Legal pluralism: notions of standing and legal process constraining assessment

In a broad constitutional and governance sense, decisions, and decisionmaking processes, are ultimately controlled by courts. This chapter discusses the role courts play in the context of both common law and civil law jurisdictions in constraining sustainability assessment and explores the critical issue of legal standing which stipulates who has, and does not have, direct access to courts in relation to the sustainability assessment and the associated decision-making processes. Common law jurisdictions refer to those jurisdictions relying on that part of English law that is derived from customary use and judicial precedent together with statutory law, such as Canada, the United States, Australia and New Zealand whilst civil law (or civilian law) jurisdictions refer to those jurisdictions who have adopted a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection (codified). Civil law is the dominant legal tradition today in most of Europe, all of Central and South America, parts of Asia and Africa, and even some discrete areas of the common-law world (e.g., Louisiana, Quebec and Puerto Rico) (Apple and Deyling, 1995). Parliamentary democracies depend on a separation of functions between the powers of the legislature (parliament making laws); the executive or administration (implementing laws) and the independent judiciary (enforcing the law) (Bates, 2010). It should be noted that this chapter focuses primarily on the role of the judiciary in countries with 4 5111 6 7 8 9 1011 1 2 3111 4 5 6 7 8 9 20111 1 2 3 4 5111 6 7 8 9 30111 1 2 3 4 5 6 7 8 9 40111 1 2 3 44 This separation of powers is complex but fundamental to democratic governance. The reality is that separation of powers is rarely complete. The executive have limited powers similar to law making because of the devolution and discretion they have in implementing law and judges have always done more than merely ‘interpret’ law. The boundaries of separation remain important but it is more a ‘balance’ of powers. The concept of sustainable development, adopted throughout the world, since the United Nations Conference on Sustainable Development (UNCED, 1993) seriously challenges the assumption that the existing institutions and separation of powers is enough to deliver good governance. Much hope is placed on empowering civil society to direct this transformation, guided by Agenda 21 (UNCED, 1993).

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