I was once in the audience at a conference when a very senior member of the judiciary of a major developed nation declared off-handedly, in a response to a question, that: “Law is relevant to every single issue of human conduct.”
It was a revealing remark and I noted it down verbatim. I often think about it. To somebody armed with a hammer, every problem looks like a nail; to the judge, every problem looks like a court case. This is, I suppose, to be expected. And at that level the statement was almost oxymoronic.
But the comment also expressed something deeply important about modern societies. The German social theorist Niklas Luhmann described such societies as being divided into distinct communicative systems (politics, law, economics, medicine, mass media and so on) wherein the environment – meaning the underlying real world – is processed by a system of code into a communicative format which is digestible to the system proper. For the legal system, that code is ‘lawful/not lawful’: everything in the system’s environment must be understood in those terms, and the whole of reality (in the eyes of the legal system) is encompassed in that dynamic. It follows of course that nothing can happen that cannot be thought of by the legal system on the basis of it being lawful/not lawful, legal/illegal. Anything and everything that has ever happened, or potentially could ever happen, is either one or the other.
Sooner or later, then, it was inevitable that the climate itself – the literal environment – would be subsumed within this logic, and that human interactions with the very world in which we live would become subject to this binary coding. And so what was inevitable has indeed come to pass, in the form of two separate suites of litigation happening at opposite ends of the world, in Europe and New Zealand respectively.
One runs great risks when discussing the ins-and-outs of litigation that is ongoing. Judges can be unpredictable buggers. And one runs even greater risks in this regard when discussing litigation that falls to be decided imminently. This post will go out on April 8th and it concerns three cases in which the judgments will be handed down on the 9th. Those of you who read the post in time will therefore be able to follow along in real time, as it were, and see how accurate my predictions were. But, as I will emphasise towards the end of the post, in one important respect it actually doesn’t really matter what the outcomes are.
New Zealand first, then – land of lamb, pinot noir and weird names for rugby positions. In the recent case of Michael John Smith v Fronterra Cooperative Group Ltd and Ors [2024] NZSC 5, the Supreme Court of New Zealand overturned the decision of a lower court to strike out a claim (meaning, to deny a hearing) to a Maori elder who wanted to sue various New Zealand companies who were involved in the emission of greenhouse gases. The idea here is that the ‘climate crisis’ is endangering lands of cultural and spiritual significance to this man’s clan, and that the emission of greenhouse gases is a civil wrong – a tort – which should provide him (and presumably his people) with a monetary remedy. It’s either a public nuisance, negligence or an entirely new tort of “climate system damage”. The NZ Court of Appeal had earlier struck out the claim as being manifestly bound to fail – reasoning, I think pretty sensibly, that:
The magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law tort claims pursued through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.
In other words, if one grants that climate change is an issue which we will have to deal with in some respect (a position I agree with by and large), then that should happen through the democratic political process and not litigation. It’s a matter for parliaments, not courts. And so the case should not be heard.
The Supreme Court disagreed. Declaring, ominously I think, that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity”, it decided that the claim should proceed to a full hearing. This does not mean it decided the issue one way or the other, but rather that said issue will now actually fall to be determined by a court (inevitably, ultimately, the Supreme Court itself). This will presumably happen later this year, although I am not familiar with the speed with which the wheels of justice turn down in Wellington.
Europe next – specifically Strasbourg, land of Eurocrats, Alsatian dogs and Franco-Prussian antagonism. The Grand Chamber of the European Court of Human Rights will on April 9th 2024 hand down its decisions in the three conjoined cases of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, Carême v France and Duarte Agostinho and Others v Portugal and 32 Others. In its judgments it will determine roughly the same issue as the NZ Supreme Court from the opposite direction, as it were. Whereas in Smith the dispute is in private law, and the claimant seeks compensation from the corporate defendants for the torts in question, in these cases the matter is one of public law: whether governments are breaching the human rights of their populations in failing to respond adequately to the aforementioned ‘climate crisis’.
In the first case, Verein KlimaSeniorinnen Schweiz, the applicants, a group of elderly women, have complained that the public authorities are not doing enough to prevent climate change’s impacts on their living standards and health. In the second, Carême, a former Mayor of a municipality in France is suing the state on the basis that climate change represents a threat to his right to life and right to respect for his private and family life and not enough is being done to prevent it. In the third, Duarte Agostinho and Others (which, I have to say, is possibly the most egregious example of human rights litigation that I have ever encountered, and I’ve seen a lot), a group of six Portuguese nationals aged between eight and 21 years old have brought a claim against pretty much every state in the Council of Europe, alleging that climate change will “impact their lives, well-being, mental health and their homes” due to [checks notes] increased risk of heatwaves, wildfires and wildfire smoke. This, they allege, will breach obligations they are owed with respect to their rights to [checks notes again] life, prohibition of ill-treatment, respect for private and family life and non-discrimination (on the basis that global warming will affect young people more than old).
Leaving aside the merits (or lack of such) of these four cases, what will be the outcome? The vagaries of the jurisprudence of the European Court of Human Rights are such that it is almost impossible to predict in advance what it will decide on any given issue, and while I would once have said that the Supreme Court of New Zealand can be expected to be pretty sensible, I have to say that genuinely nothing would surprise me these days. All four cases could be laughed out of court, but, equally, all four could succeed.
What I think is most likely to happen – and we’ll find out in due course – is that the claimants in each case will fail, but that the court in question will not be able to resist the opportunity to ‘develop’ the law, and will hint that future claims, better made-out and better supported by evidence, may succeed. The New Zealand Supreme Court will say something along the lines of: “While here the claim cannot succeed, we see no reason why in principle there shouldn’t be a tort of climate system damage.” And the European Court of Human Rights will say something like: “While here the claims cannot succeed, a future claimant might do so by proving x, y and z.” And the doors will be thereby left open for further litigation.
Whatever the courts in question decide, however, the important point is that these cases are being brought and heard in the first place. Because they really shouldn’t be. Indeed, one could hardly imagine a subject which, on the face of it, is less suitable for being decided in a court of law. This is for three obvious reasons.
The first is that a court is supposed to apply, rather than make, law, and in this area there simply is no applicable law. There is no tort of “climate system damage” and nothing in the history of the law of tort resembles anything really like it. The drafters of the European Convention of Human Rights had nothing like climate change in mind when they came up with the treaty (though the Court has developed a complex doctrine, known as the ‘living instrument’ approach, or ‘evolutive interpretation’, to explain away this kind of problem). If any of these cases succeed it will be because the court in question has in effect indulged in law-making from the bench, and this is not what is supposed to happen in a properly developed legal system.
The second reason is that courts lack political legitimacy (at least outside of the U.S., where judges are either political appointments or are actually elected). They are not accountable to the electorate directly or indirectly via elected politicians. They should therefore not be the ones to be deciding important matters of policy, such as whether people who are affected by climate change (assuming causation can be proved, which is a rather large assumption) are entitled to a remedy of some kind – let alone what that remedy should be.
And the third reason is that courts lack expertise in complex matters. I don’t mean this only in the sense that judges are not climate scientists; a committee of climate scientists would lack expertise in this regard too. This is because the issues involved are ‘complex’ in the strict sense – they encompass a range of fields (science, economy, law, health, etc.), a range of sub-domains within those fields, a range of competing values, and a range of different priorities, and all of these different factors influence each other in unforeseeable ways. Not only is it the case, then, that no single body of men and women could properly ‘expertly’ evaluate the issues involved. It is also the case that many of those issues (particularly underlying questions about values and morality) cannot reasonably be described as being subject to expertise at all. No human being can be more of an expert than any other in what it is appropriate to value. The matters being litigated are, in other words, matters of politics par excellence – and politics is something that courts are very poorly equipped to do.
But this brings us, with a bump, back to Niklas Luhmann. Luhmann was an obscurantist and an elitist and he made his writing deliberately inaccessible (even for those with a good command of academic German, which I certainly do not have). And I will here therefore somewhat bastardise and bowdlerise him to make an argument I am sure he would not have endorsed. But I will do this to draw out what I think, lurking in the background, was one of his important messages: that modernity would witness a kind of withering, or shrinking, of politics and its replacement by, among other things, law.
We can think of the political as the realm in which decisions are made through the application of power. If we’re lucky, that power derives from democratic legitimacy; it could of course just as well derive from the might of an autocrat. The point, though, is that the power is executive: a wide range of factors – ideally all relevant factors – are weighed up, and a decision is reached on the basis of what is thought ‘best’, with what ‘best’ would look like being determined by the holder(s) of power. Obviously, ideally, they have a good hold on what would actually be ‘best’ and exercise their decision-making power accordingly – they may very well not do.
Yet we live in societies in which the vast complexity of the underlying reality (the things that are actually present, that are actually happening) is absorbed into functionally differentiated social systems which repackage them on the basis of simple binaries: the legal system categorises everything into lawful/not lawful; the mass media system categorises everything into news/not news; the scientific system categorises everything into true/not true; the medical system categorises everything into healthy/not healthy, and so on. The space for politics becomes smaller and smaller as a result, because the requirement for political decision-making as such is squeezed out in the face of the imperatives of the other social systems.
The classic example of this is of course COVID-19, in which, as you will remember, a new ‘happening’ bubbled up from the environment (the virus) and within a matter of weeks everybody seemed to ‘know’ about it in terms of what was news (wet market, terrible threat, new normal) and was not news (lab leak, early spread); what was ‘true’ (everybody is equally vulnerable, social distancing works) and what was ‘not true’ (old people are much more vulnerable than young people, social distancing is just theatre); what was lawful (stay at home) and what was not lawful (sunbathe, sit on a park bench, hug your grandmother at a funeral).
And all of this seemed to happen not on the basis of political decision-making in the sense that I outlined it earlier, but rather on the basis of a kind of collective communicative freak-out which encompassed politicians and non-politicians alike. Politicians were not absent from the picture but they did not wield politics as such; they rather were blown about and buffeted by a whirlwind of intense communication (opinion polls, scientific reports, modelling forecasts, tweets, etc.) that overcame them. The result was that the media, legal, medical and scientific systems staged a kind of undeclared revolt and went off on a wild frolic of their own – with the politicians trailing in the distance, trying to somehow keep up.
Something similar is going on, to a less dramatic extent, with these climate change cases. What to do about climate change, as I earlier said, has to be resolved through processes which are political: in which all relevant factors are weighed up and decisions are made by those in power – ideally, by those who are democratically accountable to the people. What we are seeing instead is the legal system’s absorption of the issue into its own communicative framing, in which everything to do with the matter is reduced to a simple coding on the basis of what is lawful and what is not lawful.
The vast, deep, profound question of humanity and its natural environment – how it is that we should make our peace with the actual world in which we find ourselves – is thereby simply squashed and squeezed and mangled and stomped on until it can be properly made to fit into the appropriate series of slots. The judge pulls a lever and, hey presto!, an answer comes out: this is what we must do (lawful), and this is what we must not (unlawful); this is what the defendant must be compelled to do, and this is what the claimant must receive. And politics thereby disappears, replaced by a depoliticised, ‘neutral’ application of the lawful/unlawful code.
This is obviously detrimental, partly because it definitionally narrows the range of factors that should be taken into account when deciding matters of policy with regard to climate change and the environment, and partly because in the end it also has the effect of undermining the point of having a legal system in the first place. If the point of politics is to apply power in order to make decisions, the point of the legal system is to maintain social stability by giving people predictability and certainty in their interactions. We know what the rules are, what is lawful and what is not lawful, and so we know where we stand. We have a reference point, and so does everybody around us.
But for this function to be properly fulfilled, law needs to be used sparingly. If literally anything and everything falls to be determined by the courts – if law comes to be seen to be “relevant to every single issue of human conduct” – then the opposite result is achieved: nobody is sure of where he or she stands in respect of anything, because one can never know in advance whether a court may suddenly make a determination that will literally change the rules mid-game. This is the position in which the defendants in the Smith litigation in New Zealand, for instance, now find themselves – and, indeed, in which every business in the jurisdiction now finds itself. They thought they were living in a world in which the law was one thing, and there was no such thing as the tort of “climate system damage”; now they may very well find out it is something different altogether. And all of their commercial decision-making will be rendered unstable as a result.
It is no reassurance to make the crass observation that the defendants in Smith presumably have deep pockets; the point is that if it can happen to them in respect of climate change, it can happen to anyone in respect of anything. Much the same logic plays out in the European Court of Human Rights cases which fall to be determined on April 9th. If the court can decide that a failure on the part of states to protect citizens against the harms that are rightly or wrongly associated with climate change is a rights violation, it can decide that anything is. And the very purpose of law’s existence is thereby defeated, because its scope and its effects are so open-ended.
It seems safe to say, then, that we are witnessing in this phenomenon not only the disappearance of politics but also the perversion of law; a toxic brew indeed. Everything that is complex is abstracted and reduced to the lawful/unlawful framing, but at the same time the virtues of the lawful/unlawful framing – in the circumstances in which it helps maintain stability of normative expectation – are corroded by being required to do too much.
This is not, it probably goes without saying, a good place to be, and I will on that basis therefore hazard another prediction: to the extent that courts interfere with climate change policy, the results are going to be regrettable. The only thing to add in closing is that of course climate change is by no means the only arena in which we see the dynamic I have been describing play out, and in my next post I will say a little more about the subject. By that time we will also know something about the extent to which my initial set of predictions were true, at least in respect of the cases before the Strasbourg court.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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How on earth could any of these claims succeed? Quite apart from the important points outlined in the piece above, what proportion of anthropogenic CO2 comes from Switzerland, for goodness sake? And what are these terrible effects on Swiss pensioners, losing their holiday homes due to enhanced coastal erosion?
Indeed, though I suspect the point of these cases is not that they succeed but that they further normalise the idea that there is a “climate emergency” about which something must be done.
Yup just look at the Mann VS Steyn case. The actual science is irrelevant.
“In other words, if one grants that climate change is an issue which we will have to deal with in some respect (a position I agree with by and large)”
This very sentence reveals a massive lack of understanding on Dr McGrogan’s part and it is surprising given that at a minimum he has access to the learned work of Chris Morrison via DS.
There is no climate change crisis, the weather is the weather and humanity certainly does not exercise planetary control. Climate change goes with living on planet earth and always will do.
Moving on to the topic of C1984 Dr McGrogan is equally ill-informed and defaults to the mass psychosis theory which is really only one step up from cock-up theory and that was debunked over three years ago.
Nevertheless, Dr McGrogan is on good form when it comes to matters of law. The judiciary has indeed been taking on more of a law-making role for many years now and clearly sees this as one of its primary functions. Judges are of course nothing if not full of themselves. The problem as the author makes clear is that when everything defaults to either legal / illegal and judges are required for definition purposes, nobody knows where they stand. This seems to me to be exactly where the Davos Deviants want the legal system to be and I have certainly been of the opinion that most of the judiciary has been bought / owned since the Scamdemic started.
I suspect on the outcomes due from the European Court tomorrow Dr McGrogan’s expectations will largely be met, sadly with very likely serious consequences for the planet.
“if one grants that climate change is an issue which we will have to deal with in some respect (a position I agree with by and large)”
I do wish we wouldn’t use the phrase “climate change” to mean “thermostat theory, which advocates that there is such a thing as global temperature that can be controlled by human activity or lack or activity, which we can measure meaningfully and predict with confidence the effects on it of human activity, that is leading very shortly to a catastrophe unless we do X Y and Z as prescribed by some ‘experts'”.
The guy is free to say that “If one grants climate change is an issue which we will have to deal with in some respect” and he says he agrees with that point of view then that is up to him. But he doesn’t know if that is true. It is just his opinion ——-But what we have now is a situation where we are being told what is true regarding climate by politicians, bureaucrats and the scientists and modellers that they mostly fund. It has simply been decided what is true for political purposes, and I refer to this as “Official Science”. —-I have realised for a very long time that we will be forced in law to comply with the policies being enacted to prevent the alleged “climate crisis” all based on what the “official science” says. We are now being confronted with the situation where individuals or groups of individuals will now sue other individuals, groups of individuals, companies, and governments for not protecting them from perceived harm from a changing climate that is mostly all in their imagination and based on the brainwashing they have been subjected to by the very same governments they now propose to sue.
Of course he can say what he wants but what does he mean by it? I have little idea. “Climate change” is now either a meaningless phrase or it means you subscribe to the current political orthodoxy, or something in between. The use of this phrase by our enemies has in my view been deliberate – to conflate any climactic event or variation with their evil lies, and to confuse us and normalize their “vision”. I think this phrase should be avoided at all costs.
Yes “climate change” can mean anything its proponents want it to mean. But what is actually changing? Are storms and hurricanes getting worse or more frequent” NO. Are Floods getting worse or more frequent? NO—How about droughts, wild fires etc ? NO. So what is actually changing that is not at all unusual or shows some upward trend? —-NOTHING. We have had a slight 1 C rise in temperature allegedly over the last 160 years all based on a very unreliable temperature record but half of that could not have been caused by human activity as we were not emitting much in the way of CO2 till after about 1950. ——So “Climate Change” is really an assumed phenomenon, for which no observational evidence really exists and is based on what is expected to occur according to modelling of the climate which so far has all not come to pass. ——–A climate model is not evidence of anything taking place and is not evidence of what will occur in the future, and it is certainly not “science”.
It follows the old adage If you can’t dazzle them with brilliance, baffle them with bullshit! That’s surprisinglyv effective if Bullshit™ is really complicated as many people are apparently extremely reluctant to admit that such-and-such a thing is too complicated for them to understand, hence, they agree with it. A more mentally sane reaction would be “Why is this shit so hideously complicated? Are you sure that’s necessary? I don’t think so!”
It is very easy to make people think there is something amiss with climate. I have heard relations of mine say that when they were young they had more snow, or the tar used to melt and we used to have hot summers, but it has “all changed”. What they fail to understand is that climate is variable, and just because they had a few snowy winters or a few hot summers (1976 eg) that not every year is going to be the same. They also now see every bit of extreme weather beamed into their homes via satellite TV and this can often give the impression that everything is getting worse. But that is all it is—– “an impression”
The old problem reaction solution. David Icke.
Well I think this quote applies generally, but the trouble is I don’t see how it’s possible to ensure the future resembles previous, saner times. Not to sound all ‘glass half empty’ but I feel like things are getting worse not better. We got through the Covid insanity just to come out the other end and be confronted with more insanity, only it’s coming at us from different angles but brought to us by the same culprits;
”We are living in an era when sanity is controversial and insanity is just another viewpoint, and degeneracy only another lifestyle.” Thomas Sowell
“private and family life and not enough is being done to prevent it”……You will own nothing and be happy. Also, how does provoking a nuclear superpower tally with the living standards of your kin? Are they the less than 1% who have nuclear bunkers on the Maldives.
The consequences of such sentiments have a history. https://en.wikipedia.org/wiki/Indiana_pi_bill
One has to laugh. If these courts allow the appeals they are no better than the Inquisition in the case of Galileo. You cannot pass judgement when the underlying basis does not exist. Climate change has little to do with man-made activity.
The old saw says a surgeon is a man in a dark room looking for something; a physician is a blind man in a dark room looking for something; a metaphysician is a blind man in a dark room looking for something that isn’t there. Let’s pray the judges are not metaphysicians on the quiet.
There is a difference between something being lawful and it not being unlawful. The law generally intervenes to forbid practices seeen as harmful. Some legislators, it would appear, would prefer to make everything unlawful and legislate for what is permissible.
Notice the UK is way ahead of the game on this as we have forced ourselves “In Law” to reduce emissions of CO2 with the Net Zero Amendment to the Climate Change Act in 2019. This means if we don’t pull that remarkable feat off, and remember politicians who waved this law through Parliament with no questions asked, have no idea how they can ever achieve this, and are apparently unconcerned with the cost which incidentally is estimated in the trillions. But none of this should really come as a surprise as ever since the whole climate change roadshow got underway, the UK has always had this need to pretend to save the planet harder and faster than everyone else. —WHY? —–As indicated in this article though we are now in a situation where almost every single human activity, whether it be switching on a light, starting up your car, turning up your heaTing, going on holiday, eating a burger etc etc etc is all causing “climate change”, and not reducing the emissions that allegedly cause that is against “The Law”. This is potentially going to mean that everyone can sue everyone else for switching on their living room light, and if you think that is absurd, well everything pertaining to climate change and the silly policies put in place to fight it are exactly that ——TOTALLY ABSURD.
I think the simple explanation for this nonsense is still that the UN wants Net Zero targets to be pulled backward (Or forward? Closer to now in any case) by ten years on the grounds that “All our 2015 predictions were WRONG!!!¹” and so far, no government has subscribed to that. That’s why the media hysteria is meanwhile beyond overdrive² and they’re now mounting an astroturfing campaign³, too, by trying to get some court to declare that the demands of the UN – whatever they are – are LAW and must be followed to the letter.
¹ And why would your 2024 predicitons be more accurate because of this instead of wrong as well?
² According to the BBC of today, we’ve just been through 10 consecutive months of The hottest times ever(!!1) and if temperatures don’t come down next winter, we’ll be Entering Unchartered Terroritory(!!2) and The Future Will Become Difficult To Predict(!!3) — whoever came up with this Waaaaah! The Future Is UNCERTAIN!! RUN AWAY SCREAMING!!! tosh ought to be slapped with something and the editor who oversaw this repurposed as pothole.
³ A fake grassroots campaign by paid actors. Or – more likely in this case – volunteer actors whose lawyers are getting paid.
It all boils down to the Globalist attempt to impose a Global Kritocracy = Rule by Judges, while hiding behind a facade of executive and legislative branches of government.