Key Climate Judgments in Belgium and the Netherlands: An Analysis Based on Luhmann’s “Ecological Communication” and “Legitimation Durch Verfahren”

This paper explores how the legal system has communicated about environmental issues in two landmark cases: the Urgenda Foundation case in the Netherlands and the Klimaatzaak case in Belgium. The Urgenda Foundation case was decided by the Dutch Supreme Court in 2019, while the Klimaatzaak case was delivered by the Brussels Court of Appeal in 2023, with a cassation appeal still pending. Both judgments outline specific goals for the respective administrations involved.

Utilizing the frameworks of Niklas Luhmann’s “Ecological Communication” and “Legitimation durch Verfahren”, this paper analyses communications surrounding these cases. It examines the role of courts regarding ecological communication and the impact of environmental problems on the internal dynamics of law. To this end, this paper focuses not only on these judgments, but also on relevant press statements and releases from political and judicial actors.

First, this paper investigates how these judgments and their content about the environment were communicated by the judiciary, exploring the legal logics at play and their implications for their legal system. It also considers how these communications were perceived by the environment, as well as whether they aligned with the binary codes of other systems. Second, this paper evaluates the legitimacy of these judgments through the lens of “Legitimation durch Verfahren”, highlighting the involvement of interest groups, the role of non-participants, and perspectives from outside the legal system.