Property Law and the Environment
In this chapter we shall try to bring out the ethical standpoint of the common law and the possibilities of using ethical arguments within the common law framework. In measuring the common law against general principles such as ‘sustainable development’ or ‘polluter pays’ it would be wrong to take a simplistic approach that assumes a model of consistent and mechanical compliance with these principles and ‘rates’ the law against the model. Firstly the meaning of the principles is fluid and uncertain so that we are trying to hit a moving target. Secondly there is no particular reason why the common law should comply with environmental principles except to the extent that they are embodied in customary international law or in the ethical values of the community from which the common law derives its authority. By contrast relevant statute law can be legitimately measured against such environmental principles as are contained in treaties since there is a duty upon government to comply with international obligations.
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