Law

Before discussing the methods for researching law it will be necessary to point out that there have
traditionally been large distinctions between the two major legal traditions known as common law
(Anglo-American) and civil law (the Romano- Germanic law of continental Europe). These
differences have emerged mostly in terms of historical genesis, fundamental principles and
procedures and primary authoritative sources. The basis of common law is the body of binding
precedent, created by judicial decisions in individual court cases and embodied in various case
reports and records of past trials. The basis of civil law is the codified binding rules enacted by
legislatures and mandated bodies in the form of statutes (acts, rules, byelaws, etc.). The often quite
abstract rules of the latter system are applied and interpreted by judges and legal scholars; but
interpretations from courts are not formally binding.
Today, no jurisdiction probably applies a strict common-law approach; bodies of written law enacted
by the legislator will be found in the area of public law (which governs the relationship between the
individual and the state) and most likely also for the regulation of modern problems such as
environmental protection.
In other words, what used to be common-law systems are nowadays ‘mixed’ systems of law. This
approach is visible in both the United Kingdom and the U.S.A., although their systems are still
characterised as founded on common law. Simultaneously,
the role of court decisions becomes of yet larger weight in many fields of the civil law culture.
India is an example of a system that, as a whole, has in fact always been mixed.
During colonial times, English common law was imposed on an indigenous system which already
consisted of customary law, religious norms (so-called personal law) and local rules. Even prior to
India’s Independence in 1947, the English Crown adopted statutes in various fields. This mixture was
later to be influenced by features of the civil-law system. This is noticeable in for example the
adoption of the Indian Constitution in 1949 and in the incorporation of international principles of
law into Acts of the legislature. The bulk of Indian law stems, however, from court decisions. As will
be shown, the human right to water in India rests on the Supreme Court’s interpretations of an
abstract Constitutional provision.

One point of departure for this study has been to analyse ‘law in books’. Equally clear from the
outset, however, has been the need to complement this with an understanding of ‘law in action’.
Research on what the law says is often done according to the ‘black letter’, dogmatic, school of
legal positivism. Opposed to this stands another school, to focus on what the law does in its wider,
social context.95 To examine the implications for, and effects on, citizens of a society’s formal rules
and legal practice requires an empirical approach to the material. A broader perspective is also
essential to make clear the disparities between the law as depicted in positive law (in statutes, court
decisions, commentaries and textbooks) on the one hand, and everyday reality (how legal institutions
and practitioners conduct themselves) on the other.96 By applying such an approach here, I have
sought to relate the relevant rules and practices to the legislating actors/the judicial decisionmakers,
the implementing institutions, and the subjects affected.9

India has eighteen High Courts under the Supreme Court, the apex of the hierarchy.102 The main
principle is that every decision of a superior court binds inferior ones. The law declared by the
Supreme Court is absolutely authoritative and hence binds all courts in India (Constitution,
Art 141).

The general approach to the concept of law in Sweden – a civil-law

country where rather dogmatic legal positivism predominates – is, quite naturally,
very different. One reason is that Sweden, a country with only nine million inhabitants,
can apply a unitary system; whereas in India, aspects such as religious laws,
tribal practices and, not least, colonial remains and relics make the picture more
complex. Other pre-understandings that I carried with me often made me assume,
for instance, that certain maxims and legal principles could also be applied in common-
law reasoning.
The environmental lawyer’s work often makes it necessary to go against the
stream, that is against dogmatic, positivist interpretations of law. It also necessitates
insights into the limits of natural science, such as the ‘fact’ that there are certain established
axioms – for instance, chemical reactions – as well as insecurities and unpredictable,
non-linear effects, as studies on climate change show. Environmental
law can contribute by mandating the use of various tools in planning and decisionmaking.
One of the more important tools is that due precautionary measures are to
be taken at an early point – a principle that takes into account the features of insecurity
and unpredictability in scientific as well as societal processes.

different law applies to

water in a man-made pond or in canals from it, compared to water in a river, or
rainwater, or water in aquifers, or water somehow contained in a receptacle or in a
well.
An important feature of Anglo-American land law is that land is not said to be
individually ‘owned’. This is partly due to the feudal history of the law – the Crown
or the state is considered to be the ultimate owner of all soil and holds the land either
directly or indirectly.858 In the European civil-law tradition, things are either
subject to full ownership or a limited property right (ius in re aliena) on the one
hand, or ‘remaining ownership’ on the other hand.
The practical significance of the difference between (English) common law and
civil law is generally not that great today – both are codified to a large extent

Water as property and property in water