The Complexities of Comparative Climate Constitutionalism

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. As an indicative example, note the introductory words to one recent edited collection: “Our idea in this book is to explore a conception of the constitution conceived as an axiological core of a certain society…This substantial idea of constitution is intimately related to its use by the courts and a set of norms to control power.” This is we argue but one aspect of climate constitutionalism. To advance the proposition, we draw on a variety of legal materials, both primary and secondary. These include the burgeoning climate litigation literature, and critically, the latest comparative constitutional law scholarship, especially as it pertains to constitution making, and constitutional law in jurisdictions not committed to liberal constitutionalism. We also provide the first comprehensive global survey and analysis of constitutional provisions which make specific mention of climate change.

Keywords: Climate law, climate constitutionalism, comparative constitutional law, climate clauses