Environment and Law

David Wilkinson

• Publisher: Routledge
• Year: 2005
• Print ISBN: 9780415215671
• eBook ISBN: 9781134608058
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This textbook provides a concise introduction for students with little or no legal background, to the role of law in environmental protection. It describes and explains law and legal systems, the concept of the environment, sources of environmental law and some of the techniques used in environmental law. Interdisciplinary in approach, the book explores some of the major connections between law and the disciplines of ethics, science, economics and politics.
Environment and Law offers a greater understanding of international and national environmental law and has case-studies from all over the world, including examples from UK, US and Australian law.

Law and legal systems

• The concept of law
• Legal systems
• Divisions of legal power

Introduction

The environment is clearly at risk from a variety of sources of harm, mostly of human origin. In order to begin to tackle this problem it is important that we develop strategies for modifying human behaviour towards environmentally benign practices and away from environmentally damaging ones. In very broad terms, techniques for modifying human behaviour can be thought of as falling into two types: incentives (carrots) and disincentives (sticks). Law is important since it creates frameworks within which incentives and disincentives can operate. Quite commonly law is itself an incentive or disincentive. In other cases it operates as a structure in which to position non-legal techniques such as economic instruments or informational and educational measures.

Law is all-pervasive. Other methods for influencing human behaviour are, to a certain extent, voluntary or optional. Education, ethics, peer and family pressure: these all apply in varying degrees. Law, on the other hand, cannot easily be avoided. It is axiomatic to the ‘rule of law’ that law in a society applies equally to everyone at all times (Hutchinson and Monahan 1987). As such it can be a powerful weapon in the armoury against environmental degradation.

In this chapter we introduce a number of concepts of law and a variety of legal systems. The purpose is to explain what is meant by ‘law’ and how the types of legal system encountered can help or hinder the overall goal of environmental protection.

The concept of law

The study of the environment and the law immediately poses the question, ‘What is law?’ Answering this question is, in one sense, straightforward. Law has been described as ‘generally . . . a way of regulating human behaviour’ (McEldowney and McEldowney 1996, 3). Yet such simple formulations leave many issues unresolved. Is an edict from a government department a ‘law’? Is policy guidance issued by a government department (e.g. Britain's Department of the Environment, Food and Rural Affairs) to be regarded as ‘law’? Is the ‘Precautionary Principle’ part of the law? It is important to be able to distinguish between ‘law’ on the one hand, and other normative systems on the other. If we confuse non-legal and legal standards we fail to understand the best means of influencing the content and enforcement of each. Furthermore, laws often carry economic or penal penalties for transgression that non-laws do not. So, let us consider more closely the concept of ‘law’.

Law as commands

One school of thought (Hobbes 1996, orig. 1651; Bentham 1891, orig. 1776; Austin 1954, orig. 1832) is that the only things that count as ‘laws’ are commands of a sovereign, backed up by sanctions in the event of disobedience. A sovereign, for Austin, is an individual or body that is clearly identifiable, habitually obeyed by society, and is not habitually obedient to any other superior. In the UK, Parliament would be such an institution.

One problem with the command concept of law is that it doesn't fit very readily with laws that merely empower or permit one to do something. The right to freedom of speech as, for instance, found in the First Amendment to the United States Constitution, is not a command. Similarly, when environmentalists speak of a ‘right of access to environmental information’ they are not implying that they are, in any sense, required to access such data. The command concept of law has another difficulty: it fails adequately to separate legal coercion from non-legal coercion. A mugger – who is habitually obeyed but who obeys no other person – might stop a member of the public and demand money on pain of death: is this law? A multinational corporation might instruct its staff to keep quiet about pollution incidents caused by its activities, on pain of dismissal. Would that be law?

Law as rules

Problems with ‘command’ theories of law led to the development of ‘rule’ theories of law. Hart (1961), the most eminent rule theorist, divided legal rules into primary rules and secondary rules. Primary rules have substantive content (e.g. it is an offence to pollute a watercourse). Secondary rules are rules about primary rules. They tell us how to recognise, introduce, alter, or remove primary rules. An example of a secondary rule – in this case the rule of recognition – is that in the UK a valid statute requires passage of a bill through both Houses of Parliament and receipt of the Royal Assent. It is the possession of both primary and secondary rules which, according to Hart, demarcates a legal system from other institutions for social control. This implies, incidentally, that less formal systems of social conventions and rules such as those possessed by certain indigenous peoples may not achieve the status of ‘legal system’.

The rule model of law faces certain problems. First, what should courts do if the law does not contain a rule governing a particular case or if the rule seems vague? Hart's answer is that laws, whilst generally comprehensive and clear, will nevertheless entail a ‘penumbra of doubt’ where judges must exercise discretion. This would imply that we must accept that judges actually make law where the legislature has been unclear or left a gap. The discretion explanation itself, however, is subject to criticism. In both the UK and the United States judges in most of the higher courts are appointed rather than elected. It may be asked why judges, who lack democratic legitimacy, should be able to exercise discretion so as to create law.

Second, it is not certain that any clear rules exist. Some rules are made not by the legislature but by judges. In the case of judge-made rules (known as ‘precedents’) the scope of any given rule is often unclear. A rule which, on its face, appears to be narrow in its application, may subsequently turn out to be broadly interpreted. A revealing instance is the case of Donoghue v. Stevenson (1932). Here a woman consumed ginger beer bought for her by her friend, containing a decomposing snail. The snail's remains caused the woman to fall ill and she successfully claimed damages against the drink manufacturer. Prior to this case the House of Lords had not generally allowed damage claims where the injured party lacked ‘privity of contract’ with the seller. Thus the decision in Donoghue had the effect of creating a new rule of liability. At the time of the judgment it appeared that only a narrow rule had been created (i.e. that beverage manufacturers have a duty to ensure that their drinks are safe for consumption). In fact the case later turned out to have created a very broad rule indeed. Donoghue v.

Stevenson was the genesis of the whole body of law that today is know as negligence – now the largest area of civil litigation – which extends a duty of care to a vast range of actors and activities.

Similar arguments may be made in the case of rules made by the legislature (i.e. legislation). It is difficult to predict the meaning that courts will attribute to words used in legislation. So-called ‘realist’ writers go so far as to deny that law contains any rules as such, as distinct from the actual operations of the courts which are only ever imperfectly predictable (Frank 1970).

Law as principles

Not everyone agrees that law consists simply of a body of clear rules surrounded by a woolly mantle of judicial discretion. Dworkin (1977), for one, famously argued that law also contains principles and does not contain discretion.

Dworkin distinguished rules and principles as follows. He said that rules apply in an ‘all or nothing’ fashion (e.g. river pollution is forbidden) whereas principles have the quality of ‘weight’; that is to say, a principle is never absolute and is always subject to being balanced with and against other principles. An example of a principle might be that ‘a person shall not profit from his or her own wrong’ (Dworkin 1977, 22) or ‘a polluter shall pay for environmental damage caused’.

Unlike Hart, Dworkin denied that judges have discretion when faced with unclear or seemingly unjust cases. Instead he asserted that, in such hard cases, judges should reach a solution based on the principles of their particular legal system.

The sorts of principles which can be found in most legal systems include:

the principle of proportionality (laws should not be Draconian);

the principle of non-discrimination (laws should not make arbitrary distinctions between subjects);

principles of natural justice (e.g. the right to a fair trial); and

equitable principles such as ‘equity will not permit a statute to be used as an instrument of fraud’.

An important question that we examine in Chapter 4 is whether environmental principles such as the Precautionary Principle and the Polluter Pays Principle have also been accepted into environmental law.

The idea that law contains legal principles is not unproblematic (Toubes Muñiz 1997; Alexander and Kress 1997). One issue is whilst Dworkin characterises principles as having ‘weight’, he never explains how this ‘weight’ is to be ascertained. Asking judges to trade one principle off against another looks suspiciously like the discretion that Dworkin was so keen to denounce. Nor is it clear that Dworkin's characterisation of rules as absolute is correct; it may be that where rules appear to conflict they can also be ‘weighed’ against one another. If that is the case, the distinction between the two types of law collapses, and the need for principles disappears. A third problem is that of identification. Whereas, as we have seen, protocols exist for identifying legal rules (e.g., in relation to legislation, the grant of Royal assent after passage through Parliament) the same does not appear to be true of legal principles. The existence and content of principles may, therefore, be disputed. Finally, legal principles, at least in Dworkin's scheme, are those which justify or have ‘best fit’ with the most existing law. As such they may deviate from correct moral principles (Alexander and Kress 1997).

Law as ethics or morality

An idea with a long and venerable intellectual history is that there is some degree of necessary connection between law and morality (or ethics). This type of argument is generally known as natural law theory (Aquinas 1991; Finnis 1980). More specifically, natural law is the idea that law must have a certain reasonable moral content in order to be called law at all. This type of reasoning was used in the trials, after the Second World War, of civilians who had carried out Nazi instructions against their fellow citizens (e.g. reports to the authorities of those expressing negative opinions about Hitler). When brought to trial they claimed, in their defence, that their indicted actions were justified by being in conformity with the Nazi laws. However, this defence was commonly rejected by application of the philosophy of Gustav Radbruch ([1946] 1990); that is, that the Nazi laws were null and void if they constituted gross violations of fundamental principles of justice and humanity which must be respected by any state, no matter what its form of government.

Part of the importance of natural law thinking is that it can be used to undermine unethical legislation and defeat attempts to justify morally repugnant acts (e.g. genocide) by appeal to the claims of ‘only following the law’. It can also provide the foundation for new laws. Human rights law, which is driven by natural law theories, is of increasing importa...

Table of contents

• Front Cover
• Environment and Law
• Routledge Introductions to Environment Series Published and Forthcoming Titles
• Title Page
• Copyright
• Contents
• List of figures
• List of tables
• List of boxes
• Series editor’s preface
• Author’s preface
• List of cases
• Names of law reports
• Introduction
• 1 Law and legal systems
• 2 Legal concepts of environment
• 3 Sources of environmental law
• 4 Principles of environmental law
• 5 Techniques of environmental law
• 6 The economics of environmental law
• 7 Science, law and the environment
• 8 Environmental ethics in law
• 9 Politics, law and the environment
• Glossary
• Bibliography
• Index