Climate Protests, Criminal Law, and the Necessity Defence: A Transnational and Comparative Dialogue

As the global climate continuously deteriorates, a growing transnational movement of climate activists requests policy-makers and economic actors to take more ambitious climate action. Climate protests have also taken the form of acts of civil disobedience, for which climate activists face the threat of criminal and administrative sanctions.

The urgency of tackling the climate crisis, on the one hand, and the still unsettled status of civil disobedience in constitutional liberal democracies, on the other hand, have raised several questions in the academic and public discourse on how the legal system should respond to civil disobedience by climate activists. These questions concern, amongst others, the interplay between science, law, and politics; the relationship between civil society and representative institutions, and more generally the boundaries of the public sphere; as well as the interaction between judicial and political branches of government. A particularly vivid discussion has turned around the question whether the general criminal law defence of necessity is applicable to acts of civil disobedience by climate activists. Courts in an increasing number of jurisdictions are, in fact, grappling with the claim that those acts should be exculpated as a course of action contributing to deter the ‘imminent’ danger of climate change, against the background of insufficient engagement by institutional actors.

The USA and Germany are amongst the jurisdictions most intensively debating these questions. This event of the Max Planck Law Initiative ‘Law, Climate Change, and the Environment’ aims at providing a platform for a transnational dialogue on these questions with leading experts from those legal systems. The webinar will tackle questions relating to criminal law, constitutional law, international environmental law, political theory, and philosophy raised by this phenomenon, aiming at generating insights on an expanding frontier of climate litigation.

Ted Hamilton is a Visiting Assistant Professor of English at Bucknell University. Ted holds a BA from Cornell University, a JD from Harvard Law School, and a PhD. in comparative literature from Yale University. He carries out research at the intersection of law, literature, and the environment. Besides his academic appointments, Ted is also active in journalism, essay-writing and poetry on several prominent American outlets, and practices law as a co-founder and staff attorney with Climate Defense Project. Ted is the author of Beyond Fossil Law: Climate, Courts, and the Fight for the Future (OR Books 2022), as well as of several articles spanning across law and the humanities, with a focus on environmental matters.

Johannes Kaspar holds the chair for Criminal Law, Criminal Procedure and Criminology at Augsburg University. Professor Kaspar holds degrees from LMU München and has been practising law in München with a focus on civil and criminal law. His research interests span across the whole spectrum of criminal law, with a focus on the intersection between constitutional and criminal law and interdisciplinary approaches to criminal law and policy, including the law and practice of criminal sanctions and sentencing. He is the author of several publications in those fields, including a well-known textbook on Strafrecht: Allgemeiner Teil — Einführung (4th edn, Nomos 2023). He is also editor in chief of the journal ‘Neue Kriminalpolitik’ (Nomos).

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Climate Protests, Criminal Law, and the Necessity Defence: A Transnational and Comparative Dialogue

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