Civilly Disobedient or Legally Justified?

Reflecting on AG Flensburg’s Recognition of a Climate Necessity Defence

Abstract

In autumn 2022, the District Court of Flensburg justified the criminal trespassing of a climate activist under Section 34 German Criminal Code (necessity as justification). How can such a "climate necessity defence" be legally justified? The court's assessment calls for a special legal and legal-theoretical analysis.

The legal interest in "Climate Protection" – derived from the Climate Order of the Federal Constitutional Court of Germany and Article 20a of the Basic Law – is accorded particularly high value at several key points of the ruling. What is impressive here is that the court's reasoning is suitable for justifying a permanent state of climate necessity. In addition, the AG argued a novel standard for the suitability of the act of necessity, referred to in the judgement as "immediate interdependence". The weighing of interests regarding the adequacy of the act of necessity also shows a (new) interesting assessment regarding the priority of state measures to avert danger. These considerations are scrutinised with regard to German law.

Subsequently, the legal theory of civil disobedience is used to outline parallel considerations. The court explicitly stated that it was not concerned with civil disobedience because the activism could not be qualified as such. Does this judgement hold water? In fact, the court's reasoning opens the very same field of tensions between legality and legitimacy that classical liberal theories of civil disobedience seek to explore. However, in a certain parallelism to the legal assessment, these too fail to satisfactorily grasp the peculiarities of the climate activism at hand.

In any case, this paper seeks to present some of the overall weaknesses in statutory law and legal theory in adapting to the global climate crisis on a national level.