Susan Buck is Associate Professor of Political Science and Director of Environmental Studies at the University of North Carolina at Greensboro. She has written The Global Commons (Island Press, 1998), a major text in public administration, and contributed numerous articles and book chapters on environmental policy and law.

The American Legal System

While legal scholars over the centuries have offered many definitions of law, the definition that meets with the approval of most Americans is that of the nineteenth-century jurist John Austin: the law is the command of the sovereign backed by a sanction. In other words, the law is whatever the government says it is, and if we choose not to comply, the government will punish us. For citizens whose encounters with the law are largely limited to traffic police or the IRS, such a definition is adequate. But citizens whose daily work is bounded by a governmental structure of rules and regulations see more to the law than simply commands. Who gives the sovereign the right to issue commands? Are there areas of public or private endeavor in which the sovereign has no rights to issue commands? What is the range of penalties for noncompliance? Does it matter if the noncompliance is accidental, or unavoidable? How does a citizen discover the latest governmental command?

All of these questions are pertinent to environmental managers. The scope of their administrative authority and the intent of the legislature in giving them that authority are important parameters. They must also adapt to changes in political authority. Managers in regulatory enforcement must know when they may or should compromise and when they must bring their full enforcement powers to bear on a violator. Resource managers must maintain the delicate balance between resource protection and resource use. Their arsenal is not restricted to the "sanctions" of the sovereign. They have persuasion, political pressure, and incentives on their side as well. To understand these managerial tools, managers must also understand the system in which they wield them.

This chapter explores the legal system in which American environmental managers must operate. The first section discusses the English roots of American common law and how this body of law became accepted in the new United States. It also discusses the other sources of law: statutes, rules and regulations, and the Constitution. How judges apply this law is discussed in the second section. The impact of our complex federal system on environmental administration and law is discussed in the third section.

SOURCES OF LAW

Western public law is based on one of two systems: English common law and the European civil law tradition, also called continental or codified law. The simplest way to distinguish between these two systems is to look at the judicial decision-making process. Common law is based on the idea of precedent: like cases are decided alike. Judges base their decisions not only on the applicable statute but also on how other courts have interpreted the statute. In some areas of the common law there are no controlling statutes, only rules set forth by appellate courts. By contrast, in the continental or civil system, the law is spelled out in detailed civil codes; the specific rules laid out in Leviticus are a familiar example of the civil code approach to the law. In the civil system, the judge locates the appropriate section of the code and then applies it to the situation at hand.

The Common Law

The common law system developed in the thirteenth century. When the English feudal system began to weaken and modern cities began to develop, the king sent royal judges to decide controversies in his name. This was done primarily to increase the king's power and authority as the power and authority of his feudal lords waned. Each feudal manor had its own customs, and the judges would weigh their own perceptions of fairness, the existing customs, and the political repercussions in reaching decisions. As we might expect, the decisions were often based on unclear reasoning, and cases that appeared similar might be decided in completely contradictory ways. The clerks accompanying the judges began to record decisions and reasoning; congregating back in London they compared notes, and gradually judges started to refer to the decisions of their colleagues as another basis for decisions. Eventually, recording decisions became routine, and judges were required to set out their reasoning for the formal record. Any deviation from precedent had to be justified. In this way the common law—the system of law common to the entire country—was established.

Today we take the English basis of our legal system for granted. In the early days of the republic, when the former colonies did not have their own cases to determine the precedents for judicial decisionmaking, judges drew on the same English law that had governed their decisions prior to the American Revolution. At the time of the Revolution, there was debate about whether the new country would follow the English tradition; in some quarters feelings were very strong that a complete break from England was the only correct approach. The legal system that was suggested to replace the common law tradition was the civil law approach that prevailed on the continent of Europe and was used by allies such as the French. The French colonies had retained the continental legal system, and even today Louisiana, a former French possession, is still governed by such a system.

Despite the radical proposals to change the law, the English system prevailed. Colonial lawyers and judges were trained in the common law, and contracts, property transfers, and all forms of legal transactions were already in the English style. Besides, despite the outpourings of anti-English sentiment immediately following the Revolution, most colonists still thought of themselves as English in spirit. Edmund Burke, the English statesman and philosopher, excused the American Revolution on the grounds that good Englishmen should rebel when treated unfairly. Common sense and common law prevailed, and the American legal system was based upon the English one.

One of the earliest environmental cases resting on common law traditions appeared before the United States Supreme Court in 1842. Martin v. Waddell originated with the contention by a New Jersey riparian landowner, Waddell, that he had exclusive rights to take oysters from the Raritan River. He based his assertion on a grant made by King Charles in 1664 to the Duke of York, which gave the Duke "all the powers of government." Waddell claimed that his rights to the mudflats were directly descended from property rights transferred by the Duke of York and his managers. Waddell's opponent, Martin, argued that the King held certain resources (among them, mudflats) in trust for the people, and that the King's grant to the Duke of York required the Duke to hold these resources in trust...