Peter A Allard School of Law

Judicial Role Morality in Climate Change Litigation: An Embrace of Two Philosophical Lenses

Description of Event

A significant consequence of the convergence of human rights concepts and climate justice efforts has been the role courts can play to compel government and corporate actors to effectively and sustainably reduce greenhouse gas (GHG) emissions. Between 2015 and 2021, litigants brought almost 150 civil suits in 30 domestic jurisdictions and eight international judicial or quasi-judicial tribunals for human rights impacts related to climate change. In that context, this article takes a partisan view to argue for a principled yet provocative ‘role morality’ on the part of domestic judges to eschew deference in order to consistently adjudicate private and public law claims aimed at confronting an inevitably inhabitable planet. Climate change litigation requires judges to step outside their historically-confined role as interpreters of existing law. Judiciaries that hear climate-related claims would be well-served to adopt a Dworkinian rights-based rule of law—one that accords with elements of Habermas’s co-originality thesis. This expansive adjudicative scope would necessitate consideration of the ‘rulebook’ of existing doctrines, albeit alongside the most morally upright position that intends to respond to the urgency and dire consequences that climate change poses. This article attempts to nudge along current separations of powers debates, particularly when it comes to climate litigation, such that scholars and practitioners have to ask why judges are not the appropriate vessels to hold institutional actors to account for climate-related impacts.

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Hassan Ahmad

Hassan Ahmad is an Assistant Professor at the Allard School of Law at the University of British Columbia. He writes and researches on topics related to corporate governance and accountability, climate change litigation, the separation of powers, transnational torts, the interaction of domestic jurisdiction and liability principles with international law, business and human rights law, and the emerging field of law and political economy.




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