Tag Archives: legal theory

Taking aims seriously – how legal ecology affects judicial decision-making (Pallonitty)

Author

Tiina Pallonitty

Keywords

Methodology of environmental law, judicial decision-making, water management, legal theory, principles, rights, rules

Abstract

This article reflects upon key challenges that ecology as a field of science has brought to modern environmental law as it operates within civil law systems. An example from European water management regulation elucidates how the traditional perception of judicial decision-making as deductive reasoning does not match the current reality because factual and normative premises are no longer as distinct as presumed. A novel way of formulating judicial decisions is accordingly presented: legal ecology – which aims to provide one answer to the search for more mature environmental methodologies. Legal ecology is based on the writings of the late Ronald Dworkin and especially of Robert Alexy, whose concept of principles as optimization requirements is adapted to fulfill the execution of the aim-setting sections frequently used in environmental regulation. Adjudication with legal ecology is understood to be rooted in normative sources but to be more transparent, open to scrutiny and to invite more evolved argumentative development than is currently the practice in civil law environmental adjudication. As such, the suggested approach might also benefit argumentation in the sphere of human rights and the environment in general – or any other field where aims ought to be balanced or value choice made visibile without compromising the requirements of legal certainty.

Citation

(2015) 1 Journal of Human Rights and the Environment 55-74

Publication

Taking aims seriously – how legal ecology affects judicial decision-making

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Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (N. A. Patel, K. Petlakh)

Authors

Nehal A. Patel and Ksenia Petlakh

Keywords

mindful, legal theory, non-western, Gandhi, jurisprudence, transnational, international, human rights, environment, corporation, industrial

Abstract

For decades, activists and academics have been lamenting the disparate impact of global environmental decay on populations less endowed with legal resources. However, the implicit biases of legal theory itself remain unchallenged even when global resource disparities are addressed. Little attention has been given in transnational jurisprudence to how the thought sub structures of modern legal theory contain dispositions that advantage privileged interests and hamper transnational environmental justice efforts.

How can transnational jurisprudence change to become more mindful of the environmental impacts disproportionately experienced by the disempowered, and what conception of global society shall the law embody such that it earns the voluntary submission of the people? We explore these questions with a speculation on how Gandhi’s thought applies to transnational environmental jurisprudence. Gandhi’s thought contains four components that contain the necessary ingredients to evaluate the dominant frames that debilitate global environmental justice efforts. First, Gandhi presented his own construction of the individual’s relationship to the physical and social environments. Second, Gandhi’s thought defines the relationships between societies in a way that is free of Western assumptions of global governance. Third, his thought contains a critique of industrialization and presents a powerful alternative. Fourth, his thought contains a reconstruction of the purpose and function of law and legal systems for a world in which “progress” includes social equality and environmental protection. Comprehensively, Gandhi’s thought reinvigorates a decayed relationship between global environmental justice and transnational environmental jurisprudence by simultaneously redefining the human-environment relationship, legal theory, and dominant Western assumptions of the relationships between nations.

We directly apply Gandhi’s thought to the case law that resulted from the Bhopal chemical disaster, which is widely considered the worst industrial disaster in world history. Applying Gandhi’s thought to the Bhopal cases is useful for two reasons. First, the Bhopal cases contain several core legal doctrines that appear regularly in transnational cases. Second, there is a profound power imbalance between the civilians and the corporation that highlights the case’s relevance to global environmental justice. Through our analysis of the legal principles and the parties’ arguments in this case law, we illustrate our conception of a mindful jurisprudence of the transnational environment.

Citation

N. A. Patel and K. Petlakh, Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (2014) Vol. 30, Harvard Journal on Racial & Ethnic Justice

Paper

Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence

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Wild law: sustainable development and beyond? (B. Pontin – editorial)

Author

Ben Pontin (editorial)

Keywords

Wild law; legal theory; Earth jurisprudence; governance; sustainable development; climate change.

Abstract

This is an editorial in ELM that introduces an issue that is dedicated to Cormac Cullinan’s legal theory that was put forward in ‘Wild law: a manifesto for Earth justice’. The theory is centred upon ‘Earth jurisprudence’; a radical shift from prevailing legal theory. Although human needs and rights are intrinsic to ‘Earth jurisprudence’ Cullininan goes further than simply the physical and material well being of humans this editorial gives a brief overview of wild law and its place in environmental law.

Citation

(2007) 19(2) Environmental Law and Management, 59-62.

Paper

Wild law: sustainable development and beyond?

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Environmental Risk: The Responsibilities of the Law and Science (Lord Woolf)

Author

Lord Woolf (lecture)

Keywords

Environmental law, Environmental Law Foundation, GMO’s, science and technology, the human environment, Human Rights Act, an environmental court, public trust, the precautionary principle, freedom of information.

Abstract

This lecture was given at the ‘Environmental Law Foundation Professor David Hall Lecture’ at the Brunei Gallery, University of London (24th May 2001). Lord Woolf tackles the effects of science on the environment and the risks of development continuing unfettered. Starting with the example of the need for regulation following scientific advancements during the Industrial Revolution he asks the question whether or not present environmental law is adequate to deal with the new risks science posses. Are the treats or dangers calculated by society worth it for the greater good? What level of risk is acceptable? He contends that as science is not an absolute it is for society to judge which risks are worth taking. Nonetheless in reality policy makers make those decisions but if democracy is to function properly it must be seen that such decisions have solid foundations. He states the role of law is important in three ways; first, the law should ‘ensure that the standards set down by policy makers are enforced fairly and efficiently. Second to ensure the process of decision-making is to the highest standard using the best available scientific advice. The process should be accountable and transparent allowing for public participation. Third Lord Woolf recognises that the law should protect Convention (ECHR) rights in light of the enactment of the HRA 1998 but highlights the difficulty of balancing ‘rights of the individual against the will of the majority as expressed through Parliament’.

Citation

(2001) 13(3) Environmental Law and Management, 131.

Paper

Environmental risk: the resonsibilities of law and science.

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Deriving environmental rights from the ECHR (M. DeMerieux)

Author

Margaret DeMerieux

Keywords

ECHR, lack of specific Article(s) in the Convention that protection human environmental right(s), theoretical approaches, possible formulation of specific right(s). Court’s approch, adequate human environmental protection can be derived from existing framework.

Abstract

This article examines the way in which the organs of the European Human Rights Convention have dealt with cases involving ‘the environment’ in the absence of any environmental (human) right or rights in the convention. Some theoretical approaches to ‘human rights and the environment’ are examined and the possible formulation of an environmental right or rights, their scope and content are discussed as a premliminary to the way in which the rights actually stated in the Convention could be or have been used to derive some form of environmental human right(s). It is suggested that the willingness or otherwise of the Court (now) to act in some sense to enforce ‘environmental human rights’ very much implicates the Court’s willingness or not accept a ‘judical control not always restricted to the legalityof administrative acts’. The conclusionis that it is unnecessary to ‘add’ specific environmental human rights to the Convention, and that there can be derived from a Convention that contemplated neither protection of the environment nor of the individual against harm to the environment, substantial legal protection under the Convention against environmental harms.

Citation

(2001) 21(3) Oxford Journal of Legal Studies 521-561.

Paper

Deriving environmental rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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