Critique Of The Idea Of Environmental Legislation In China

Polany summarized the western modernization movement as a double movement of marketization and social protection movement, Weber stressed that modernization is a form rational process, at the same time he also affirmed interaction between substantive rationality and formal rationality. The interacting movement is a description of the modernization external movement patterns, while the two rationality reveals the internal decisive power of the modernization movement. And then, when the interacting comes to a harmonious and unified state, which will propel the modernization movement forward. Thus, whether the positive interaction between two rational, double movement, two rational or double movement can be established or not can be used as a new idea and principles to examine and reconstruct a country’s modern national legislation. For environmental legislation, the new idea is the public reason which is based on overlapping of two rationality, while the realization of the public reason depends on the establishment and improvement of the principles of sustainable development and public participation in environmental legislation.The idea of environmental legislation corresponds of national governance strategy of environmental issues in different periods and changes with the economic and social development. In the transformation process of the planned economy turn to the market economy system in China, the economic development and modernization construction can not be separated from the publicity of formal rationality, but the development of this one-dimensional mode lacks of the guidance and constraints of social protection movement and substantive rationality, which causes the Chinese national governance problems. Embodied environmental legislation is the imbalance between two rational, which means formal rationality is obviously more powful than substantive rationality and reflected with characteristics of "economic center", the government-led, and interest groups. Taking interacting movement and the two rationality as the framework to analyze the problems and causes of the idea of China’s environmental legislation is a prerequisite of building the new idea of environmental legislation.China’s market economy construction has experienced a transition from planned mode to marketing mode. With the deepening and expansion of China’s social marketing process, the internal logic of form rationality of market operation gradually permeates from economic area to other social areas, which includes the area of the environmental legislation. For the respect of the environmental law area, environment governance turns from government-controlled to legal regulation, the conception of environmental governance also began to gradually shift irrationality to form rationality and becomes the dominant idea of environmental legislation. This new conception of environmental legislation provides a new institutional framework for China’s environmental governance, but its inherent form rational operating logic caused the contradiction between economic development and environmental protection, public and private. The main reason is the excessive expansion of marketing and formal rationality, which is reflected in the tendency to "economic center" by government-led and the adverse effect on environmental legislation by interest groups.However, the over-expansion of marketization and formal rationality will inevitably leads to a loss of self-worth in other areas of society. The emergence of social protection movement is a positive response to the consequences of this kind expansion. As one of this response, environmental movement is a typical form of social protection movement. Civil environmental movement on the performance of people organized associations to fight the marketization, which has occurred frequently in recent years. By pursuing substantive rationality of fairness, justice and so on, and to restrict the expansion of formal rationality, these movements gradually attract the Government’s attention. It prompts the environmental legislation to embody the protection of the public interest, and to achieve the value orientation of the environmental justice. However, this transformation has faced three difficulties, which are, the government control of social groups, social group action underpowered, and weak public awareness of our citizens.Imbalance of the concept of environmental legislation in China’s environmental governance triggers some specific issues such as legislative purposes deviation, environmental legal system defects, public lands tragedy and effectiveness of environmental law and so on. While all of these issues also confirms the urgency and necessity about the transformation of the concept of environmental legislation. Consequently, government began to guide the construction of civil society to achieve the positive interaction of the bi-directional movement, such as promoting the rule of law about market economy, fostering public awareness of social organizations and citizens. Among the environmental legislation, achieving a balance of two rationality is a fundamental requirement of their positive interactions, make substantive rationality incorporate into the concept of environmental legislation, constraints formal rationality, achieve the balance between them, then forms a brand new concept of environmental legislation. This paper argues that, Rawls’ concept of public reason have this inclusive integration. We introduce it to China’s national conditions, and combine with Chinese public ideas both traditional and modern, thereby forming the concept of public reason which is suitable for China. This concept as a new idea of environmental legislation, to guide our practical activities of environmental legislation. By establishing a people-oriented development concept sets up a environmental rights system, and tries to resolve the contradiction between economic development and environmental protection by promoting public participation of environmental legislation, and has a positive impact on the practice of environmental law.