Environmental Law by Elizabeth Fisher

Author:Elizabeth Fisher
Language: eng
Format: epub
ISBN: 9780192512635
Publisher: Oxford University Press
Published: 2017-08-02T16:00:00+00:00

Legal reasoning and legal culture

Beyond these important structural differences between legal cultures there are also more substantive ones. Even in legal cultures that have much in common, there can be differences in legal reasoning and approach. A good example of this is the way in which courts in different jurisdictions have developed (or not developed) environmental principles. As discussed in Chapter 4, environmental principles were included in the Rio Declaration, but they have taken on divergent legal lives in legal cultures.

Australian courts have developed a dense body of case law around environmental principles. While some of this trend can be explained by the inclusion of environmental principles in Australian legislation, it also reflects a strong commitment to legal formalism in Australia—that is, a commitment to resolving disputes through the application of formal legal concepts. Specialist environmental courts (Chapter 9) have played a role in this process as they have the legal skills to incubate and nurture a body of legal doctrine.

In contrast, UK legal reasoning is more pragmatic—there is less emphasis on the articulation of legal doctrine and more upon the adjudication of disputes. As such, environmental principles have not given rise to a rich body of case law. In the 1990s a barrister noted that environmental principles were perhaps too ‘rarefied for the English judicial palate’. That is going too far. UK courts do consider environmental principles, but there is less emphasis on articulating their precise legal nature in detail.

The reasoning of the Indian Supreme Court with regard to environmental principles is different again due to its constitutional aspect. It has also been inspired by international law developments. Thus, in Vellore Citizens Welfare Forum v Union of India (1996) the court used the international law concept of ‘sustainable development’ as a launching point for developing environmental principles in Indian environmental law. The court also concluded that the precautionary principle and the polluter pays principle ‘are part of the environmental law of the country’. Their logic for doing so was grounded in Article 21 of the Indian Constitution, and in the vast amount of post-independence legislation enacted to protect the environment and the new institutions created to oversee such legislation. Their reasoning thus focused on how the architecture of Indian environmental legislation gives rise to a set of legal concepts. This is very distinct from the Australian approach. The Indian Supreme Court has also developed an ongoing supervisory jurisdiction in many of these cases as a way to address institutional failures.

The Court of Justice of the European Union (CJEU) has also developed a body of case law concerning environmental principles, due to the inclusion of the principles in the EU treaties. One of the most significant tasks of the CJEU is providing authoritative interpretations of EU law. Judgments are required to be translated into all the official languages of the EU, and they are also written by a chamber of judges drawn from the member states. This results in judgments focusing far more on the articulation of the law than the flow of legal argument.

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