The Justifcation Of The Right-Based Theory In Environmental Laws

The concept of "Law Standard" not only signifies the logical starting point and theoretical focus of the law but also represents a value judgment used to answer the fundamental question of what the ultimate concern of a legal system is and should be.Every self-contained and well-developed theoretical discipline possesses its own foundational theories that reflect its distinctive characteristics.The same applies to the field of environmental law,a subject which although relatively young,has been growing steadily.However,current environmental law research predominantly focuses on the legal norms addressing environmental issues,while philosophical inquiries into the underlying principles of environmental law,especially the research on the standard of environmental law,remain underdeveloped.In the realm of Chinese environmental law,there exist three prevailing doctrines or paradigms concerning the standard of environmental law: environmental rights-based theory,environmental obligations-based theory,and environmental public interest-based theory.Nevertheless,both the self-justification and external validation of these three doctrines remain relatively weak,indicating that environmental law still faces theoretical challenges,such as being deemed "immature" or "non-legal".In this context,Professor Zhang Wenxian and Professor Lv Zhongmei initiated the "Jurisprudence in Environmental Law" academic seminar,the thirteenth meeting of the Action Plan for Jurisprudential Research,and the second Frontiers in Environmental Law Theory Forum.During the event,experts from various disciplines,including Jurisprudence,Environmental Law,and Civil Law,engaged in extensive and profound discussions on this issue,contributing numerous valuable insights and opportunities for in-depth research into the standard of environmental law.Regarding the environmental rights-based theory,in the era of new,under the influence of the rights-based theory,the environmental rights-based theory has received a positive theoretical response.Given that "Environmental Law Standard" is a hyponym concept of the "Law Standard",many scholars have utilized the rights-based theory to justify the environmental rights-based theory.This is a logical justifcation.However,as criticized by many scholars,this argument process has a notable flaw: it fails to provide a unified and clearly defined concept of environmental rights.The existence of environmental rights presuppose a logical premise of the environmental rights-based theory.However,some scholars have raised doubts about the environmental rights-based theory and even denied the concept of environmental rights.Therefore,justifying the concept of environmental rights becomes a fundamental task in justifcation the environmental rights-based theory.Since the ecological environment benefits all members of society in a non-conflicting,non-exclusionary manner,it constitutes a typical common good.Thus,the "theory of rights based on common good" is applicable to the justifcation of environmental rights.This theory,derived from the interest theory,provides a comprehensive interpretation of "interests".According to the theory of rights based on common good,an individual’s well-being in the ecological environment is the intrinsic reason for justifying environmental rights,and the environmental public interests,as a common good,serves as an extrinsic reason,providing support for the justifcation of environmental rights.This support also strengthens the legitimacy and authority of environmental rights.In justifying the concept of environmental rights,the theory of rights based on common good also demonstrates the value priority of environmental rights over environmental obligations and its dominance within the categorical framework.According to the theory of rights based on common good,stating that someone possesses environmental rights implies that their environmental interests are a sufficient basis for imposing environmental obligations on others.Therefore,in relation to environmental interests,environmental rights are founded upon environmental interests and serve as their legal expression.However,the importance of environmental rights surpasses that of environmental interests because environmental rights can substantiate the obligations of others toward the right holder,whereas the interests of the right holder cannot achieve the same.In relation to environmental obligations,environmental rights form the foundation and provide the rationale for environmental obligations.Environmental rights are the primary factor and hold a dominant position.In the context of environmental interests and environmental obligations,environmental rights act as an intermediate conclusion in the argument from environmental interests assessment to environmental obligations,facilitating the establishment of a public culture centered around shared interests.Therefore,environmental rights represent the most comprehensive,derivative,and explanatory category within the field of environmental jurisprudence.From this perspective,it is clear that the environmental rights-based theory is not as criticized by environmental obligations-based theorists and environmental public interest-based theorists,who claim that it neglects or disregards obligations,focusing solely on individual interests and failing to protect the environmental public interest.The environmental rights-based theory effectively safeguards the interests of individuals,the public,and society as a whole,while establishing environmental obligations for their protection.Looking beyond the scope of the categorical and legal framework of environmental law,the foundational status of environmental rights also enjoys strong legal grounds.Firstly,in terms of environmental legislation,environmental rights precede environmental legislation.Environmental rights are not only the foundation of the legitimacy and effectiveness of environmental legislation but also an independent basis for evaluating environmental legislation.Secondly,in terms of environmental enforcement,environmental rights define the purpose and limits of environmental enforcement.According to the theory of environmental public trust,the power to manage public environmental resources emanates from the environmental rights of the public and should be delimited and transferred based on these rights.Thus,environmental rights precede environmental administrative power.Thirdly,in terms of environmental judiciary,environmental rights provide the basis for environmental public interest litigation and compensation lawsuits for ecological environmental harm.Environmental judiciary offers remedies for "harm to the environment itself" and effectively safeguards environmental rights.Consequently,treating environmental rights as a foundational category in environmental law is a logical imperative for achieving a well-regulated legal framework in the field of ecological environment.It is also evident from this perspective that the environmental rights-based theory is not as criticized by environmental obligations-based theorists or environmental public interest-based theorists,who question its ability to achieve the goal of environmental protection.In fact,under the rights-based paradigm,environmental legislation,environmental enforcement,and environmental judiciary all contribute to the realization of environmental rights and the protection of environmental interests.Beyond these dimensions of the traditional categorical and legal systems,environmental rights-based theory should also be highlighted for its special characteristics and ethics as a law that transcends the human and non-human domains,considering the relationship between humans and nature.According to quantum physics,Earth jurisprudence,the Gaia hypothesis,and the Harmony between humanity and nature,the Earth is an intricately organized and interconnected entity,and humans and nature form a community of life.Survival and continuation are the shared goods pursued by this community.In other words,the environmental interests underlying environmental rights are particularly significant interests shared by humans and non-human organisms.Therefore,environmental rights are not only the genuine rights of humans but should also be considered as "rights by proxy" or "common rights" for all living beings.As modern civilization develops,the legal status of non-human organisms is evolving,with some countries granting them limited legal subjectivity and specifying their rights to ensure the best possible protection.This also illustrates that the recognition and protection of rights have always been the pursuit of the law.Additionally,there is a fundamental reason supporting the environmental rights-based theory: environmental rights possess human rights attributes.Furthermore,when environmental rights rise to the level of fundamental human rights,the environmental rights-based theory transforms into the "environmental human rights-based theory".As an expression of humanism,rights-based theory implies a focus on humans,particularly their survival,happiness,and development,which aligns with the values of human rights.Therefore,when the term "rights" in "rights-based theory" is replaced with "human rights",the arguments in favor of rights-based theory become more compelling.Since environmental rights are inherent to human beings,protecting fundamental interests such as life and health,which are "the most morally significant",environmental rights constitute a normative basis on par with established human rights.Moreover,as a right that safeguards human survival and development,environmental rights have become a shared value pursuit of all humanity.Therefore,every country has an obligation to respect,protect,and promote environmental rights and should take additional measures for those individuals who are particularly vulnerable to environmental degradation.According to the universal principles of respecting and protecting human rights and the constitutional logic that mandates the state’s obligation to protect human rights,the value precedence of environmental rights within the framework of the relationship between environmental rights,environmental authority,and environmental obligations becomes more prominent.