6. Mainstreaming Climate Change in Legal Education

As recommended by the United Nations,^[1] numerous legal organisations around the world,^[2] including the Law Council of Australia,^[3] legal scholars^[4] and many legal educators, are beginning to incorporate climate change related case law, legislation and policy into learning materials, learning activities and assessments in the core and elective curricula of undergraduate and graduate law programs. Some law faculties and legal educators have made significant progress in formalising this inclusion, either through referring to sustainability or climate change in unit learning outcomes (at the subject level) or in course learning outcomes (at the program level). A small number of Australian universities have moved to include education and curriculum in various strategy statements and documents, and there is also discussion about introducing sustainability and climate change into university-level graduate attributes and qualities to apply to all award courses at some institutions. We are at a critical turning point, and the first edition of this book is intended to play its part in supporting the educational transformation underway across the country. Future editions will necessarily update content and broaden the scope to parts of the curriculum not yet included.

It is imperative that legal educators enable the climate-striker generation to critically evaluate the role of law in acting as a barrier to or facilitator of positive action on climate change. Situating legal doctrines and categories within their broader socio-economic function is one way to help students understand the transformative potential of law to effect real-world change. Context-free pedagogy reproduces the notion that law functions in isolation from other social, economic, moral and environmental contexts or that law can be understood purely in its own terms. That approach would constrain law students’ capabilities to retrieve or extend legal concepts and rules that are potentially helpful, and limit their competence and confidence to modify and reform those concepts and rules that are unhelpful in addressing climate change.

The close relationship between affluence and the conditions of climate change^[5] means that effective regulatory approaches to addressing climate change will unavoidably involve changes to the legal mechanisms and institutions that facilitate and protect wealth generation and concentration. These changes increase the role of government and public law in regulating resource extraction and distribution and the control of its uses. Closely regulating the private sector is in some ways a contradiction of the structure and logic of modern western legal systems and will ‘test a range of legal doctrines intended to protect individual rights against government overreach’.^[6] This makes questions and decisions about effective law reform hard or even unthinkable. Nonetheless, law graduates need to be able to not only think about legal change but also do the changing. Legal change requires law graduates to have the highest levels of knowledge of existing doctrines and regulatory frameworks, so they understand which laws need to change and how to go about that work. Law graduates need not merely an intellectual openness to change but also the professional competence and confidence to develop and implement genuinely consequential changes which are likely to be subject to controversy and ‘sharp, sometimes bitter, legal and political contests’.^[7] Legal education is thus responsible for not only preparing law students for practice in the time of climate change with legal knowledge but also preparing them with critical competencies and insights to work in an era of transformational legal change.

The ability to collaborate with a wide range of professional specialists who possess disciplinary and practical expertise beyond law, to listen to the perspectives and experiences of others from a diverse range of cultural and economic backgrounds and to strategise and prioritise changes in logical and viable ways may not be competencies we consider essential to legal education, and they may not be competencies we ourselves (as teachers) have from our own professional experience and training. But these are important skills for law students to develop because legal institutions remain viable and authoritative over time only to the extent that they are responsive to the times in which they operate. The disruptive nature of climate change^[8] brings an end to a paradigm of law that has seemed so viable and authoritative as to be right and natural, and it illuminates the reasons for different legal concepts, rules and functions. Law teachers could wait for ‘top-down structural changes to happen over time’^[9] but climate change is a time-sensitive problem and ‘the rate at which these legal changes will be developed’ will not wait.^[10] As legal educators, ‘we must take up pedagogical opportunities to effect change before tipping points are reached beyond which such endeavours would be ineffectual’.^[11]