INTRODUCTION: THE “SUBVERSIVE” NATURE OF CLIMATE CHANGE AND THE NEED FOR A NEW LEGAL GRAMMAR

Climate change has a subversive character. Its nature, characteristics, scale and intensity are so different from any other problem or menace humankind has faced so far that it requires a radical reconceptualisation of almost every field of human knowledge and its practices. The social, ethical, political and geopolitical, economic and legal dimensions are all inextricably entangled in this effort. The subversive or disruptive, so to speak, nature of climate change consists precisely in this, i.e. in the fact that – in all these domains – previous categories, institutions, procedures, ideas and, more generally, “modes of thought” need to be re-imagined and therefore redefined, if not completely and radically re-thought, to address the new global climate situation.

The legal domain is no exception. Let us briefly emphasise this point from a philosophical viewpoint, as it will be crucial for the arguments set out below. Climate change is such a pervasive and boundary-less phenomenon that classical and traditional legal doctrines are proving insufficient to provide efficient relief in relation to it. We must therefore operate according to what could be called a “methodological detour” in our mode of constructing legal theories and concepts. Why a methodological detour? Because in the history of legal thought we often see that categories have first been created and then the “outer” reality has been fitted into those categories. It is the outer reality that has been often adapted to the legal world, and not vice versa. By inventing our “legal universe” (a universe made up of doctrines, distinctions, interests, criteria, and so on), jurists have created a legal reality (their own reality); differently put, they have made it possible for things to be true or false from the standpoint of the law, or “in the eye of the law”. Now, the urgency and the immense severity of the environmental crisis, its unavoidable and inescapable presence, requires us to do the inverse. It is our categories of thought that must be re-considered in order first to face, and finally to provide a solution to, global warming.