Common Law and Environment Essay

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Common law is the judge-made law developed in England after the Norman Conquest. The judges rode in circuits to different locations where court would be held. After about 1080, they began to decide cases between the people-none of whom were English, but were rather Celtic remnants, Saxons, Angles, Danes, Norsemen, Britons, and others who would eventually meld together to become English.

Between 1100 and 1300, the traveling judges developed the law common to all of England. In London, where they would return after they had finished riding their circuits to hear cases, they had their permanent residences and would meet in inns. From these meetings were established permanent legal institutions that have continued until the present as the Inns of Court.

The decisions of the judges that developed the common law and its principles were made well before the establishment of English Parliament as a legislature, which would make statutory laws. The key feature of the English and eventually Anglo-Saxon common law system is that it is judge-made law. Over what is usually a long series of cases, the judges develop the law on many issues.

The common law, as it developed in England, was stable because the common law developed the principle of “like cases should be tried alike”; it therefore followed precedents set in previous cases, which is called the rule of stare decisis (Latin for “let the decision stand”). The common law was not very flexible-in order to bring a case for damages, actual harm had to occur. However, a tort suit for recovery from a harmful action is meaningless if the harm is irreparable. If an orchard of 50-year-old walnut trees was cut down, there is no remedy to replace them. In order to prevent irreparable harms and injustices that could occur under the common law, another form of judge-made law also arose, called equity law.

The common law was exported to English colonies, including the United States. After the American Revolutionary War, common law and equity law were incorporated into the American legal system as a part of the Constitution of the United States.

In the United States, England, and other English-speaking countries where the common law was received, great areas of life are still regulated by the common law. In contrast, on the European Continent and in many other countries, the civil law system has been adopted. This system uses a code of general rules that have been formulated by jurists and other specialists in the law. The Civil Code of France, which began as the Code Napoleon, is an example. It has its roots in the ancient Roman Law and its legal institutions. The legislatures of the countries that adopt civil law codes assign to judges the responsibility to apply the rules of the code to the facts of a case. A similar function is also found in common law countries, when judges apply statutory law. However, in the United States, the existence of judicial review as a legal doctrine means that all statutory and administrative rules and regulations are ultimately reviewed by judges in cases as if these were also facts in a case, rather than the controlling legal rules.

There has been a radical change in the American legal scene since the advent of the Environmental Movement and a series of environmental crises after the 1960s. Historically, the common law protected the environment in a variety of ways. One of these was through bringing a suit to abate a nuisance. Nuisance actions can include not only an injunction to prevent (equity) the nuisance, they can also include the use of damages for restitution.

Another form of common law action was the use of trespass law. The ownership of property creates rights; the common law holds property in high regard. To invade it by some form of trespass, including the passing of airborne, waterborne, or land pollution, means that a defendant’s actions can be held liable for damages to the quality of the environment.

Riparian rights are another area of law that was protected by the common law. Water in a stream or lake beside a piece of property was under the common law, not the property of a landowner. Riparian rights allowed water users to sue if the quality of the water was damaged.

Environmental Regulatory State

In the United States, an environmental regulatory state has developed. Rather than the interested parties and the judges creating cases, which economists believe is a more efficient way to regulate problems, enormous regulatory bodies have been created by Congress and all the 50 state legislatures. The assumption was that the common law system was inadequate to deal with environmental problems.

One particular case, the Love Canal case, has become important in the history of environmental regulation. The chemical company, Occidental Petroleum, was forced by eminent domain actions by the local school board to sell land where it had stored chemical wastes. It was not really the chemical company that created the environmental disaster that followed; it was by a governmental agency that acted unwisely. The terrible birth defects and health problems that followed occurred despite the very stern warning of Occidental Petroleum Company. However, Love Canal became a rallying cry for statutory and administrative regulations.

Many lawyers and political observers believe that the adoption of a bureaucratic regulatory mechanism for environmental supervisions will in the long run produce more problems than if the common law system had been allowed to take its course. The political realities are that legislation is subject to politically shifting tides of opinion where it is not in a system of judge made rules that are insulated from political fashions.

Civil law systems emphasizes social stability, but from a governmental perspective. The common law instead focuses on the rights of individuals. When the rights of individuals are in conflict with asserted claims of societal rights, there may be a serious loss of personal liberty.


  1. Joshua Getzler, History of Water Rights at Common Law (Oxford, 2004);
  2. John Lowry and Rod Edmunds, eds., Environmental Protection and the Common Law (Hart Publishing Limited, 2000);
  3. Noga Morag-Levine, Chasing the Wind: Regulating Air Pollution in the Common Law State (Princeton University Press, 2003);
  4. Roger Meiners and Andrew P. Morriss, eds., Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law (Rowman & Littlefield Publishers, 2000);
  5. Bruce Yandle, Common Sense and Common Law for the Environment: Creating Wealth in Hummingbird Economies (Rowman & Littlefield Publishers, 1997);
  6. Wil Waluchow, Common Law Theory of Judicial Review: The Living Tree (Cambridge University Press, 2006).

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