Reimagining Legal Capability: Access to Justice in a Time of Climate Change

This article considers how the Capabilities Approach (CA) can inform access to justice scholarship, policy, and practice in view of the pressing urgency of climate change. It argues that substituting the narrowly defined “legal capability” with a comprehensive CA-informed framework will better position public legal services to deliver effective access to justice for people most at risk of climate harm. A description of how access to justice scholarship has misapplied the CA is provided, followed by an exploration of how CA-informed climate justice and transformative adaptation scholarship can offer new perspectives for access to justice. This article puts forward three operational suggestions for how a widened CA-informed understanding of “legal capability” can support the delivery of civil justice in the Anthropocene: (1) Shifting towards more anticipatory and preventative legal work; (2) Positioning public legal services as actors striving for transformative adaptation; and (3) Using climate indicators in empirical legal studies to track the influence of climate change on legal need. This article concludes that the incorporation of a CA-informed understanding of “legal capability” has broad relevance and application for all jurisdictions striving to deliver civil justice in a climate-changed world.