press 2013), 86; Patricia Popelier & Aida Araceli Patino Alvarex, ‘Deliberative Practices of Constitutional Courts in Consolidated and Non-Consolidated Democracies’ in Patricia Popelier, Armen Mazmanyan and Werner Vandenbruwaene (eds), The Role of Constitutional Courts in Multilevel Governance (Intersentia 2013), 201.

68 Laura M Henderson, ‘Internalizing Contestation in Process-Based Judicial Review’ (2019) 20 German Law Journal 8, 1167; Huijbers (n 47).

69 Case No. 2 BvR 1390/12 2021, para. 228.

70 Danielle Zwarthoed, ‘Political Representation of Future Generations’ in Marcus Düwell, Gerhard Bos and Naomi van Steenbergen (eds), Towards the Ethics of a Green Future. The Theory and Practice of Human Rights for Future People (Routledge 2018), 81.

71 ibid.

72 ibid; There are initiatives being taken by different democratic institutions to help address these limitations. Innovations in representation to give interests of future generations a formal seat at the table are developing around the world in countries such as Israel, New Zealand, Finland and Hungary. However, see Zwarthoed (n 69) 96–100 explaining that these initiatives have not been very successful.

73 Robert E Goodin, ‘Enfranchising All Affected Interests, and Its Alternatives’ (2007) 35 Philosophy & Public Affairs 1, 40.

74 Gerards (n 54) 28–29; Huijbers (n 47) 45–59.

75 See also Mak's discussion of the ‘inclusion of affected stakeholders in climate cases’ in this special issue (p. X).

76 Johan Karlsson Schaffer, ‘The Boundaries of Transnational Democracy: Alternatives to the All-Affected Principle’ (2012) 38 Review of International Studies 2, 321, 324; Fraser (n 1) 83.

77 Human action in the twentieth and twenty-first century has already – and will likely continue to – a significant negative impact on future generations’ rights to a healthy and liveable environment. The carbon emissions of current generations are so high that significant harm will likely be done to future generations, even if emissions stopped today, see Thomans Lukas Frölicher, Michael Winton, and Jorge Louis Sarmiento, ‘Continued Global Warming after CO2 Emissions Stoppage’ (2014) 4 Nature Climate Change 1, 40; If emissions continue to grow, experts have ‘high confidence’ that risks include ‘death, injury, ill-health, or disrupted livelihoods in low-lying coastal zones and small island developing states and other small islands,’ ‘severe ill-health and disrupted livelihoods for large urban populations’, ‘breakdown of infrastructure networks and critical services such as electricity, water supply, and health and emergency services,’ ‘food insecurity and the breakdown of food systems’, see Oppenheimer and others (n 37) 1069–70.

78 Karlsson Schaffer (n 75) 324.

79 David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Polity Press 1995); Ludvig Beckman, ‘Democracy and Future Generations. Should the Unborn Have a Voice?’ in Jean-Christophe Merle (ed), Spheres of Global Justice (Springer Netherlands 2013); Ludvig Beckman, ‘The Subjects of Collectively Binding Decisions: Democratic Inclusion and Extraterritorial Law: The Subjects of Collectively Binding Decisions’ (2014) 27 Ratio Juris 2, 252.

80 Karlsson Schaffer (n 75) 326.

81 Fraser (n 1) 83 explains how for questions of justice in a transnational world, ‘everything’ depends on this interpretive choice.

82 Karlsson Schaffer (n 75) 326.

83 According to Ernesto Laclau, On Populist Reason (Verso 2005), this decision, the construction of the ‘people’, is the political act ‘par excellence’.

84 Karlsson Schaffer (n 75) 329.

85 Friedrich Nietzsche, Thus Spoke Zarathustra (Penguin UK 1974), sec. 56(8).

86 Hannah Arendt, Thinking Without a Banister: Essays in Understanding, 1953-1975 (Knopf Doubleday Publishing Group 2018), 473.

87 Mark Lilla, The Reckless Mind: Intellectuals in Politics (New York Review of Books 2001), 174–90.

88 Derrida (n 15) 23.

89 William W Sokoloff, ‘Between Justice and Legality: Derrida on Decision’ (2005) 58 Political Research Quarterly 2, 341, 344–45.

90 Jacques Derrida, ‘Following Theory: Interview with Nicholas Royle, Christopher Norris and Sarah Wood’ in Michael Payne and John Shad (eds), Life.After.Theory, (Continuum 2003), 31–32.

91 Julio Andrade, ‘The Ethics of the Ethics of Autonomous Vehicles: Levinas and Naked Streets’ (2021) 40 South African Journal of Philosophy, 22.

92 ibid 125.

93 B Hamilton-Baillie, ‘Towards Shared Space’ (2008) 13 Urban Design International 2, 130, 133.

94 Andrade (n 90) 133.

95 ibid.

96 Derrida (n 15) 26.

97 As Sokoloff (n 88) 345 concludes on Derrida's behalf, ‘undecidability should haunt decisions before and after they are made.’

98 Derrida (n 15) 23.

99 ibid.

100 Prendergast (n 61) 255.

101 Phillip Paiement, ‘Paradox and Legitimacy in Transnational Legal Pluralism’ (2013) 4 Transnational Legal Theory 2, 197, 223.

102 Christopher Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 2, 450, 453–5 indicates that, throughout history, each successive extension of rights to new entities has, at first, been regarded as ‘odd’, ‘laughable’ and ‘unthinkable’.

103 Emmanuel Levinas, Ethics and Infinity. Conversations with Philipe Nemo (Duquesne University Press 1985), 95–96; Jan Keij, Levinas in de Praktijk (Klement/Pelckmans 2016), 31.

104 Lois L Shepherd, ‘Face to Face: A Call for Radical Responsibility in Place of Compassion’ (2203) 77 St. John's Law Review 3, 445, 489.

105 Sokoloff (n 88) 345.

106 Henderson (n 67); Martha Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Beacon Press 1995); Jeanne Gaakeer, Judging from Experience: Law, Praxis, Humanities (Edinburgh University Press 2020).

107 Mariolina Eliantonio, Chris Backes, Remco van Rhee, Taru Spronken, and Anna Berlee, Standing up for Your Rights in Europe: A Comparative Study on Legal Standing (Locus Standi) before the EU and Member States’ Courts (Study for the Director General for Internal Policies of the European Parliament 2012), 20.

108 People's Climate Case. 2021. Court of Justice of the European Union.

109 YIan Nguyen, ‘Constitutional Protection for Future Generations from Climate Change’ (2017) 23 Hastings West-Northwest Journal of Environmental Law and Policy 1, 40, 210.

110 The Dutch organization Urgenda attempted to gain standing via this route (among others) in their case against the Dutch government. The landmark ruling in this case held that the Dutch government's failure to take stronger measures to reduce carbon emissions violated the government's positive obligations under the right to life and the right to private life. Urgenda brought this case on behalf of current and future Dutch generations and current and future generations of the world. While the District Court of the Hague accepted standing on behalf of current and future generations (Rb. Den Haag 24 juni 2015, ECLI:NL:RBDHA:2015:7145 (Stcihting Urgenda/De Staat der Nederlanden (Urgenda Foundation v The State of the Netherlands))), the Appellate Court of the Hague and the Supreme Court of the Netherlands only ruled based on standing on behalf of current generations (Gerechtshof Den Haag 9 oktober 2018, ECLI:NL:GHDHA:2018:2591, (De Staat der Nederlanden/Stichting Urgenda (The State of the Netherlands v Urgenda Foundation)).; HR 20 december 2019, ECLI:NL:HR:2019:2006 (De Staat der Nederlanden/ Stichting Urgenda (The State of the Netherlands v Urgenda Foundation)).

111 In Justice Weeramantry's famous dissenting opinion in the Nuclear Tests Case; Weeramantry. 1995. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case. Dissenting opinion Justice Weeramantry. International Court of Justice.

112 Javier Couso, ‘Overcoming a Clash of Absolutes: The Conflicting Ethical Demands Posed by Access to Medicines Litigation Confronted by Latin American Judges' (2023) Legal Ethics, 1–18.

113 ibid 5.

114 ibid 7.

115 This paradox is described by Nietzsche in: Friedrich Nietzsche, Beyond Good and Evil: Prelude to a Philosophy of the Future (Walter Kaufmann tr, Vintage Books 1989). Here, he first states that ‘Love of one is a barbarism; for it is exercised at the expense of all others.’ A few pages later he denounces this statement by stating that ‘“Pity for all” – would be hardness and tyranny toward you, my dear neighbor.’

116 Ed Wingenbach, Institutionalizing Agonistic Democracy: Post-Foundationalism and Political Liberalism (Routledge 2016), 94).

117 Dworkin (n 11) 80; Van Domselaar (n 2) 34.

118 Van Domselaar (n 2) 293; Iris van Domselaar, ‘Law's Regret: On Moral Remainders, (In)Commensurability and a Virtue-Ethical Approach to Legal Decision-Making’ (2022) 13 Jurisprudence 2.

119 Van Domselaar (n 2) 35.

120 Emmanuel Levians, Is It Righteous to Be? Interviews with Emmanuel Levinas (Jill Robbins ed, Stanford University Press 2001), 52.

121 ibid.

122 Van Domselaar (n 2) 293.

123 Paiement (n 100) 225.

124 Chantal Mouffe, ‘Deconstruction, Pragmatism and the Politics of Democracy’ in Chantal Mouffe (ed), Deconstruction and Pragmatism (Routledge 1996), 9.

125 Derrida (n 13) 87.

126 Neal K Katyal, ‘Sunsetting Judicial Opinions’ (2004) 79 NOTRE DAME LAW REVIEW 4, 1237.

127 Louis Wolcher, Ethics: New Trajectories in Law (Routledge 2021), 61.

128 ibid 61–2.

129 George E Marcus, The Sentimental Citizen: Emotion in Democratic Politics (Pennsylvania State University Press 2002), 105.

130 Sokoloff (n 88) 349.