I thought we had won the Cold War; no command economy or politicised courts for us. English sang-froid protected us from the hot headed politics of our continental neighbours and we believed George Orwell's description of our judges as unaware of what century they were living in but absolutely incorruptible nonetheless. (Orwell's lament was misguided. Our common law embodies ancient traditions so judges stuck in the past is exactly where they ought to be.)
Government price caps - from Theresa May's meddling with energy markets to Rachel Reeves ignorant belief that she can threaten supermarkets over how these quintessentially competitve companies price their goods - do get some in the media mad as hell at least. There is real time critique and push back. The nudges to a command economy are visible, immediate and resisted.
But the weaponisation of the courts appears to be following the Hemingway path, slowly at first with all of a sudden seemingly imminent, yet it has been happening far less visibly with little awareness or concern from our political and media class. The process has been and is insidious, sinister and far more worrying than a hapless chancellor thrashing about because she cannot achieve economic growth by incantation.
One can see the temptations and pressures on judges from the international zeitgeist of judicial activism, but England's history has, as David Starkey put it, been a straight line from Henry VIII to Nigel Farage of resisting outside influence. We need judges proud of that tradition which once made Voltaire and others envious of England.
Yesterday, I attended a lunch and talk with Lord Biggar. (His talks are beautifully structured). Although mainly about his new book on the culture wars judicial activism did crop up tangentially in the Q&A. He said the only party leader who truly got it was Kemi Badenock, but her statements were compromiesed by management of a party of MPs who were not yet fully conservative. Of course, he was made a Lord by Badenock, but his intellectual honesty, which shines through his talks, suggests the remark was not motivated by gratitude. Yet, I recall some goverment lawyers at the time of R v Miller also noticing that judges, as led by spider woman, were straying beyond what used to be a solely legal remit. I suspect Johnson and Cox did not know what to do about it or perhaps thought the cost to political capital too great at the time. Taking on the judges (and all the wannabees in law firms) will require a clear democratic mandate for a parliamentary majority large enough to survive the mother of all culture wars.
The price control thing is in a way even more disturbing. One expects that politicians may not have the time to get their heads around jurisprudence but this thing about price caps is the simplest economic principle imaginable. Yet here we are.
We told ourselves that we won the Cold War because Stalin's model of communism, after limited reforms in the decades following his death, collapsed in the 1990's. In fact, it was already being superseded by Dengism, with the support of transnational and trans-ideological corporations.
My impression is that after the credit crunch of 2007-2008, Western governments abandoned the idea that markets could be self-regulating. The transformation was complete by 2020, when most of those governments took the lead from China on how to react to Covid-19.
Please see my article on how the now-neglected international lawyer Samuel Pisar laid out the framework for Western coexistence with communism, prior to Nixon's trip to see the ailing Chairman Mao.
Since humans breathe out CO2, I think the judges and plaintiff lawyers involved in these cases should admit their joint culpability for causing climate change and atone by ceasing to exhale
I’m reminded of Professor Kingsfield in The Paper Chase when I read David’s blog. He encourages us to think legally, logically, and understand when the rule of law is not applied as it should, it has consequences…
Beyond holing the concept of legal causation below the waterline, as it were, isn't there another sinister effect of these judgments?
The effect is so full of contradictions that I might well fall over while trying to explain it.
First of all, the Swiss case basically enjoins the local State to protect citizens from the _weather_. It doesn't matter how you dress it up with speculative causal chains, models or whatever: the basis of the claim is the state of the weather, _in Switzerland_, affecting Swiss citizens locally. (Pleeease don't raise the possibility that someone might sue a State for the alleged "distress" or "anxiety" caused by _discourse about future weather_... even though this possibility might already be actuality. There's quite enough to deal with already).
So, it already implies that the Swiss State has a duty to control the local weather, one which it is (or might be) failing to perform. Which is utterly ludicrous. Mitigation of weather effects (stormwater sewers, avalanche control etc) seems more sensibly part of the duties of a State: but no state aims to _prevent_ storms or avalanches from arising in the first place.
The only way in which this can possible make sense is if a clear distinction can be drawn somewhere within "weather". It needs to be divided into portions for the purposes of liability. One part remains just "weather" (act of God, force majeure); the other becomes Something Else, something special, which the Swiss State does have the power (and thus duty) to control or at least mitigate.
The really neat model case of this was the radioactive pollution from Chernobyl. It was clearly distinct from normal "weather". Radioactive pollution of the atmosphere just doesn't occur naturally (at least to that level); it's fairly predictable that if you let a nuclear reactor go on fire, this will happen (so Don't Do It!); some particular, identifiable Someones actually did let a nuclear reactor go on fire; and the effect was so pronounced that it could convincingly (even definitively) be attributed to the accident. So, pollution from Chernobyl was not "just weather".
But even in that clear-cut case, I don't think the Swiss state had a duty of prevention, because ultimately Switzerland had no power to control what Soviet power-station engineers did or failed to do. If things had got really bad, the Swiss state could have had a duty of mitigation (issuing citizens with dosimeters, advising them to stay indoors or to avoid particular, polluted agricultural products). But Switzerland - or, more likely in that case, Poland, Belarus and Ukraine - might also have had a right of redress: they might have brought a case against the Soviet state for damages, on the grounds that the latter had the power and duty to prevent accidents of that sort.
When it's about "climate change", all clarity disappears. Let's say the Swiss KlimaSeniorInnen actually _did_ get uncomfortably, unhealthily hot. What proportion of that should be attributed to just "weather", and what proportion to "climate change"? No-one knows. Opinions about the correct apportionment to "climate change" range from 100% (the currently trendy view) to 0% (the view of those exasperated by the former).
Perhaps it's just a stupid question, which Brenda Hale (interestingly) would rightly say the law should run away from, as far as possible.
But even if we can solve that apportionment question - what, exactly, is then the purported duty of the Swiss State with regard to "climate change"? Local mitigation (providing the complainants with parasols with fans, or A/C bodysuits, free of charge)? Or prevention?
It's not clear at all. If it's prevention, what is the Swiss State to do? When it has no jurisdiction over Chinese or Indian power stations, let alone over millions of people burning rubbish to do their cooking in the slums of Dhaka or Lagos? I suspect that the "correct" answer to this question is to avoid addressing it at all: the Swiss State's duty is to spend vast amounts of CHF to effect small, marginal, local reductions in CO2 emissions - whether that makes any difference or not. The great virtue of this course of action is that it's actually available, and trendy. Something Must Be Done; This Is Something; This Must Be Done; QED.
There's an insane confusion between the local and the global going on here. The whole argument is evasive of reality, and ends up as inescapable as a snake swallowing its own tail. And now this evasion has spread to law.
Yes. It’s just bonkers. I think it can only be interpreted as social signalling. The judges want to look like good people and good people are for preventing climate change. This is the only way the sheer irrationality of the position can be explained.
I suppose it's much easier to look like good people than actually to do good.
"Woe unto you, scribes and Pharisees, hypocrites! for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men's bones, and of all uncleanness".
"First of all, the Swiss case basically enjoins the local State to protect citizens from the _weather_. It doesn't matter how you dress it up with speculative causal chains, models or whatever: the basis of the claim is the state of the weather, _in Switzerland_, affecting Swiss citizens locally."
This is basically a REAL life example of Frederick Bastiat's Reductio Ad Absurdum "Petition of the Candlemakers" against competition by the Sun (aka demanding the State act to "protect" the individual from nature).
The cream of the joke is that the whole idea of anthropogenic global warming is wrong. We are living - luckily for us - in an interglacial period; a relatively warm interval during an ice age. At any moment the ice could return; and it almost certainly will, some time. Furthermore, both temperature and atmospheric CO2 are quite close to the lowest they have ever been while there has been life on Earth (about 500 million years). Were CO2 to drop by 60%, all life except some microorganisms would die: first the plants, and then the animals that depend on them not only for food but for oxygen.
Certainly temperatures have been creeping up very gradually - as they have been for the past 20,000 odd years. It is very likely that no human activity has materially affected that trend. We are like mites on the surface of a dung ball being trundled by a dung beetle, who start to be worried that the ominous movement of their world is somehow their fault.
Like almost all of the worst trends in the world recently, the hysteria about AGI is mostly powered by the usual pursuit of huge piles of money. Even the scientists and academics - and philosophers - who should be our organs of intelligence have been bought.
As Cicero wisely remarked 2,000 years ago:
"Nihil tam munitum quod non expugnari pecunia possit". (No fortification is so strong that it cannot be overcome with money).
CO2 levels currently are at a dangerously low level, as you rightly point out at about four hundred atmospheric parts per million
I’m always reminded that the enclosed helmets worn by motor cyclists get to 1200 ppm, farmers inflate glasshouse concentrations to 800 ppm to boost plant growth and submariners at sea for months have been recorded at 2,200 ppm
None of the above have experienced immediate demise although some naval types recorded having a bit of a headache I’m reliably informed
The Anthropogenic Climate Change Industry is hard at work trying to convince the plebeian masses that CO2 is poisonous, a pollutant and a direct, immediate threat to humanities survival. Truly inverted reality. Spider Woman and her ilk are seemingly fully paid up members or maybe just wilfully ignorant.
Great piece! I suppose that it goes without saying that you are in the vast minority of legal professionals in even understanding what constitutes the field of metaphysics, let alone appreciating the subtle distortions contemporary politics have created within it.
I never once imagined that the metaphysical knots people tied themselves into in medieval times would be occluded by contemporary nonsense. Yet here we are! 🙂
Very penetrating analysis - the first half of the essay was fascinating in its own right. The principles it enunciates are ‘obvious’, but so are many of life’s dilemmas after the event. Many thanks.
Perhaps we could have a whip round and prosecute some random government for the dreadful working conditions of the cobalt miners in DRCongo due to their pursuit of "green" energy.
As well as nuclear power stations and all kinds of technologies that require high energy density batteries, including smartphones and electric cars. https://www.bbc.co.uk/news/business-49265455
As someone who is generally supportive of the idea of mitigating anthropogenic climate change (but am very much against the "activism" of it) there is a great irony in those cases, which is the definitionional distinction between "climate" and "weather", which adds a whole extra level of causation into the mix.
Because the Chinese will dismiss the action and laugh at them. It's a sad state of affairs when communist countries' courts are better than western ones.
One might hope that the Chinese court would go further and sanction them for wasting the court's time. Perhaps they could be sent to ahh concentrate on their mistakes in one of those nice holiday camps in Xinjiang
If you were a murderous terrorist, you would prefer to be sent to a "re-education" camp than to be slaughtered - the usual response of Western governments to any armed resistance.
Of course, the murderous terrorists were assiduously encouraged, armed, trained, paid, and assisted in every way by Western governments that are insanely jealous of China's amazing progress and prosperity.
They will consider every possible means of bringing China down, but never entertain the possibility that the Chinese are simply more intelligent and more socially responsible.
Previous regimes have built labour camps alongside execution facilities. The outcome depends on whether prisoners are willing and able to work, or not.
Isn't it more likely that Muslim minorities in China are supported by other Muslim nations around the world? If there is any evidence that the re-education camps are the result of Western-sponsored insurgency, I would read that.
What do you mean by “previous regimes”? I take it that the present Chinese government is essentially the same as that established by Mao Zedong 80 years ago. It certainly looks good compared to the previous regime of Chiang Kai-Shek a most unpleasant, dishonest, and cruel man.
If you refer to the Nazi concentration camps, or those of Britain in South Africa or the USA for disposition of Native Americans and surrendered German soldiers - or of course Gaza - it is true that many died in them. Usually some care was taken to avoid the appearance of “execution facilities” as such - far better to keep them in without food, water, shelter, or medical care and let nature take its course. Who, us?
I don’t know whether Muslim governments support Muslims in China, but I would be surprised if they didn’t. Christian governments would support Christians in other countries, if there were any Christian governments. Well, Russia of course, and maybe a few others. Don’t forget that the casus belli for the Crimean War was the Russian government’s efforts to protect Christians who were being persecuted by the Ottoman Empire. France and Britain invaded Russia to uphold the Turks’ right to murder Christians.
As often, I find it difficult to come up with a suitable set of URLs because I have long felt that the question of the Uyghurs was settled in my own mind. I remember reading quite a lot of articles giving historic particulars and recording actual visits to Xinjiang, and their burden has been decisively in favour of the Chinese government telling the truth. Moreover, the tales of concentration camps and massacres come from sources so hopelessly discredited that we should be deeply suspicious of everything they say.
Try these for size; you may be able to find pointers to further material in them.
If you looked into the facts, you would find that China has made remarkable progress in reducing pollution. Even its coal-fired power stations, which Westerners use as a stick to beat China with, now emit far less pollution than they used to. (And, of course, CO2 is not a pollutant but an essential nutrient for all plants - including crops).
China is also forging ahead with practical nuclear fission power and even nuclear fusion. As well as being by far the world's greatest producer of windmills and solar cells.
It's unfortunate that many people who should know better use "communist" and "socialist" as swear words. If you are interested, I recommend such sources as Godfree Roberts - here is a good one to start with:
The Web is filling up with eye-witness stories by Westerners who have actually gone to China and come back astonished at how much better many things are.
ANY system which treats the individual's life and effort as the PROPERTY of others, to be disposed of as THEY see fit, to satisfy THEIR desires ARE properly identified as the equivalent of "swear words" aka EVIL.
As is anyone who seeks to DEFEND such systems.
It is unfortunate that so many people who should know better STILL hold the Southern Slave Owner as their philosophic idol.
That's a great deal of sloppy thinking in a short space. You start by apparently addressing my complaint about the defamation of China by Western elites... and end by dragging in "the Southern Slave Owner". Let me make it perfectly clear that any connection between China and Southern slave owners is wholly in your mind.
Your first paragraph is simplistic to the point of naivete. In practice all societies allow some people to gain from the efforts of others. Again, the use of the word "property" is entirely yours; I never mentioned or even alluded to it.
And your short middle paragraph seems to poison the well by slandering anyone who dares to mention certain topics that have been unilaterally forbidden by you.
Substack is a forum for free, open discussion and I shall continue to use it as such. As for your opinions, well, "Sticks and stones may break my bones/But words can never hurt me".
If you take the trouble to find out, you will soon notice that China today is a freer as well as wealthier society than any in the West.
>>"That's a great deal of sloppy thinking in a short space."
Note that Tom can only offer ABUSE and FRAUD here. What a surprise!
His first paragraph is an EMPTY 'Nu uh! You a poopy head!'. His second paragraph is a GROTESQUE equivocation between treating people as one's PROPERTY (the slave owner philosophy) and 'people gaining from the efforts of others' - which, contrary to Tom's deliberate FALSEHOOD here, are NOT the same thing. The former (people as property) is NON-consensual intercourse. The latter is ALL forms of intercourse (consensual and non-consensual).
By his willful EQUIVOCATION here - ie by intentionally LUMPING consensual and non-consensual interaction together rather than identifying the fact that they are OPPOSITES - Tom is trying to treat consensual and non-consensual intercourse as if they are the SAME thing. In other words, by STRIPPING out the issue of "consent", Tom is trying to LUMP sex and rape TOGETHER as the SAME thing rather than POLAR OPPOSITES.
Talk about Tom PROVING my point about those who STILL hold the Southern Slave Owner as their ROLE MODEL!
>>"the use of the word "property" is entirely yours; I never mentioned or even alluded to it."
Indeed. Tom has quite INTENTIONALLY evaded the FACT of China treating the individual as its PROPERTY (see the above equivocation) - the same way a rapist intentionally EVADES the fact that HE treats his victims as his PROPERTY.
In other words, one thanks Tom for again PROVING my point entirely.
Of course, Tom is LYlNG here when he declares he "never...even alluded to" people being treated as PROPERTY, since that is the DEFINITION of both "communist" and "socialist".
That Tom tries to EVADE this FACT by multiple means here demonstrates that Tom is QUITE well aware of that FACT - is QUITE well aware that his Slave Owner philosophy is EVlL - and is DESPERATE to try to HIDE the FACT of his grotesquely IMMORAL ideology.
>>"anyone who dares to mention certain topics that have been unilaterally forbidden by you."
And this is more FRAUD on Tom's part. Identifying the FACT that China (along with many other countries) treats the individual as the PROPERTY of the Collective, to be disposed of as IT sees fit, to satisfy ITS desires - and identifying that VILE Slave Owner philosophy as EVIL - is NOT (as Tom again dishonestly claims) him being "forbidden" from speaking on the topic. But one THANKS Tom for confessing the fact he FEELS disagreements (especially MORAL disagreements) with him are attempts at prohibiting him from speaking.
AGAIN, talk about Tom PROVING my point about those with the Southern Slave Owner mentality!
This is completely true. This substack (https://pallaviaiyar.substack.com/ ) has made the pollution reduction point in a number of articles. Air quality in Chinese cities is amazingly improved compared to my own experiences almost 30 years ago.
However the PRC is the largest CO2 emitter by some considerable margin - its annual CO2 emissions are roughly the same as the US, Indian and European emissions combined and they are growing faster than anywhere else too.
As I stated, CO2 is not a pollutant but a vital nutrient. Since anxiety about CO2 levels began to rise, some scientists who are more interested in facts attributed substantial increases in crop harvests and expansion of forests worldwide to the slight increase in CO2. Ideally we could benefit from a lot more of it. See, among many other sources, https://www.thegwpf.org/content/uploads/2015/10/benefits1.pdf
Wijngaarden and Happer are another source as referenced in https://panocracy.substack.com/p/panocracy-72 which refers to the calculations and experiments that have been used to support the contention that increasing CO2 is not going to have a significant greenhouse effect.
I don't exactly know why the message of Wijngaarden and Happer has fallen on stony ground but wilful blindness seems to be part of it. A society that's founded on and operates on science and engineering is now in the sorry state where its influencers and leaders are completely ignorant of its foundations.
I believe our culture has reverted to what it was pre-enlightenment.
“We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology”.
- Carl Sagan
Certainly it’s beginning to seem almost as though the Enlightenment had never happened. But it did, and we still have its findings and conclusions easily to hand. The problem is that most people have no interest in them - and I don’t think that’s because of ignorance. It’s because of falling IQ, terrible education, and perverse incentives.
“At Our Wits' End: Why We're Becoming Less Intelligent and What it Means for the Future” by Edward Dutton and Michael A. Woodley makes a very convincing case that British IQ rose steadily for nearly a millennium because the poor and their children died in disproportionate numbers. Statistically, they were the least intelligent (obviously there are exceptions). With the advent of public hygiene, better food and working conditions, and medical science childhood mortality dropped nearly to zero. Today the most intelligent tend to have the fewest children. The trend is for average IQ to drop steadily, and there is no sign of that changing. Our civilisation may have destroyed its own basis.
Thanks for that. 'Idiocracy' the movie is an entertaining take on this, too.
Dutton as 'The Jolly Heretic' is both eccentric and engaging and I've watched some of his YouTube posts on this topic. I guess his hypothesis is partly borne out but I suspect that advances in technology have also made us less reliant on muscle-and brain- power and consequently weaker in both areas.
We've understandably cossetted ourselves in an artificial environment which makes us more reliant on external agencies (water, electricity,...search engines!) and less so on our innate problem solving abilities. I'm as guilty as anyone, I hasten to add!
I think we just lack exercise but I don't know how we're going to make ourselves do it.
I don’t have a problem with China, or any other country, using fossil or nuclear energy to grow their economies, and bully for them if they focus on making fossil fuels cleaner, we should be doing the same.
"And the reason the court decided this seems to have been that it was the causa causans or primer mover".
I take it "primer" is a typo for "prime". In any case, that terminology shrieks "Aristotelian logic". A 20th century court of law relied on 2,400-year-old prescientific metaphysics. As no doubt they still do all the time.
Analyses like this article are desperately needed to bring the law into the modern world.
Thank you for a very well-argued post. It seems to me this is one example of a supra-state institution bending the rules and I’m not in agreement with that. I also have no idea how such rulings help reduce emissions. But other state institutions in many countries which have elected conservative governments, some of them extremely conservative, seem to be opting for breaking the rule of law rules through the kind of jurisprudence jiggery-pokery employed by Schmitt to legitimise Nazi lawmaking, states of emergency, etc. It seems to me that bending the rules of law is a symptom of contemporary politics and all involved should bloody well pack it in. But a part of me also wonders which is the bigger threat? Global warming or courts fudging the EHRC? Depends where you get your facts I guess.
Do enlighten us on the many countries which, having elected conservative governments, are using jurisprudence jiggery-pokery to legitimise Nazi law making.
I think you have misquoted me. If you’re referring to ‘…opting for breaking the rule of law rules through the kind of jurisprudence jiggery-pokery employed by Schmitt to legitimise Nazi lawmaking, states of emergency, etc.’ Have a guess? But you might include the United States, Hungary (previously), Italy (in some respects), and I would add Belarus, Russia and China. Even the UK government is not immune when it comes to Northern Ireland and various free speech inhibitions. Oh, and I forgot Israel, Egypt, the Palestinian Territories. I’m sure there are quite a few more too.
1. The United States, Hungary, Italy & Israel have not engaged in any “Nazi lawmaking”.
2. In what world could it be said that Belarus, Russia, China or the Palestinian Authority have elected conservative, still less, “extremely conservative” governments?
"The United States [et al]...have not engaged in any "Nazi lawmaking"
The entire Covid "shutdown" was precisely "Nazi lawmaking" - treating everything and everyone as the PROPERTY of the State, to be disposed of as IT sees fit, to satisfy ITS desires (while PRETENDING that there is PRIVATE ownership et al). And that "lawmaking" was supported by 80% of the US population, Left AND Right.
Such is what happens when the State substitutes "harm" in place of "rights" as its standard.
You may regard them as dodgy; opinions may vary. But to call them Nazi is manifestly false and the sort of gross misuse of language that people should eschew other than for governments that genuinely merit the term.
I thought we had won the Cold War; no command economy or politicised courts for us. English sang-froid protected us from the hot headed politics of our continental neighbours and we believed George Orwell's description of our judges as unaware of what century they were living in but absolutely incorruptible nonetheless. (Orwell's lament was misguided. Our common law embodies ancient traditions so judges stuck in the past is exactly where they ought to be.)
Government price caps - from Theresa May's meddling with energy markets to Rachel Reeves ignorant belief that she can threaten supermarkets over how these quintessentially competitve companies price their goods - do get some in the media mad as hell at least. There is real time critique and push back. The nudges to a command economy are visible, immediate and resisted.
But the weaponisation of the courts appears to be following the Hemingway path, slowly at first with all of a sudden seemingly imminent, yet it has been happening far less visibly with little awareness or concern from our political and media class. The process has been and is insidious, sinister and far more worrying than a hapless chancellor thrashing about because she cannot achieve economic growth by incantation.
One can see the temptations and pressures on judges from the international zeitgeist of judicial activism, but England's history has, as David Starkey put it, been a straight line from Henry VIII to Nigel Farage of resisting outside influence. We need judges proud of that tradition which once made Voltaire and others envious of England.
Yesterday, I attended a lunch and talk with Lord Biggar. (His talks are beautifully structured). Although mainly about his new book on the culture wars judicial activism did crop up tangentially in the Q&A. He said the only party leader who truly got it was Kemi Badenock, but her statements were compromiesed by management of a party of MPs who were not yet fully conservative. Of course, he was made a Lord by Badenock, but his intellectual honesty, which shines through his talks, suggests the remark was not motivated by gratitude. Yet, I recall some goverment lawyers at the time of R v Miller also noticing that judges, as led by spider woman, were straying beyond what used to be a solely legal remit. I suspect Johnson and Cox did not know what to do about it or perhaps thought the cost to political capital too great at the time. Taking on the judges (and all the wannabees in law firms) will require a clear democratic mandate for a parliamentary majority large enough to survive the mother of all culture wars.
It's a war worth having and I am mad as hell.
The price control thing is in a way even more disturbing. One expects that politicians may not have the time to get their heads around jurisprudence but this thing about price caps is the simplest economic principle imaginable. Yet here we are.
We told ourselves that we won the Cold War because Stalin's model of communism, after limited reforms in the decades following his death, collapsed in the 1990's. In fact, it was already being superseded by Dengism, with the support of transnational and trans-ideological corporations.
My impression is that after the credit crunch of 2007-2008, Western governments abandoned the idea that markets could be self-regulating. The transformation was complete by 2020, when most of those governments took the lead from China on how to react to Covid-19.
Please see my article on how the now-neglected international lawyer Samuel Pisar laid out the framework for Western coexistence with communism, prior to Nixon's trip to see the ailing Chairman Mao.
https://danielhowardjames.substack.com/p/samuel-pisars-century
This is brilliant- the judicial over reach is truly astonishing. Judges appear to think that they possess jurisdiction over the weather now.
The simple answer that certain matters are outside the purview of courts seems not to have occurred to anyone.
King Canute had the perfect riposte to this…
Since humans breathe out CO2, I think the judges and plaintiff lawyers involved in these cases should admit their joint culpability for causing climate change and atone by ceasing to exhale
I'm no legal mind, nor great scholar, but this blog is by far the most fascinating on substack
I’m reminded of Professor Kingsfield in The Paper Chase when I read David’s blog. He encourages us to think legally, logically, and understand when the rule of law is not applied as it should, it has consequences…
Thanks, Stephen!
Thanks Dan! Very kind.
Beyond holing the concept of legal causation below the waterline, as it were, isn't there another sinister effect of these judgments?
The effect is so full of contradictions that I might well fall over while trying to explain it.
First of all, the Swiss case basically enjoins the local State to protect citizens from the _weather_. It doesn't matter how you dress it up with speculative causal chains, models or whatever: the basis of the claim is the state of the weather, _in Switzerland_, affecting Swiss citizens locally. (Pleeease don't raise the possibility that someone might sue a State for the alleged "distress" or "anxiety" caused by _discourse about future weather_... even though this possibility might already be actuality. There's quite enough to deal with already).
So, it already implies that the Swiss State has a duty to control the local weather, one which it is (or might be) failing to perform. Which is utterly ludicrous. Mitigation of weather effects (stormwater sewers, avalanche control etc) seems more sensibly part of the duties of a State: but no state aims to _prevent_ storms or avalanches from arising in the first place.
The only way in which this can possible make sense is if a clear distinction can be drawn somewhere within "weather". It needs to be divided into portions for the purposes of liability. One part remains just "weather" (act of God, force majeure); the other becomes Something Else, something special, which the Swiss State does have the power (and thus duty) to control or at least mitigate.
The really neat model case of this was the radioactive pollution from Chernobyl. It was clearly distinct from normal "weather". Radioactive pollution of the atmosphere just doesn't occur naturally (at least to that level); it's fairly predictable that if you let a nuclear reactor go on fire, this will happen (so Don't Do It!); some particular, identifiable Someones actually did let a nuclear reactor go on fire; and the effect was so pronounced that it could convincingly (even definitively) be attributed to the accident. So, pollution from Chernobyl was not "just weather".
But even in that clear-cut case, I don't think the Swiss state had a duty of prevention, because ultimately Switzerland had no power to control what Soviet power-station engineers did or failed to do. If things had got really bad, the Swiss state could have had a duty of mitigation (issuing citizens with dosimeters, advising them to stay indoors or to avoid particular, polluted agricultural products). But Switzerland - or, more likely in that case, Poland, Belarus and Ukraine - might also have had a right of redress: they might have brought a case against the Soviet state for damages, on the grounds that the latter had the power and duty to prevent accidents of that sort.
When it's about "climate change", all clarity disappears. Let's say the Swiss KlimaSeniorInnen actually _did_ get uncomfortably, unhealthily hot. What proportion of that should be attributed to just "weather", and what proportion to "climate change"? No-one knows. Opinions about the correct apportionment to "climate change" range from 100% (the currently trendy view) to 0% (the view of those exasperated by the former).
Perhaps it's just a stupid question, which Brenda Hale (interestingly) would rightly say the law should run away from, as far as possible.
But even if we can solve that apportionment question - what, exactly, is then the purported duty of the Swiss State with regard to "climate change"? Local mitigation (providing the complainants with parasols with fans, or A/C bodysuits, free of charge)? Or prevention?
It's not clear at all. If it's prevention, what is the Swiss State to do? When it has no jurisdiction over Chinese or Indian power stations, let alone over millions of people burning rubbish to do their cooking in the slums of Dhaka or Lagos? I suspect that the "correct" answer to this question is to avoid addressing it at all: the Swiss State's duty is to spend vast amounts of CHF to effect small, marginal, local reductions in CO2 emissions - whether that makes any difference or not. The great virtue of this course of action is that it's actually available, and trendy. Something Must Be Done; This Is Something; This Must Be Done; QED.
There's an insane confusion between the local and the global going on here. The whole argument is evasive of reality, and ends up as inescapable as a snake swallowing its own tail. And now this evasion has spread to law.
Yes. It’s just bonkers. I think it can only be interpreted as social signalling. The judges want to look like good people and good people are for preventing climate change. This is the only way the sheer irrationality of the position can be explained.
I suppose it's much easier to look like good people than actually to do good.
"Woe unto you, scribes and Pharisees, hypocrites! for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men's bones, and of all uncleanness".
- Matthew 23:27 (King James Bible)
"First of all, the Swiss case basically enjoins the local State to protect citizens from the _weather_. It doesn't matter how you dress it up with speculative causal chains, models or whatever: the basis of the claim is the state of the weather, _in Switzerland_, affecting Swiss citizens locally."
This is basically a REAL life example of Frederick Bastiat's Reductio Ad Absurdum "Petition of the Candlemakers" against competition by the Sun (aka demanding the State act to "protect" the individual from nature).
The cream of the joke is that the whole idea of anthropogenic global warming is wrong. We are living - luckily for us - in an interglacial period; a relatively warm interval during an ice age. At any moment the ice could return; and it almost certainly will, some time. Furthermore, both temperature and atmospheric CO2 are quite close to the lowest they have ever been while there has been life on Earth (about 500 million years). Were CO2 to drop by 60%, all life except some microorganisms would die: first the plants, and then the animals that depend on them not only for food but for oxygen.
Certainly temperatures have been creeping up very gradually - as they have been for the past 20,000 odd years. It is very likely that no human activity has materially affected that trend. We are like mites on the surface of a dung ball being trundled by a dung beetle, who start to be worried that the ominous movement of their world is somehow their fault.
Like almost all of the worst trends in the world recently, the hysteria about AGI is mostly powered by the usual pursuit of huge piles of money. Even the scientists and academics - and philosophers - who should be our organs of intelligence have been bought.
As Cicero wisely remarked 2,000 years ago:
"Nihil tam munitum quod non expugnari pecunia possit". (No fortification is so strong that it cannot be overcome with money).
Absolutely right, Tom
CO2 levels currently are at a dangerously low level, as you rightly point out at about four hundred atmospheric parts per million
I’m always reminded that the enclosed helmets worn by motor cyclists get to 1200 ppm, farmers inflate glasshouse concentrations to 800 ppm to boost plant growth and submariners at sea for months have been recorded at 2,200 ppm
None of the above have experienced immediate demise although some naval types recorded having a bit of a headache I’m reliably informed
The Anthropogenic Climate Change Industry is hard at work trying to convince the plebeian masses that CO2 is poisonous, a pollutant and a direct, immediate threat to humanities survival. Truly inverted reality. Spider Woman and her ilk are seemingly fully paid up members or maybe just wilfully ignorant.
Yet another brilliant post. Is there a book in hand about human rights related litigation ruining real legal principles? I hope so.
There is a gap in the market, for sure….
Dear David,
Great piece! I suppose that it goes without saying that you are in the vast minority of legal professionals in even understanding what constitutes the field of metaphysics, let alone appreciating the subtle distortions contemporary politics have created within it.
I never once imagined that the metaphysical knots people tied themselves into in medieval times would be occluded by contemporary nonsense. Yet here we are! 🙂
Stay wonderful,
Chris.
Here we are indeed… how we get out of it is the next question!
Start upholding "rights" NOT "harm" as the State's standard.
As even the footsloggers of the British Army have always known, "bullshit baffles brains".
Very penetrating analysis - the first half of the essay was fascinating in its own right. The principles it enunciates are ‘obvious’, but so are many of life’s dilemmas after the event. Many thanks.
Perhaps we could have a whip round and prosecute some random government for the dreadful working conditions of the cobalt miners in DRCongo due to their pursuit of "green" energy.
As well as nuclear power stations and all kinds of technologies that require high energy density batteries, including smartphones and electric cars. https://www.bbc.co.uk/news/business-49265455
Compare and contrast with the law and outcomes from the medieval church.
As someone who is generally supportive of the idea of mitigating anthropogenic climate change (but am very much against the "activism" of it) there is a great irony in those cases, which is the definitionional distinction between "climate" and "weather", which adds a whole extra level of causation into the mix.
Why don’t these infantile fantasists take legal action against the world’s major polluters e.g China?
Because the Chinese will dismiss the action and laugh at them. It's a sad state of affairs when communist countries' courts are better than western ones.
One might hope that the Chinese court would go further and sanction them for wasting the court's time. Perhaps they could be sent to ahh concentrate on their mistakes in one of those nice holiday camps in Xinjiang
But of course the Chinese courts would be acting in concert with the government. Seems ours are now no different.
If you were a murderous terrorist, you would prefer to be sent to a "re-education" camp than to be slaughtered - the usual response of Western governments to any armed resistance.
Of course, the murderous terrorists were assiduously encouraged, armed, trained, paid, and assisted in every way by Western governments that are insanely jealous of China's amazing progress and prosperity.
They will consider every possible means of bringing China down, but never entertain the possibility that the Chinese are simply more intelligent and more socially responsible.
Previous regimes have built labour camps alongside execution facilities. The outcome depends on whether prisoners are willing and able to work, or not.
Isn't it more likely that Muslim minorities in China are supported by other Muslim nations around the world? If there is any evidence that the re-education camps are the result of Western-sponsored insurgency, I would read that.
What do you mean by “previous regimes”? I take it that the present Chinese government is essentially the same as that established by Mao Zedong 80 years ago. It certainly looks good compared to the previous regime of Chiang Kai-Shek a most unpleasant, dishonest, and cruel man.
If you refer to the Nazi concentration camps, or those of Britain in South Africa or the USA for disposition of Native Americans and surrendered German soldiers - or of course Gaza - it is true that many died in them. Usually some care was taken to avoid the appearance of “execution facilities” as such - far better to keep them in without food, water, shelter, or medical care and let nature take its course. Who, us?
I don’t know whether Muslim governments support Muslims in China, but I would be surprised if they didn’t. Christian governments would support Christians in other countries, if there were any Christian governments. Well, Russia of course, and maybe a few others. Don’t forget that the casus belli for the Crimean War was the Russian government’s efforts to protect Christians who were being persecuted by the Ottoman Empire. France and Britain invaded Russia to uphold the Turks’ right to murder Christians.
As often, I find it difficult to come up with a suitable set of URLs because I have long felt that the question of the Uyghurs was settled in my own mind. I remember reading quite a lot of articles giving historic particulars and recording actual visits to Xinjiang, and their burden has been decisively in favour of the Chinese government telling the truth. Moreover, the tales of concentration camps and massacres come from sources so hopelessly discredited that we should be deeply suspicious of everything they say.
Try these for size; you may be able to find pointers to further material in them.
https://herecomeschina.substack.com/p/xinjiang-and-terrorism-thirty-years
https://www.ukcolumn.org/video/cycling-5000km-across-chinas-xinjiang-the-truth-they-dont-tell-you-with-jerry
https://www.ukcolumn.org/video/life-in-china-vs-western-myths
If you looked into the facts, you would find that China has made remarkable progress in reducing pollution. Even its coal-fired power stations, which Westerners use as a stick to beat China with, now emit far less pollution than they used to. (And, of course, CO2 is not a pollutant but an essential nutrient for all plants - including crops).
China is also forging ahead with practical nuclear fission power and even nuclear fusion. As well as being by far the world's greatest producer of windmills and solar cells.
at the risk of lowering the tone and quality of the discourse I would offer the following quip ….
Q - “why doesn't China need Net Zero?”
A - “It already has a communist government”
with apologies
It's unfortunate that many people who should know better use "communist" and "socialist" as swear words. If you are interested, I recommend such sources as Godfree Roberts - here is a good one to start with:
https://herecomeschina.substack.com/p/how-china-won-the-democracy-crownand
The Duran chimed in with:
https://theduran.com/why-the-chinese-like-their-government-far-more-than-the-americans-like-their-government/
Then there is this:
https://21stcenturywire.com/2026/01/29/fanpan-is-china-turning-the-tables-on-the-democratic-west/
And this:
https://herecomeschina.substack.com/p/chinas-smartest-34-million-fight
The Web is filling up with eye-witness stories by Westerners who have actually gone to China and come back astonished at how much better many things are.
UK Column has done several such, e.g.
https://www.ukcolumn.org/video/the-unraveling-how-trumps-iran-war-exposed-the-empires-hollow-core-silk-and-steel
ANY system which treats the individual's life and effort as the PROPERTY of others, to be disposed of as THEY see fit, to satisfy THEIR desires ARE properly identified as the equivalent of "swear words" aka EVIL.
As is anyone who seeks to DEFEND such systems.
It is unfortunate that so many people who should know better STILL hold the Southern Slave Owner as their philosophic idol.
That's a great deal of sloppy thinking in a short space. You start by apparently addressing my complaint about the defamation of China by Western elites... and end by dragging in "the Southern Slave Owner". Let me make it perfectly clear that any connection between China and Southern slave owners is wholly in your mind.
Your first paragraph is simplistic to the point of naivete. In practice all societies allow some people to gain from the efforts of others. Again, the use of the word "property" is entirely yours; I never mentioned or even alluded to it.
And your short middle paragraph seems to poison the well by slandering anyone who dares to mention certain topics that have been unilaterally forbidden by you.
Substack is a forum for free, open discussion and I shall continue to use it as such. As for your opinions, well, "Sticks and stones may break my bones/But words can never hurt me".
If you take the trouble to find out, you will soon notice that China today is a freer as well as wealthier society than any in the West.
>>"That's a great deal of sloppy thinking in a short space."
Note that Tom can only offer ABUSE and FRAUD here. What a surprise!
His first paragraph is an EMPTY 'Nu uh! You a poopy head!'. His second paragraph is a GROTESQUE equivocation between treating people as one's PROPERTY (the slave owner philosophy) and 'people gaining from the efforts of others' - which, contrary to Tom's deliberate FALSEHOOD here, are NOT the same thing. The former (people as property) is NON-consensual intercourse. The latter is ALL forms of intercourse (consensual and non-consensual).
By his willful EQUIVOCATION here - ie by intentionally LUMPING consensual and non-consensual interaction together rather than identifying the fact that they are OPPOSITES - Tom is trying to treat consensual and non-consensual intercourse as if they are the SAME thing. In other words, by STRIPPING out the issue of "consent", Tom is trying to LUMP sex and rape TOGETHER as the SAME thing rather than POLAR OPPOSITES.
Talk about Tom PROVING my point about those who STILL hold the Southern Slave Owner as their ROLE MODEL!
>>"the use of the word "property" is entirely yours; I never mentioned or even alluded to it."
Indeed. Tom has quite INTENTIONALLY evaded the FACT of China treating the individual as its PROPERTY (see the above equivocation) - the same way a rapist intentionally EVADES the fact that HE treats his victims as his PROPERTY.
In other words, one thanks Tom for again PROVING my point entirely.
Of course, Tom is LYlNG here when he declares he "never...even alluded to" people being treated as PROPERTY, since that is the DEFINITION of both "communist" and "socialist".
That Tom tries to EVADE this FACT by multiple means here demonstrates that Tom is QUITE well aware of that FACT - is QUITE well aware that his Slave Owner philosophy is EVlL - and is DESPERATE to try to HIDE the FACT of his grotesquely IMMORAL ideology.
>>"anyone who dares to mention certain topics that have been unilaterally forbidden by you."
And this is more FRAUD on Tom's part. Identifying the FACT that China (along with many other countries) treats the individual as the PROPERTY of the Collective, to be disposed of as IT sees fit, to satisfy ITS desires - and identifying that VILE Slave Owner philosophy as EVIL - is NOT (as Tom again dishonestly claims) him being "forbidden" from speaking on the topic. But one THANKS Tom for confessing the fact he FEELS disagreements (especially MORAL disagreements) with him are attempts at prohibiting him from speaking.
AGAIN, talk about Tom PROVING my point about those with the Southern Slave Owner mentality!
This is completely true. This substack (https://pallaviaiyar.substack.com/ ) has made the pollution reduction point in a number of articles. Air quality in Chinese cities is amazingly improved compared to my own experiences almost 30 years ago.
However the PRC is the largest CO2 emitter by some considerable margin - its annual CO2 emissions are roughly the same as the US, Indian and European emissions combined and they are growing faster than anywhere else too.
As I stated, CO2 is not a pollutant but a vital nutrient. Since anxiety about CO2 levels began to rise, some scientists who are more interested in facts attributed substantial increases in crop harvests and expansion of forests worldwide to the slight increase in CO2. Ideally we could benefit from a lot more of it. See, among many other sources, https://www.thegwpf.org/content/uploads/2015/10/benefits1.pdf
Wijngaarden and Happer are another source as referenced in https://panocracy.substack.com/p/panocracy-72 which refers to the calculations and experiments that have been used to support the contention that increasing CO2 is not going to have a significant greenhouse effect.
I don't exactly know why the message of Wijngaarden and Happer has fallen on stony ground but wilful blindness seems to be part of it. A society that's founded on and operates on science and engineering is now in the sorry state where its influencers and leaders are completely ignorant of its foundations.
I believe our culture has reverted to what it was pre-enlightenment.
“We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology”.
- Carl Sagan
Certainly it’s beginning to seem almost as though the Enlightenment had never happened. But it did, and we still have its findings and conclusions easily to hand. The problem is that most people have no interest in them - and I don’t think that’s because of ignorance. It’s because of falling IQ, terrible education, and perverse incentives.
“At Our Wits' End: Why We're Becoming Less Intelligent and What it Means for the Future” by Edward Dutton and Michael A. Woodley makes a very convincing case that British IQ rose steadily for nearly a millennium because the poor and their children died in disproportionate numbers. Statistically, they were the least intelligent (obviously there are exceptions). With the advent of public hygiene, better food and working conditions, and medical science childhood mortality dropped nearly to zero. Today the most intelligent tend to have the fewest children. The trend is for average IQ to drop steadily, and there is no sign of that changing. Our civilisation may have destroyed its own basis.
Thanks for that. 'Idiocracy' the movie is an entertaining take on this, too.
Dutton as 'The Jolly Heretic' is both eccentric and engaging and I've watched some of his YouTube posts on this topic. I guess his hypothesis is partly borne out but I suspect that advances in technology have also made us less reliant on muscle-and brain- power and consequently weaker in both areas.
We've understandably cossetted ourselves in an artificial environment which makes us more reliant on external agencies (water, electricity,...search engines!) and less so on our innate problem solving abilities. I'm as guilty as anyone, I hasten to add!
I think we just lack exercise but I don't know how we're going to make ourselves do it.
I don’t have a problem with China, or any other country, using fossil or nuclear energy to grow their economies, and bully for them if they focus on making fossil fuels cleaner, we should be doing the same.
*CCP has entered the chat*
When the emperor was found to indeed be naked, he declared the existence of clothing to be the cause.
"And the reason the court decided this seems to have been that it was the causa causans or primer mover".
I take it "primer" is a typo for "prime". In any case, that terminology shrieks "Aristotelian logic". A 20th century court of law relied on 2,400-year-old prescientific metaphysics. As no doubt they still do all the time.
Analyses like this article are desperately needed to bring the law into the modern world.
Thank you for a very well-argued post. It seems to me this is one example of a supra-state institution bending the rules and I’m not in agreement with that. I also have no idea how such rulings help reduce emissions. But other state institutions in many countries which have elected conservative governments, some of them extremely conservative, seem to be opting for breaking the rule of law rules through the kind of jurisprudence jiggery-pokery employed by Schmitt to legitimise Nazi lawmaking, states of emergency, etc. It seems to me that bending the rules of law is a symptom of contemporary politics and all involved should bloody well pack it in. But a part of me also wonders which is the bigger threat? Global warming or courts fudging the EHRC? Depends where you get your facts I guess.
Do enlighten us on the many countries which, having elected conservative governments, are using jurisprudence jiggery-pokery to legitimise Nazi law making.
I think you have misquoted me. If you’re referring to ‘…opting for breaking the rule of law rules through the kind of jurisprudence jiggery-pokery employed by Schmitt to legitimise Nazi lawmaking, states of emergency, etc.’ Have a guess? But you might include the United States, Hungary (previously), Italy (in some respects), and I would add Belarus, Russia and China. Even the UK government is not immune when it comes to Northern Ireland and various free speech inhibitions. Oh, and I forgot Israel, Egypt, the Palestinian Territories. I’m sure there are quite a few more too.
1. The United States, Hungary, Italy & Israel have not engaged in any “Nazi lawmaking”.
2. In what world could it be said that Belarus, Russia, China or the Palestinian Authority have elected conservative, still less, “extremely conservative” governments?
"The United States [et al]...have not engaged in any "Nazi lawmaking"
The entire Covid "shutdown" was precisely "Nazi lawmaking" - treating everything and everyone as the PROPERTY of the State, to be disposed of as IT sees fit, to satisfy ITS desires (while PRETENDING that there is PRIVATE ownership et al). And that "lawmaking" was supported by 80% of the US population, Left AND Right.
Such is what happens when the State substitutes "harm" in place of "rights" as its standard.
PS. Are you a bot?
Yes they have. (I’ll go along with your shorthand for the moment)
In my world if not in yours. They do have elected governments. Dodgy maybe. But they are elected.
You may regard them as dodgy; opinions may vary. But to call them Nazi is manifestly false and the sort of gross misuse of language that people should eschew other than for governments that genuinely merit the term.
Being national socialist and using techniques pioneered by national socialism are two different things.