The Structure of Legal Evolution: Applying Philosophy of Science to Legal Philosophy in Earth System Law

In light of the urgency posed by ecological concerns, it becomes increasingly important to consider how the proliferation of scientific ideas for legal innovation can manifest as legal reality. This is undoubtedly a question for legal theory. This paper contends that the legal philosophical issue of how ideas evolve into laws can be enriched by the philosophy of science. The emerging field of Earth System Law (ESL) is utilised as a case study, subjecting it to Thomas Kuhn’s theory of paradigm shifts. The legal theoretical foundation combines Niklas Luhmann’s autopoietic systems theory with Bruno Latour’s theory of modes of existence to analyse how scientific facts may become legal norms. The article presents three arguments. The first is that new legal ideas from academia, such as ESL, must be situated within the science system rather than the legal one. Second, inspired by Kuhn and complemented by Michel Serres, it is posited that these ideas can be fruitfully understood as competing paradigms within a disciplinary crisis, aiming to effect a paradigm shift within ‘normal’ environmental law. Finally, the question of how academic theories can translate into positive law is addressed by highlighting the similarities and differences between scientific and legal arguments.