Article on activism through judicial procedures in ‘Wijsgerig Perspectief’
December 19, 2017
Together with her friend Tamar de Waal, Laura Burgers published an article in the Dutch philosophy magazine Wijsgerig Perspectief on activism through judicial procedures. The article is both a theoretical investigation into the emancipatory potential of constitutional states and offers a more practical action perspective for activists who want to use judicial procedures to attain their goals.
With the aid of theory by Claude Lefort and Jürgen Habermas, the article shows that constitutional states can be a source of emancipation, but that judges generally have to stay within the boundaries of democratically determined laws and principles. Judges have space to go against majority decisions only when fundamental rights are at stake. However, since these fundamental rights typically are human rights, environmental interests may lack judicial protection. For activists, it may still be wise to begin judicial procedures, because even when the procedure is lost, the mere media attention for the case may influence society-wide democratic deliberations and, after time passes, this might open up space for the judiciary to take into account more interests than it could before.