Bending the Arc of Law: Positivism Meets Climate Change’s Intergenerational Challenge

Abstract

Catalyzed by the surge in climate litigation worldwide, this article examines the tension between the moral imperatives of intergenerational justice and the operational constraints of positivist legal frameworks. It hypothesizes that while positivist doctrine prima facie challenges judicial application of intergenerational justice principles, reconciliation is possible through contextually attuned adjudication and evolved conceptions of legal principles for the Anthropocene. The article explores three key litigation strategies: dynamic interpretation of existing rights, application of constitutional future generations clauses, and procedural mechanisms for representing future interests. Building on European climate judgments, it analyzes how these approaches strain positivist tenets and animate separation-of-powers objections. The article argues that addressing interpretive and foundational challenges posed by climate change requires both doctrinal innovation and theoretical reconstruction. It shows how contextual constitutionalism can help courts to acknowledge intergenerational duties while preserving legal determinacy, and explores how positivism might evolve to accommodate multigenerational climate governance. Situating leading cases within debates between positivism and non-positivist theories, the article offers a roadmap for developing a framework of legal validity suited to the era-defining challenge of climate change.