Global Environmental Law: Context and Theory, Challenge and Promise

Abstract

Few issue areas exemplify the centrifugal forces that have prompted the emergence of global law scholarship better than the environment. With its propensity to blur or transcend conventional distinctions between national and international, public and private, and formal and informal, environmental governance offers a consummate case study to test the promise and perils of global law. In this article we situate global environmental law in the broader debate about lawmaking and application beyond the nation state, tracing the evolution and elusive boundaries of this nascent field. Our survey allows us to identify conceptual ambiguities and missed opportunities in the literature on global environmental law, including challenges to its normativity and legitimacy. From there, however, we proceed to outline a twofold opportunity for the global environmental law project: (i) an opportunity to enrich environmental law with more diverse and inclusive practices; and (ii) an opportunity for collaborative self-reflexivity by the scholars and practitioners of environmental law as these not only interpret and apply but, through their work, actively shape the content of the law.

The interface between EU climate and energy law

“…Ultimately, the role of individual legal scholars is key to advancing the development of disciplinary convergence. We need self-reflection and 'heightened awareness' 29 of the blind spots and even biases that affect a climate law scholar's understanding of energy law and vice versa and should transparently share these shortcomings with the broader community of EU law scholars. 30…”

Global Animal Law and the Problem of “Globabble”: Toward Decoloniality and Diversity in Global Animal Law Studies

“…101 Global law is more dispersed than international and transnational law (which are state-centric): it recognizes the increasingly important norm-creating roles of "non-governmental organizations (NGOs), law firms, financial markets, and multinational corporations". 102 This stems from a view of legal development's "center of gravity" as "in society itself", recognising that pluralist globalized society will permit peripheral legal normative developments to grow. 103 By ascribing roles in "rulemaking and implementation" to non-state actors, global law entails growing normative challenges to the Westphalian legal order.…”

“…108 Global law treats established sources of law as "a mere starting point" of legal normativity. 109 Observations have also been made regarding the jurisgenerative nature of indigenous peoples and the transformation of human rights law owing to their influence. 110 This speaks to the potential benefits of recognising jurisgenerative potential outside of traditional sources of international law because it permits the incorporation of often neglected marginal interests.…”

The ‘question of possibilities’ as a leitmotif for re‐imagining law for the ‘Anthropocene’

“…In addition to irritating self‐referential modes of thinking and doing law, the question of possibilities helps to cultivate an exploratory ethos that can usefully supplement ‘pragmatist’ legal scholarship (see Kulovesi et al, 2019, p. 431; Walker, 2017, p. 212). Pragmatic engagement with law tends to focus, even if at times in creative ways, on the interpretation and systematisation of legal rules as normative substance, seeking to apply these rules to ‘a world that exists independently of law’ (Jasanoff, 2021, p. 848).…”