The Modern Value Of Environmental Customary Law

The connotation of environmental customary law should be analyzed from its contents andforms. Based on it, special connotation and denotation scope can be explored. In theperspective of diachronism, it is not the expression of historical extinction but the deliberatesuppression of environmental statutory law that environmental customary law developedfrom early authority to modern weakness, so environmental customary law is a real andstrong existence today. Expressions of environmental customary law are literature records,villager’s regulations and mouth words. Environmental customary law is a knowledgesystem that includes rich contents, such as customary principle of environmental protection,customary rules in environmental management areas, and customary laws of publicparticipation in environmental protection and so forth.Modern environmental law is faced with the following problems: contradiction betweenideal centralization of law and practical pluralism of law, fracture between the exogenousrules and indigenous support, and the imbalance between the strong state power and weakcivil operation. To discover the modern value of environmental customary law, such as todraw and rebuild indigenous legal culture, to remodel law belief, to technically disenchantrationality and to develop the paths can be the possible ways to tackle the above problems.Firstly, the modern value of environmental customary law only can be accomplished in thedomain field of general modern environmental law but not in environmental customary lawor environmental statutory law. The accomplishment of the modern value of environmentalcustomary law should establish the logic of dynamic evolution and be established in thetarget of complementing environmental statutory law in order to construct the environmentallaw of great modern characteristics. Secondly, using typification methodology, to establishstandard of substantial legality and formal legality to differentiate and select the contents ofenvironmental customary law is an important process to accomplish the modern value ofenvironmental customary law. Finally, the two paths to accomplish the modern value ofenvironmental customary law is the top-down path dominated by environmental statutorylaw and the bottom-up path participated by environmental customary law.Related to the specific practice of modern environmental legal rule, the modern value ofenvironmental customary law should be reflected in the following three areas respectively.The first one is the contribution of environmental customary law as an indirect source of law to the modern environmental legislation. Environmental customary law is of significance asan indirect source of law in the modern environmental legislation through analyzing thenecessity, restraining factors and possible approaches that absorbing environmentalcustomary law. The second one is the rule value of environmental customary law to themodern environmental management. Because of the instability and unpredictability ofenvironment, environmental customary law is the reasonable and independent rule system tothe adaptive environmental management. The third one is the contribution of environmentalcustomary law to the environmental disputes resolution. Because of the inherent connectionbetween the environmental customary law and environmental disputes resolution,environmental customary law can be greatly contributed to the environmental disputesjudicial settlement mechanism and environmental ADRs respectively.