Environmental Law's Justification And Institutional Choice

The theories about the causes of environmental problems include three kinds: the technology theory, the institution theory, the culture theory. According to the technology theory, either technology as an power independent from human or improper using technology causes environmental problems. According to the institution theory, capitalism or market failure or government failure cause environmental problems. In the view of culture, western culture's ambitiousness and aggressiveness is the fundamental cause. Morality, religion and law as the social control instruments are the solutions to environmental problems. Law is different from morality and religion in rule basis, rule principle and function, and rule target. Law that is easy to be accepted as the basis of social existence by community members should have lower action requirement level than morality and religion. Law acts on person's action, not idea, devotes itself to solve the existing interest conflict, not eliminate the interest conflict from person's idea.The domain of environmental law lacks the integrated and systematic research on environmental law's justification. Although some theories make some efforts to justify environmental law, they are full of loopholes. The environmental right theory all the time has not been accepted by legal practice. The ecological philosophy is different from law's nature and can not become the guidance of environmental law. Efficiency of economics is not the supreme value of law. The scope of application of the environmental justice theory is very limited and can not justify all environmental law's field. Environmental law as an long-term not short-term strategy need its justification. However, this question is not yet solved.The theories on justifying law mainly includes the contract theory, the natural law theory, the human right theory, the justice theory. The contract theory just justifies the law-making procedure not the contents of law. The natural law theory origins from the mystery whose contents lack the uniformity and absoluteness, is hard to explain law's development. Human right's point of view is not objective, influenced by political position. In addition, human right is after justice in logic and is specification of justice. The justice theory is the best theory on justifying law.The justice theory begins from the individual demand. Interest origins from the dissatisfied demand. Each person has different interests. However, interest objects are useful for each person. Each person can use these interest objects to seek respective interests. Interest objects are scarce for demand. Seeking interest objects leads to conflict. Law of justice is the solution to interest conflict. The essence of the concept "justice " is "giving every man his due". The contents of justice are exchanging interest and damage equally. John. Rawls's two justice principles discuss distributing fundamental liberties and economic social rights. Fundamental liberties are distributed according to equal principle. The distribution of economic social rights is unequal and different. The different principle should meet two preconditions: chance equality and benefiting least-favored-man. The different principles include demand principle, merit and ability principle, contribution principle. Real justice principle is contribution principle(including merit and ability principle). The understandings of content of right include two kinds: liberty and interest. The essence of property right is liberty, the essence of personal right is interest. The process of distribution of interest objects is defining right firstly, and then designing obligation. If it is difficult to define right, law will directly distribute interest objects.Primary goods, namely, interest objects in environmental protection are environmental resources and environmental security. At an angle of environmental protection, how to use environmental resources is the most important, who are granted to use licenses(use right) is the second most important, who has environmental resources property is not very important. State distributes development right and discharge right (two use rights) to enterprises. The distribution principles is contribution principle firstly, and then merit and ability principle secondly. Environmental security is distributed according to equal principle. The sequence of obligation's distribution reads as follows. If the polluters can be identified, polluter pays principle will be applied. If the polluters can not be identified and the scope of potential polluters can be identified, group pays principle will be applied. If the scope of potential polluters can not be identified, state pays principle will be applied. Obligations are exert on persons according to proportion principle. State has legislation obligation, judicial obligation, enforcement obligation, obedience obligation. In addition, state has positive obligation that are maintaining fundamental available environmental quality, even improving environmental quality after fundamental available environmental quality is met if state has enough ability. Fundamental environmental right is the standard that is used to define state's obligation. Fundamental environmental right should at any rate be protected. Fundamental environmental right belongs to fundamental liberty, can not be exchanged with other rights and interests. State has legal obligation to maintain citizens' fundamental environmental right. Arranging fundamental environmental right as public right has no legal barrier but political barrier.Even though law designs rights to environmental resources, there are a lot of legal obligations with rights. Institutional choice is mainly obligation's distribution. Four institutional instruments may be used to control environmental risk: market forces, government regulation, torts or common law liability, and social insurance. Each instrument has own advantages and disadvantages, limitation. These four institutional instruments are best viewed as discrete alternatives, but rather as part of a web of societal responses to environmental problems. Which one is better depends upon the nature of environmental problem. Institutional choice experiences two steps. The first is deciding which one is proper, torts or common law liability, or regulation. The second step is deciding which regulatory instrument is proper if governmental regulation is adopted. In second step, at least three important questions must be confronted: (l)what conduct or activity should be targeted? (2)On what basis should judgments be made about how that conduct should be altered? (3)What form of regulation should be employed in an effort to alter that conduct. However, institutional choice, namely, designing obligations on private party should obey efficient principle, but environmental objective and who should burden obligations should be decided by justice.