Problematic Trends in the Adjudication of Environmental Law Disputes

Melanie Murcott

Jump to Content

Chapter 3 Problematic Trends in the Adjudication of Environmental Law Disputes

In: Transformative Environmental Constitutionalism

Author:

Melanie Murcott

Melanie Murcott
Search for other papers by Melanie Murcott in
Current site
Google Scholar
PubMed

Type:: Chapter

Pages:: 89–131

DOI:: https://doi.org/10.1163/9789004509405_004

Purchase instant access (PDF download and unlimited online access):

€42.00€35.00 excl. VAT

Add to Cart

Redeem Access Token

Abstract

The third chapter of A Legal Theory of Transformative Environmental Constitutionalism describes and problematises how the adjudication of environmental law disputes is occurring in South African courts; reflecting on how relevant legal norms described in chapter 2 operate in practice. Following an extensive study of South African environmental law disputes, the chapter grapples with four troublesome trends in the adjudication of environmental disputes that represent a failure on the part of the judiciary, in general, to implement environmental constitutionalism in a manner that pursues South Africa’s project of transformative constitutionalism. First, the courts tend to overlook the social, environmental, and climate justice issues emerging from environmental law disputes, and by doing so demean the struggles of marginalised, disadvantaged, and vulnerable people (the overlooking trend). As an aspect of this problem, courts tend not to adopt a socio-ecological systems perspective to the issues before them. Secondly, in the adjudication of environmental law disputes framed as procedural rights violations, the courts tend to engage in “over-proceduralisation” (the over-proceduralisation trend). Thirdly, the courts tend not to engage with, or develop the content and normative (justice-oriented) potential of, the environmental right (the under-utilisation trend). Fourthly, the environmental right tends not to be viewed as interrelated with and mutually reinforcing of other substantive rights, such as the rights to access to housing and water, and cultural rights (the compartmentalisation trend). Each of these trends is teased out with reference to relevant examples.

Citation Info

Save
Cite
Email this content

Share link with colleague or librarian

You can email a link to this page to a colleague or librarian:
Email this content
or copy the link directly:

https://brill.edhh.ma/abstract/book/9789004509405/BP000003.xml
The link was not copied. Your current browser may not support copying via this button.

Link copied successfully

Collapse
Expand

Transformative Environmental Constitutionalism

E-Book ISBN:: 9789004509405

Publisher:: Brill | Nijhoff

Print Publication Date:: 29 Sep 2022

Subjects
- International Law
  - International Law: Regional Perspectives
  - Environmental & Energy Law

Front Matter

Back Matter

Metrics

	All Time	Past 365 days	Past 30 Days
Abstract Views	758	387	65
Full Text Views	34	5	2
PDF Views & Downloads	71	7	6

African Studies	Education	Media Studies
American Studies	History	Middle East and Islamic Studies
Ancient Near East and Egypt	Human Rights and Humanitarian Law	Musicology
Art History	International Law	Philosophy
Asian Studies	International Relations	Religious Studies
Biblical Studies	Jewish Studies	Slavic and Eurasian Studies
Biology	Languages and Linguistics	Social Sciences
Book History and Cartography	Life Sciences	Theology and World Christianity
Classical Studies	Literature and Cultural Studies

Subjects

Authors

Open Access

Product Information

Company

Contact

Chapter 3 Problematic Trends in the Adjudication of Environmental Law Disputes

Abstract

Citation Info

Share link with colleague or librarian

Transformative Environmental Constitutionalism

Table of Contents

Metrics

Metrics