The Rights Of Nature

Environmental Ethics is a trend of ethics which rises with the Environmentalist Movement of 1960s. This trend makes retrospect on the global ecological crisis caused by the industrialization progress, hence demanding a new review on the relationship between man and Nature in order to find a new value; it breaks through the man-centered utilitarianism, and demands concerning of the common interests of man and Nature.Traditional ethics emphasizes man' s dependence on society, while Environmental Ethics makes a step further in revealing man' s dependence on Nature. The way that how to understand this dependence from a legal perspective, or how to include the dependence into the consideration of legal modification, can to a large extent determine the effect and tendency of Environmental Ethics. The historical track of Environmental Ethics shows that every environmental movement is a renewal of values, and their achievement can be seen from the enlargement of the commonwealth of human morality. The ethical changes provide the ethical cornerstone for legislation and penetrate into the legal system (Laws reflect values.), leading to the tendency of eco-legislation, which catering for the need of an eco-society. Therefore, it is evidently necessary to review Environmental Ethics from a legal perspective.This dissertation takes right as an entrance to legal review on the Environmental Ethics, since that " Right is the hardest currency of morality. " A subject, once endowed with certain right, is to be legally endowed with a substantial shield against harms from others; its right becomes a forbidden border to other' s action.The dissertation emphasizes on discussing the right of Nature, whichmeans the legalization of the following basic conceptions: affirming the value of Nature, respecting Nature, and advocating the harmony between man and Nature. All of these ideologies have already been influencing the changes of theories and practices of law.In Chapter One, it draws forth the regrettable absence of the right of Nature in traditional science of law by presenting the status quo of environmental problems. This is the logical starting point of this dissertation, that is to say, to put forward the question and to retrace the origin of the issue. It is a behavior of killing the goose to get golden eggs to remedy the right of man by sacrificing non-mankind environmental elements; and the ends of remedying the non-mankind environmental elements cannot be reached through unilateral protection to mankind. This chapter illustrates the point why right is used as the legal starting point of environmental ethics, pointing out that the right of Nature is in fact the focus and pivot of the whole environmental ethics.Chapter Two discusses the origin of the right of Nature form several layers of the regulation civilization, namely natural law, natural science, philosophy, religion and economics, coming to the point that the process of regulation civilization is virtually not a process of division, but rather a process of union, of man and Nature. Regulation civilization makes preliminary preparations for the entrance of the right of Nature to the stage of law.This chapter first retraces the origin of the right of Nature in the natural law, that is to say, the legal civilization of man is not the result of purely technical decomposition by mankind, but rather the result of discovering and developing, on the basis of man' s nature, the rules of Nature. As the basis of western regulation civilization, the natural law transcendentally constitutes the ideology of the right of Nature. It panoramically draws the background of the right of Nature through theprogress of natural science, the philosophical turning from teleology and mechanism to organism and holism, religious concerns to Nature, and economic analysis to Nature.Chapter Three is the focus of the thesis, and it is the main chapter where the author presents her view. In the chapter, the author expounds her views on natural rights from positive and negative aspects. First, the author lists the condemnations on the human-centralism which mainly negates natural rights in the dependence of rights, the asymmetry ofrights and liabilities, the unreality and the non---operation of naturalrights. Then, the author refutes them, arguing the right itself is an open and developing concept. The right has evolved with the people from British aristocrats, to American colonists, to slaves, to women, to American Indians, to workers, and to black people. With the extension of the right, . natural rights occur.The reasonability of natural rights lies in that natural rights are the inevitable consequence of the existence of the concept of the right. The reality of natural rights lies in that it proves that the human-centralism is unlikely to cope with the relationship between mankind and nature. With the human-centralism as the background, mankind can' t choose techniques freely. The reasonability of instrumental ism dominates the development, while its utilitarianism influences the choice and use of techniques. The consequence is that mankind is dissimilated into things and that the reasonability of techniques becomes that of government and that the more mankind controls nature, the more nature controls and revenges mankind. Techniques are unable to help mankind obtain real freedom, and as a medium between mankind and nature their one:—sidedness can only help mankind obtain partial and temporary victory. People often think they can control and transform nature much better than before, however, they don' t realize they are gradually losingthe understanding and appreciation of nature. People can constantly damage nature and make artificial nature at the time. The- absurdity is inherent in the human-centralism, and so it cannot be eradicated. Natural rights are not dependent on natural liable capability, and "No liable capability, no right" is a pseudo—statement. In reality, the subject without liable capability is always acknowledged in law. Reasoning, moral discipline and self—consciousness are not the prerequisites to obtain rights. If it is acknowledged that mankind is part of nature and mankind should live with nature in harmony, mankind has no established superiority to nature. Actually, theories of natural rights have extended in legal practice, and cases advocating natural rights are not rare in some western countries. The cases don' t cause absurdity and confusion just as some scholars in China assume in their theoretical discussion.In the chapter, the author specially allocates a whole section to raise doubts on the long—standing mistaken ideas. The author argues that the developed human-centralism is the only way to natural rights and that natural rights should not be extreme naturalism; the author is against pursuing less with more efforts regardless of social costs and scientific principles; the author is also against the ideas of no production, no birth, no cultivation, no farming, no factories, no breeding, no felling trees, no fishing, no traveling, no discarding and no construction. The contradiction of environmental behaviorism lies in that people believing in it only pursue something but they don' t take actions. The much worse is that the more meaningless an act is, the more it is advocated, and the only standard for advocating an act is whether the act is in accordance with environmental protection. Besides, the author also expresses her worry about ecological fundamentalism because ethics itself lacks the mechanism of putting mistakes right.Chapter Four sees about the filtering devices of natural rights in realistic laws and points out the necessity that the environmental law chooses the environment ethics. And the necessity can be shown at any macro and micro levels in the realistic law system. Considering the length of the thesis, the author chooses the core of law: purpose of legislation at the macro level and the civil law and criminal law in section laws, which are the most covering, influencing and convincing at the micro level. This kind of choice is based on the techniques for human laws are endless, the author only takes the three choices here as samples.The chapter demonstrates the realistic effect natural rights have on the purpose of legislation and the development in the future by comparing and analyzing the purpose of world environment law, considering our country' s current situation. It also demonstrates the concrete ideas on civil law' s green and the necessity to put natural rights into the area protected by criminal law as well by studying on the insufficiency of traditional civil law and criminal law. All this illustrates the fact that the penetration natural rights have on the realistic laws has begun, and it will continue.Chapter Five goes into a more concrete micro category to discuss the realistic way natural rights carry out judicature relief, that' s to realize the effective protection to natural rights through the most important lawsuit mechanism towards rights relief, which is a type of environmental public lawsuit actually. The thesis firstly reviews the various forms of public lawsuit in different countries in order to set up the practical basis of natural rights' judicature relief; secondly it casts back the theoretical origins of the judicature mechanism; then by excavating the general principles of trust theory and agent system and environmental public trust theory, it establishes the theoretical origin of natural rights' judicature relief. So the key of natural rights'judicature relief- prosecutor' s qualification is naturally pointed out. And the discussion of the question is mainly through the analysis of typical cases existing in various countries; demonstrated the necessity to enlarge prosecutor' s qualification into natural subject from the perspective of demonstration; and it also puts forward the consummate design based on our country' s environmental public lawsuit.Chapter Six is the extension of chapter five in fact. If natural rights' judicature relief can become possible, it is necessary to find an agent for natural rights in the judicature. It is believed that the agent has been found- Non-Governmental Organization of Environmental Protection whose development and consummation virtually is a crucial part in natural rights.In this chapter, the author analyzes the background situation of Non-Governmental Organization of Environmental Protection, lists main types of it and explores its activity scope and functional mechanism. Its importance in popularizing and enhancing environment—consciousness, participating in legislation and government decisions and attending proceedings is undoubted and its status cannot be replaced. But at present we are far from good at this point. There is still a long way for us to develop and consummate Non-Governmental Organization of Environmental Protection.There are several original points involved in this thesis:1. In treating the relationship between human-centralism and non-human-centralism, the author is against the concept of absolute opposition of them and even puts forward that developed human-centralism is the only way to natural rights and poverty is not non-human-centralism. Under the premises of non-human-centralism taking lead, the author advises that rationality of human-centralism and its complementary relationship with non~human-centralism should be fully conceived of.2. Issue of judicature relief of human rights is further explored. Lawsuit cases are classified into pure lawsuit case of natural rights and impure lawsuit case of natural rights. Our ken on lawsuit mechanism is largely expanded by means of bringing the latter into scope of lawsuit of natural rights and possible space for judicature relief of natural rights is made larger and wider.3. In terms of theoretical basis of lawsuit of natural rights, gap between the trust theory and agent institution is bridged, which finds a theoretical way out for the customary parlance of agent in the academic field.4. Concept of "Vulgar protectionism of environment" is advanced and demonstrated, its main expressing form is analyzed and listed and natural rights are set off from the inverse, which makes the discussion of natural rights in this thesis more rich.5. Various problems of natural rights in both theory and practice are combed in an all-round way through positivism. Experience from abroad is interpreted as much as possible as long as it comes upon and our own solution is brought forward combining with the current situation of our country.