Judges and the Common Laws of the Environment--At Home and Abroad

Abstract

Judges have long had a central role in developing and enforcing effective laws for the protection of the environment and ensuring access to justice for its champions. The response of British judges to the problems created by the Industrial Revolution in the 19th century, using the tools of the domestic common law, has been mirrored in recent years by the responses of judges round the world to the environmental challenges of their own countries, using a range of legal mechanisms, derived from their varied constitutions or statutory codes. In developing and enforcing those laws, judges have needed to temper principle with realism, and progress has often been slow. They have sometimes been criticised for not respecting the proper limits of the judicial role, when dealing with issues of political controversy or allocation of economic resources. With the support of United Nations Environment Programme, judges have been at the forefront in programmes for improving judicial capacity in the field of environmental law, and for sharing skills and experiences. Although the legal frameworks may differ, many of the problems and their solutions are of universal application. The emerging principles can be seen as the foundation of a system of ‘common laws of the environment’ suitable for the daunting environmental challenges of the modern world.