[Keywords:] the legal status of the object of adjustment of the relationship between man and nature
In recent years, there has been a heated discussion in the field of environmental law on whether the law can adjust the relationship between man and nature. Recently, marked by the publication of the book Adjustment Theory-Reflection and Supplement to Mainstream Law by Professor Cai Shouqiu of Wuhan University, this discussion reached a climax and attracted the participation of legal scholars. In today's era of environmental crisis, how to treat the relationship between man and nature embodied by law and how to locate the relationship between man and nature in law?
It is very difficult to deny the existence of the relationship between man and nature in law, whether or not it is agreed to bring the relationship between man and nature into the object of legal adjustment. In any legal system and legal theory, there will always be a question of how to treat people in nature and how to treat nature. This relationship is objective, insurmountable and can not be ignored. This is the similarity between ancient and modern Chinese and foreign legal theories and legal systems. The difference lies in how jurists should treat this relationship and how the law should handle it.
First, the historical investigation of the relationship between man and nature in law.
In ancient laws and legal concepts, people's awe and adaptation to nature are generally reflected.
With regard to reverence for nature, most of the time restrictions on tree felling, wildlife hunting and prisoners who were executed in ancient times were related to the concept of reverence for nature and ghosts and gods. Worship of ghosts and gods is actually a manifestation of nature worship. After deifying the unknowable laws of nature, ghosts and gods emerged. Religion in China basically originated from thinking about nature, not human nature. It is forbidden to cut down local trees (such as royal cemeteries) at a certain time (such as spring), which reflects the idea that those who set the ban are afraid of being punished and retaliated by ghosts and gods (or willing nature). Many monsters in China ancient mythology are related to animals and plants, mountains, land and water, such as foxes, land gods, mountain gods, dragon kings, tree spirits and so on. When making policies and laws, rulers are also influenced by the worship of ghosts and gods, which has an impact on nature.
There is an old saying in China that "go with nature" means "depend on the weather to eat". "Eating by the sky" means relying on mountains to eat, relying on water to eat, and resigned to fate. Hunters in mountainous areas can hunt in deep forests, but they can't make a living without hunting. Coastal fishermen can go fishing in the sea. If they don't fish, they will have no other source of livelihood. When the state organizes farmers to carry out agricultural production, it generally takes into account the limitations of natural conditions. For example, according to the soil fertility conditions, establish a system of rotation and fallow. All these reflect the relationship between man and nature characterized by man's adaptation to nature. In the theory of governing the country, Dong Zhongshu's theory of similarity between man and nature and the theory of induction between man and nature put forward in the Spring and Autumn Period.
In traditional civil law, we can also find traces influenced by the concept of conforming to nature. For example, things in civil law have legal characteristics that can be dominated by people. What people can't control is not something in civil law, that is, it can't be regarded as property in civil law. Civil law defines land and forest as property, because people can control land and forest. However, the civil law does not define water flow, atmosphere and sunshine as property, because people cannot control water flow. Natural objects such as the atmosphere and sunlight. The situation of wild animals is more complicated. Some wild animals can be controlled by people, while others cannot. Once wild animals can be controlled by people, they become the property of civil law. The preemption principle in civil law is determined by the case of wild animals. These rules reflect the adaptability of traditional civil law to the relationship between man and nature.
In the traditional legal theory since modern times, jurists generally believe that the relationship between man and nature is the relationship between man's domination and utilization of nature.
From human's awe of nature to human's domination and utilization of nature, it is a change in legal thinking brought about by scientific and technological progress. Since the industrial revolution, science and technology have made great progress, and human beings can dominate, transform and humanize nature to a great extent, so that more and more things beneficial to human beings in the natural environment are incorporated into the property law by law. In the material world, any kind of property, without nature, property law cannot be established. There are only two basic legal relationships in civil law, namely personal relationship and property relationship, and property relationship is the premise and foundation of personal relationship. Professor Xu Guodong and Professor Liang Huixing have differences on this issue, but there is no fundamental difference in human domination and utilization of nature. Xu Guodong believes that the design of the relationship between people and things in Cicero's ladder civil law system is a pessimistic explanation of the world. He believes that the relationship between people and things has two aspects, on the one hand, the relationship between people as the subject of desire and the means to satisfy this desire, on the other hand, the relationship between people as the subject of cognition and things as the object of cognition. This relationship between people and things is actually a positive affirmation of the objective existence of the relationship between people and nature in law by traditional civil law theory.
In the environmental law since the late 1960s, the relationship between man and nature has been objectively adjusted in some way, which is a basic view recognized by many people. No matter whether environmentalists advocate or oppose taking the relationship between man and nature as the adjustment object of environmental law, they have never opposed the existence of a large number of legal norms regulating the relationship between man and nature in environmental law. The difference is that advocates such as Professor Cai Shouqiu believe that the relationship between man and nature is a social relationship, which can directly become the object of legal adjustment. Opponents believe that the norms dealing with the relationship between man and nature are technical norms, not social norms, and environmental law indirectly adjusts the relationship between man and nature by adjusting the relationship between man and nature, but not directly. However, both sides acknowledge the existence of this objective relationship. It should be said that the environmental law documents published by international organizations and many countries, as well as the works of legal scholars, have extensively involved the relationship between man and nature. Its main idea is that environmental law should aim at pursuing the harmonious state between man and nature. Even in the works of scholars who oppose the relationship between man and nature as the object of environmental law adjustment, there is no and impossible to avoid the relationship between man and nature. Any idea of denying the relationship between man and nature is incorrect and untenable.
Second, the relationship between man and nature in two ways of legal positioning
How should the relationship between man and nature be defined in law in legal theory and legal departments? Is the relationship between man and nature regarded as a manifestation of social relations as advocated by Professor Cai Shouqiu and included in the object of legal adjustment? Or, as the traditional legal theory has positioned, natural elements and environment are the objects of legal relations in specific legal relations? That is, the rights and obligations of the subject (human) are the same as those of the object, or, as advocated by eco-centrists, in the whole ecosystem, natural objects, especially living natural objects, especially animals, have equal or partial equal legal status with human beings and can exist as subjects in specific legal relations.