This paper interrogates the vision and purpose of the nascent and developing field of ‘Earth System Law’ (ESL) with a view to asking how best to describe what ESL is and how it can contribute to scholarship on law in the ‘Anthropocene.’ Drawing on Luhmann’s autopoetic systems theory of law and complex adaptive systems theory, the paper reflects on ESL’s identity, boundaries, and role as a scholarly movement and seeks to draw out both the prospects and limits of its transformational purposes. Such questions are seen as inescapably tied to pragmatic considerations of how law and legal systems change, meaning that ESL would be best served if its scholars embraced a kind of ‘translating’ role to facilitate linkages between law and other domains in search of ways for earth systems considerations to be made relevant to law, rather than becoming vanguards of a normative legal revolution for the Anthropocene.
Michael C. Leach, 'Seeking "Systems" in Earth System Law: Boundaries, identity, and purpose in an emergent field' (2023) 15 Earth System Governance 100162
As developed countries and large historical and current contributors of greenhouse gas emissions, the United States and Canada both bear considerable responsibility to take strong action to mitigate climate change. National mitigation policies in both countries, however, fall far short of this. This chapter describes and evaluates national climate change mitigation policies in the United States and Canada with a view to explain what political, structural, legal, and economic factors cause them to take such different forms in the two neighbours. The chapter concludes that in both countries national mitigation policies are generally haphazard, fractious, and insufficient to satisfy their global responsibilities, and that robust policy action has been stymied over the past three decades in large measure because of political concerns about the economic costs of adopting mitigation measures and the outsized influence of fossil fuel interests. However, distinct legal, political, and economic dynamics in the United States and Canada frustrate the development of effective national climate change mitigation policies for quite different reasons, meaning that one should expect their respective policy solutions to continue to be idiosyncratic into the future even in moments of ideological alignment between their governments.
Leach, Michael & Katrina Kuh, ‘Climate Change Mitigation Law and Policy in the United States and Canada,’ (2021) in Jonathan Verschuuren & Leonie Reins (eds) Research Handbook on Climate Change Mitigation Law (2nd ed.) (Edward Eldgar, in press)
This mini-review article offers a commentary on a singular analytical problem facing legal scholars who use complexity theory and methods in legal research on climate change and the 'Anthropocene'. It positions such research as a sub-set of complexity scholarship in law, which is generally faced with the methodological and analytical challenge of negotiating and reconciling empirical description with normative prescription. It argues that this challenge is particularly acute for legal scholars writing on climate change and the Anthropocene. Using examples from scholars writing about 'Earth Systems Law', it demonstrates how a heavy reliance on complexity-based empirical data as source material for normative claim-making can distract scholars from important but difficult questions about normative legitimacy and how legal change happens at multiple-levels. The special epistemological challenges posed by climate change and the Anthropocene should demand that scholars writing in this domain be especially mindful and explicit of how they link complexity descriptions to the normative claims they make, both for the sake of scientific credibility as well as for the legitimacy and viability of their propositions.
Leach, Michael ‘Negotiating the Descriptive-Normative Frontier in Complexity Research in the Anthropocene’ (2021) Frontiers in Physics (Social Physics) 9:665727