The role of common law in environmental policy: Comment

Abstract

In a recent contribution to this journal Fritz Sillner (1994) provides a rather harsh critic of the working of common law in environmental policy and a strict recommendation to rely on statutory law only in this field. In this comment, I will argue that the distinction of the small versus the large number case, which is central to his argument, is an oversimplification and misleading. Moreover, I will argue that judge made law does actually play an important role as part of an environmental policy mix. S6llner's line of reasoning proceeds as follows: If you take a look at the state of the environment in common-law-countries (e.g., USA or Great Britain), and compare them in this respect to civil-law-countries (e.g., France or Germany), you will not find that the former have done better on that account, as should be expected following the efficiency hypothesis of common law as proposed by Posner (1986), Priest (1977) and others. A further look will show you that, opposed to their naming, common law does only play a minor role in the environmental policy of the common-law-countries. This gives, according to Sallner, a strong indication that the alleged tendency of common law towards efficiency does not hold in this particular case. He provides two explanations for this finding: