The IUCN Academy of Environmental Law series
Edited by Paul Martin and Amanda Kennedy
Chapter 1: Accelerating the evolution of environmental law through continuous learning from applied experience
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...