Towards an Environmental Rule of Law
![handle is hein.journals/apjel17 and id is 165 raw text is: Comment
Towards an Environmental Rule of Law
Bruce Pardy*
I Introduction: '/ can't define it, but I know it
when I see it'
What is the meaning of 'environmental harm'? What kind of environmental
impact is prohibited? What are the environmental rights of citizens? Modem
environmental law does not answer these questions. Instead, it has become an
incoherent discipline-idiosyncratic and ad hoc-that overtly rejects notions of
precedent and the application of general rules, treating each scenario as a unique
case that requires the exercise of broad discretion and administrative problem-
solving. Nowhere is there a definition of 'environmental hann' that serves as a
central governing proposition. Instead, environmental law's core premise is: 'I
can't define it, but I know it when I see it.'1
This approach to environmental protection embodies an arbitrariness that
is the antithesis of the rule of law. Many formulations can be found for the rule
of law,2but the essence of the concept is reflected in the term itself: people are to
be ruled by laws rather than by the subjective inclinations of those in positions of
authority:
Stripped of all technicalities, [the rule of law] means that government in all its
[activities] is bound by rules fixed and announced beforehand-rules which make
it possible to foresee with fair certainty how the authority will use its coercive
powers in given circumstances and to plan one's individual affairs on the basis of
this knowledge.3
These laws are to be 'general, equal and certain':'
Professor, Faculty of Law, Queen's University, Kingston, Canada. Email: pardybtqueensu.ca.
This article is based upon a presentation at the 'Rule of Law for Nature' conference, Faculty of
Law, University of Oslo, May 2012.
So reasoned Justice Potter Stewart of the United States Supreme Court in Jacob ellis v Ohio, 378
US 184 (1964), declining to identify the parameters of obscenity: 'I shall not today attempt to
define the kinds of material I understand to be embraced within that shorthand description [hard-
core pornography]; and perhaps I could never succeed in intelligently doing so. But I know it
when I see it, and the motion picture involved in this case is not that.' Justice Stewart's judgment
was a concurring opinion in the case, in which the Court addressed the question whether the
motion picture The Lovers was obscene and justifiably subject to censorship.
2 For a comparison of Hayek's view to those of Dicey, Raz, Rawls, and others, see Michael
Neumann, The Rule of Law: Politicizing Ethics (Ashgate Publishing, 2002) 1. See also Judith
Shklar, 'Political Theory and the Rule of Law' in Allan Hutchinson and Patrick Monahan, The
Rule ofLaw: Ideal or Ideology (Carswell, 1987) 1.
Friedrich A Hayek, The Road to Serfdom (University of Chicago Press, 1944) 72 (footnote
omitted).
4 Friedrich A Hayek, The Political Idea of the Rule ofLaw (National Bank of Egypt, 1955) 34.](ViewImageLocal?handle=hein.journals/apjel17&div=10&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Towards an Environmental Rule of Law
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most