Climate Change Litigation and the Awfulness of Lawfulness

Abstract

In climate change litigation we find radical attempts on the part of activists to adapt existing legal doctrines to new climate change contingencies. Such attempts are often doomed to failure as a consequence of the reactive precedent-bound nature of judge-made law. However lawfulness, or a strict decontextualised application of law, can also generate successful outcomes for activists. Furthermore, as spectacles of deconstruction, even unsuccessful lawsuits challenge fundamental assumptions and accepted meanings within the legal system and can contribute to paradigm change. In this article, the author considers the paradoxology of lawfulness and performance in the context of climate change litigation.

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