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Environmental law and awareness of the environment is widely assumed by today’s society as pretty much extinct during Anglo-Saxon times. This asks the question, what basis is there to go on in the 21st century when creating common law for protecting the environment?
Equally however, there are examples of medieval statutes regulating the environment. Cocks. R (2000, p1) states that “what the Victorians did was to determine how these ancient bodies of common law and statute law would be related to each other in a world which was changing rapidly through creation of industrial hazards and the spread of pollution.”
The very first piece of environmental legislation came about in 1968 in the EU. There were a very low number of environmental laws in the UK until the 1974 Control of Pollution Act. The next peak for environmental law was the Environmental Protection Act in 1990 and 90 new environmental related laws were introduced in 1990 alone.
This upward trend has and is continuing into the 21st Century, putting the government under huge pressure to meet new demands from the public as their education and knowledge on the importance of environmental protection grows. As the world is developing, it brings with it additional threats to the environment; posing a need for greater laws concerning its protection.
The Common Law
The common law is a traditional and customary based form of law. Common law is particularly concerned with property rights; giving people a way of dealing with infringement to their property (e.g. restraining cattle, ramblers etc.). Property rights are still important today, especially when it comes to any aspects of environmental protection or environmental law.
Common law was rarely written down in legislation; it just existed and has been inherited as custom. This custom has periodically been referred to by the courts in various cases as they have decided that “the law is this way because it has always been this way”. Common law has fed its way into the environment as very ancient principles that are not expressed in legislation.
The law is over 1000 years old. It can be dated back to William the Conqueror: 1066. When he invaded he had two choices; He could completely replace all existing law, or he could work with the existing custom and practices from all the surrounding sub kingdoms (whi9ch eventually united and became England). He chose to find out the laws from all these surrounding kingdoms, and effectively gathered a general idea of what the laws had commonly been, and implemented them.
As Wendell, O. 2000, discusses,” the idealised common law refers to past precedential decisions of courts relevant to the current case, that is, when parties disagree on what the law is”. If a similar dispute is found and was resolved in the past, then the court must use the same reasoning used in the previous decision. However, if the dispute is not present in previous cases the judges have authority to make law by creating precedent. They do this by using principles of existing laws together with common parts of customary law. It could be perceived as a balance of previous law with present law and fundamental principles. However, many judges often show great reluctance in “making new law” by their interpretation, and believe it is the job of parliament. In future, when the dispute arises again, the new decision will be used.
As Rogers (2002) discusses, there has been numerous attempts at defining “a tort”, all to little avail. For the purpose of this essay, and at a very general level, it can be said that “tort is concerned with the allocation or prevention of losses” (Rogers, 2002).
It is inevitable that in a society of people, conflicts will arise, whether it is injury to a person, damage to property, financial interest damage or damage to a reputation etc. Whenever a person experiences any of these, they are likely to look to the law for compensation. When compensation or retribution is granting, this usually means that someone or a group of people are told to do or refrain from doing something. In the majority of tort actions which come before the courts, the applicant is pursuing a monetary compensation for damage or injury he has endured; “this fact strongly emphasises the function of tort in allocating or redistributing loss” (Rogers, 2002).
Nuisance can be considered to be that category of the law of tort most closely concerned with “protection of the environment”. Nuisance cases are concerned with the wrongful interference with the enjoyment of land. The umbrella of nuisance covers an array of factors; “pollution by oil or noxious fumes, interference with leisure activities, offensive smells from premises used for keeping animals and noise from industrial installations.” (Zarln, 1991).
Rylands -v- Fletcher
Having considered the tort of nuisance, the rule in Rylands v. Fletcher can now be looked at.
The facts of this case were as follows; the defendant, Fletcher, hired contractors to build a reservoir within the boundaries of his land. While the contractors werw working they discovered mine shafts beneath the defendants land. These shafts connected to the plaintiff’s (Rylands) mine, although the contractors were unaware of this as the shafts were filled with earth. The contractors did not fill in or block up the shafts, and instead continued with the construction of the reservoir. When the reservoir was completed, the water permeated the old coal shafts and flooded the Plaintiff’s mine. It was found that the defendant had not been negligent, but the contractors had been.
The plaintiff appealed to the Court of Exchequer Chamber which gave a decision in favour of the defendant. However the Court unanimously opposed this decision and held the defendant liable. “The case eventually went to the House of Lords on appeal who upheld the original judgement that Fletcher was liable in tort.” (Rylands v. Fletcher, 1868).
Blackburn J was the judge who delivered the judgement of the Exchequer Chamber. The following quote may be regarded as the rule in Rylands v. Fletcher; “We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” (Bulwer, p279, 2008).
Local morality dealt with and determined most matters, whilst the church played the “government” role. Crimes were treated as wrongdoings and the victim was compensated.
The common law now acts as “filler” between legislation and contracts. It is established by following previous judicial decisions, rather than from constitutions or legislation, more commonly called statutes. (J. McEldowney and S. McEldowney 1996)
In the finest tradition of English common law (where tort law comes from), it was originally pure judge-made law. But more and more states are writing laws which limit, clarify or strengthen tort law.
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