Law, justice and the role of courts in changing the social superstructure narrative in climate litigation
| Published date | 01 May 2023 |
| Author | Friederike E. L. Otto,Petra Minnerop,Emmanuel Raju,Luke J. Harrington,Rupert F. Stuart‐Smith,Emily Boyd,Rachel James,Richard G. Jones,Kristian C. Lauta |
| Date | 01 May 2023 |
| DOI | http://doi.org/10.1111/1758-5899.13174 |
416
|
Global Policy. 2023; 14:416– 419.wileyonlinelibrary.com/journal/gpol
Received: 20 Dec ember 2022
|
Accepted: 21 December 2022
DO I: 10 .1111/17 58- 589 9.13 174
RESPONSE
Law, justice and the role of courts in changing the social
superstructure narrative in climate litigation
A Rejoinder to Benoit Mayer1
Friederike E. L.Otto1 | PetraMinnerop2 | EmmanuelRaju3 |
Luke J.Harrington4 | Rupert F.Stuart- Smith5 | EmilyBoyd6 | RachelJames7 |
Richard G.Jones8 | Kristian C.Lauta9
1Grantham Institute, Imperial College London, London, UK
2Durham Law Scho ol, Durham Universit y, Durham, UK
3Global Health Section, Copenhagen Centre for Disaster Research, University of Copenhagen, Copenhagen, Denmark
4Environmental S cience, University o f Waikato, Hamilton, New Zealan d
5Oxford Susta inable Law Programme, Uni versity of Oxford, Ox ford, UK
6LUCSUS, Lund Univer sity, Lund, Sweden
7School of Geographical Sciences, University of Bristol, Bristol, UK
8Met Office H adley Centre, Exeter, UK
9Faculty of Law, University of Copenhagen, Copenhagen, Denmark
Correspondence
Petra Minnerop, Facu lty of Social Scienc es and Health – La w, Durham University, Stock ton Road, Durham DH1 3LE, UK.
Email: petra.minnerop@durham.ac.uk
In the article Causality and the fate of climate li tigation:
The role of the social superstructure narrative, we argue
that an enhanced and wider understand ing of attribution
science will shape the social su perstructure narrative of
climate change. This social superstruc ture narrative in-
fluences courts in their decision- making. Benoit Mayer,
in the same issue, has commented on our arti cle. We
use this rejoinder to clarify three elem ents of Mayer's
comments in his response to help avoid any misconc ep-
tion of our argument or misunderstanding of the G erman
Civil Code and thus hopefully enrich t he discussion.
These clarifications speak to the role of th e courts first
to preserve the rule of law and second in the context of
climate change with the third clarification relating to the
legal basis of a specific claim und er German law.
First, Mayer claims that our argument confuses law
and justice by concluding that climate chan ge is an
issue of injustice and therefore is a matter for cour ts.
Mayer's proposition ignores the fundamental ro le of
law— which is to serve justice. Mayer continues to sug-
gest that because we confuse law and justice, our ar-
gument misconstrues the condit ions under which courts
can ‘impose compensation’. Our argument is not about
courts imposing compe nsation but courts applying the
law. The role of courts in any society is to preserve the
rule of law and, in so doing, ensure that decisions are
fair and just. We explain that what constitutes justice or
injustice pertains to societies' and courts' perceptions,
and this inevitably influences the interpretation of the
law. The author not only misses our point about the in-
terlinkages of societal fairness perceptio ns, the law, and
adjudication but also ignores the acad emic and judicial
debate that framed, for example, the application of the
law in asbestos litigation and medical exposure c ases.
Famously, in Fairchild v. Glenhaven Funeral Services,
Lord Justice Nicholls of Birkenhead stated that ‘[O]n oc-
casions the threshold “but for ” test of causal connection
may be over- exclusionary. Where justice so requires,
the threshold itself may be lowered. In this way the
1 Mayer, B. (2022) Attribution science and the fate of climate litigation. Global
Policy, 13, 831– 832. Available from: https://doi.org/10.1111/1758- 5899.13153
A rejoinder to Be noit Mayer's response to o ur article “Causali ty and the fate of climate lit igation: The role of the soc ial
superstruc ture narrative”1.
This is an open ac cess article under the t erms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,
provided the original work is properly cited.
© 2023 The Authors . Global Policy published by Durham Universi ty and John Wiley & Sons Ltd.
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