Why I Can’t Sign the World Lawyers’ Pledge on Climate Action

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Saskia Stucki and colleagues have invited the readers of this blog to sign the “World Lawyers’ Pledge on Climate Action”. I find myself unable to do so and I would like to share the reasons for this, in the spirit of civil academic debate that this blog has long promoted. The following raises what I believe to be some essential questions about the nature of our work as legal scholars and practitioners, especially for those of us interested in climate law.

I do not dispute Stucki and colleagues’ assessment of climate science. I fully concur with them about the need for ambitious action against climate change, including through law. I also agree that “the active engagement of concerned citizens, activists [and] NGOs … is essential in order to demand new norms”. I agree that advocacy could play an important role in triggering action, and I could agree to sign citizens’ pledge for climate action. Yet, I can’t agree to sign a lawyers’ pledge for climate action.

While I strongly believe that the law needs to change, this belief has nothing to do with my expertise as a legal scholar. Using the lectern or the bar to advocate for what I believe to be right, when this belief doesn’t rely on my professional expertise as a lawyer, would be mixing two irreconcilable projects—one about understanding the law as objectively as possible (as a lawyer); the other about promoting legal change, through reinterpretation or even misinterpretations of the law, in order to promote a cause that I hold dear (as an advocate).

Lawyers have no unique insights on the need for ambitious climate action

Stucki and colleagues suggest a parallel between the World’s Lawyers Pledge on Climate Action and the 1992 World Scientists’ Warning to Humanity. In fact, these two documents are very different.

The 1992 Warning is mainly a summary of scientific conclusions. By signing this Warning, 15,000 scientists expressed their concern with their own findings, of those of their colleagues, that they thought to be alarming and yet insufficiently understood beyond scientific circles. While the signatories had, I suppose, various degrees of expertise in different scientific disciplines, signature was limited to individuals with a scientific training. Scientists are more capable than other informed citizens to assess what the best available scientific knowledge is.

By contrast, most lawyers don’t have advanced training in science, economics, or moral philosophy, which would allow us to have unique insights about what should be done about climate change. I am a climate law scholar, and I strongly believe that ambitious climate action is needed, but the two are unrelated: my belief that ambitious climate action is needed isn’t informed by my knowledge of climate law, but merely by reading the news and some synthetic publications on climate science, climate economics, and climate ethics. My belief in the need for ambitious climate action is that of an informed citizen, not that of a lawyer.

A Pledge Lawyers Can’t Make

In their defence, Stucki and colleagues aren’t asking us to sign a document expressing our concern about climate change or a belief in the need for ambitious climate action. Rather than merely telling the world about some research findings, as the Warning did, this Pledge commits its signatories to “take personal and institutional responsibility” by “taking action against climate change … within our respective fields of activity”. While the Pledge is admittedly ambivalent, the “action” it implies strikes me as inevitably conflicting with our professional duties.

Societies entrust scholars with the important and noble task of ascertaining information—a task that requires a quest for objectivity and an open-mindedness to any research findings. In the words of Christian Tomuschat: “The scholar—in the same way as a judge—has the duty to be impartial and objective”. Our function as curators of human knowledge isn’t to advocate for causes that we believe to be right, but to help society determine what is true (eg what the law is). This can’t be done with a political agenda in mind. Researchers don’t conduct worthwhile academic research if they start their day knowing what their conclusions will be at the end of the day.

What should I do, as a signatory of the Pledge, when my research finds that, after all, states have no firm legal obligation to act consistently with the 1.5/2°C temperature targets; or that human rights treaties open only “narrow windows” on the applicability of general mitigation obligations? Should I suppress such findings on the ground that these conclusions aren’t conducive to the agenda that I agreed to promote? Should I manipulate my research to arrive at “better” conclusions? Or—if the Pledge allows me to reach any such conclusions—what is it precisely that I would be committing to do (that I would not do anyway) when pledging to “taking action against climate change” within the scope of my professional activities?

The invitation to sign the Pledge extends to lawyers of all stripes, not just scholars. Yet, there is no obvious way that judges or practicing lawyers could pledge to “mainstream” climate action in their judicial practice without betraying their duty to uphold the law adopted by a legitimate (eg democratically elected) government. Judges must apply the law; they mustn’t seek to “update” it (as Stucki and colleagues put it) with the view of promoting climate action. When the law is unclear, judges must follow legal principles, not their personal predilections. Nor do practicing lawyers have much more discretion—they must exercise “independent, unbiased professional judgment” upon advising their clients. Lawyers are not lawmakers.

Special Arguments

Stucki and colleagues engage in special pleadings when they argue that “the climate crisis isn’t an ordinary or partisan political issue”, but “an objective and existential threat that cuts across any social, political, ideological, or other strata, interests, allegiances, or grievances”. They do not explain how these characteristics of the climate crisis justify that lawyers neglect their professional duties of objectivity and independence in academic research and adjudication. Addressing a crisis of such unique proportion doesn’t justify compromising on these duties but, rather, calls for holding firmly to them, if one believes—as I do—that an accurate understanding and a sound application of the law are instrumental to coordinated and effective responses to climate change.

I am not disputing here that there might be good reasons to discard the application of valid legal norms in certain, clear-cut circumstances—but right and wrong are far more difficult to distinguish when climate change is concerned than, for instance, regarding in relation to mass atrocities. My point here does not relate to the level of harm, but to its attribution to the legal system. A legal system that organizes the extermination of a minority is plainly evil; by contrast, there is no plain and objective way to distinguish right from wrong when it comes to finding the right balance between climate action and other priorities (eg economic development and social justice), or when it comes to determining whether a given state is doing its “fair share” in global mitigation action (for a critique of Urgenda, see here). Even if one agrees with the questionable recent judgment ordering Shell to cut its CO2 emissions by 2030, the moral foundations of this duty are uncertain, if only because some of the gas that Shell produces replaces dirtier coal.

As lawyers, we are the guardians of the law, not its legitimate owners. We have no more right to decide what societies do with their laws than banks have in determining what their customers do with their money (as long as that this is not plainly criminal). We have no more legitimacy than anyone else in determining what the law should be, what objectives it should serve, or what values it should hold. And while it may be that lawyers’ analysis is shaped by ideology, this surely doesn’t justify making a bad situation worse by promoting additional biases.

There are, of course, other ways that we, lawyers, can act against climate change. I agree with Stucki and colleagues that we need to better “consider … issues [related to] climate change”. Better understanding of climate law is essential to determine how societies can improve it. There is also room for various non-doctrinal and interdisciplinary research, for instance research that assesses critically the effectiveness of various tools for climate change mitigation. As climate law is applied, there is a need for law firms to develop capacity, and for universities to adjust course and programme offerings. And as we, obviously, should also seek to reduce or offset our emissions—but those are our responsibilities as citizens, not as lawyers.

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Comments

Evelyne Schmid says

September 15, 2021

I don't want to direct readers away from the blog but for better or worse, at least today, the debate of this post has taken place on Twitter, including with replies from the author. If I am not mistaken, Twitter allows access to the search function even if you don't have an account.

Szilard Gaspar-Szilagyi says

September 15, 2021

Very well said. Unfortunately too many people confuse legal scholarship with activism

Benoit Mayer says

September 16, 2021

Thanks to all who read the piece and engaged in a polite and respective debate on social media. I would like to come back to a few questions that have been raised many times in the comments I have received so far.

- Is fully “objective” legal analysis possible? Probably not, but we should aspire to it nonetheless when we use our professional expertise to interpret the law. That does not necessarily mean that we need to keep any ideas of (climate) justice at bay: if these ideas are embedded in the law, then, surely, we must apply them as part of the law. Nor does that exclude the relevance of scholarship engaging with the law from the perspective of other disciplines.

- Don’t lawyers have unique insights on what the law should be? I don’t think so – not as lawyers, that is. Our scientific authority as lawyers is based on our knowledge and understanding of the law. Legal scholars can obviously engage with other disciplines, thus in effect acting as moral philosophers, economists, or sociologists, rather than as lawyers.

- Why wouldn’t lawyers change or discard the law when it is failing us? A democratic society posits that it belongs to the people – not to lawyers – to make the law. We need to respect these decisions (and not just when we agree with them!). In highly exceptional cases, there may be good reasons to discard a law that is plainly and simply evil, but I don’t think this is the case here. The need to address climate change is obvious, but what it implies in legal terms is not (e.g. the “fair share” of a state in global efforts on climate change mitigation).

- Does the World’s Lawyers Pledge on Climate Action really ask us to change the law? The Pledge is indeed somewhat ambivalent, but I wonder what “action” this Pledge suggests that lawyers should take “within our respective fields of activity and expertise”, or what “change necessary to avert climate catastrophe” it calls for, if not a change in the way lawyers conduct legal analysis – that is, in effect, a change in the law decided by lawyers.

Gabriel Armas-Cardona says

September 21, 2021

I'm late to this conversation, but just to add in another dimension, I think many common law lawyers would disagree with the author's 2nd and 3rd response points (re: "Don’t lawyers have unique insights on what the law should be?" and "Why wouldn’t lawyers change or discard the law when it is failing us?").

Common law lawyers must always be thinking about lex ferenda as well as lex lata. The practice of law, in a common law jurisdiction, is not separate from thinking about what the law should be. "Should be" is of course based on advocacy, a word some consider taboo. However, stemming from advocacy poses no issue. Staunch advocacy for one's client is praised, even when it has sweeping legal ramifications, so why shouldn't staunch advocacy for a pressing global issue also be?

Benoit Mayer says

September 21, 2021

Thanks, Gabriel, for the comments. My understanding is that (common law) lawyers must distinguish what they consider to be the true or right interpretation of the law, from what they think should be the law. Lawyers have unique insights with regard to the former, but not with regard to the latter.

Many of us would frown upon a judge approaching, for instance, the question of abortion on the basis of personal opinions (e.g. having signed a pledge to hinder abortion) rather than on the basis of an attempt at objective legal interpretation. Why would our attitude be different in a case regarding oil and gas extraction in the Gulf of Mexico? Beside the principles that a judge will find within the law (and must apply), are there some “objectively wrong” values that the judge should rather leave home, and some “objectively right” values that she should bring with her to the courtroom?

And I, for one, surely don’t see “advocacy” as a taboo word — I believe that all parties involved in legal disputes or political debates should have proper legal advice. But I don’t want a judge to act as an advocate, a lawyer to advise a client with extraneous interests in mind, or a scholar to confuse doctrinal work with advocacy. The decision on how best to balance climate action with other political priorities does not belong to lawyers.