Criminal law on climate protection without alternatives? Climate catastrophism and the exceptionalization of criminal law as drivers into an imaginative dead end
A finalized version of the article will be published in 2024 in an anthology edited by Burchard/Schmitt-Leonardy/Singelnstein/Zabel (“Alternatives to Criminal Law”).
However, the focus of the article is not the attempt to formulate positive alternatives to or within criminal law. Rather, the concept of a lack of alternatives is the guiding principle, specifically the identification of socio-political forces and patterns of interpretation within criminal law, which can make it appear that there is no alternative to dealing with the conflicts caused by man-made climate change through criminal law.
To this end, the recent debate about a criminal law on climate protection is analyzed from the perspective of the sociology of the future and criminal law. At the center of the article is the thesis that it is precisely the combination of catastrophic visions of the future – here explored via the key sociological concept of imagination and descriptively and analytically referred to as “climate catastrophism” – and the exceptionalization of criminal law that proves to be a driver into the imaginative dead end of a lack of alternatives.
The condensed imagination that the future is a catastrophe (“climate catastrophism”) promotes intensified social control and punitivity as a collective pattern of interpretation that is gaining ground.
The criminally expansive course of a society confronted with radicalized questions of self-preservation seems to be echoed in the socially and dogmatically deeply rooted exceptionalization of criminal law – such as the attribution that it is (only) allowed to address social harm worthy of punishment, but can (or must) do so in a special way due to its regulatory and expressive exceptional position. This creates a momentum that is expansive in terms of criminal law (because it justifies it), which encourages the legalization of climate protection criminal law, which is already in the process of developing.
It is the noble task of criminal law scholarship to anticipate these developments prospectively, to clarify them and to turn them critically – especially with regard to the contradictory and fragile nature of social developments or the contingency of a criminal law that is read as political. A critical study of criminal law must not, and certainly not without reflection, withdraw into traditional forms of criminal law limitation.
