08 Oct Climate Change and the Role of Lawyers: A Reply to Burra
[Benoit Mayer is Associate Professor at the Chinese University of Hong Kong; his research focuses on climate law.]
My thanks to Srinivas Burra for his post engaging with my argument about the role of lawyers, in particular in relation to the mitigation of climate change. For those who are just catching up here: in a previous post (in EJIL:Talk!), I explained why I was not prepared to sign the “World Lawyers’ Pledge on Climate Action.” In my view, as a legal scholar, I should try to understand the law objectively; I could not endorse the idea that a judge (as a previous blog had put it) should seek to “updat[e]” the law, or that lawyers should “mainstream” in the law causes they hold dear. The decision on whether and how a state should mitigate climate change, in my view, belongs to democratic governments. Insofar as the law requires states or other actors to mitigate climate change, lawyers must merely uphold it; insofar the law does not, lawyers cannot act against it.
This view prompted strong reactions on social media — some of which perhaps not fully within the “spirit of civil academic debate” in which I had expressly situated my intervention. Some Twitter citizens merely expressed astonishment, disagreement, or outrage. Not all of them wondered whether I was a Nazi. One explained that I was merely “a case of a limited legal formation put into a poor spirit”. A few others supported my views, either publicly or through private communication.
Some tweets made interesting remarks, despite the limitations of the 180-character format. Some colleagues contended that I was attacking a strawman: the “lawyers’ pledge on climate action”, in their view, did not call on lawyers to take any action. The Pledge is indeed ambivalent, though one could wonder about the significance of signing an empty pledge. Other colleagues suggested that the pledge was not enough: lawyers, in their view, should refrain from working for any fossil-fuel corporations. If anything, I was hoping that my post could trigger a much-needed debate about the role of legal scholars in what one colleague described as “normatively asymmetric fields (e.g. environmental, human rights, labor, international)”. In this regard, I am grateful to Burra’s intellectually engaging response.
Burra makes three claims. One is that my argument is positivist and omits the importance of critical legal scholarship. The second is that lawyers have no role to play in ascertaining the content of the law. The third is that lawyers have some unique insights on climate change. I disagree with these first two points, but I believe that Burra and I are mostly in agreement on the third point.
Relation to Positivism and Critical Legal Scholarship
Burra asserts that my post “broadly falls within the framework of positivism” and claims that “[p]ositivism has insurmountable limitations”. Unfortunately, he does not explain what these limitations are and how they invalidate my argument. For the record, I am critical of a narrow conception of positivism (i.e. one which views the law as limited to explicit legal rules) for reasons well explained here. I cannot guess what “insurmountable limitations” Burra is alluding to, but I suppose that they would be objections to this narrow conception of positivism.
Burra, along with some social media users, criticized my original post for failing to account for critical legal research, and thus allegedly denying the relevance of such scholarship. This objection is ineffective: the validity of an argument cannot be ruled out simply because its consequences are unacceptable. Overall, this objection is groundless: nothing in my argument excludes the relevance of critical legal scholarship.
Critical legal scholarship is not (or not directly), in my view, about changing the law, but about questioning our understanding of the law. This scholarship may point to inconsistencies in legal interpretation — mistakes and judges make, or biases that their judgments display — which ought to be corrected, but such corrections do not involve, properly speaking, any legal reform. Critical legal scholarship may also question the inner workings of the law (e.g. the colonial roots of international law), which is useful in many ways, but does not automatically feed into arguments for legal reform. (In fact, I have myself engaged in critical legal scholarship, for instance here, here, here, or here.)
Burra’s Contention That Lawyers Don’t Need to Ascertain the Content of the Law
My original post argued that the role of scholars was to ascertain information, for instance the content of the law. Burra finds it unnecessary for scholars to try to ascertain the content of the law. This task, he suggests, is merely about “gather[ing] information on what laws governments make and what judgments are delivered by courts and tribunals”. In other words, Burra suggests that “the scholar has almost no role in determining what the law is”, on ground that the content of the law is clear for all to see.
It strikes me that Burra seems to rely on the sort of narrow positivism that he justly denounces. Burra’s position elides the many difficulties one encounters when trying to ascertain the content of the law, whether this is in the context of statutory interpretation, or with regard to the identification (or, perhaps, interpretation) of customary international law.
For instance, I do not think anyone has come up yet with any convincing method to determine a state’s or a corporation’s requisite level of mitigation action under tort law, customary law, or (if applicable) human rights law. Dutch courts held in Urgenda that the Netherlands had to reduce its emissions by 25 percent by 2020, compared with 1990; and, in Milieudefensie, that Shell had to reduce its emissions by 45 percent by 2030, compared with 2019. These findings are presented as legal findings, yet no laws contain these numbers. Legal scholars have a role to play, I believe, in determining whether these conclusions are correct, a question which is certainly not obvious.
Burra denies that the role of ascertaining the content of the law is “entrusted to [legal scholars] formally by society”. If not formally, this role is entrusted through the various functions that legal scholars play — legal scholars teach law and they decide who is qualified to work as a lawyer (for instance by awarding grades and degrees, or sometimes by taking part more directly in procedures of professional qualification). Journalists or legal professionals engage with legal scholars (or their writings) because they expect that legal scholars have a unique expertise in ascertaining the content of the law that courts should apply and that everyone should uphold.
Finally, Burra’s post reflects a deep-seated relativism, which I find troubling, when he suggests that “determining what is true and what is not involves making certain choices”. In his view, “[w]hat a scholar considers as true may not always be acceptable to all social groups”. I find most striking is that Burra’s position seems to echo some disturbing assertions about “version[s] of the truth,” “alternative facts,” or “fake news” — suggestions of a world where climate change is merely a matter of personal belief, as if academic research and expertise had all become entirely irrelevant, and where the efficacy of vaccines is a matter of faith. Surely Burra does not really believe that “we are never outside of ideology” — or else, how could Burra and I have a debate at all? Legal research is not, in my view, merely about expressing opinion determined by ideology; it is an attempt at testing the veracity of hypotheses in a rational fashion.
Lawyers’ Unique Insight on the Need for Legal Reform?
I agree with Burra that lawyers have some “unique insights on climate change”. Lawyers have unique insights, most obviously, on the content of the law as it applies to climate change. Lawyers also could also have unique inputs when a government decides to enhance its action on climate change mitigation, for instance by helping to decide the best implementation strategy.
Of course, I am not excluding the possibility that legally trained individuals may engage in other professions, in which their legal knowledge may be useful. Lawyers commonly act, for instance, as ministers, lawmakers, political advocates, or journalists; or, as scholars, they may conduct research involving methodologies borrowed from other disciplines. By “lawyers”, I am referring to legally trained individuals engaging in professional activities in which a legal training is a necessary condition. Lawyers may also engage in other activities during their free-time, as citizens. I see nothing wrong in lawyers engaging in political advocacy on the side.
My only claim, in my original post, what that “[l]aywers have no unique insight on the need for ambitious climate action”. Burra does not seem to fundamentally disagree with this, but, to be sure everyone is following, let me briefly reiterate my argument. My understanding is that the final decision ought to belong to the people (or their representatives). Democratic deliberation (or what replaces them in non-democratic societies) can be informed (but not determined) by experts, in particular scientists, to know about the causes and effects of climate change; moral philosophers, who try to determine what ought to be done about climate change; and economists, who can help to determine the most cost-effective way of achieving an objective.
Naturally, lawyers can echo (or engage with) findings from science, moral philosophy, and economics. My point is that research methodologies that are uniquely legal (e.g. doctrinal or comparative research) do not enable us to make findings, of our own, about the objectives that legal reform should pursue.
Burra notes (as my post acknowledged) the possibility of some exceptions in extreme cases. One could argue that a judge should not enforce a law that is clearly evil, for instance a law organizing the commission of mass atrocities. Even if this argument is correct (a point on which I remain agnostic), I do not think that this allows lawyers to take the law in their own hands regarding climate change mitigation. The matter is far too complex and normatively ambivalent: while it is quite obvious, I believe, that global efforts on climate change mitigation are insufficient, there is no obvious way to determine which state or which corporation has to do more. I understand that Burra and I agree on this.