British Common Law is Effective for Protecting the Environment - Term Paper Example

«On Whether British Common Law is Effective for Protecting the Environment» I. Introduction Citing Aubert (1983) in the book, In Search of Law, the University of London (2007, p. 24) affirmed that laws have six functions: Laws are instruments for governance. They exist as tools for shaping the behaviour of citizens. Laws are means for distributing resources and responsibilities in society. Laws are ways for defining and streamlining expectations. Laws are also mechanisms for addressing conflicts in society as well as a way for promoting solutions to conflicts and promoting peace among society’s members. Laws are ways to promote society’s values and ideals. Although several authors have identified the role of common law in the British legal system, a very important question to ask is whether common law suffices or is effective for protecting the environment. II. Common law in the British legal tradition The legal system of the United Kingdom is one in which common law and not only the statutes or the legislations of the parliament play an important role. Burridge (2008, p. 1) pointed out that the distinctive characteristic of the English legal system is the heritage of common law. Citing Glenn (2004), Burridge (2008, p. 1) pointed that the basis for common law can be found in customs and local practice in which “orality is evidently a primary feature”. According to Sanders (2009, p. 6) judge-made British “common law” is found in innumerable court rulings, supplemented by specific statutes. The tradition in British common law is that the laws declared in the courts are simply a “discovery” of the customs of the people (Gruen 2008, paragraph 11). For the University of London (2007, p. 23), the common law tradition of the United Kingdom “has reflected social, economic and cultural forces.” According the University of London (2007, p. 42), common laws are “usually” described in terms of the following: The focus is on specific circumstances and relevant judgment rather than on an application of general legal principles. There is never “a single authoritative statement” of the common law and, in an important aspect, it is “unwritten” yet written. Common laws apply to all legal persons and the state because there is no division between private and public laws. A litigation system that is distinct to the litigation process. Courtroom practices subject to rigid and technical rules. The judiciary possesses adjudication powers distinct from the executive or political process. Most importantly, even if the judiciary is paid by the state, the judiciary exercises “a separate power free from political interference.” “Parties to the dispute essentially control proceedings” and “there is an emphasis on the presentation of oral arguments by counsel. Hearings under communal law are more participatory and “the role of the judiciary is more reactive than proactive”. Expenses and effort of determination of disputes fall largely on the parties. The University of London (2007, p. 42) attributed to Blackstone’s Commentaries on the Laws of England (1765-69), the description of common law as “unwritten law” in contrast with the written law of statutes or codes. According to the University of London (2007, p. 42), Blackstone characterized the common law as “a form of oral tradition derived from general customs, principles and rules handed down from generation to generation by the court lawyers and judges”. The University of London (2007, p. 42) also implied that it was feasible to hand down the common laws because the court lawyers and judges “participated in a common life by eating and drinking in one of the Inns of Courts to which all had to belong”. Eventually, however, the oral tradition found their way into the reports of the decisions of the important court and the “knowledge” was stored in a “written form”, namely in the form of “Law or Case Reports”. Traditionally, “the words of the Law Reports themselves were not the common law, but that the decisions of the courts as reflected in the Law Reports provide authorities for what the common law can be argued to be” (University of London 2007, p. 42). According to the University of London (2007, p. 27-28), there are key aspects of the British common law that makes British common law distinct: 1. Judges are the ones most important and not the academics or jurists. 2. The English common law reflects national identity. It goes without saying that there is ample social foundation that will keep common law in the British legal system for some long time as it is part of British national identity and judges would understandably tend to keep the tradition alive for some long time. III. Humanity’s problems on the environment Man’s environmental problems in the 21st century revolve on six main concerns. First, there is a need to promote a pattern of development that will not compromise the ability of future generations to meet their own needs as current generation strives to meet her current needs. This development perspective is known as “sustainable development” (International Institute for Sustainable Development 2007, p. 3). Zhang et al. (2007, p. 105) reported that the “worldwide food problem could not be overall resolved by 2030.” Hirsch (2007, 6-20) reported that several forecasts/estimates pointed out a peaking in world oil production very soon. Earlier, in 2005, Hirsch estimated that world oil demand will increased by 50% in 2025 from the 2005 level (p. 3). This implies that the world’s resources would have be recycled rather than wasted wantonly. Second, there is a need to conserve biodiversity or the biodiversity of flora and fauna worldwide. Unfortunately, however, about a tenth of the world species and about one-fourth of the world’s mammals are being threatened with extinction (International Union for the Conservation of Nature 2002 as cited by The Royal Society 2003, p. 1). From 0.5 to 1% of the world’s tropical forests are being lost annually (Food and Agriculture Office 2001 as cited by The Royal Society of London 2003, p. 1). Wild vertebrae populations have declined by about 33% since 1970 (Loh 2002 as cited The Royal Society 2003, p.1). Because the lives of species are interrelated, these developments have likely impacts on food as well as on the availability of materials that can be developed for drugs or medicines. As The Royal Society has stated in 2003, “our dependence on biodiversity is absolute: without it humans would not be able to survive” (p. 1). Based on the works of Daly (1997) and Balmford et al. (2002), The Royal Society (2003, p. 1) elaborated, “All food is directly and indirectly obtained from plants and other photosynthetic organisms. Apart from direct benefits of biodiversity from the harvest of domesticated or wild species for food, fibres, fuel, pharmaceuticals and many other purposes, humans also benefits from its influence on climate regulation, water purification, soil formation, flood prevention and nutrient cycling…” Related to protecting biodiversity worldwide, the United Nations has identified more than 18 million square kilometres of the earth’s surface whose biodiversity must be protected (United Nations 2003, p. 23). . Many of the areas targeted for biodiversity conservation involve territories cutting several nations. Other than this, ecologies are related such that damaging one can directly or indirectly can affect another ecological area or zone. Third, there is a need to conserve the earth’s vistas or view given the damage that “development” can do to the earth’s natural vistas. Flowers, mountains, rivers, and oceans are beautiful in their natural states. Unfortunately, the creation of cities as well as mining, digging, and conversion of natural settings into built-up areas deprive man of natural beauties. Fourth, there is a need to ensure human lives and health is kept safe from toxins, poisons, and other threats. Pollution spreads poisons and threats to health in river systems, water tables, air, seas, and oceans. Some of the poisons take some time to be felt by humans but the effects are certain: the poisons or toxins can kill, debilitate or cause cancer. Some of the poisons or toxins may not immediately kill but they can make the mind to work slower or become less intelligent. Fifth, there is a need to protect the environment because communities have rights to water tables and “development” or alterations can bring changes to water tables, even possibly resulting to the deprivation of certain communities of access to water. Finally or sixth, there is a need to ensure man’s survival and health given the threat of climate change as greenhouse gases pollute the earth’s atmosphere. A global warming that results from greenhouse gas pollution means climate changes. It will mean that certain areas will be more vulnerable to flooding if not actually flooded. It will mean elevated sea levels. It can mean that many islands on earth may be lost as seas as raised. It can mean that some crops would either disappear from certain locations and would be less productive. It can mean that at least some countries would have a decrease in food production. Thus, man has to protect the environment in order to ensure his survival and that of the future generation by ensuring a development pattern along sustainability principles, protecting biodiversity, protecting the earth’s vistas, protecting lives from toxins and keeping people healthy, protecting water tables, and protecting man from the threats of climate change and global warming. To address environmental problems, laws are formulated. For Shelton and Kiss (2005, p. 3), environmental problems arise from two human activities: 1) use of resources, and 2) contamination of the environment or pollution beyond the capacity of the environment to absorb. Shelton and Kiss pointed out that “a chemical oil spill, for example, not only will pollute the nearby soil, but it can enter streams and rivers, be transported to the sea, and enter the food chain through absorption by plants and animals” (Shelton and Kiss 2005, p. 3). Shelton and Kiss emphasized (2005, p. 3) that fundamentally the environment has no boundary because harm in one territory flows into other territories, making international collaborations necessary. According to Shelton and Kiss (2005, p. 6-9), the sources of environmental laws include traditional, national, and international laws as well as administrative regulations. IV. Why common law is ineffective for protecting the Environment From the nature of common law, common law is ineffective for protecting the environment. There are at least five reasons why common law is largely ineffective for protecting the environment. First, the man confronts today are largely unprecedented. Men of yesteryears have not experienced the environmental problems of the 21st century. Thus, largely, the environmental problems that men are experiencing today have no precedent. For example, it is inconceivable that that men of yesteryears have arrived at rulings on carbon capture and sequestration that are the important discourses in the current situation or threats of global warming and climate change. Second, our knowledge on the environment is not static. Men’s knowledge on the environment has been growing through time as science and social science advance in history. The solutions that man can devise on his environmental problems will have to be improved and be refined based on the growth or development of science. The development of science will also enable man to anticipate the effects of his actions on the environment as well as the ultimate effects of his actions on his existence and those of the future generations. It is inconceivable that common laws are able to anticipate based on the knowledge of yesteryears. Science has been tremendously improving with regard to its ability to forecast. Unfortunately, based on the inherent nature of common being based on past experience, common law will always have a constraint in anticipating the future. Third, the actions that men have to take to protect the environment will have to cover areas exceeding those of a nation. The action that men have to take will have to cover actions of people in other countries and will have to cover territories other than that covered by the United Kingdom or Britain. Thus, protection measures will have to invoke traditions other than the traditions that can be found in Britain. Customs and traditions, other than those in Britain or the United Kingdom will have to be invoked. Thus, in must cover common laws other than those that can be found in the United Kingdom. Most likely, there are divergences in culture and tradition worldwide, and common laws across nations worldwide may even contradict one another. Thus, measures for protection of the environment must be more than those implied or decreed by common laws. Fourth, joint international actions are required and obviously, British common laws will not be adequate to provide justifications for join international actions. This implies that international laws will have to be invoked rather than British common laws. Justification for joint international actions will have to be found in the Charter of the United Nations and international laws that were developed in the course of international actions and agreements. Ecologies cover territories across nations and countries and joint international actions are required to protect sea ecology and sea biodiversity. Finally and fifth, international agreements will be an important feature in addressing man’s environmental problems today. International agreements will have to involve give and take arrangements. For example, developed nations may have to compensate developing nations for the carbon emissions they have caused in the course of developing their economies. Developed nations may request developing nations to adopt a track of development that will have low carbon emissions but the developing nations may insist that they have the right to pollute the environment a bit because of their underdevelopment. Developing nations may ask the developed nations to halt their economic growth and this may not be acceptable to the developed nations. A few examples may be illustrative. An indication that common laws will be ineffective in protecting the environment can be found in Bach (2009). According to Bach (2009, p. 5) the United Kingdom doe not have a unified, written constitution like the United States or most other European nations. The UK parliament serves “as the final source of governing laws” (Bach 2009, p. 5). However, according to Bach (2009, p. 5), “UK’s participation in the European Union has the potential to create certain overarching rights that might invalidate domestic legislation.” For example, while European Court of Human Rights interpreted the 1998 Human Rights Act of the European Convention on Human Rights to imply a right to healthy environment, it is uncertain whether the courts of the United Kingdom would rule in the same manner (Bach 2009, p. 5). Bach (2009, p. 6) also pointed out that unlike other countries, “the precautionary principle has not received favourable treatment in court decisions.” This is because UK courts and as per the UK’s common law, have held that “policy documents do not create legal obligations” (Bach 2009, p. 6). Further, Bach (2009, p. 6-7) reported that just like other common law countries, environmental problems in the UK are solved via private law of torts but, unlike in other countries where environmental problems related to climate change are classified as public nuisance based on cases filed in court, “no such cases have occurred in the United Kingdom”, implying that UK’s common law will be inadequate environmental problems related to climate change. Based on common law, UK courts can conceivably make unprecedented judgments. However, the needs for mitigating climate change require that the UK act in consonance with the international community and not merely with the wishes of judges of the UK. This last point further confirms that all UK national legislations as they merely reflect British common law would be fundamentally inadequate as the basis for environmental legislations because environmental legislations have to reflect the wishes of international community and not merely the wishes of British society. On the five reasons that I have identified, we can also add that view of Meiners and Yandle (1998, p. 50) that common law rights, “restricted the ability of polluters to avoid the cost pollution”. Unfortunately, however, Meiners and Yandle (1998) took off mainly from the experience of the United States. V. Conclusion: The task ahead In the main, we have shown that common law will be ineffective and inadequate to confront the environmental problems that man faces today. Nonetheless, the better course of action to take is not to ignore common law entirely but to recognize instead that man’s environmental problems will be addressed better by a full range of legal and international instruments. This means that while legislations and common laws are important, international agreements and international laws will be very important. WORD COUNT: 2,772 words References Bach, R., 2009. The recognition of intergenerational ecological rights and duties in foreign law. CIJ Background Paper No. 7, 1-18. Available from: http://www.vermontlaw.edu/Documents/CLI%20Policy%20Paper/BP_07%20-%20(Bach).pdf [Accessed 12 November 2010]. Burridge, R., 2008. The three most important characteristics of the English legal system. Available from: http://www.ialsnet.org/meetings/enriching/BurridgeRoger.pdf [Accessed 7 November 2010]. Glenn, H., 2004. Legal traditions of the world. Oxford University Press. Gruen, N., 2008. Common law versus law. 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