The
Concept of New (Ecocetric) Legal Philosophy
by Dr.
Senko Plicanic
“Teach
your children what we have taught our children: that the
earth is their mother. Whatever befalls the earth befalls
the sons of earth. If men spit upon the ground, they spit
upon themselves. The earth does not belong to man, man
belongs to the earth. Man did not weave the web of life,
he is merely a strand in it. Whatever he does to the web,
he does to himself.”
~ Chief Seattle, The Squamish, 1854(1)
“No real progress can be made in environmental
law unless some of the insights into the sacredness of
land derived from traditional tribal (Indian) religions
become basic attitudes of the larger society.”
~ Vine Deloria, Jr., Standing Rock Sioux, 1991
(2)
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1.
Basic premises
The
initial premise: “impotence” of the environmental
protection law
In the
past decades the awareness (3)
of the necessity to “legislate temperance”(4)
in human (economic) interaction (5)
with Nature has been heightened (6).The
inefficiency and/or “impotence” (7)
of the normative reaction to the “destruction of Nature”
(8),
i.e., the development of the “environmental law”
(9)
in the second half of the 20th century is becoming increasingly
evident. The scope of the destruction of Nature has been
broadening. The environmental protection law has thus not
influenced the resurrection of “destroyed Nature.”
(10)
Thanks
to the scientific findings in the last few centuries concerning
man's co-dependent and equi-valent centrality in the “cosmic
network” of biotic natural entities (11),
the main levers which have brought about the destruction
of Nature and are at the same time the main reasons for
the inefficiency and/or “impotence” of the environmental
protection law have become increasingly prominent.
The essential
reasons for the current excessiveness (intemperance) of
man's interaction with Nature (the reasons for the “destruction
of Nature”) and/or reasons for the inefficiency of
the current normative interference (i.e., the environmental
protection law) should be sought for in the dominant anthropocentric
cultural paradigm (12)
of the western cultures (13)
oriented towards an un-limited material progress.
The morality
“controlling” man's interaction with Nature
has remained unchanged, i.e., utilitarian. (14)
The “ecological reason” stems from the belief
that man's exploitation of nature has gone too far and hence
is in favour of limitation and prevention of nature pollution
and of a more rational exploitation of nature.
The implementation of the ecological reason leads therefore
to a more rational exploitation; however, man's interaction
with Nature continues to remain destructive (exploitative).
The spiritual
background of environmental protection law is comparable
to the spiritual background of the first legal norms which
limited industrial pollution (before the “environmental
explosion” of the '60s).(15)
The spiritual background of both is anthropocentric
– there is no shift in the comprehension of Nature
which continues to be understood instrumentally, i.e., as
“environment” for the use of man and has to
be kept clean or in some other way befitting man's comfort
and health. (16)
The environmental
law of the first wave does not differ in its essence from
the contemporary legal norms intended for the restriction
of pollution.
The anthropocentric
background of the “environmental protection law”
is already evident in the terminological context of the
environment (and the non-existent Nature),
revealing the subject of the environmental law, which is
man's immediate environment. The prima facie evidence
of the mentioned argument is the substantive orientation
of the environmental protection law. The criterion of this
protection is man and not the natural equilibrium of all
biotic communities.
The thelos
of environmental protection law is therefore in compliance
with the dominant anthropocentric construction of nature
for the purpose of ensuring a clean environment for man,
man's health and comfort. The ecologisation of the first
wave targets the restriction of pollution; thus
the environmental protection law is the law of protection
from pollution designed for man only.
At the
same time, the issue of the use of Nature, understood
as a sum total of “natural resources,” remains
“untouched." The orientation of the western cultures
towards un-limited material progress makes such “ignorance”
of the first-wave of ecologisation logical. The limitations
of the use of Nature, i.e., prohibitions and limitations
which would impose on man a careful and respectful utilitarian
interaction with Nature would represent an indirect obstacle
to non-restricted production of material goods,
and thus a hindrance to one of the key values of the western
culture, which is the increase of material wealth.
The development
of the ecologisation of law so far has reflected the dominant
utilitarian orientation of the western cultures. “Ecological
rationality” (17)
which has encouraged the formation of the environmental
law has preserved its anthropocentric nature. The thelos
of the environmental law is not the transformation of un-limitedness
(exploitativeness) of the utilitarian (and in general burdensome)
interaction with nature, but merely the formation of “safety
mechanisms” for the purpose of the protection of human
health and comfort.
In terms
of such premises, the “impotence” of
the environmental law is logical, i.e., no improvement is
noticeable in the “environment;” on the contrary,
the scope of the destruction of Nature is broadening.
If anthropocentrism
(exploitativeness) as the basis of human utilitarian interaction
with nature has led to the “destruction of nature,”
there is no doubt that the ecological reason remaining within
the anthropocentric construction of Nature can not lead
to its “resurrection”. Only the setting-up of
the ecocentric construction of Nature may lead
to the “resurrection” of Nature.
This
orientation must be followed by the nomos (18)
of the western cultures. A new law of nature on the basis
of the new, ecocentric ontology and ethics is therefore
necessary. (19)
Second
premise: from the anthropocentric to the ecocentric (philosophical)
construction of Nature – creation of a new (ecocentric)
“philosophy of nature”
In the
last decade, the issue of a redefinition of the relationship
between man and Nature has become an increasingly important
philosophical issue also within the western philosophy which
has throughout its history been predominantly anthropocentric
(and anthropomorphic). (20)
A “new
philosophy of nature” (21)
incorporating the ecological awareness (22)
is arising also from the western philosophical tradition,
i.e., from the pre-Socratic philosophy (23)
which was relegated to the “dustbin of history”
with the advent of “homo mensura” and the ensuing
anthropomorphizing of the western philosophical thought.
The entrapment
of the western civilisation in the ontological duality of
the (anthropomorphic) spirit and matter which has placed
man on the pedestal, at the crown of creation, and made
him the master of the universe, has not been questioned,
not even by Kant, who is well known (24)
for solving another dualist issue of the West (epistemological
dichotomy between reason and experience). (25)
In conjunction
with the new ontology and the new ethics, the “new
philosophy of nature” represents one of the key starting
points for the transformation of nomos, i.e., a transformation
of new legal and political philosophy and thus also new
(instrumentalised) law of nature.
In view
of the centrality of nomos in the western cultures, its
very transformation is quintessential for the enforcement
of the ecocentric social construction of nature. The transformation
of nomos means the transformation of the system
(26)
which regulates the behaviour of man at the everyday level,
i.e., the normative legal system.
In terms
of the “status of Nature,” the current “ecologisation”
of nomos (27)
connotes in particular the creation of obstacles and
constraints of human interaction with Nature. The measure
for human interaction with Nature is the maintenance
of natural equilibrium. |
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****
The “resurrection” of environmental awareness
in this century has triggered different approaches to the
philosophical construction of nature.
The
ecological situation at the turn of the 20th century (28)
triggered (first in the USA) the beginning of ecological
anthropocentric awareness. (29)
The criterion adopted in this approach to the issues of
the “destruction of Nature” is the criterion
of human health and comfort which necessitates the cleaning
of the environment and a more careful exploitation of natural
resources (30).
The philosophical framework for this approach is still Cartesian,
issuing from the anthropocentric ontology and utilitarian
ethics.
This (philosophical) approach represents the baseline for
the dominant political and legal construction of Nature,
i.e., “environmental protection.” (31)
At the same time, the ecological impulse spurred (again
first in the USA) the creation of the ecological ecocentric
awareness,(32)
which rejects the anthropocentric construction of nature
and takes into account the new scientific developments,
giving rise to a new, ecocentric ontology and ethics. From
the ontological point of view, man's place is in Nature,
as an equi-valent and co-dependent part of Nature. This
ecocentric ontology has also given rise to the ecocentric
ethics which imposes on man a respectful interaction with
other natural entities preserving the natural equilibrium.
(33)
The
above approach is the departure point for the further development
of ecocentric philosophy of nature.(34)
The key philosophical orientation is the philosophy of “deep
ecology.” (35)
Together with the already mentioned ecocentric ontology
(36)
and ethics (37),
one of its basic premises is the “naturalness”
(38)
of man's (material) interaction with other natural entities.
However, man's centrality in Nature and man's co-dependence
and connectedness with other natural entities demand a respect
for the limitations of the natural equilibrium,(39)
which also connotes an enframing of the current un-limitedness
of human interaction with Nature and/or satisfaction of
human (material) needs within the constraints of the natural
equilibrium. (40)
The philosophy of “deep ecology” stems, therefore,
from a redefinition of the progressiveness of human development,
in particular, the orientation of the western cultures into
un-limited material progress. It implies, therefore, a redefinition
of the “functioning economy” of western cultures.
(41)
The new “philosophy of nature” (42)
has been gradually gaining ground since its initial position
of “counterculture”, (43)
and has become increasingly prominent within the established
western philosophy.(44)
It represents a philosophical departure point for a new,
ecocentric paradigm.(45)
This discussion, however, stresses its political operationalisation,
comprised in the concept of “sustainable development,”
which is the basis for the transformation of western cultures.
Third
premise: the concept of “sustainable development”
and the necessary formation of »systemic ecocentrism«
of the western cultures (premises of ecocentric legal and
political philosophy)
The ecological situation, on the one hand, and the increasing
scope of ecocentric ecological awareness, on the other hand,
led to a global political agreement at the turn of the century
in the form of the principle of sustainable development.(46)
The principle of sustainable development is understood as
a political operationalisation of the ecocentric
ecological awareness.(47)
It is understood, therefore, as an approach requiring humankind
to adapt their interactions in conjunction with other biotic
communities to the basic “law of Nature”, i.e.,
inter-connectedness of all natural entities. In this context,
the preservation of a balanced state of Nature
(all biotic communities) is essential. With regard to the
centrality of the (un-limited) material progress, the adjustment
of the production process of material goods is therefore
essential, i.e., the adjustment of economy. It should be
emphasised that this is not the principle of “zero
growth”,(48)
but a principle of adjustment of material progress (development)
to the constraints of natural equilibrium.(49)
In reference to the existing excessiveness of the economic
interaction with Nature (50),
the current adjustment implies, of course, a limitation
of the economy.
As an inter-national
political agreement, the principle of sustainable development
has a twofold meaning. Firstly, it is a political and social
programme of cultural transformation of human communities
all over the planet. And secondly, with regard to the actual
social organisation of man (national states) it must be
suitably incorporated within the individual social systems,
providing therefore a relevant framework for the transformation
of law. When incorporating the principle of sustainable
development into legal order, the pervasiveness of anthropocentrism
in all segments of the western cultures needs to be taken
into account.(51)
The ontological and ethical orientation of the said principles
does not have its “roots” in the existing (legal)
value system and/or established western legal and political
philosophy.(52)
The western legal philosophy has not included other natural
entities in the quest for the “human formula.”
(53)
From the ecocentric ontology, i.e., co-dependent centrality
of man in “ecological community” (54)
issue the rules of behaviour, i.e., ethical
norms, with the following essential commandments: show
respect for other natural entities, treat them with respect
and satisfy own personal (material) needs within the limits
of the natural equilibrium. When other natural entities
are being used (to meet own needs) the limit determined
by the natural equilibrium must never be overstepped. The
basic value of the nascent culture is the maintenance
of the natural equilibrium; its implementation necessitates
a limitation and/or adjustment of one
of the key existing values – material progress and/or
un-limitedness in satisfaction of material needs. The limitation
is necessary because the un-limitedness of the
material progress has brought about the destruction of Nature.
Man must return within the boundaries set by the natural
equilibrium. |
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The
oppositeness of the above mentioned values is manifest:
on the one hand, there is unlimited exploitation
of nature generated by the tendency towards an un-limited
material progress and, on the other hand, the need for the
adjustment of the use of Nature and/or the adjustment of
satisfaction of material needs to the constraints of the
planet and/or Nature, i.e., constraints defined by natural
equilibrium. However, this is not the oppositeness between
the value of the material progress itself and the value
of the preservation of natural environment. The oppositeness
relates to the un-limitedness of material progress,
i.e., the un-limitedness and/or exploitativeness
of human interaction with Nature.
It has to be established that despite the “breakthrough”
of the issues of the relationship between man and other
natural entities from the margins of philosophy (“counterculture”)
in the last decade (55),
Nature continues to be ignored in the dominant contemporary
legal philosophy and social theory (political
philosophy) regardless of the ideological or philosophical
origin.
Regardless of the possible reasons for such ignorance, this
stance, today, when these issues have become global political
issues (56)
can not be explained otherwise than by entrapment within
the context of anthropocentric orientation of the western
culture.
Man's
“descent” into Nature implies, therefore, a
value system which has “no roots” (57)
in the western cultures. In other words, in the actual established
legal and political philosophy as the “ideological
superstructure« and the starting point of the positive
law and the state, the central position is taken by man
and just satisfaction of man's material needs,
whilst Nature (natural equilibrium) remains “outside
the door.”
The successful transformation of law and/or its effectiveness
(influencing the change in the treatment of other parts
of nature in everyday life) is therefore directly related
to the incorporation of values introduced by the new awareness
in a (legal) value system of the western cultures. The first
step of the transformation of law is therefore the ecologisation
of legal philosophy.
2.
The concept of ecocentric legal philosophy
2.1.
Introduction
Nomos
is understood as the normative social system of the western
cultures, whereas the rules of behaviour are characterised
by the attribute of lawhood. In the western cultures,
nomos is thus the synonym for legal rules governing
behaviour. The content of these rules depends on the context
determined by the legal and political philosophy and/or
the spiritual framework of a certain culture as the “ideological”
superstructure of nomos.
The nomos of the western cultures has ever since
the mentioned turning point of the “homo mensura”,
(58)
i.e., the separation between humanity and nature, lost touch
with the “law of Nature” (nomos theios) and
has become the “property” of man - “human
law” (anthropeioi nomos)(59).
In the history of the western civilisation, the idea of
law (60)
has been linked only to man.
In this regard, it should be noted that this essay does
not deal with the issue of lawhood (statehood)
as the key attribute of “anthropeioi nomos”,
(61)
but that we are interested
in the centrality of man in Nature and/or the incorporation
of the “natural law” in the “human formula”.
(62)
The idea of law (justice)
overlaps at this point with the issue of legal ontology.
In this sense, the human formula and/or its part which regulates
human behaviour in relation to other natural entities (“nomos
interspecies”) (63)
is understood as the “correct
path” (64)
which ensures a harmonious
centrality of human community in Nature.
The lawhood of the rules of behaviour is understood as a
departure point (65)
whereby the desired de-anthropocentrism
of nomos needs to be redefined.
It is not possible to discuss the lawhood of the
“human formula” without the state.
The state is understood as a result of social agreement
reflecting man's social aspect (Aristotle's zoon politikon).
(66)
From the point of view of redefinition of the relationship
between human and other biotic communities, the incorporation
of Nature in the basic social agreement or the
contrat social (social agreement) is crucial and
is understood as the “sample-genetic definition of
civil life,” as an idea of the hypothetical original
state, as the widest framework for human social aspect,
i.e., a frame for human community, society, in short, the
“generator of civil society,” whilst for the
purposes of our essay, the focus lies on the entry of Nature
in nomos, i.e., the (authoritative) normative system of
human community.
In this sense, social agreement is understood as the contract
of statehood providing the basis for the operation
of the state, assigning the attribute of lawhood (67)
to the “human formula.” The contract of statehood,
therefore, is understood as the basic consensus regarding
human social organisation which at the “material”
level, the level of the positive law, is represented by
the constitution, whereby we are interested in particular
in that part of the contract of statehood (constitution),
as a social pact, which refers to the substantive definitions,
i.e., definitions of the fundamental common values and goals.
2.2.
Shaping of ecocentric legal philosophy
2.2.1. Premises of natural law
The
scientific realisation of man's centrality in the network
of co-dependent natural entities (“prima ontologia”)
is certainly one of the realisations of the natural, cosmic
law, the “divine nomos” (“nomos theios”),
i.e., law which throughout the history of the western man
has provided the criteria and norms for human behaviour.
The fundamental natural law (Logos - Heraklit, common to
all natural entities, is the co-dependence and the inter-connectedness
of all natural entities. The fundamental (cosmic) law is
thus the same for all Nature, which means that all living
beings must abide by it. It is the “cosmic formula”
showing man his place in the cosmos (Nature); another issue
altogether is the “human formula” and what it
should be like.
In terms of rules of behaviour which man should respect
in interacting with other natural entities, it is (thanks
to prima ontologia) no longer possible to talk of the “indisposition”
(68)
of nature, i.e., the problem
which condemned the philosophy of natural law (69)
to failure in its search for
the criteria and norms for human behaviour “which
would turn out to be resistant to human arbitrariness.”
(70)
“Prima ontologia” is thus cognisance obtained
from Nature, allowing man to understand (71)
the criteria and norms for his behaviour towards other natural
entities. (72)
Prima
ontologia and the ensuing rules of behaviour represent the
cognisance of the natural, cosmic law – order that
must be taken into account in the formulation of the positive
law. They are therefore the legitimisation of the correct
or just law (at least in terms of the relationship
with other natural entities). (73)
“Prima ontologia” shows man his initial
centrality – centrality in Nature. Man, therefore,
is not merely a social, political being (zoon politikon),
but is (first and foremost) a natural being (zoon
physicon). The basic law of nature, the cosmic order,
and the inter-interconnectedness and co-dependence of all
natural entities are for the western man, defined in culture
as the antipode of wild nature,(74)
a given, committing him to action in compliance
with the cosmic order.
The image of Nature as a dynamic
interaction of mutually intertwined and co-dependent natural
entities, signifies the restoration of the organic image
of Nature. (75)
The above mentioned philosophical premise of law is also
the basic premise of pre-Socratic philosophy (Ionic nature
scientists) which was relegated to the “dustbin of
history” with the advent of “homo mensura”
and the ensuing anthropomorphizing of the western philosophical
thought. As shown above, the centrality of western civilisation
in the ontological anthropocentrism stemming from the ontological
duality, was not questioned, not even by Kant in his (famous)
solution of the other (epistemological) duality of the West.
(76)
The ecocentric ontology (prima ontologia) and the ensuing
ecocentric ethics has long-term consequences for the shaping
of human nomos. It demands that man create law and social
order in compliance with the mentioned premise of the “natural
law.” This means a departure from the western man's
centrality in ontological duality which places man apart
from Nature (cosmos). In creating order, the rules of behaviour,
and laws, man must take into account his position in Nature
(he is part of Nature and not its master) and his vital
connection with other biotic communities.
If we paraphrase A. Kaufmann through the optic of ecocentrism,
“law is a cluster of mutual relations of people and
relations towards other natural entities.” (77)
The mentioned (scientific) cognisance of the basic law of
nature translated into the “philosophical language”
means the following: the ontology of relations (among people
and between man and the other parts of Nature), i.e., “prima
ontologia.” (78)
If the western legal philosophy has dealt so far with the
filling of the void which has occurred with the “banishment
of Nature,” Nature has re-surfaced as the force aided
by science to guide human behaviour in relation to other
natural entities.
The search for the natural law does not focus on a preordained
collection of natural laws which would determine the rules
of social (human) order, but merely the “cosmic
order” which would show man his true place in creation,
in Nature.
This is then the issue of relation between man and Nature
and hence the issue of “cosmic formula.”
From here on it becomes the issue of the “human formula”,
i.e., human nomos.
The answer to the issue of what the “human formula”
should be like depends on the cognisance of the “cosmic
formula.” The ideological and value orientation of
the human law (and hence the rules regulating the relationships
between people) depends on the previous ontological cognisance
of the relationship of man with Nature, the remaining cosmos.
(79)
Insofar as “prima ontologia” is based on the
image of wild nature which man must cultivate to establish
order, the ideological basis for human nomos also rests
on the image of the man as a savage, living in a natural
state “bellum omnis contra omnem.” Hence the
human nomos is a means of creating social order from the
natural state of chaos and dis-order. (80) |
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If,
on the other hand, prima ontologia is based on man's centrality
in the dynamic harmonious relationship with nature, this
underlying view has a corresponding value system in human
nomos.(81)
The anthropological and, therefore, empirical confirmation
of the mentioned link can be found in most non-western (“primitive”)
cultures.(82)
If the western philosophy of law has been predominantly
characterised by an awareness of a lack of knowledge about
human law (and what it should be), this, according to Kaufmann,
(83)
only reveals a deep insecurity as to what man really is.
Or, in the words of Dostoyevsky: “The ant knows the
formula of its abode, the bee knows the formula of its beehive
– they know it not in a human way, but in their own
way – but that is all they need. Only man does not
know his formula.” (84)
The search for man's “formula” begins in “prima
ontologia”, i.e., in the knowledge of the oneness
of the reality whose part man is. The subjective-objective
notion of reality in which man “observes” Nature
“from above” and questions his own essence does
not, of course, provide the framework for solving the riddle
of man's formula.
The different ontological premise of man's position in the
universe, i.e., “ontology of relationships,”
provides assistance in the search for the “correct
and just” human nomos. Only cosmic nomos exists objectively
(in nature), whilst man must find his own nomos, his own
“formula.”
The ecocentric value orientation of nomos will thus have
to be gradually reflected within that part of “human
formula” which regulates the mutual interaction
of human community (i.e., in the “internal law”
of human community). The inter-connectedness of all natural
entities (human and other biotic communities), i.e., mutual
ecocentric interaction, as the ontological characteristic
of man's position in cosmos, is (also) the underlying
value of the “internal human law." (85)
2.2.2.
Redefinition of the western legal philosophy – natural
equilibrium as the underlying universal legal value (ecocentric
legal philosophy)
2.2.2.1.
Idea of law
The scientific realisation of man's central position in
the network of co-dependent natural entities (“prima
ontologia”) has re-introduced the issues of man's
centrality in Nature on the stage of the western philosophy.
Other natural entities "have returned" to the
western philosophy of law, for centuries “burdened”
merely with the issues of man.
The determination of the rules of conduct which man must
respect in interaction with Nature also implies an expansion
of the idea of law itself (justice and correctness).
Justice also refers to the interaction between man and Nature
and not only to the interaction within human community.
Just law, therefore, (from the point of view of relationship
between human and other biotic communities) is law which
complies with the ecocentric ethics, law which directs man's
conduct in order to preserve the natural equilibrium. Consequently,
the economic interaction has to be maintained (kept) within
the framework ensuring the vitality of other biotic communities.
(86)
“Prima ontologia” as the scientific cognisance
of the dynamic link and co-dependence of all biotic communities
is the philosophical premise of nomos. The connectedness
and co-dependence, i.e., the ecocentric ontology, implies
the exercise of respect and care in human interactions with
other natural entities, and hence implies the ecocentric
ecological ethics. (87)
Its essence is to keep the economic interaction within the
framework ensuring the vitality of other biotic communities.
(88)
*****
At this point we have to address the issue of whether the
obligation to respect the natural equilibrium stems from
the “rights” of other (living and non-living)
natural entities. And whether the prima ontologia demands
an expansion of the theory of rights to other natural
entities. The concept of the expansion of legal rights was
developed by Christopher Stone in his well-known article
Should Trees Have Standing? - Toward Legal Rights for
Natural Objects.(89)
In a similar vein, Levi-Strauss argues for the proposed
amendment of the Universal Declaration of Human Rights.(90)
Stone posits that the (scientific) cognisance of man's co-dependent
centrality in Nature dictates an expansion of rights to
other (living and non-living) natural entities. In a persuasive
argumentation, which he begins with a review of the historic
expansion of rights (from slaves to legal persons), Stone
argues for the expansion of rights. In this he follows the
pragmatic orientation, i.e., the possibility to represent
the interests of other biotic communities before the courts.
The essence of Stone's conception is the possibility of
setting up guardians to represent the rights of
other biotic communities before the courts.
Levi-Strauss's argumentation is somewhat narrower in that
it proposes an expansion of rights to encompass the community
of life. In recognising the rights, he aims higher,
i.e., to the creation of the new Declaration of Rights.
“May we then imagine such a basis for freedoms which
would be self evident enough to be applicable to all without
discrimination? Only one was noticed; however, it demands
that man be no longer defined as a moral being, but as a
living being, which is his most noticeable property. If,
however, man's rights are most of all the rights of a living
being, it follows directly that the natural boundaries for
these rights, recognised for humankind as a species, are
defined by the rights of other species. The rights of humankind
terminate when their implementation endangers the existence
of another species.” (91)
The system of (human) rights is one of the central elements
of the social organisation of western cultures. The right
is actually a materialisation of justice (a just state respects
the rights; human interaction is just if rights are respected).
If in our search for the answer to the question, we depart
from the actual philosophical context of rights,
a single conclusion is possible. Justice in relationship
to others (and hence also natural entities) is only possible
if they have rights.
As shown above, humankind is in a period of transition from
the “environmental protection” to the “maintenance
of the natural equilibrium”. An essential difference
between the two is that the latter demands that man respect
other biotic communities. We believe that this basic position
necessitates the recognition of the rights of other
biotic communities. (92)
Although some may disagree, it should be noted that the
value systems with regard to rights have shown to be transitory
in history (slaves, women), so we can expect this to be
the case with regard to the rights of natural entities.
(93)
Despite the seemingly impossible establishment of the rights
of other biotic communities de iure, some legal
acts have managed to assign these rights de facto.
Ortolano cites the example of the American Endangered
Species Act (ESA) protecting the animal and plant species
identified as endangered and demonstrates that the lawmaker
de facto recognised the rights of individual animal
species by granting them protection. (94)
We believe that the definition of natural equilibrium
should be considered the criterion of human interaction
with other biotic communities for de facto recognition
of their rights, namely the right to existence. Respect
for natural equilibrium also “covers” the rights
of other biotic communities to existence. The threat to
natural equilibrium should be understood as endangerment
of the right of other biotic communities to existence. Respect
for interaction with Nature issues from the rights of other
biotic communities to existence and implies the obligation
to maintain the natural equilibrium.(95)
This provides the basis for the maintenance of the natural
equilibrium as a duty for man as an individual and as a
duty for the state to ensure it.
*****
A shift from the existing framework of “environmental
protection” to the framework of “maintenance
of the natural equilibrium” means therefore a shift
from the anthropocentric approach of “environment
purification” to the ecocentric approach of the maintenance
of the state of equilibrium in relationships between
human and other biotic communities, whereby the approach
is dynamic and not static.
The concept implied is the concept of “dynamic
equilibrium”, whereby human interaction with
other parts of Nature is inherent to the “dynamics
of nature.” The ethical imperative therefore is not
the withdrawal of man from Nature but an attitude of respect
in interaction.(96)
Tarlock (97)
draws attention to the importance of understanding the dynamism
of natural equilibrium in the creation of the natural law.
Unlike the current prevailing belief with regard to the
static nature of the natural equilibrium, the transformation
of the natural law must take into account the latest scientific
findings with regard to the dynamic and chaotic nature of
the constantly changing ecosystems. According to Tarlock,
such a scientific premise dictates a turning point in the
natural law. “Enhancing the capacity” of law
for an ongoing monitoring of the “dynamism of nature”
is essential. (98)
2.2.2.2.
Legal values
The incorporation of Nature in the very essence of law inevitably
triggers a redefinition of legal values. The natural equilibrium,
i.e., the equilibrium of life (including human
life), as a central value of ecocentric ecological awareness
is becoming a legal value. In this sense, we could
speak of the expansion of the legal subject, i.e.
the expansion of values which are the subject of legal protection.
The following is of crucial importance: natural equilibrium
is becoming a basic and a common legal
value.
2.2.2.2.1.
Natural equilibrium as a fundamental (basic) legal value
The definition of natural equilibrium as a criterion (framework)
of correct law places the maintenance of natural equilibrium
as a legal value in initial position. It is obvious
that the natural equilibrium is thus becoming a fundamental
legal value, a fundamental criterion of the correctness
(justice) of law. |
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The
initial position
of natural equilibrium means that the constraint of natural
equilibrium defines in particular the human interaction
which has the function of satisfaction of (material) needs,
i.e., economic interaction.The initial
position of the maintenance of natural equilibrium
as a legal value implies the enframing of the other
(legal) value, i.e., the satisfaction of material needs
(economic interaction).
In his
satisfaction of (material) needs, man is no longer un-limited,(99)
but is constrained by the framework defined by the natural
equilibrium.
A redefinition
of legal philosophy directly limits the exploitativeness
(un-limitedness) of the satisfaction of human material
needs (but does not limit the satisfaction of material needs
as such) and/or redefines the orientation of the western
cultures towards an un-limited material progress, (100)
which means that man has returned within the boundaries
set by the natural equilibrium. The initial position of
the maintenance of natural equilibrium thus does not mean
the “sacrifice” of economic progress,(101)
but implies its enframing within the boundaries
of the natural equilibrium.
2.2.2.2.2.
Natural equilibrium as a common legal value
The maintenance
of the natural equilibrium is also a value in the common,
public interest of human community.(102)
This does not relate to what we want as individuals,
but to what we are as a human community.(103)
The collectivity, commonality of natural equilibrium
as a legal value is the foundation for the creation of the
ecocentric social theory (political philosophy). The definition
of natural equilibrium as a basic and common
legal value implies that the maintenance of natural equilibrium
is defined as the fundamental public interest.
The “initial
position” and “commonality”
of the natural equilibrium assign the state the role of
the guardian of the interests of human community
as well as the interests (rights) of other biotic communities.
They thus represent the legitimisation of state activities
affecting the environment in the private sphere (104)
and thus provide the baseline for a redefinition of the
political philosophy of the western cultures.
2.2.2.2.3.
Maintenance of natural equilibrium as a human right
The investiture
of the natural equilibrium in the system of legal values
also gives rise to the necessity of the definition of the
maintenance of the natural equilibrium as human right.(105)
Considering the necessity of the establishment of the active
role of the state in the maintenance of the natural equilibrium,
the state should ensure also this right. In our opinion,
the environmental right should also comprise the
right to the maintenance of the natural equilibrium as a
traditional human right, and the guardianship of
other biotic communities, i.e., the possibility of “civic”
interference also in the interest of other biotic communities.(106)
Stone's concept of legal guardianship of the interests
of other biotic communities has led (first) in the American
law (and later elsewhere), also on the basis of the well-known
separate opinion by the Supreme Court Judge William O. Douglas
in the case Sierra Club v. Morton,(108)
first towards the liberalisation of the “standing
doctrine” (109)
and later towards the creation of the statutory instrument
of “legal guardianship” by so-called class-action.(110)
2.2.2.2.4.
Relationship between the new legal value and the existing
legal values
The
initial position of the natural equilibrium (111)
addresses the issue of relationship of the new
legal value towards the existing fundamental legal
values of the western cultures. At issue is in particular
the question of conflict between the new legal
value, i.e., the maintenance of natural equilibrium and
other legal values firmly implanted in these cultures.
The conflicting
character of the “emerging” value becomes obvious
at the moment when its incorporation in the legal order
demands an adjustment (limitation) of certain “deep-in-structure”
values of the western cultures (nomos). At issue is in particular
the un-limitedness of the economic(112)
interaction of human and other biotic communities and the
related material progress as one of the basic (legal)
values of the western cultures.
The enforcement
of the maintenance of natural equilibrium may also demand
a limitation of another legally protected value, for example,
the right to the freedom of movement or some other human
right. Thus, for example, the administrative court of the
state Baden Württemberg in its review of the regulation
prohibiting night diving in the lake because of its negative
impact on water organisms rejected the complaint by a plaintiff
who claimed that this represented an inadmissible interference
with the constitutional (human) right to personal development
(paragraph 1 of Article 2 of the German constitution). The
administrative court estimated that the public interest
(of the maintenance of “well being” of water
organisms) justifies the said limitation. (113)
The following
two values are at “conflict” here: natural equilibrium
and material progress. The definition of the maintenance
of the natural equilibrium as the fundamental, shared value
legitimises an interference (limitation) with regard
to other legal values, in particular the un-limitedness
of the economic interaction. Such an intervention often
represents the limitation of other legal values, also of
private property. (114)
The initial
position of natural equilibrium is not absolute; it
is limited with the vital needs of human community.(115)
Nevertheless, each time an activity affecting Nature takes
place for the purpose of meeting man's vital needs, the
limits of the natural equilibrium must be taken into account
as much as possible. (116)
*****
The new
value, i.e., the maintenance of natural equilibrium, must
be “materialised” in the “contracts
of statehood” and/or constitutions of
the western countries, which means that as a category it
features next to “freedom” and “democracy.”
(117)
The entry of Nature in the western (legal) value system,
i.e., in the contract of statehood (constitutions) is, as
we have shown, conditio sine qua non for an efficient
change in the legal order and, in the final analysis, for
a change in man's attitude towards Nature. (118)
3.
In Place of Conclusion: brief evaluation of the inclusion
of the ecocentric legal philosophy in the Slovene Constitution
3.1.
General
Slovenia's
Constitution (119)
may be classified among those (rare) constitutions which
from the point of view of constitutional and legal treatment
of the ecocentric legal philosophy with its key attribute
(maintenance of natural equilibrium) are manifestly modern.
In the continuation, we will focus on two constitutional
categories which have to a large extent incorporated the
new (philosophical/political) view of Nature; the provision
of Article 67 which speaks of the environmental benefit
of property and the provision contained in paragraph
1 of Article 72 concerning the right to a healthy environment.(120)
3.2.
Ecocentric or anthropocentric interpretation of the Constitution
It should
be noted that some constitutional theoreticians reject the
possibility of incorporation of the ecocentric orientation
in the constitution (and in general in law). Such views
are mostly premised on the argument that it is nonsensical
to view the ethics which imposes on man a respectful interaction
with other parts of Nature as ecocentric, in view
of the fact that the motive for a change in man's attitude
towards other (in particular, the living) beings for the
purposes of their preservation serves the interest man with
regard to the maintenance of a healthy life and survival
(of the current and, in particular, the future generations).
This should mean that such an approach in its essence may
only be anthropocentric.(121)
Herewith, we should take note that the ecocentric orientation
involves, on the one hand, the ecocentric ontology
and, on the other hand, the ecocentric ethics.
The ecocentric ontology sees man as a co-dependent and equivalent
part of Nature. It issues from the contemporary scientific
findings of man's centrality in the network of co-dependent
natural entities. These findings reveal man's initial centrality
in Nature. Man is therefore not only a social, political
being (zoon politikon), but also and foremost (hence the
attribute of »the initial position«) a natural
being (zoon physicon). The fact that all natural
entities are interlinked and co-dependent commits the (western)
man, identified in the culture as the antipode of wild nature,
to act in compliance with the mentioned centrality and dependence.
Man must therefore take into consideration his position
in nature and his vital connection with other biotic communities
and must act towards these other beings in a way that reflects
this knowledge. The ecocentric ethics examines what this
action should be like. Its essence is the belief that man
must treat other natural entities with respect and use them
moderately (food chain). The limit to which man may interfere
with other natural entities is natural equilibrium. In using
and/or otherwise interacting with nature, man must not destroy
the natural equilibrium. As the prevalent ethics today is
exactly the opposite, i.e., anthropocentric (122)
(according to which man interacting with the other parts
of Nature does not need to preserve the natural equilibrium,
and/or exactly the opposite, this ethics has even encouraged
unlimited and destructive interaction with Nature), it is
clear that the enforcement of ecocentric orientation means
limitation and/or adaptation of all human activities, in
particular economic activities. Man is to return within
the constraints of the natural equilibrium. What is essential
is the maintenance of natural equilibrium and not
merely the protection of man's immediate environment.
This is a crucial difference between the approach based
on the principle of »sustainable development«
and the current approach of »environmental protection«,
which has mainly dealt with the »purification«
of man's immediate environment.
Of crucial
importance for the enforcement of ecocentric orientation
is thus the enforcement of ecocentric ontology (maintenance
of natural equilibrium). The motive for such orientation
is still anthropocentric. In this case, natural equilibrium
is maintained to benefit man, (123)
and not because we would recognise the value of other parts
of Nature ( for example, animals and plants) as separate
from man's needs and advantages.
(124) However, what matters is the shift
from the »protection of man's immediate environment
to the »maintenance of natural equilibrium«
regardless of the motive for such shift.
It is
in the interest of man to maintain the natural equilibrium,
and in particular other forms of life. In reference to the
existing destructive attitude towards other forms of life,
it is clear that a drastic change in the value system is
necessary. (125)
This is where the meaning of ecocentric orientation lies.
It is therefore important to explain the Slovene Constitution
in this light. We should mention that the Slovene law is
already developing in this direction. The Environmental
Protection Act (Ur. l RS 32/93, hereinafter referred to
as: EPA) clearly reveals an ecocentric orientation already
in the provisions of Article 1. Paragraph 2 of Article 1
of the EPA prescribes that the direction of development
processes, spatial-planning activities and other environmental
activities must take into account the appropriate balance
between development and environmental needs. In paragraph
4 of the said Article the law specifies that the criterion
for all action and norms of environmental protection is,
in addition to human health, also the health and well being
of other organisms. |
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3.3
Environmental function of property
With
regard to the importance of private property in the western
society, the connection of the property with the environmental
concept (next to the already established social concept)
constitutes a significant improvement. Slovenian Constitution
is clear about that, (126)
unlike the German constitution which lays down in the second
paragraph of Article 14 the general notion that property
is binding and that its use must serve the public interest,
but does not speak in particular of the environmental function
of property. (127)
The said provision of the Constitution clearly shows that
»Nature has entered« the constitutional sphere.
3.3.1.Relationship
between the determination of content and the limits of property
and the (authorised) interference
The Constitutional
provision referred to has great significance for the enforcement
of the ecocentric orientation (expressed in the principle
of sustainable development) in the legal order and in real
life. In compliance with the constitutional authority, the
lawgiver may determine the content and the limits of the
property based on the fundamental criterion of the maintenance
of natural equilibrium.
The lawgiver's
determination of the content and the limits of property
often involves limitations of the freedom of property which
may relate to the obligation to endure something (128)
or demand action from the owner. (129)
In relation
to the issue of determining the content and the limits of
property we should in particular emphasise the issue of
relationship between the legal specification of the manner
of exploitation of property and the authorised activities.
Statutory specification of the manner in which property
is to be exploited does not represent an interference, even
though it often results in a certain limitation of the freedom
of ownership and/or reduction of the proprietor's “manoeuvring”
space. As this does not constitute an interference, the
owner is not entitled to compensation. The related issue
is the issue of limit. The lawgiver’s authority
concerning the manner of exploitation of property which
leads to the limitation of the owner’s freedom which
is to be borne without any compensation has a certain limit.
When this limit is exceeded, this results in an interference
(expropriation), which may be authorised, if it meets the
strict criteria also developed by the constitutional practice.
(130)
The Constitution itself does not specify
the said limits. There are two theories in the German constitutional
doctrine concerning the determination of the mentioned limit:
the theory of the special victim, developed by the Federal
Court (“Sonderopfertheorie”) and the theory
of suitability represented by the Federal Administrative
Court (“Zumutbarkeitstheorie”). The former concerns
dispropriation in the case the lawgiver imposes a special
burden on an individual or a specific group in comparison
to other comparable groups. This special burden may be special
in terms of weight or in comparison to other owners. The
advantage of this theory is its persuasiveness: the individual
is compared to other individuals. The following scruple
is raised: if the lawgiver delimits the groups on the basis
of authorised criteria and places a greater burden on some
of them, who should they be compared with? In response to
this deficiency, the Federal Administrative Court used another
criterion: undue burden may not be imposed on the individual.
However, this criterion does not specify the quantitative
limit for the still allowable limitations. Judicial practice
must therefore review each case separately.
3.3.2.
Determination of the content and the limits of property
as an obligation of the state
By introducing
the environmental function of property, the Constitution
has not only expanded the function of property (also) with
environmental protection issues (maintenance of natural
equilibrium), but has, in relation to the provision in paragraph
2 of Article 72 of the Constitution (which imposes on the
state the duty to maintain a healthy environment and/or
the natural equilibrium), actually imposed on the state
the duty to maintain a healthy living environment and/or
the natural equilibrium (also) by determining the method
of exploitation of property. The lawgiver has not only been
given authority to define the mode of exploitation
of property in compliance with the interests of »environmental
protection« (maintenance of natural equilibrium),
but also the obligation to do so. A function of
the state, therefore, is to define the framework for human
interaction with Nature. This also means the determination
of the mode of property exploitation and/or limitation
of its absoluteness in relation to Nature.
3.3.3.
Scope of the environmental function of property
The logic
of the environmental function of nature is based on the
belief that the property right, as a special form of material
custody of human freedom, must enjoy a suitable constitutional
protection; however, the freedom of the individual in the
area of property may not be unlimited and/or may not concern
only the individual owner. The interests of other members
of the community must be taken into account when implementing
these rights. (131)
In terms of the environmental function of property, the
issue is raised whether this is a special form of social
function – among the interests of other members of
the community that have to be respected is the interest
in healthy environment and/or preserved natural equilibrium.
We believe that such an explanation would be too narrow
– in such case it would be enough to introduce a provision
on the social (and not economic) function of property in
the Constitution. The provision on the environmental function
of property must therefore be understood in a broader sense
– it also refers to the respect for the vested
interests of other parts of Nature (in particular the
living beings, animals and plants). We are therefore in
favour of the ecocentric interpretation of this constitutional
provision. The interest of other parts of Nature which is
given constitutional protection is the survival of the
species. This explanation is further supported by certain
international agreements (referring to the protection of
certain animal species), which were ratified by Slovenia
and which limit human interaction with certain animal and
plant species in order to preserve them. (132)
The lawgiver is thus obliged to account for the »interests«
of other parts of nature specified in international agreements
when determining the content and the limits of property.
Such constitutional explanation may, of course, entail a
larger scope of limitation of the freedom of ownership.
The lawgiver is under obligation to take into account not
only the interests of other people but also the »interests«
of other living beings (animals, plants).
3.3.4.
Environmental function of property as the basis for the
constitutional protection of property rights
In addition
to this »negative« side of the issue, i.e.,
the limitation of the freedom of ownership, this Constitutional
provision also has a »positive« side. With this
provision, the Constitution guarantees the protection of
a new element of property, namely the owner's expectation
that his property (referring to land) will remain unpolluted
and/or remain in a healthy environment. Within this framework,
the owner of the property which is polluted also expects
that the state of affairs will be repaired. In our opinion,
this concerns a special ownership entitlement granted to
the owner by the mentioned constitutional provision. The
state must ensure that this entitlement will also actually
be protected. Also in this case, there exists a connection
between the said constitutional provision and the provision
of the second paragraph of Article 72 of the Constitution
which assigns guardianship of the healthy living environment
to the state. In this function, the state is obliged not
only to determine the conditions and methods of carrying
out economic and other activities, but also to specify by
law the environmental function of property. The Constitutional
Court has already adopted the position that the omission
of specification of conditions and methods for the carrying
out of economic and other activities would be unconstitutional.
In our opinion, the same logic also applies in the event
of cancellation of the statutory governance of the environmental
function of property. Such omission would also be unconstitutional.
This
raises the issue of whether legal protection is guaranteed
for the owner in the case of interference in ownership entitlement.
In other words, is the state responsible or at least co-responsible
for the damage borne by the owner because of excessive pollution?
With regard to the newer German theory and legal practice,
the state in such cases should be responsible, in particular
for any omissions of the measures necessary, intended for
the prevention of excessive pollution. These are activities
which the state should not allow on the basis of its regulations.
(134)
A further issue is whether the owner is constitutionally
protected also in the case when damage results from excessive
pollution which is the result of the lawgiver's omission
of statutory specification of the content and limits of
property and/or the government (administration) has not,
on the basis of legal regulation, issued adequate regulations
intended to prevent excessive pollution. We believe that
the owner should have constitutional guardianship also in
this case, taking into account the above mentioned categories
of the »minimum environmental standard«.
3.4.
Right to a Healthy Living Environment
In the
first paragraph of Article 72 the Constitution defines that
each person has a right in accordance with statute to a
healthy living environment. Such constitutional provision
is comparatively rare as well. (135)
3.4.1.Legal
nature of the right and its judicial protection
3.4.1.1.
Legal nature and constitutional protection
The issue
raised in connection with this right is whether this is
a basic human right with guaranteed constitutional protection.
The issue is raised because this right has not been included
in Chapter II of the Constitution, which regulates human
rights and fundamental freedoms, but in Chapter III, where
economic and social relations are regulated. Some authors
object to its nature of a fundamental human right also because
the Constitution imposes on the lawgiver the regulation
of the method of its implementation. |
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The
position of the Constitutional Court is that it is possible
to use constitutional complaint to protect those constitutional
rights which are not included in the chapter on fundamental
human rights and freedoms. (136)
Regardless of the fact whether the said right is included
in basic rights, the constitution guarantees its protection
in constitutional practice. In the second paragraph of Article
15, the Constitution lays down that the manner in which
human rights and fundamental freedoms are exercised may
be regulated, but only by statute, whenever such regulation
is authorised by this Constitution or whenever such regulation
is necessary by reason of the particular nature of the individual
rights or freedoms. For the case at hand, it is foreseen
in the Constitution that the method of implementation of
this right would be prescribed by law. As statutory protection
has also been foreseen for the implementation of certain
rights from Chapter II, (137)
such provisions of the first paragraph of Article 72 of
the Constitution may not be used as an argument against
the integration of the said right among human rights.
With
reference to the above, we can ascertain that the right
to a healthy living environment is a constitutionally
guaranteed right.
With
regard to the provision of the second paragraph of Article
72 of the Constitution, which imposes on the state the duty
to maintain a healthy and clean environment, we can ascertain
that this is the case of the so-called right to »positive
status«. This means that this right must be ensured
by the state through the action described above. This was
the position adopted by the Constitutional Court already
in the above-mentioned case concerning the legal regulation
of the operating time of catering establishments. (138)
In the opinion of the Constitutional Court, everyone has
the right to a healthy living environment and the state
has the obligation to ensure it on the basis of the provision
of the first paragraph of Article 72 of the Constitution.
This objective is not only provided by the Constitution
but also desired. With the statutory regulation of the operating
time of catering establishments, the lawgiver wanted to
reconcile the interests of caterers with those of the residents
in the neighbourhood and, subsequently, to ensure the residents
the right to a healthy living environment.
3.4.1.2.
Legal protection with regard to individuals
In the
case when the individual's right to a healthy environment
is put at risk by other individuals, the individual enjoys
legal protection in accordance with Article 15 of the Environmental
Protection Act (a Slovene citizen or organisation may file
a complaint against the holder of an excessive activity
affecting the environment, causing a risk to the environment,
to cease the activity affecting the environment); legal
protection against emissions under the law of property and
the law on good neighbourliness is provided in compliance
with Article 42 of the Basic Property Law Relations Act
(139)
(by filing a complaint, the owner of a property may demand
from the owner of the neighbouring land to stop emissions)
and protection under the obligations law in compliance with
Article 156 of the Obligations Act (140)
(using the institution of complaint every one may demand
from the operator to remove the source of danger for the
environment).
3.4.2.
Content of the right
3.4.2.1.
Right to the maintenance of the natural equilibrium
As said
before, the provision of the first paragraph of Article
72 should be interpreted more broadly – as not only
referring to the »healthy living environment«,
but also to the »maintenance of the natural equilibrium«.
To provide the »substance« of both notions is
the subject of regulatory framework. In our opinion, the
Constitution authorises the lawgiver (using the wording
of the first paragraph of Article 72: »…in accordance
with statute…«) to also define the content
of the right and not only the method of its implementation.
The natural
equilibrium is defined in Article 3 of the Nature Preservation
Act (141)
as a state of mutually balanced relations and influences
of living beings among themselves and their habitats. The
Act further specifies that the natural equilibrium is upset
if the activity affecting the environment destroys the quantitative
or qualitative structure of the habitat of plant or animal
species, encroaches on or destroys their habitats, destroys
or changes the functioning capacity of the ecosystems, interferes
with the interconnectedness of ecosystems or causes significant
isolation of individual populations. The mentioned statutory
provision represents, in conjunction with many other provisions
of the mentioned law, the law on environmental protection
and a number of other statutory regulations, the foundation
for the specification of the content and/or the scope of
this right. We believe that the content of this right may
be identifiable in this manner.
3.4.2.2.
Duty to preserve the natural equilibrium (and/or the survival
of animal and plant species) - is it the right of animal
and plant species?
From
the right to a healthy living environment (maintenance of
the natural equilibrium) stems the duty to preserve a healthy
living environment (natural equilibrium). The Constitution
does not define such duty with regard to the »healthy
living environment« but specifies, however, a certain
kind of restricted environmental duty in the first
paragraph of Article 73. (142)
We believe, however, that the Constitution should be interpreted
in such a way that the individual has the duty to maintain
a healthy living environment (natural equilibrium).
In relation
to the indicated duty, the question arises whether the Slovene
Constitution and the Slovene law may have an even broader
interpretation, in the sense that the said duty gives rise
to the rights of animal and plant species. May we find the
foundations for the rights of animal and plant
species in Slovene law?
First
it should be noted that certain ratified international agreements,
for example on the protection of individual endangered animal
species, forbid their killing. This definition de facto
gives rise to their right, in particular the right
to life (to survival).
In reference
to the above, we should take note of the provisions of Article
118 and 137 of the Environmental Protection Act which indirectly
recognise the rights of other parts of nature. Article 118
of the Act authorises the Environment Protection Institute
(which will be founded by the Government in order to perform
an extensive set of tasks relating to environmental protection)
to represent the »interests of the preservation of
biodiversity and the protection of nature values«
in all administrative and judicial procedures concerning
biodiversity, nature values or protected areas. The similar
provision of the third paragraph of Article 137 authorises
societies, having the status of societies in public interest,
to represent the »interests of nature preservation«
in all administrative and judicial procedures. Of special
importance is the possibility to represent the »interests
of Nature« in judicial procedures, and thus also in
the procedure before the Constitutional Court. Thus the
lawgiver has assured constitutional protection also to animal
and plant species. It is of lesser importance whether the
animal and plant species have constitutional protection
because their »rights« or merely »interests«
have been recognised. |
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4.
Literature:
1. Attfield,
Robin in Belsey, Andrew, 1994, Philosophy and the Natural
Environment, Cambridge University Press, Cambridge.
2. Baker,
Susan, Maria Kousis, Dick Richardson and Stephen Young (ed.),
1997, The Politics of Sustainable Development,
Routledge, London.
3. Breuer,
Ruediger, 1988, Umweltschutz, in Besonderes
Verwaltungsrecht, Walter de Gruyter, Berlin..
4. Breyer,
Stephen, 1982, Regulation and Its Reform, Harvard
University Press, Cambridge, Massachusetts.
5. Brooks,
O. Richard, 1986, Coercion to Environmental Virtue:
Can and Should Law Mandate Environmentally Sensitive Lifestyles?,
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6. Buck,
J. Susan, 1996, Understanding Environmental Law and
Administration, Island Press, Washington, D.C.
7. Buckingham-Hatfield,
Susan&Evans, Bob, 1996, Environmental Planning and
Sustainability, John Wiley & Sons, Chicester, United
Kingdom.
8. Bugari_,
Bojan, 1997, From Plan to Market - One Way or Alternative
Paths? (A Critique of Institutional Reforms in Central
and Eastern Europe), doctoral dissertation.
9. Dama_ka,
R., Mirjan, 1986, The Faces of Justice and State Authority
(A Comparative Approach to the Legal Process), Yale
University Press, New Haven.
10. Dryzek,
S. John, 1997, The Politics of the Earth (Environmental
Discourses), Oxford University Press, New York.
11. Eder,
Klaus, 1996, The Social Construction of Nature (A Sociology
of Ecological Enlightenment), SAGE Publications, London.
12. Edley,
F. Christopher, 1990, Administrative Law (Rethinking
Judicial Control of Bureaucracy), Yale University Press,
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Notes:
1)
The Squamish are North American Indians (according to Ponting,
op.cit., p. 150).
2)
The Sioux are North American Indians (according to Hill,
1994, p. 27)
3)
This concerns the paradigm of the “nascent culture,”
as reflected directly in the global political consensus,
with regard to the necessity of the transformation of the
western cultures, expressed as the concept of “sustainable
development.”
4)
Expression used by Hardin (Garett Hardin, The Tragedy of
Commons).
5)
The direct subject of the law is the interaction between
man and Nature. The interaction is twofold: spiritual, on
the one hand, and material, on the other hand, (the use
of Nature and waste disposal). Within the latter, economic
interaction is specially important. Economic interaction
is instigated by the desire to meet man's needs, whilst
from the point of view of Nature and/or natural equilibrium
it burdens the environment. It covers utilitarian interaction
(to meet man's needs, in particular, energy needs) and waste
disposal (in the broader sense) and nowadays (mostly industrial
waste), i.e., pollution.
6)
The concept of “Nature” comprises a set of different,
mutually co-dependent natural entities and/or biotic communities,
and the concept of “nature” “something
that needs to be mastered and used for the purpose of continuous
growth and progress of the society.” (According to
Pirnat, 1987, p. 178). With other “natural entities”
other parts of Nature are understood. In this sense, man
is a natural entity (as a part of Nature). When we wish
to emphasise the “collective” nature of relationships
between individual parts of Nature, expressions like “human
community” and “other biotic communities”
are used.
7)
Expression used by Eder (Klaus Eder, The Social Construction
of Nature).
8)
Expression used by Carolyn Merchant (The Death of Nature).
9)
“Environmental law” implies the results of the
current normative response of the western cultures to the
“destruction of Nature,” i.e., “environmental
protection law” and/or “first wave of environmental
law.”
10)
For increasing “destruction of Nature” in this
century see Simmons, 1993, and Ponting, 1993.
11)
The findings of quantum physics (W.Heisenberg, N. Bohr,
G. Chew et al.) and other nature sciences (H. Maturana,
F. Varela et al.) reveal the co-dependence and equi-valence
of all natural entities including man. We should call the
reader's attention to the knowledge which for millennia
has been accessible to other cultures (Australia's “aborigines,”
the North-American Indians). At the same time, this knowledge
could be traced back to the very threshold of the western
cultures to the time before Socrates. The western civilisation
needed two thousand and five hundred years to acquire the
knowledge which other cultures have had since the beginning.
The path to this knowledge has been paved with the destruction
of Nature and the destruction of most of these “primitive”
cultures. The West is increasingly aware that the tradition
of these “primitive” cultures which it has been
destroying with such thoroughness contains human knowledge
amassed through millennia (according to the latest anthropological
and archaeological research, the history of Australia's
“aborigines” has continued uninterrupted for
80,000 years - Dreamtime) of the norms of human behaviour,
ensuring harmony between human needs and Nature, to which
man also belongs. It is a well-known fact that one of the
key characteristics of the non-European “non-civilised”
cultures (one of the fundamental criteria of civilisation
was the scope of “cultivation” (exploitation)
of Nature) has been environmental sensibility. This knowledge
must, therefore, be incorporated in human culture. To paraphrase
Bacon, knowledge is power, but not the power to destroy
and to dominate Nature, but power to re-introduce harmony
(equilibrium) with Nature.
12)
The expression “paradigm” originates
in the ancient Greek (“paradeigma”) and means
a “model”, “pattern”. The notion
of “paradigm” should be understood in this essay
as a combination of beliefs, perceptions and values which
form a certain conception of reality in science, philosophy,
and in society and/or culture in general (For more detail
on scientific paradigms see T. Kuhn, Structure of Scientific
Revolution).
13)
For more detail on the anthropocentric orientation of the
western cultures and/or the basic attributes of the dominant
cultural (Cartesian) paradigm from the point of view of
relationship between man and Nature see Pli_ani_, 1998.
14)
The use value of Nature is therefore quintessential: “Nature
is perceived and experienced as an object of human needs.”
(Eder, op.cit., p. vii).
15)
These are legal norms established before the creation of
the environmental law at the time of the “industrial
revolution.”
16)
The same is expounded by D.A Tarlock, op.cit; K. Eder, op.cit.;
Ortolano, 1997 and Dryzek, 1997
17)
This expression is used by Eder, who wishes to emphasise
the rationalist (Cartesian) basis of the environmental law.
“When we speak of ecological reason we mean that the
exploitation of nature has gone too far and that the pollution
of nature must be limited. If we were to follow only this
rationality, that would indeed make our exploitative interaction
with nature more rational, but it would remain an exploitative
way of interacting with nature.” (Eder, 1996, p. vii)
18)
Nomos is understood as a normative social system of the
western cultures, whereby the rules of behaviour are characterised
by the attribute of lawhood. In the western cultures nomos
is a synonym for legal rules governing behaviour. Their
content depends on the context defined by the legal and
political philosophy and/or the spiritual framework of a
certain culture as the “ideological” superstructure
of nomos.
19)
The term “environmental law” connotes a set
of legal norms governing man's communication with other
cosmic phenomena (nature) – thus determining the rules
of behaviour towards other biotic communities which, together
with the norms regulating human private interaction and
norms regulating social interaction, i.e., norms regulating
man's social and political character, represent the “human”
nomos, the “human formula.” (Kaufmann, 1994).
20)
The issue of relationship between man and other natural
entities received minimal attention within the established
modern western philosophy. Within the framework of this
essay it is not possible to examine in more detail certain
exceptions. Of the modern philosophers “stricto sensu”
we should only mention Heidegger (his philosophical ecocentrism
is explored in more detail by Michael E. Zimmerman in Contesting
Earth’s Future, pp. 91-150; of considerable interest
is also Levi-Strauss’s ecocentric “practical
philosophy” (See L.Strauss, The View from Afar). Nietzsche
in Bergson also indirectly opposed the rationalist anthropocentrism
(See M.E. Zimmerman, op.cit., pp. 57-91).
21)
The established term is “Environmental Philosophy.”
22)
The “secular” awareness and not the philosophical
awareness “stricto sensu” is meant here, created
at the time of “destruction of Nature” and encouraged
by the scientific findings and traditions of other cultures.
23)
For more detail see Andrew Belsey, Chaos and Order, Environment
and Anarchy, in Philosophy and the Natural Environment,
(ed. Robin Attfield and Andrew Belsey), pp. 157-167.
24)
When he argued that it is not possible to cognise objectivity
only through the faculty of mind (on the basis of reason
and senses). Reason does not cognise things “per se”,
as they are “in reality”, but only as they “appear”
through the medium of senses (experience). As reason is
not able to see, only sensual and experiential objects are
given, i.e., “phainomena” of objects (objectivities).
Reason may not penetrate “noumena”, “things
in themselves”, i.e., the objectivity itself. It is
not capable of “penetration” (in the sense of
spiritual-intellectual gaze), but is merely the faculty
of thinking the object of the sensuous gaze. It is only
capable of synthesising the varied, contained in the sensuous
gaze, into a notion. Reason thus processes and shapes only
that which is transmitted by senses, i.e., phenomena. The
cognisant use of rational notions does not refer to the
reality per se, but to its phenomena: the objects of possible
experience. There can be no a priori knowledge except of
objects of possible experience. (Kaufmann, op.cit., pp.
85-86). For more information see Palmer, Looking at Philosophy,
pp. 35-36.
25)
If we accept Kaufmann’s interpretation of the connection
between the dominant orientation of philosophy with the
actual (ecological) circumstances of individual periods
(Kaufmann, 1994, pp. 27-32), Kant was primarily concerned
with epistemological issues i.e. the issues of cognition
of reality, because he lived in a period of transition.
The fundamental philosophical issue at a “time of
doubt and mistrust” (ibidem, p. 28) is the following:
How to arrive at the knowledge of the “external world”
from my awareness? This means: How can I know anything?
What is at stake here is not a thing, object, entity, but
an awareness, a method. What can easily happen is what Goethe
reproached Kant’s philosophy at one point, namely,
that it no longer arrives at the object (ibidem, p. 29).
26)
This is the incorporation of the systemic ecocentrism in
the western cultures.
27)
The “ecologisation” of nomos implies the incorporation
of new ontology and ethics into a legal value system.
28)
The “destruction of Nature” as a result of intense
development of “industrie.” For “state
of Nature” at the turn of the 20th century see John
McCormick, The Global Environmental Movement, pp. 1-20 and
Ponting, op.cit., pp. 346-393.
29)
This is so-called “shallow ecology.” “Shallow
ecology is anthropocentric, or human-centred. It views humans
as above or outside of nature, as the source of all value,
and ascribes only instrumental, or “use” value
to nature.” (F. Capra, The Web of Life, p. 7)
30)
Whilst the approach of “cleaning up the environment”
can not be incorporated in a philosophical context, the
approach of “rational” exploitation of natural
resources is connected with the “conservation philosophy,”
which is usually linked in literature to the name of Gifford
Pinchot, a well-known forestry expert from the USA from
the beginning of the 20th century.
31)
“Environmental protection” is an approach dealing
mostly with the issues of pollution, which it approaches
from the point of view of anthropocentric construction of
nature. It sees man as the master of nature and the issue
of “destruction of nature” as merely the issue
of the pollution of his environment. Such approach does
not perceive the issue of the “destruction of Nature”
as a deeper problem of man’s un-limited interaction
with all forms of Nature and not only man’s environment.
32)
This is so-called. “preservation philosophy,”
personified at the level of “practical philosophy”
by John Muir and Aldo Leopold and at the level of philosophy
“stricto sensu” by Henry David Thoreau and Ralph
Waldo Emerson. (See also McCormick, op.cit., pp. 1-26 and
A. Dan Tarlock, Environmental Law, But Not Environmental
Protection, in Natural Resources Policy and Law (ed. L.J.MacDonnell&S.Bates),
pp. 162-182).
33)
“A thing is right when it tends to preserve the integrity,
stability, and beauty of the biotic community. It is wrong
when it tends otherwise.” (Aldo Leopold, A Sand County
Almanac, in Law and the Environment (ed. R.V. Percival&D.C.
Alevizatos), p. 4. Regarding the issue of ecocentric ethics,
i.e., ethics which emanates from man’s co-dependence
and connectedness with other biotic communities (i.e., ecocentric
ontology) and commands a respectful interaction with Nature,
the question of motive of the ecocentric ethics arises.
Why should I show respect for other biotic communities?
The motive may be heteronomous and I show respect because
I realise that I endanger myself if I continue the exploitative
interaction. In this case, Nature only has instrumental
value. Nevertheless, this approach represents significant
progress in comparison with the anthropocentric ecological
ethics. Whilst only imposing the protection of man’s
environment, the ecocentric ecological ethics with its heteronomous
motive refers to the maintenance of the equilibrium of biotic
communities, or Nature as a whole, that I show respect because
other parts of Nature have intrinsic value – they
are a value in themselves apart from the importance they
carry for man. This issue will be examined in more detail
in Chapter 2, Part 3 of this essay.
34)
At the level of legal construction of nature this approach
influenced the formation of the legal category of “nature
values” – national parks, first in the USA at
the turn of the 20th century.
35)
This opposes the above mentioned “shallow ecology”
based in anthropocentrism. The approach was introduced by
Arne Naess, a Norwegian philosopher. See A. Naess, The Deep
Ecological Movement: Some Philosophical Aspects, in Law
and the Environment (ed. Percival&Alevizatos), pp..
91-96; M.Zimmerman, op.cit. and A. Naess, Sustainable Development
and the Deep Ecology Movement, in The Politics of Sustainable
Development (ed. Susan Baker et alt.), pp. 61-71.
36)
“Human species, along with all other species, are
integral elements in a system of interdependence such that
the survival of each living thing, as well as its chances
of faring well or poorly, is determined not only by the
physical conditions of its environment but also by its relations
to other living things. (...) Humans are not inherently
superior to other living things, they are members of the
Earth’s Community of Life in the same sense and on
the same terms in which other living things are members
of that Community.” (Paul W. Taylor, Respect for Nature:
A Theory of Environmental Ethics, in The Foundations of
Environmental Policy and Law, pp. 29-30)
37)
“Human use of the environment should not be destructive
but should enhance the diversity, integrity, stability,
and beauty of the biotic community. Individual plants and
animals used by humans should be thoughtfully selected,
skilfully and humanely dispatched and carefully used so
as to neither waste or degrade them.” (Wendy Donner,
Inherent Value and Moral Standing in Environmental Change,
in Earthly Goods (ed. Osler Hampson&Judith Reppy), pp.
61-62.)
38)
Unlike certain extreme approaches, “inspired”
by Leopold’s ethics and the “state of Nature”
at the beginning of the 20th century, advocating the approach
“let nature be nature” or striving for extreme
limitations of human interaction with Nature. (For more
detail, see A.D. Tarlock, op.cit., pp. 179-181).
30)
Natural equilibrium is defined as the limit of human interaction
with other natural entities, whereby the natural equilibrium
defines the equilibrium of life of all biotic communities.
Such is the prevailing approach. There are, however, more
radical approaches where the ecocentric ethics claims respect
for individual members of other biotic communities and also
– the respect for “non-life”, i.e., non-living
parts of Nature. (For more detail, see Richard L. Revesz,
Foundations of Environmental Law and Policy, pp. 39-44).
40)
“Richness and diversity of kinds of living beings
have intrinsic or inherent value. Humans have no right to
reduce this richness and diversity except to satisfy vital
human needs.” (A. Naess, Sustainable Development and
Deep Ecology, p. 65)
41)
Also cf. Hazel Henderson, Ethical Implications of Agenda
21, in Ethics&Agenda 21, p. 28.
42)
Or the “ecosophy” (philosophy of ecological
harmony). See also Slovene philosophy Tine Hribar, Ekologija
in ekozofija (Ecology and ecosophy), Glasnik slovenske Matice,
No. 1-2/1991, pp. 11-16.
43)
See an extensive discussion on the relationship of modern
“post-modern” philosophy (in particular Derrida
and Foucault) towards the philosophy of “deep ecology”
in R.E.Zimmerman, op.cit., pp. 91-150.
44)
See R. Attfield & A. Belsey, Philosophy and the Natural
Environment.
45)
Capra, The Web of Life, p. 6.
46)
Declaration of the UN Conference on Environment and Development
1992.
47)
Such an approach is crucial. Dick Richardson in his in-depth
study of the concept of “sustainable development”
calls attention to some of his anthropocentric predecessors
(Brundtland Commission Report, Our Common Future). “Our
Common Future not only emphasised that economic growth was
still an objective of human society, but also advocated
a five or even tenfold increase in world manufacturing output.
It accepted the Western development paradigm and profligate
Western lifestyle as a model for the industrialising world.
Ecological sustainability was not seen as primary in the
policy-making process, but rather as only one of a number
factors.” (Dick Richardson, The Politics of Sustainable
Development, p. 52) That is why the necessity of incorporation
of the concept of “sustainable development”
in ecocentric framework should be emphasised.
48)
This was proposed by the Club of Rome (Meadows, Limits to
Growth).
49)
The implementation of the principle of sustainable development
is therefore connected with the definition of the “natural
equilibrium.” In Slovenian law, the natural equilibrium
is defined in Article 3 of the Nature Protection Act (Ur.
l. RS 56/99 and 31/00) as a state of mutually balanced relations
and influences of living beings among themselves and their
habitats. Under the law the natural equilibrium is upset
if human activity destroys a biocenosis in terms of quantity
or quality; if it encroaches on or destroys the habitats
of plant or animal species or affects the proper functioning
of ecosystems; if it interrupts the mutual connection between
individual ecosystems or causes a significant isolation
of certain populations.
50)
Cf. Richardson, The Politics of Sustainable Development,
in The Politics of Sustainable Development (Baker et al),
p. 56.
51)
Eder ascertains that the pervasiveness of anthropocentrism
in the western cultures practically “pushes”
us into the exploitation of nature. (Eder, 1996, p. vii).
52)
One of the quintessential values of the western cultures
is the material progress and/or the satisfaction of material
needs. This value is directly connected with the exploitative
and/or anthropocentric attitude of man towards other natural
entities.
53)
Kaufmann, 1994, p. 134.
54)
Expression used by Gottlieb (“Ecological Community”).
55)
“Until recent decades, most western thinkers and traditions
have been silent about the evolving rape of nature and its
consequences for humanity. (...) An occasional Romantic
poet, a tradition of conservationism very much outside of
mainstream social and ethical theory, early (largely ignored)
glimmerings in Heidegger and the Frankfurt School (...)
- these exceptions prove a rule of profound intellectual
blindness. Theorists for the most part took it for granted
that how humanity treated the nonhuman world was not a serious
problem.” (Gottlieb, The Ecological Community, p.
x)
56)
This is a global ecocentric political construction of nature,
“materialised” in the Rio Declaration.
57)
“Environmental Law is entering a critical phase because
environmentalism is at a turning point. The real debate
about how environmental considerations should be integrated
into the economic and social order is just beginning. The
next debate will be centred around the forthcoming re-evaluation
of the core legislation of the environmental decade.”
(D. Tarlock, Environmental Law, But Not Environmental Protection
v Natural Resources Policy and Law (ed. L.J. MacDonnell&S.F.
Bates), p.
58)
In the original: metron anthropos.
59)
Cf. D.R. Kelley, The Human Measure, pp. 31-33 and Sinha,
Jursiprudence, pp. 18-22.
60)
The idea of law and/or the concept of law is connected with
justice. In our examination of the issue of the rules of
human behaviour in relation to other natural entities, we
are interested in the substantial aspects of the legal philosophy,
i.e., the substantive issues of the correct, just law.
61)
We are not dealing with the anarchist political philosophy.
Concerning law and state in the anarchist political philosophy
see the excellent study by authors T. Holterman and H. van
Maarseven, Law and Anarchism.
62)
This is Dostoyevsky’s syntagm who once said: “
The ant knows the formula of its abode, the bee knows the
formula of its beehive – they know it not in a human
way, but in their own way – but that is all they need.
Only man does not know his formula.” (according to
Kaufmann, op.cit., p. 134).
63)
For the purpose of transparency, for that part of the human
formula which specifies the rules of behaviour with regard
to other biotic communities, the term “nomos interspecies”
or “law of Nature” will be used and for other
parts of the human formula (the rules regulating man’s
private interaction and the rules regulating man’s
social interaction, i.e., man’s social and/or political
thought, the term “internal law” will be used.
64)
For understanding law as the “correct path”
see G.P. Fletcher, Basic Concepts of Legal Thought, pp.
38-39. For general issues of legal ontology cf. R.A. Posner,
The Problems of Jurisprudence, pp. 161-247.
65)
Here we should call your attention to the fact that the
established western legal and political (liberalist) philosophies
emanate from Hobbes’ syntagm “homo homini lupus”
and the ensuing “bellum omnium contra omnes”
(hence from the assumption that man is an aggressive and
selfish being) as a starting point and/or “natural
state” into which subsequently enter the law and state,
at the transition from a natural (pre-legal, pre-civilisation)
state into a social state. This is a vulgarised interpretation
of Darwin’s theory, so-called social Darwinism (socio-biology),
which perceives the basic “law of nature” as
the food chain in which “big fish eat small fish”
and applies this to the understanding of relationships among
people. According to this view, conflicts among individuals
and groups are resolved by competition of the parties in
conflict. Such method of resolving conflicts is natural
(biological), whilst resolving conflicts (contentiousness
and conflictness are, as has been said before, the basic
property of human community in a “natural state”)
through the interference of state and law is an artificial
method of conflict resolution. Regardless of the already
mentioned fallacy of Hobbes’ assumption of the “natural
state” of man, i.e., regardless of the fact that in
the past there existed cultures with a different value orientation
(the Iroquois, the Huron, etc.- see also Weatherford, op.cit.
and Margaret Mead, Growing up on Samoa; cf. also P. Wenz,
Environmentalism and Human Oppression, in Ecological Community,
pp. 3-21 and Zimmerman, Contesting Earth’s Future,
pp. 165-170), the fact that the contentiousness and conflictness
seems to be, in accordance with the mentioned empirical
findings in the recent decades, a prevailing characteristic
of the western culture. It is contentious, however, whether
it is possible to expand such a finding (eurocentric) to
encompass man as a species. It is contentious, therefore,
whether aggressivity in relations among people in the western
cultures, evident practically at every step of the way (at
the empirical level as well as the level of imagination
- media), allows the conclusion of man’s “wolf-like”
nature (biological-instinctive orientation).
66)
In this sense we issue from the liberalist (social/political
and philosophical) context of contractuality simply because
of its (liberalist) all-encompassing empiricism in the contemporary
western cultures. According to de-Shalit (Avner de-Shalit,
Is Liberalism Environmental-Friendly? in The Ecological
Community, p. 83), when discussing the transformation of
nomos, it is necessary to take into account (the philosophical
orientation) of the actual prevailing political context,
i.e., liberalism.
67)
Cf. D. Gauthier, The Social Contract as Ideology, in Contemporary
Political Philosophy (ed. R.E. Goodin), pp. 27-44 and Q.
Skinner, The State, ibidem, pp. 3-26..
68)
Kaufmann, op.cit., p. 50.
69)
The only substantial philosophy of law.
70)
Kaufmann, op.cit., p. 50.
71)
This is a scientific, and thus intellectual (rational) cognisance
of the “cosmic law”. Kant rejected the possibility
of rational cognisance of the objective world, but not entirely.
He attributes to reason the potential for a priori knowledge
of the objective world (not through sensuousness) within
the mathematically supported natural science. Kant therefore
admits the possibility of a rational cognisance of just
law, if such cognisance is achieved with the aid of science.
(Cf. Kaufmann, op.cit., pp. 83-86). Thus also Richard O.
Brooks, Can and Should Law Mandate Environmentally Sensitive
Life Styles, 1986 The American Journal of Jursiprudence
21 (1986), p. 36.
72)
Cf. H.L.A. Hart, the Concept of Law, p. 178.
73)
Natural law has always been understood as the criterion
of the positive law, as a criterion of its legitimacy. According
to the classical approach, the natural law provides the
basis for the positive law.
74)
Culture as the domain of order as an antipode to nature
as the domain of disorder, chaos, stems from the already
mentioned image of nature as a chaotic world which man must
leave behind.
75)
In his discussion of the connection of natural law with
the image of nature, Posner establishes the fatal consequences
of the changes of the image of nature. “It was one
thing to speak of natural law when nature was conceived
to be the expression of divine love or order, and quite
another to find universal legal norms in Darwinian nature,
red in tooth and claw. The natural law project has never
recovered from what Nietzsche called the death of God (at
the hands of Darwin).” (Posner, op.cit., p. 14)
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76)
Although, according to Kaufmann, there was, in the field
of philosophical epistemology, no way back after Kant’s
philosophy (epistemology), it should be emphasised that
Kant was aware, even though his ontology/cosmology remains
within the anthropocentric “mainstream” western
philosophy (man is the master of nature), of the harmoniousness
of the “starry sky above;” he saw it, however,
(within the spiritual framework of his period - the liberation
of man) merely as a universe of religious-artistic intuition
and not as a guide for human action in relation to other
natural entities. See also Solomon&Higgins, op.cit.,
pp. 213-214.
77)
Kaufmann, op.cit., p. 32.
78)
“Instead of the ontology of substance, ontology of
relations should be developed.” (ibidem, p. 32)
79)
For more detail on the connection of human relations with
Nature inside human community see Wenz’s study, Environmentalism
and Human Oppression, in The Ecological Community (ed. R.
Gottlieb), pp. 2-21. On the basis of anthropological sources,
Wenz demonstrates the direct link of the “conquest”
of nature, i.e., the anthropocentric social construction
of nature with the wish to control, dominate, or, in the
words of Derrida “control-impulse.” “Human
oppression results largely from technologies and institutions
developed under the guidance of mainstream anthropocentric
views. (...) Devaluation of nature is related not only to
the development of more advanced agriculture, increasingly
complex social divisions of labour and relations of exploitation,
but also to the desire for control.” (ibidem, p. 4)
80)
Hobbes’s legal and political philosophy is one of
the cornerstones of the western culture. For an analysis
of the western cultures from the point of view of a “mechanical”
model of social community see Merchant, op.cit., pp. 206-215.
81)
The connection of man with other parts of Nature and man’s
relationship with fellow human beings was already the subject
of study by Montaigne in the western philosophy. Montaigne
posits that a brutal attitude towards animals leads to the
brutal attitude to people. (For more detail see Kirn, Ekolo_ka
(okoljska) etika (Ecological (Environmental) Ethics pp.10-11).
82)
Within the framework of this essay it is not possible to
give more attention to this issue. For more information
on the direct relationship of individual cultures of the
North American Indians with nature and human relationships
(also between men and women) see Llewellyn, The Cheyenne
Way; Weatherford, Indian Givers; Forbes, Columbus and the
other Cannibals and Wesel, Matriarchy Myth.
The
underlying ecocentric value of human nomos is best illustrated
by the wisdom of the chief of the Indian tribe Nez Perce:
“Treat all men alike. Give them all the same law.
Give them all an even chance to live and grow. All men were
made by the same Great Spirit Chief. They are all brothers.
The earth is the mother of all people, and all people shall
have equal rights upon it.” (Chief Joseph, Nez Perce,
1879, according to Hill, Jr. (Oneida), op.cit., p. 48).
83)
Kaufmann, op.cit., p. 134.
84)
ibidem, p. 134.
85)
Interactiveness in the sense specified above as a characteristic
of human “internal law” has been established
by Unger with regard to ancient China. “All in all,
the feudal world of ancient China provides us with wonderful
example of society almost wholly dependent on interactional
law and not yet acquainted with other sorts of law.”
(R.M. Unger, Law in Modern Society, p. 96)
86)
This approach has been criticised by certain ecocentric
philosophers as “speciesism.” (for more detail
see Revesz, op.cit. p. 43). Such criticism is accepted at
the philosophical level; however, in the process (collective
action) of “resurrection of Nature” it should
be emphasised that human community has only just entered
the transition phase from anthropocentrism to ecocentrism.
In view of that, the philosophical approach of “deep
ecology” (the respect for life of individual natural
entities) or the approach of prof. Stone (the respect for
life and thus also of non-living nature) may represent a
very remote goal indeed.
87)
The motive for ecocentric ecological ethics may be heteronomous
when we show respect and care in our interaction with other
natural entities because we are aware of the negative consequences
caused by the aggressive exploitativeness of the human community
(in the words of Chief Seattle: “Man did not weave
the web of life, he is merely a strand in it. Whatever he
does to the web, he does to himself.”) or autonomous
when we show respect and care because of the natural entities
themselves.
88)
This approach has been criticised by certain ecocentric
philosophers as “speciesism.” (for more detail
see Revesz, op.cit. p. 43). Such criticism is accepted at
the philosophical level; however, in the process (collective
action) of “resurrection of Nature” it should
be emphasised that human community has only just entered
the transition stage from anthropocentrism to ecocentrism.
In view of that, the philosophical approach of “deep
ecology” ( the respect for life of individual natural
entities) or the approach of prof. Stone (the respect for
life and thus also of non-living nature) may represent a
very remote goal indeed.
89)
45 Southern California Law Review, 450 (1972).
90)
C. Levi-Strauss, The View from Afar, pp. 340-346.
91)
Levi-Strauss, ibid, p. 342.
92)
Cf. Ortolano, op.cit., pp. 37-39.
93)
We should emphasise that to recognise rights to other biotic
communities would certainly not mean that their rights would
be equal to the rights of the people and it would also not
mean that all biotic communities would have equal rights.
The criterion for the scope and the type of rights is natural
equilibrium. It is not possible to examine this issue in
greater detail within the framework of this essay. See also
C. Stone, The Environment in Moral Thought; S. Toulmin,
The Case for Cosmic Prudence; D. Tarlock, Earth and Other
Ethics: The Institutional Issues, in 56 Tennessee Law Review,
vii-234 (1988).
94)
Ortolano, op.cit, p. 38. We should emphasise that to recognise
rights to other biotic communities would certainly not mean
that their rights would be equal to the rights of the people
and it would also not mean that all biotic communities would
have equal rights. The criterion for the scope and the type
of rights is natural equilibrium. It is not possible to
examine this issue in greater detail within the framework
of this essay. See also C. Stone, The Environment in Moral
Thought; S. Toulmin, The Case for Cosmic Prudence; D. Tarlock,
Earth and Other Ethics: The Institutional Issues, in 56
Tennessee Law Review, vii-234 (1988).
95)
This, of course, is not an absolute. The duty to preserve
the natural equilibrium (respect for the right of other
biotic communities to existence) is limited with so-called
basic (vital) needs of man (See also op. No. 450).
96)
Such ethical approach could be expressed also with the paraphrase
of the well-known Leopold’s maxim: “A thing
is right when it tends to preserve the dynamic (added by
P.S.) integrity, stability, and beauty of the biotic community.
It is wrong when it tends otherwise.” (A. Leopold,
A Sand County Almanac, according to Revesz, op.cit., p.
41)
97)
Tarlock, The Nonequilibrium Paradigm in Ecology, in Law
and the Environment, pp. 25-31.
98)
“The major institutional change necessitated by the
nonequilibrium paradigm is the need to apply adaptive management
to biodiversity protection. (...) We favor management consistent
with the core idea of the rule of law - consistent application
of fixed rules to yield a single, final decision. Our environmental
laws accept a scientific premise and then requires its continued
application regardless of subsequent research findings and
thinking. (...) Adaptive management, in contrast, is premised
on the assumption that management strategies should change
in response to new scientific information.” (ibidem,
p. 31)
99)
The un-limitedness of the (economic) interaction with Nature
is linked with the conviction of the western cultures that
the (material) development also is un-limited. This conviction,
however, rests (implicitly) on the belief in the progressiveness
of human (planetary) history, i.e. constant progress –
the transition from worse to better. Cf. also Mitcham, The
Sustainability Question, in The Ecological Community (ed.
Gottlieb), p. 362.
100)
Cf. Christopher Stone, The Gnat Is Older Than Man: Global
Environment and the Human Agenda, in: Law and the Environment
(ed. Percival&Alevizatos), p. 420.
101)
To assume that the conflictness of the maintenance of natural
equilibrium and material progress is insurmountable is a
fallacy. In the conflict involving the maintenance of the
natural equilibrium, the un-limitedness of the material
progress exists insofar as it is linked with the un-limited
burdening of Nature, and thus the exploitation of Nature.
The principle of sustainable development rejects the concept
of zero growth (Club of Rome) and/or “zero sum mentality.”
Without having to discuss man’s inherent developmentality
(For more information see Pli_ani_, 1998) we can establish
that it is not problematic per se, but that the un-limitedness
of the (material) development is problematic. The basic
premise should therefore be the orientation towards the
material progress with its enframing as the key. The key
issue is how to achieve the enframing. In our view, for
the existing state (destruction of Nature) and for the “dynamism
of nature,” state interference in the private sphere
(in particular the economy) is crucial. It is premised on
the assumption of the impotence of the western economy (market),
and thus its incapacity to itself provide the necessary
enframing. The reason for this should be sought in its inherent
orientation towards the maximisation of material progress.
102)
In his classical study, Sagoff sees the difference between
the common, public interest (common value) and the private
interests (values) of individuals with regard to relation
to Nature as the difference between the interests of man
as a consumer and the interests of man as a citizen. “(Sagoff,
The Economy of the Earth, in Foundations of Environmental
Law and Policy, ed. Revesz, p. 18)
103)
ibidem, p. 22.
104)
Cf. Levi-Strauss, 1985, p. 391.
105)
Cf. Sax, 1990.
106)
This is based on the “ guardianship concept”
developed by Christopher Stone in his article Should Trees
Have Standing? - Toward Legal Rights for Natural Objects,
45 Southern California Law Review, 450 (1972).
107)
The guardianship concerns the interests of animal and plant
species (and not individual natural entities).
108)
The Supreme Court of the United States, 1972 405 U.S. 727,
according to Schoenbaum& Rosenberg, 1991, pp. 23-25.
109)
The courts increasingly allowed the filing of complaints
with regard to the protection of the interests of other
biotic communities. See also Ortolano, 1997, pp. 43-44.
110)
See also Schoenbaum&Rosenberg, op.cit., pp. 28-33; Parcival
et al., op.cit., p. 285; Ortolano, op.cit., pp. 43-44 and
Kiss&Shelton, 1995, p. 480. In the Slovene law, the
provision with regard to such complaints is contained in
Article 15 of the Environmental Protection Act (Ur. l. RS
32/93).
111)
The definition of natural equilibrium as a basic common
legal value opens up the issue of the role of science as
a source of the knowledge of the limits of the natural equilibrium
(For more detail see Mark Sagoff, Ethics, Ecology, and the
Environment: Integrating Science and Law, 56 Tennessee Law
Review 1, 77 (1988)). The issue of reliability of scientific
knowledge and the possible “technocratic approach”
of the western cultures is thereby raised (See A. Dan Tarlock,
The Nonequilibrium Paradigm in Ecology and the Partial Unravelling
of Environmental Law, in Law and the Environment, pp. 29-31).
112)
The “economic” interaction implies human activity
in Nature for the purpose of production of material goods
(for personal needs or for the purpose of marketing).
113)
VGH Mannheim, NVwZ 1988, 168.
114)
This concerns the restriction of the freedom of ownership
(ecological function of property) and also direct divestment
– expropriation of private property. The incorporation
of the natural equilibrium as a basic common legal value
in the legal value system (the Constitution), and therefore
the definition of the maintenance of the natural equilibrium
as the fundamental public interest, is, in our opinion,
a circumstance which the citizens (owners) are expected
to count on. This means that the weight of public interest
is a priori very high, which has to be taken into consideration
by the Constitutional Court when weighing both values, i.e.,
private property and natural equilibrium (principle of proportionality).
115)
See Richardson, op.cit., pp. 50-51; Taylor, Respect for
Nature: A Theory of Environmental Ethics, in Foundations
of Environmental Law and Policy (ed.Revesz), pp. 29-44 and
Stone, 1988, pp. 1-13.
116)
This is the so-called “principle of minimum wrong.”
(Taylor, op.cit., p. 36).
117)
Cf. Buckingham-Hatfield, Environmental Planning and Sustainability,
p. 4f.
118)
In our opinion, the already adopted international acts which
provide the grounds for the principle of sustainable development
(Rio Declaration and several conventions) necessitate the
amendment and/or change of constitutional acts of individual
countries. Of key importance is the incorporation of the
ecocentric legal philosophy (and hence the incorporation
of the natural equilibrium in a system of legal values as
a priority) as well as the incorporation of the ecocentric
political philosophy (and thus the definition of the state
as a guardian of its natural equilibrium). Certainly the
inclusion of the above-mentioned international legal acts
in the legal order of the individual country, even without
a corresponding amendment of the constitutional act itself,
requires that the existing constitutional provisions be
interpreted in accordance with the principle of sustainable
development.
119)
The new Slovenian Constitution was adopted in 1991
120)
Those categories of the constitutional law which in our
opinion are vitally important for the interpretation of
the Constitution with regard to the principle of sustainable
development have in particular been set out. Certain other
provisions of the Constitution are also important (for example,
the provision of the third paragraph of Article 72, determining
so-called environmental damage liability, and the provision
of the fourth paragraph of Article 72 specifying the protection
of animals from cruelty and the provision of the first paragraph
of Article 70, in which the national assets are referred
to.
121)
Kloepfer, 1996, in Bonner Kommentar zum Grundgesetz, 77.Lfg,
pp. 29 and 30.
122)
The anthropocentric ethics issues from the anthropocentric
ontology which is based on the conviction of man’s
superiority in relation to nature. Furthermore, man as the
master of nature is entitled to its unlimited use, regardless
of the consequences of such use for the natural equilibrium.
123)
This is an instrumental or utilitarian understanding of
other natural entities. These are values only inasmuch as
they are the condition and the means for the satisfaction
of man’s material, aesthetic and other needs.
124)
In this case, the other natural entities have a recognised
intrinsic value. This means that the natural equilibrium
must be preserved not only because of its importance (value)
for man, but also because of its importance for other natural
entities. Kirn cites (Kirn, 1992, pp. 18-21) an adaptation
of Kant’s categorical imperative: Never treat a natural
entity as a means to achieve one’s own goals. Treat
it with respect so that your conduct may become a general
law ensuring a permanent existence of the human species
and life in general.
125)
This conclusion was also reached by Kloepfer (op.cit, p.30),
who rejected the “instrumental” evaluation of
other parts of Nature and strove for a wholesome change
of man’s attitude towards them.
126)
In the first paragraph of Article 67, the Constitution specifies
the following: “The manner in which property is acquired
and enjoyed shall be regulated by statute so as to ensure
the economic, social and environmental benefit of such property.”
127)
The German basic law (Grundgesetz) specifies in the second
paragraph of Article 14: “Eigentum verpflichtet. Sein
Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.”
128)
For example, the proposal of the Water Act (Poro_evalec,
14.3.2000) specifies in Article 39 that the owner or any
other proprietor of the water or coastal land must ensure
to the provider of the public service for the purpose of
the performance of the public service of water protection,
the performance of works relating to the public service
and allow unhindered access to the land, if such access
is not possible through public or private roads or paths.
Article 27 of the Environmental Protection Act contains
a similar provision laying down that the providers of different
economic activities must kept the emissions of various pollutants
within the limits defined by a governmental decree.
129)
An example of such a situation is the provision of Article
114 of the above of the aquatic or coastal land must repair
the embankments and the bottom of watercourses, purify and
tend to the banks and the coast, remove the debris and remove
from the watercourse the waste and other abandoned or deposited
objects.
130)
This is above all the “principle of proportionality.”
The Slovene constitutional practice involving the interference
in a constitutional right is, in general, also based on
the principle of proportionality. Interference with a constitutional
right is subject to strict constitutional review on the
basis of so-called “test of proportionality.”
According to the latter, an interference is allowed only
if it is necessary (inevitable) for the protection of other
human rights. The interference must also not be excessive,
which means that only the mildest of all interferences is
allowed to ensure the desired goal allowed by the Constitution
– the protection of equally important rights of others.
131)
Constitutional Court Decision US U-I-243/96.
132)
For example, the Convention on Biodiversity (Ur. l. RS 7/96
and 30/96) and the Convention on the Conservation of Migratory
Species of Wild Animals (Ur. l. RS 88/98). Also relevant
are EU regulations.
133)
Constitutional Court Decision US U-I-263/95.
134)
Steiger, 1982, Verfassungsrechtliche Grundlagen in: Grundzuege
des Umweltrechts
135)
German Constitution, for example, does not contain such
provision.
136)
In the Constitutional Court Decision Up 41/94 the right
to free enterprise, specified in Part 3 of the Constitution,
was deemed to be the subject of constitutional-court protection
within the procedure of the constitutional complaint. In
the same part of the Constitution, the right to a healthy
environment is also specified.
137)
For example, the right of the citizen to participate
in public affairs. According to Article 44 of the Constitution,
Slovene citizens have the right to participate in public
affairs in accordance with the statute.
138)
Decision U-I-263/95.
139)
Ur. l. SFRJ 6/80 ff.
140)
Ur. l. SFRJ 29/78 ff.
141)
Ur. l. RS 56/99 and 31/00
141)
"Each person shall be obliged, in accordance
with statute to protect rare and precious natural areas,
as well as structures and objects forming part of the national
and cultural heritage.”
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Dr.
Senko Plicanic,
Assistant Professor, Faculty of Law
University of Ljubljana
Poljanski nasip 2
1000 LJUBLJANA
SLOVENIA/EUROPE |
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