Private Law Theory

ABSTRACT
If, as so many now do, we accept that anthropogenic climate change poses an existential threat to human life on our planet, in what ways does the global legal and political framework within which we address this threat provide either a contributory or an alleviating factor? In particular, what role do the key framing concepts of ‘sovereignty’ and ‘property’ play? There are various arguments, or levels of argument, that focus on the connection between the two framing concepts as contributory to the initiation and acceleration of anthropogenic climate change. Pulling these various arguments together, we may pose, as a summary hypothesis, that sovereignty has supplied and continues to supply a congenial host for the kind of property regime that produces economic growth, but also, and progressively, harmful climate change associated with such growth. At a most basic level of argument, we can point to how the development of a kind of ‘elective affinity’ between sovereignty and property helped to fashion and sustain a political economy ultimately generative of harmful climate change. This argument has a contingent quality, focusing on historical circumstance and the development of powerful self-reinforcing synergies. Beyond that base line account, however, there are also structural and aesthetic arguments that reinforce the place of sovereignty as a receptive host to the strengths and dangers of a growth-centred property regime. Here we can discern deeper connections and stronger causalities, associated with certain fundamental features of the concepts themselves. These connections may hold notwithstanding the increasing clarity of the dangers associated with excessive growth. While there is much to support these various levels of argument – historical-symbiotic, structural, aesthetic – they all finally have a tendential rather than a necessary quality. They allow space for counter-tendencies. As it is difficult if not impossible to imagine sovereignty and property not both continuing to provide key elements of the global legal framework, we need to work with these counter-tendencies if we are to find a way of averting climate disaster.

Walker, Neil, Sovereignty, Property and Climate Change (November 23, 2022), Edinburgh School of Law Research Paper No 19, 2022.