Martin, Paul; Craig, Donna --- "Accelerating the evolution of environmental law through continuous learning from applied experience" [2015] ELECD 977; in Martin, Paul; Kennedy, Amanda (eds), "Implementing Environmental Law" (Edward Elgar Publishing, 2015)

Book Title: Implementing Environmental Law

Editor(s): Martin, Paul; Kennedy, Amanda

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479290

Section: Chapter 1

Section Title: Accelerating the evolution of environmental law through continuous learning from applied experience

Author(s): Martin, Paul; Craig, Donna

Number of pages: 23

Extract:

1. Accelerating the evolution of
environmental law through
continuous learning from applied
experience
Paul Martin and Donna Craig

Objective understanding of whether a legal instrument is effective
involves consideration of the purposes of the instrument and its real-
world effects. This is at least partly an empirical enquiry, similar to
policy evaluation. It requires factual evidence of outcomes and data to
underpin hypotheses about the causes of outcomes. These empirical
enquiries must go beyond instrument design and the actions of legal
agencies. Practical outcomes will often reflect context issues like social
and cultural receptivity to legal arrangements, politics, economic capacity
and impacts, and the dynamics of socio-ecological systems. As well, the
resources invested to support a legal instrument, and the implementation
strategy, are often determinants of success.
The question that this raises is whether our legal scholarship is suited
to addressing implementation questions beyond doctrinal, procedural and
philosophic/jurisprudential concerns. If legal scholarship is indeed con-
cerned with improving the effectiveness of the environmental law system,
this suggests the need for methodologies and knowledge that can
illuminate the empirical questions: what works, when, and why?
In this chapter we consider arguments for and against a more empirical
environmental law scholarship. We discuss a scholarship that grafts onto
our discipline's concern for improving legal instruments (such as statutes,
judgments) and values (rights, responsibilities and justice), a focus on the
efficiency and effectiveness of the environmental governance system, and
the role of empirical analysis as a basis for cumulative learning. ...