On Environmental Law's Logical Transmutation

Environmental law is becoming a law branch which is paid more and more attention since modern environmental law came out in 1960's.The developing of environmental law and its enforcement requires people deeply thinking about the foothold of the young law branch standard issues. No matter legislation, enforcement or the communications of learning, they cannot slide over this question. The thesis has a comprehensive and systematic study connects environmental law theory and jurisprudence, using the ways of value, positive justice, critically analysis and systematization analysis to deeply study the theory of environmental law, the legislative practice and judicative case, etc. In the course of study, I am trying to search a new angle of view, that is, from the "what ought to be "to "what is" to study the standard of environmental law, in other words, from the angle of domestic environmental law to probing the "what is" standard of Chinese environmental legal system, not limited in the sight of practical law, from the law value, higher levels and wider levels to study and analyze the "what ought to be" of environmental law standard, trying to reveal the ultimate meaning of environmental law. This angle of view can help us clarify the confused ideas on this issue, expound the origins of environmental law, at the same time, it is the author's tentative study on realizing the change from explanatory environmental law theory to philosophy of environmental, building the system of environmental law theory from the view of philosophy.There are six chapters in this thesis. Its main contents is:"Introduction" expounds meaning of this issue, the present studying situation in domestic and abroad , the basic thinking and the ways of researching and innovation of this thesis.Chapter One, Outline of environmental law standard, it solves the most important issue, that is, the concept of law standard and environmental law standard, and it expounds the research opinions to the law philosophy from the view of jurisprudence and branch law .especially elaborating the environmental law researchers opinions on the study of environmental law standard . On the basis of elder generations, study onthis issue, the author is trying to show it her unique angle of view of law philosophy to analyze the environmental law standard from the point of law "what is" and "what ought to be". The complete law research should contained the study on the necessity, "what is" and "what ought to be" of law. So the analysis on the "what is" situation and "what ought to be" situation of environmental law standard is the nucleus of the thesis. The second chapter of this thesis is obligation standard: "what is" of Environmental law standard, it analyses modern Chinese Environmental legal system is obligation-riented from the view of positivism, it has a lot of characteristics, such as state obligation is primary, lack of public participation, the way of strengthening administrative measures, unidirectional linear and static. It behaves more obvious in environmental legislation, environmental enforcement, justice and law-abiding. Why do people have this kind of standard view? I want to investigate the time of constituting the environmental law in our country and the background of law civilization, using the way of critically analyze to reflect modern Chinese environmental legal system, then find out even though obligation-based has its advantages, but there are still some problems such as it can't adopt to good law administration, or mobilize the activities of agent, or satisfy the relief of damaged environmental rights and interests.Chapter Three " Right Standard: 'What ought to be' of environmental law " judges the environmental law standard. This chapter is the most important one in this thesis. Environmental law is a kind of law field which between absolutely "public law" and "private law". It not only requires people to protect the individual right and prevent the state excess intervening the private field; but also requires individual rights obey "public rights", it properly advocates using public power blindly control private rights. As Bodenheimer said, "A developed legal system usually tries to stop the assignment rights among people to achieve the scatter and balance of the power, when it is built up, law will try to protect it to avoid heavily interruption and destruction". The establishment of right standard can protect the private rights, social rights and civil right of public. Meanwhile wide public participation can also prevent the phenomena of "government failure", "seeking lease" and "market failure". The theory basis of environmental law right standard one: the unity of individual freedomand social relationship in Marxism law thought, the social developing idea change into scientific market economy and its morel idea and Coase Theorem requires the division of obligations and scheme; the politics basis; the sociology basis of public participates environmental protection. Meanwhile, environmental law regard obligation as its standard also is the practical request of modern Chinese environmental legal system construction.The study of branch law requires branch law theory can build up a systematical theory logic system. So, Chapter Four "From 'what is' to 'what ought to be': Perfect Chinese environmental legal system at the standard of right" and Chapter Five "Build up an right mode study system of environmental law theory" are the issues which is deeply studied, they are also the key and difficulties of the thesis.To perfect Chinese environmental legal system on the standard of right should firstly regard "human standard" as its basic idea. "Human first" is the main idea of Chinese traditional politics philosophy development, it is the soul of obligation standard mode. "Human standard" concerns the relationship between spirit and substances, human and nature, human and history, it requires the union of those, but we must extend that human is the central, thoroughly carry out the standard of human. The key of sustainable development is just "human standard". So the key of building up a new environmental legal system of right standard is determined not only by their attitude to human's value and their rights, but also by whether they respect human's value and their rights. The key principle of the environmental legal system should be protect environmental rights, the basic principles should be protect right justiceprinciple and power balance------the union of control the power and protecting thepower. The owner of environmental should be the citizens, and we must ensure generation justice of contemporaries and the justice between different generations. It is necessary to ensure the country has certain environmental administrative power in environmental law, but the power comes from citizen, we should ensure to realize the citizen's rights first In details, we should perfect Chinese environmental legal system of "right standard" in these ways: Firstly, regarding environmental character or environmental basic law as the declaration of environmental rights. Secondly, we should widen citizen's environmental rights protection, that is, the extension of citizen's supervision to thegovernment and its environmental department, the deep extension of environmental rights, the extension of application rights of environmental damage. Thirdly, we should strengthen the density of citizen's environmental rights, that is building up ecology compensation mechanism to ensure rights justice, building up and perfecting environmental tort civil liabilities socialization system, building up the protection mechanism of weak people in environmental disputes. Fourthly, we should build up the secure is building up the mechanism of public participate environmental protection, that is building up the mechanism public participate environmental protection, environmental commonweal litigation and environmental disputes treatment. Finally, we should realize the role transformation of the government from " power body" to "obligation body". It may realize from two aspects. One is the government administration must transferred from administration style to service style. To build up the study system of environmental law theory right mode, we should crystallize that right is the basis idea of environmental law theory study, but the study is just beginning in China, many contents is still vague and abstract, so it affects the study of environmental law rights theory. Therefore, environmental right study should be the focal of environmental law theory study now and in the future. In the study of right mode, methodology is the first issue to crystallize. Over-emphasized using the whole methodology is determined by the essence of right, individualism methodology should be the necessary methodology in the rights mode study. The thesis emphasizes the combination using of those two methodologies. These are important contents such as building up the framework of rights mode study, classification of interrelated rights study of environmental law and theoretical previous enactment of "ecology human"; the study of three kinds relationships related to rights: they are the relationships between citizens and country, public law and private law, right and power; the environmental right study on the systematic level and operating level, the study of right culture and ecology culture, etc.