The Argumentation Of Environmental Duties

The theory of environmental rights is expected in protecting good environment, because people generally sink into the absolute linguistic context of rights, the anxious expectation is not totally rational. The theory of environmental rights made little effort in solving environmental problems for nearly three decades, on the contrary, it can do nothing about the environmental situation worse. The primary cause is the argumentation of environment right is unacceptable. The paper examine the various opinions about environmental rights, and point out the holes in demonstrating for the environmental rights completely and deeply in the theory of legal argumentation. We must review the relation between environmental right and environmental duty in the premise to protect good environment, and return to build the institutional foundation that the deterministic duty precede over the right to ensure the entire human survival and reproduction. According to this, we can provide the justification of the environmental legal institution thought the unity of the primary environmental duty and the subsidiary environmental right.The first chapter is introduction. It introduced the theoretical and practical significance, and point out the main problem of the theoretical study situation, which the reason about the theory of environmental rights made little effort in solving environmental problems is the argumentation of environment right is unacceptable.The second chapter is the theory of legal argumentation. It introduced systematically the theory of legal argumentation by the study methods, including the rule of legal argumentation and the theory of right argumentation. The rule of legal argumentation divided into the rules of practical reasonable argumentation and the rules of legal argumentation. The rules of legal argumentation must obey the rules of the practical reasonable argumentation because it is the special form of the latter. The rules of legal argumentation have to achieve two levels:internal justification and external justification. The aim of internal justification is the conclusion can be deducted logically from the premise, and the aim of external justification is to ensure the premise is legitimacy and rationality. The use of the theory of right argumentation is necessary for achieve the aim of external justification. According to the theory of right argumentation, the right justification is proved should through three steps:the reason that justify the right; the contents of the right; the possibility to exercise right.The third chapter is the rebuttal of the theory of environmental right. Firstly, we look back upon the develop history of the environment right, and divide the environment right into four forms:the legal right; the human right; the property right; the traditional right. The second part is the rebuttal to the internal justification of environment right. The internal justification of right exist the following defects:the different understanding of right concept; self-contradiction; break the proof rules; and so on. The third part is the rebuttal to the external justification. It has three problems. The one is that the scholar overemphasis on the right and neglect the duty to protect the environment in the absolute linguistic context of rights. The two is that the content scope of environmental right can not be certain. The third is that the environmental right become formalistic actually because the defect on lawsuit mechanism.The fourth chapter is the justification of environmental duty. The duty justification should follow three steps on the analogy of the theory of right justification:the reason that justify the duty; the contents of the duty; the possibility to exercise duty. The first is the reason. Now we face trouble that the entire human survival and reproduction are under threat like the primitive communes, so we should reselect the institutional foundation that the deterministic duty should precede over the right as the primitive communes. The second is the contents. The environmental duty can be divided into government environmental duty and individual environmental duty by the different subject of duty. The third is the protect possibility. The protection is not enough only rely on the mandatory as the representative character of the duty. The duty can be used to gain the illegal benefit for the government official because of the government failure. So we must let the individual owe the environmental right that it can control the governmental power.The fifth chapter is conclusion. For protect the good environment and ensure the entire human survival and reproduction, we must break away from the absolute linguistic context of rights and reselect the institutional foundation that the deterministic duty should precede over the right, adopt the legislative pattern that the unity of the primary environmental duty and the subsidiary environmental right.