The Complexities of Comparative Climate Constitutionalism

Abstract

Abstract Climate constitutionalism is a relatively novel legal field that has nonetheless adopted a very distinct character. Picking up on the classical liberal tack, it is marked by a distrust of state power as it relates to climate action or inaction. This is a venerable approach. In his 1967 classic, MJC Vile recounts that the ‘great theme of the advocates of constitutionalism [had been] the frank acknowledgement of the role of government in society, linked with the determination to bring that government under control and to place limits on the exercise of its power’. This mode of distrust has been ported to the climate constitutionalism literature and in particular its focus on adjudication of constitutional rights provisions for climate purposes. This, we argue, is but one aspect of climate constitutionalism that no longer speaks to the needs of the world when we think about the relationship between climate change, the doctrines and institutions of comparative constitutional law, and the underpinning theory of constitutionalism for this relationship. The institutional dimension of the constitutional management of climate change must go beyond courts and rights to processes and institutions in the two political branches of the state. The normative theory of climate constitutionalism—why should climate change be a constitutional subject on a global scale?—should address itself to the matter of how that question can be answered from a wider and more pluralistic set of normative standpoints than simply only liberalism. In other words, how can climate constitutionalism be normatively justified beyond, although not against, liberalism?