Private Law Theory

ABSTRACT
Climate litigation is transforming human rights from shields against state power into swords compelling state action. Courts across Europe, in Urgenda, Neubauer, and KlimaSeniorinnen, have ordered governments to intensify climate policy, treating inadequate emissions reductions as violations of fundamental rights. The pattern has since reached the apex of international adjudication, in the International Court of Justice’s 2025 advisory opinion on the climate obligations of states. This paper argues that the transformation exposes a deep structural mismatch between the institutional design of courts and what climate adjudication demands of them. The argument proceeds along six axes. These are the negative-to-positive rights transformation, Fuller’s polycentricity, Ely’s representation-reinforcement theory, Waldron’s legitimacy argument under moral disagreement, the distinction between epistemic and political authority in relation to climate science, and the tradition of judicial restraint from Bickel through Carolene Products to the Norwegian Kløfta decision. Two moves distinguish the analysis from a catalogue of familiar objections. The first diagnoses a category collapse, in which courts invoke the rights that attract the most searching review to compel outcomes in the domain that demands the most deference. The second reframes the contested claims as questions about the distribution of goods rather than the vindication of rights. Before any of these structural objections can be pressed, however, a prior doctrinal question must be addressed. Articles 2 and 8 ECHR are open-ended provisions whose extension to climate obligations is itself a legal-political choice that does not follow from the legal materials. The paper also presses the leading defences of climate adjudication and finds the strongest of them outcome-dependent, justified only by assuming the cause is right, so that the same reasoning would license courts to override democratic majorities for ends far less benign. Juridification of climate policy thus risks undermining both democratic legitimacy and judicial authority itself.

Kinander, Morten, Cyclopes on the Bench: Courts, Climate Litigation, and the Structural Limits of Adjudication (June 27, 2026).