Private Law Theory

ABSTRACT
There is a prevailing perception that climate case applicants (often civil society) are diverting judges from the path of positive law, steering them instead into an area of activist legal precedence rather than engaging with substantive law. This article argues that private law, in fact, plays a crucial role in climate litigation involving states and governmental bodies. Within the framework of private law, rights and remedies are available to claimants who claim their legal rights are being infringed due to climate change. These claims can be understood as an exercise of the right to prevent damage. The absence of a cohesive analysis between climate law and private law underscores the necessity of the present study. The Draft Common Frame of Reference (Principles, Definitions, and Model Rules of European Private Law) and its provisions on the right to prevent damage serve as the foundational backdrop for this analysis. The analysis will also address other critical elements, including standing, the burden of proof, the handling of evidence, and the principle of the separation of powers.

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Marie-Louise Holle, The Overlooked Role of Private Law: Channelling the Right to Prevention into Climate Litigation, (2024) 18 Carbon and Climate Law Review 127-140.