The present article examines the complex relationship between the judicial power and the legislator in the context of climate change litigation. In this context, the ideal of a separation of powers is often advanced to promote judicial self-restraint or even judges’ incompetence to rule in this matter. By analysing various court decisions, in particular decisions of constitutional courts, the authors portray the interference of judges in the legislative function while insisting on its limits. By demanding sufficient measures of the legislator to fight climate change, courts do certainly assume a legislative role. However, it is clarified that judges are neither asked to draft laws, nor to act in place of the legislator but rather to initiate action of the legislator. The authors conclude that the decisions considered enforce the application of law and the respect of constitutional and international commitments as well as the respect of fundamental rights in accordance with the principles of the separation of powers.
Public Law Professor, Université Paris-Saclay
Ph.D. Candidate in Public Law, Université Paris-Saclay