Traditionally Comparative Law Essay

The scope of comparative law has been extensive. While traditionally comparative law is concerned with comparing laws of different countries, it is now widely acknowledged that the comparative method can be applied in different ways to different levels, forms, stages or aspects of regulation with a view to understanding the infinite varieties of the legal expressions of human experience. And this is also reflected in existing environmental legal.

The elements of environmental study still have to be introduced in order to understand the legal aspects of sustainable development. What must the scholar, government lawyer, or private practitioner do to engage in comparative environmental legal studies? Rather, the elements should be considered in any serious examination comparing the environmental laws of different states. In turn, the following questions will be posed. First, which jurisdiction scan be compared? Second, what are the elements of a comprehensive environmental law regime to identify and compare? Third, how can environmental laws be harmonized and integrated among states in order to give better effect to their objectives?

While environmental law forms on legal culture in which this is adopted and functions, it referred by a common body of subjects and norms. Goals of environmental law are for guiding human conduct in consideration of consciousness and act to maintain the natural system that sustain human society, which means have to conduct balance of economic growth, natural protection and social development. Therefore, unlike many subjects of comparative law, the comparison of environmental regimes must begin with an identification of the relevant natural systems such as biomes, watersheds, habitats, species of flora and fauna and other objects of natural science that are the subject of the legal regime under study. Hence, comparative environmental law begins in conjunction with identification both of the legal jurisdictions that must be compared and the natural resources which the law addresses.

Having identified the geographic setting, ecology, and other characteristics of the jurisdiction to be examined, the nature of the jurisdiction have to be define. View of whether the federal, state or provincial authority has the competence to manage an observed environmental issue under the governing constitution of federation. The task becomes very difficult to frame law governing the management ofa natural area or environmental system depends on customary of local communities and authorities of competence. Thus, role of local authorities must be considered. Comparative law, therefore, finds it necessary to examine each nation’s laws that assign competence over environmental issues to its political subdivisions.

One jurisdictional category requires special comment. One must acknowledge that most government activities are inadequate to undertake the tasks of environmental law. While economic development may be attractive in many of these areas where natural resources are found, such places lack the environmental protection infrastructure required for effective environmental law regimes.

Having considered these aspects of the jurisdictions, the basic framework or structure of environmental law that should exist in any given jurisdiction will be set forth. Each jurisdiction is inevitably in the midst of completing or changing many of them, elements of this framework, so it is not a static or complete body of law. Nonetheless, reference to such a framework can facilitate legal analysis by identifying the broad subjects in Environmental Law for comparison in each jurisdiction.[20]

There is a common trend which can be considering it throughout the study. These are four phenomena that influenced in field of environmental law and common to all jurisdictions.

First, having understanding a shared, common body of knowledge of environment, a society should adopt in order to maintain the environmental benefits of a natural system. In order to efficiently manage their resources and use the best management practices, governments tend to strive to understand how others manage roughly the same sort of natural resources.

Second, many of the externalities that endanger public health or degrade natural systems result from the same technological systems. Technological solutions for eliminating lead to advanced method. Multinational business enterprises move this transfer of technology forward, then, in turn, regional or national companies adopt the technologies. Governments tend to adopt the same regulations for these new technologies, in order to facilitate and derive the environmental and economic benefits from their implementation.

Third, the complexity of the modem state has given rise to an administrative system that shares a great deal in common. The administration the frame of environmental protection is similar. Environment authorities meet at the competence authority level in all regions and globally through the United Nations system. Similar procedures for permits, financial incentives, norms and standards, monitoring and baseline data analysis, EIA, and compliance and enforcement are used by these administrators in their jurisdictions.

Fourth, the globalization of the Earth increased volumes of trade between regions has also facilitated collaboration world-wide. When the citizenry learns that a pollutant can be or has been banned in one jurisdiction, citizens demand the same elsewhere. NGOs are flourishing at the grass-roots level in all countries. When citizens ask for public hearings, planning procedures, environmental education, publication of environmental data, or enforcement of environmental laws, they are pressing forward comparable priorities.

There is a large body of comparative law that has examined the substantive and procedural legal elements of legal traditions. However, it is evident that the field of environmental law itself evidences common trends across its existence in civil law or common law traditions. [20]

Generally, Environmental Law addresses the ambient of environmental conditions for the health of a population and the ecological status of the natural resources present in connection with jurisdiction. Due to recurring in most national environmental law regimes and covering the subjects studied by the environmental sciences, the identified elements are presented.

Substantive environmental Law: Substantive Law is referred by set of laws that creates, defines and regulates the rights, duties, liabilities, and obligations of citizens in a country. It defines the legal relationship between citizens or between citizens and the administration. Thus, it deals with both civil and criminal law.

Substantive fields of environmental legislation can be grouped under headings of natural resource laws, pollution laws, process safety, energy systems, and cultural heritage. The more advanced forms of statutes, the ‘conservation’ statutes, recognize that resources need to be managed, to sustain the yield of renewable resources, and to extend the useful access to non-renewable resources. The most advanced legislation seeks to establish and maintain systems for sustainable use of the resources, through managing demand and eliminating environmental impacts.

Procedural environmental Laws: Procedural Law is defined as the body of law that prescribes the steps to be taken in enforcing legal rights or the method by which Substantive Law is administered. This body of law encompasses the rules that govern court trials and lawsuits, both civil and criminal.

The procedural and administrative laws for environmental management are a prerequisite for sustainable development. Once the scientific standards are set, then monitoring systems can be established to ascertain if the standards are being attained. Where they are not attained, appropriate control systems can be set in place. Finally, there are systems for restoring damaged ecosystems and contaminated lands. The ‘Remedial Investigation/Feasibility Study’ procedures for restoring the quality of ground waters and soils provide a systematic approach to repairing such damage. By establishing a process for the repair of damage caused by human intervention, the environmental law system provides for the restoration of the natural systems to the point where those natural systems can resume their normal functions and thereby deliver the sustainable yield of benefits upon which human society and the natural systems depend.

Institutional arrangement: When deal with study to compare the environmental laws of different nations, one can reasonably expect to be able to identify statutes and legal institutions which bear substantial similarity, depending on the type of natural resource or pollution problem being examined. Few of neither these substantive fields of its law nor the procedural systems for implementing them, can exist without an institutional context in human society. The government must therefore create agencies to set up the protocols for scientific inquiry and fact finding, the rules for constituting the quality standards, and permit and control regimes. Institutions must also enforce the systems in the event of non-compliance or outright criminal behavior. Comparative environmental law techniques are crucial to understanding the current status of a nation’s regimes. Without a clear comprehension of the substantive fields and procedural systems that each nation has instituted to protect the environment, it will not be possible to effectively shape the international regimes and institutions needed to integrate such national systems.

From successful experiences, one can discern the criteria for effectiveness and, thus, be better able to advise other jurisdictions on how to also attain success. From the less successful experiences, the inhibitions and obstacles to implementing environmental law can be identified. Both analyses contribute to determining the best method to harmonize and integrate comparable environmental norms regionally or internationally.

Among the useful comparative elements in examining a nation’s environmental law is an analysis of which multilateral environmental treaties the nation has ratified. These treaties provide a common set of obligations which governments must reflect in national environmental legislation and programs. The study of comparative environmental law can identify instances in which nations may be addressing the same problems in different manners. There is an obvious need to promote comparable norms and equivalently effective administration of those norms among all places sharing the same environmental resources. The varying geographic situations and levels of economic wealth of nations have given rise to an international standard that accommodates such differences. In essence, these treaties contemplate that each country must do its particular and fair share in any measures internationally agreed upon to protect the environment. The details of such a common but differentiated duty remain to be negotiated in each context. There is significant evidence that various jurisdictions are, in fact, creating very comparable environmental legal systems.

Environmental degradation affects national social security by damaging human health, economic activities and ecosystems. From an economist’s perspective, desirable legislation should weigh two factors: the profits associated with reduced environmental damage, and the opportunity expenses of mitigation. In reality, the extent and focus of government intervention will also reflect national political and institutional considerations.

It is therefore in this context that evolving a sound environmental policy is a condition precedent to having a sustainable environmental management. Policy is concerned with identifying problems, setting out goals and objectives and designing strategies and action plans. Law acts as one of the vehicles to achieve the aims and objectives set by policy. The success of any environmental policy depends on changes in the behavior of producers and consumers. Environmental policy can try to bring about these changes by means of various instruments. We do not have any generally accepted, standardized and unequivocal classification of environmental policy instruments. However, there is some agreement that three broad categories of instruments can be distinguished.

Instruments aimed at voluntary adaptations of individual and group behavior in a more environmental friendly direction. This category, called communicative instruments includes the provision of knowledge and information in all possible forms, moral suasion and voluntary commitments by trade and industry or agreements between them.

Instruments, which affect the market condition under which people and firms make their decisions, this category is commonly referred to as economic instruments. This includes charges and taxes, subsidies and other types of financial support (such as tax reductions), tradable rights (to emit a certain amount of pollutants, or to produce or use a certain amount of polluting goods or substances), deposit -refund systems, in which a deposit for a potential polluting product is being paid by the purchaser, who can claim a refund after returning the product showing that the pollution did not take place and liability legislation requiring the polluter to compensate the environmental damage he caused , and thus providing a financial incentive for pollution prevention.

Instruments, which influence the range of alternatives by means of prohibitions, restrictions or obligations, this category is often called direct regulation or ‘command and control’ (CAC) regulation. This can be done by introducing product, process or emission standards. Outright bans on certain activities, products or substances also belong to this category. The emphasis of environmental policy should be to mitigate environmental hazards without compromising development. National environmental policy instruments should also meet the internationally recognized basic principles such as ‘ the polluters pays’, ‘prevention is better than cure’, the ‘precautionary principle’, etc.

A centralized environmental policy requires that some central administrative agency will determine what is to be done and in what manner. A decentralized policy is executed by many individual decision makers, each of whom makes her own assessment of the situation. In this context, the specific criteria for evaluating environmental policies are efficiency, fairness, incentive for improvement and enforceability. [21]

For a policy to be efficient, it must be cost effective. A policy is cost effective if it produces the maximum environmental improvement possible for the resources being expended. For a policy to be socially efficient, it must also balance costs with benefits. This is important in the context of less developed economies where people have fewer resources to put in environmental programs and can ill afford policies that are not cost effective and efficient.

Fairness, or equity, is another important criterion for evaluating environmental policy. Environmental problems can be approached by different environmental policies. But the impact of each policy will be different on society in terms of the income groups, ethnic and racial groups. Equity is thus a matter of morality and the regard that relatively well off people have for the underprivileged. Equity considerations become very important in designing an international environmental policy. Because less developed countries feel that economic consequences of a particular policy should be borne by developed countries as they have contributed more towards increasing environmental hazards and problems.

A critically important criterion to evaluate any environmental policy is whether the policy provided a strong incentive for individuals and groups to find new and innovative ways of reducing their impacts on the environment. The greater the incentive, the better would be policy in its application.

The objective of enforcement is to get people to comply with an applicable law. There are two main components of enforcement, which are monitoring and sanctioning. Polluters, who stand to lose money, may try to frustrate monitoring of the applicable laws. And the more sophisticated and complicated the process of applicable law, the easier it is for polluters to find ways of evading it. The other component of enforcement is sanctioning polluters who are in violation of law. This appears simple but it is not the case. Polluters may use their vast resources to see that the court cases become a long drawn affair so that no penalty is imposed immediately. This may also discourage the prosecuting agencies. So the sanctioning process can become much more complicated than the simple model of policy suggests.