Conflicting Principles of Canadian Environmental Reform: Trubeck and Habermas v. Law and Economics and the Law Reform Commission

Early in the 1970s, the American legal scholar, David Trubeck, made a far-reaching observation: Law is a practical science. It does not ordinarily dwell on fundamental questions about the social, political and economic functions of the legal order. Satisfied with implicit working assumptions about these matters, legal thought moves rapidly to more tractable questions. But when law\u27s solutions to social problems fail to satisfy, it becomes necessary to examine the basic theory from which they derive. Trubeck expounded this thesis in connection with legal developments in the Third World. Using an idea he termed the core conception of law, Trubeck argued that this conception has misdirected the study of law and development by asserting that one type of law - that found in the West - is essential for economic, political, and social development in the Third World. This paper applies Trubeck\u27s observation to Canadian environmental law reform. It emphasizes two points. First, environmental law is not centered in the environment or in the law; it is centered in a particular society\u27s social, political and economic outlook. Trubeck suggests that law is best considered as only an effect of progressive society, not a cause. As such, law is confined to an instrumental status: it is the means of reform, but not itself the impetus. For this reason, legal reform is not simply a matter of looking elsewhere for interesting approaches and then legislating them into a particular society. Instead, law reform is dependent on appreciating a society\u27s particular composition