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Legal Reasoning in Environmental Law

A Study of Structure, Form and Language

Douglas Fisher

Legal Reasoning in Environmental Law provides a comprehensive review and analysis of the range of legal reasoning processes to support the understanding, interpretation and application of international, regional and national rules of environmental law.
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Chapter 11: Rules in instrumental form

Douglas Fisher


A human right is effective within the legal system only to the extent that it is protectable as a matter of law. A human right in relation to the environment, as we saw in Chapter 10, may emerge in a number of different guises: for instance, as a right in relation to property. A right in relation to property may include a power to use the thing that is owned either for private purposes or public purposes depending who is the owner. Either way the exercise of the power – a rule of competence – may be limited by a related rule of limitation. In this way property as a human right may have value as such, but it may also be the instrument according to which the exercise of the power associated with it is regulated. A right in relation to property is never absolute. Moreover the ways in which a right in relation to property – or any other right for that matter – may be used are increasingly being constrained by strategic rules. These are rules which indicate the direction of decision-making in the performance of regulatory functions. Declarations of human rights cover a wide spectrum of values. Some relate to culture, to life, to private and family life, and increasingly, either directly or indirectly, to the environment. These rights may well be in conflict. Declarations of human rights similarly embrace rights in relation to property or possessions. This introduces another perception of conflict: exercise of rights and impact on the environment.

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