By Roberto Talenti

Until recently, contributions to degrowth debates have rarely come from legal scholars. This absence is not accidental. Law, after all, is a product of state deliberation. For those who view the modern state as a central institutional technology sustaining global capitalism, drawing borders through violence, protecting private property, and enabling extractive economic systems, law can appear less as a tool for transformation than as a byproduct of a growth-dependent and unequal order.

From this perspective, engaging law might seem secondary, even futile.

But that is only part of the story.

Legal scholars have long explored the transformative potential of law’s legitimizing power. Thinkers from Aristoteles to Montesquieu, and from Koskenniemi to Mattei have shown how law shapes norms, societal orders, and economic paradigms. Yet this route faces a major obstacle: lawmaking itself is deeply entangled with the very capitalist structures degrowth seeks to challenge. Reforming law would therefore require intervening in legislative processes that are far from neutral.

There is, however, another strategy, one that does not wait for law to be ‘fixed’, but instead works within its existing contradictions.

This approach uses law against itself.

By mobilizing certain elements of legal frameworks against others, it becomes possible to expose internal inconsistencies. These contradictions may not automatically be resolved, but once revealed, they become politically costly to ignore. Even the most powerful actors rarely present their actions as unlawful; they seek legitimacy in the language of law. Exposing contradictions, then, forces justification, and opens space for contestation.

This is the strategy that informs my recent article, published in the Journal of Law and Political Economy. Finding a venue willing to host such an argument required looking beyond mainstream legal publishing, ultimately to a journal supported by the University of California, Berkeley.

The argument itself is straightforward but far-reaching: the concept of sustainable development, a cornerstone of international environmental law, is deeply problematic, both legally and conceptually. It is not a neutral or scientific concept, but a product of what can be called green capitalism.

In the article, I identify seven key issues, including its ambiguous legal status, its internal tension between ‘sustainability’ and ‘development’, and its increasingly vague and fragmented definition. But two points are particularly relevant for degrowth.

First, mainstream interpretations of sustainable development equate development with economic growth. Growth is presented not only as beneficial but as necessary, both for poverty reduction and environmental protection. This framing legitimizes the Global North’s continued reliance on extractive, profit-driven practices, recasting them as contributions to global well-being.

Second, even more progressive interpretations fail to recognize a fundamental principle: ecological primacy. Ecological systems are not one variable among others; they are the condition of possibility for both economic activity and social life. Ignoring this hierarchy leads to conceptual and legal distortions.

As the article argues, embedding a growth-dependent understanding of sustainable development has particularly far-reaching consequences in international law, where legal language does not merely describe reality but actively structures material outcomes. In this context, what begins as political rhetoric becomes institutionalized: the growth-oriented interpretation of sustainable development is progressively entrenched in the binding treaties that underpin the global climate regime.

This trajectory is already visible in the 1992 United Nations Framework Convention on Climate Change. Article 3 explicitly frames economic development as ‘essential’ to addressing climate change, emphasising the need for ‘sustainable economic growth’ and cautioning against measures that could restrict international trade. Subsequent treaties deepen this orientation. The Kyoto Protocol embeds climate action within the logic of cost-effective market mechanisms, while the Paris Agreement goes further by positioning sustainable development as the overarching ‘context’ for climate action.

Over time, this evolution has not merely accompanied climate governance, it has actively shaped it, progressively creating the reality within which legitimate climate policy can be designed.

Such provisions, however, raise a fundamental question: how can this framework be reconciled with the best available scientific knowledge?

The scientific consensus increasingly casts doubt on the possibility of rapidly decoupling economic growth from greenhouse gas emissions at the scale and speed required. At the same time, critiques from within the United Nations system itself, such as those advanced by the Special Rapporteur on extreme poverty, highlight how growth-driven economies tend to prioritize the demands of the wealthy, perpetuating extraction and inequality while failing to meet basic human needs.

There is, then, a clear tension between legal commitments and empirical reality.

This tension becomes even more striking when we consider that the Paris Agreement explicitly requires climate action to be based on the best available science. If the legal framework is grounded in assumptions that contradict that science, its coherence is called into question.

A close analysis of treaties, legal documents, and judicial decisions reveals a persistent reliance on a concept of sustainable development that is neither scientifically grounded nor internally consistent. Yet it continues to structure global climate governance.

This is where a law and political economy perspective becomes essential.

Rather than treating law as neutral, rational, or inherently oriented toward the common good, this approach situates it within broader systems of power. It reveals how legal structures encode the interests of dominant actors, and how concepts like sustainable development can function as vehicles for those interests.

Understanding law as ‘the code of capital’, in Katharina Pistor’s sense, is a crucial first step. It allows us to identify where legal frameworks contradict democratic principles, ecological realities, and social justice. Making these contradictions visible is not merely an academic exercise, it is a political act.

It can contribute to a broader awareness that law is not something given, but something made, and therefore something that can be remade.

If degrowth is to move from critique to transformation, engaging with law is indispensable. Not because law is inherently emancipatory, but because it is a terrain of struggle. Exposing its contradictions can help shift it from an instrument of domination toward a tool for ecological sustainability, social well-being, and democratic participation.

The king, as it turns out, may not be clothed after all.