'Square Peg, Round Hole': Exploring the Evolutionary Relationship Between Climate Change Litigation and the Development of Legal Doctrine

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This research will explore the ways in which climate change litigation has challenged fundamental structures of legal reasoning in common law jurisdictions. It is a direct response to the conclusions of Fisher, Scotford and Barritt, who have identified the 'disruptive' nature of climate change litigation. For this reason, I believe it is most appropriate to develop this project under the supervision of Professor Scotford. It specifically seeks to apply a constructive interpretivist theory of adjudication to 'climate change' case law in the UK and Australia from 2010 to 2018, to identify the theoretical legal challenges that arise in climate disputes. The overarching aim of this research is to facilitate an understanding of the interaction between climate change and the law that encapsulates the malleability of adjudication, without compromising its stability.Litigants and courts are frequently forced to 'box' climate change grounds into existing legal frameworks, resulting in unprecedented legal disputes, with fewer legal reasoning tools than ordinarily available. An understanding of the implications of this for both present and future legal responses to climate change is fundamental, particularly as the role and use of courts continues to increase in this space. Scholars have sought to define and identify 'typologies' of climate change litigation, or map out 'future pathways' for its development. There is also extensive literature that considers the role of courts in addressing climate change. The purpose of this research is to contribute to this growing body of work, and begin to make 'legal sense' of a problem that does not appear to 'fit' into the constraints of legal reasoning. Dworkin's theory of legal interpretivism may offer an explanation for the role played by courts, which goes beyond mere 'judicial discretion' and does not threaten either the rule of law or democratic principles. It could be argued that climate change litigation presents Dworkin's 'hard cases'; cases where the result may not be dictated by statute or precedent. His assertion that 'judicial decisions in civil cases...characteristically are and should be generated by principle not policy' could therefore offer an effective theoretical framework. Limitations of this are acknowledged; Dworkin's work applies almost exclusively to common law reasoning, which demands adaptation of the theoretical approach during the course of the PhD. It is also acknowledged that Dworkinian theory may not present complete answers to the research question; however, this does not compromise the ability of the research to identify theoretical limitations to adjudicative capacity in climate change litigation.Doctrinal legal analysis of UK case law alone would not provide sufficient sources required for this research. Comparative study will diversify the pool of novel institutional responses available for analysis. Australia is a useful comparator, as its jurisprudence is more plentiful, draws heavily upon principles in its legal reasoning processes and provides for interesting contrast to the administrative review processes more commonly seen in the UK.