Table of Contents

Implementing Environmental Law

Implementing Environmental Law

The IUCN Academy of Environmental Law series

Edited by Paul Martin and Amanda Kennedy

At the Rio +20 conference attention was focused upon the variable effectiveness of a large range of international instruments. The IUCN too has recently began to focus upon the effectiveness of legal arrangements for environmental governance. Both of these developments are representative of an increasing awareness that legal environmental governance arrangements frequently fail to achieve the desired outcomes, or give rise to perverse and unexpected effects. The reasons why this may be so include issues such as the limited commitment of the responsible government or its agents, issues of corruption or incapacity, problems arising from the choice of the governance instrument, or the design of the law. This book tackles the challenges of implementation of environmental law, drawing upon the expertise of an international cast of contributors and investigations across a range of jurisdictions.

Chapter 1: Accelerating the evolution of environmental law through continuous learning from applied experience

Paul Martin and Donna Craig

Subjects: environment, environmental governance and regulation, environmental law, environmental politics and policy, law - academic, environmental law


Paul Martin and Donna Craig Objective understanding of whether a legal instrument is effective involves consideration of the purposes of the instrument and its realworld effects. This is at least partly an empirical enquiry, similar to policy evaluation. It requires factual evidence of outcomes and data to underpin hypotheses about the causes of outcomes. These empirical enquiries must go beyond instrument design and the actions of legal agencies. Practical outcomes will often reflect context issues like social and cultural receptivity to legal arrangements, politics, economic capacity and impacts, and the dynamics of socio-ecological systems. As well, the resources invested to support a legal instrument, and the implementation strategy, are often determinants of success. The question that this raises is whether our legal scholarship is suited to addressing implementation questions beyond doctrinal, procedural and philosophic/jurisprudential concerns. If legal scholarship is indeed concerned with improving the effectiveness of the environmental law system, this suggests the need for methodologies and knowledge that can illuminate the empirical questions: what works, when, and why? In this chapter we consider arguments for and against a more empirical environmental law scholarship. We discuss a scholarship that grafts onto our discipline’s concern for improving legal instruments (such as statutes, judgments) and values (rights, responsibilities and justice), a focus on the efficiency and effectiveness of the environmental governance system, and the role of empirical analysis as a basis for cumulative learning. We also consider the use and limits of the scientific method for driving improvement in the effectiveness of...