The judicial decision-making paradox in environmental issues: How it creates a future-proof legal system with an Achilles’ heel

This chapter argues that in discussions about how to achieve a future-proof legal system to address environmental issues, the challenge posed by the judicial decision-making paradox has been overlooked. The judicial decision-making paradox arises when legislation is absent or unclear, and judges have to decide even when they find it hard to do so. This paradox enables a legal system to remain effective, relevant, and adaptable to societal shifts and other changing conditions through judicial decision-making. However, paradox-driven decisions in environmental issues are problematic because it is not easy for individuals to accept their legal normativity, and these decisions can only function distinctively to stabilise expectations if their normativity is accepted. Therefore, a legal system containing paradox-driven decisions risks losing its distinctive function as the number of such decisions increases without their normativity being widely accepted. After examining the difficulty of justifying the legal normativity of paradox-driven decisions within the existing legal frameworks, this chapter proposes a feasible approach to mitigate the negative impacts of the judicial decision-making paradox on a legal system by advocating judicial decision-making as a process of giving practical reasons.