The Paradox Test in Climate Litigation

Abstract

The common law and natural law traditions have both sought authority in ‘reason’ and the ‘laws of nature’. Pollock applied this logic in explaining judicial development of negligence: the application of reason to emerging science and technology. The equivalent today is a growing body of scientific evidence that humans are destroying their own habitat through climate change, biodiversity destruction and pollution. Humanity depends on its habitat for survival and therefore each step in this direction increases the risk of its extinction. The courts are already being asked to declare as unlawful governmental decisions that breach human rights and statutory or constitutional protection of the environment. This perspective article proposes that when presented with scientific evidence of habitat destruction in judicial review cases, the courts could examine whether a decision is unlawful and/or irrational. This ‘Paradox Test’ would ask: (1) will the decision contribute to the destruction of the human habitat and (2) if so, is it justified on the ground of necessity? It is proposed that a decision that failed such a test would be unlawful and irrational as contrary to what is arguably the most fundamental law of nature: species survival. The essay defines the Paradox Test, sets it in an historical context and positions it as implicitly inside the boundaries of current English doctrine of judicial review, where it would need to be judicially recognized. Consequently, practitioners are invited to apply the test in court and to share their experience.