The value of law has always been one of the basic issues concerned and studied by legal theory and departmental law.
As a new legal discipline, environmental law has also attracted the attention of many scholars. However, when scholars talk about the value of environmental law, they basically start with fairness, justice, security, order and efficiency, but different scholars have different emphases. Environmental law has legal value, but because it not only adjusts the legal relationship between people, but also adjusts the relationship between man and nature, the harmony between man and nature is the starting point and destination of environmental law legislation, which determines that environmental law must have its own uniqueness in value orientation. However, the traditional environmental law theory ignores this feature of environmental law and still locates the value of environmental law with the usual thinking of traditional anthropocentrism, which directly leads to the weakness of environmental law in governing environmental problems. The environmental legislation of human beings is increasing day by day, but the environmental problems are getting more and more serious, which cannot but arouse people's reflection.
From the perspective of system theory, the earth is a natural system composed of biological communities and their living environment.
In this system, the biological community and its living environment, as well as different populations and species in the biological community, constantly exchange material and energy, and are in a dynamic balance of interaction and influence. The most basic feature of this system is its integrity and interdependence. As a member of the natural system, human beings should follow the general laws of the natural system. However, since its birth, human beings have refused to yield to the control of nature, constantly changing and transforming nature, and formed a relatively independent human social system on the basis of natural systems. With the progress of science and technology and the improvement of productivity, human beings constantly conquer nature, and the human social system is expanding day by day, while the natural system is gradually shrinking. How to coordinate the tense relationship between them has become a common problem for all mankind. This paper re-examines the relationship between man and nature from the perspective of system theory and puts forward a new orientation of the value of environmental law.
First, the ultimate value orientation of environmental law
(A) the traditional values and the value orientation of environmental law defects value "This universal concept comes from the relationship between people and external things that meet people's needs" [1], that is, in the relationship between subject and object, the object can meet the needs of the subject because of its own attributes, which has a positive role and significance for the development of the subject. "Anyone talking about value, fundamentally speaking, should be relative to people. Value is produced and exists for people, and people are the subject of all values. "
[2] It can be seen that traditional values are people-centered, people-oriented and everything around people as the object. This dichotomy thinking mode only recognizes the significance of nature to human beings and the interests and rights of human beings to transform nature, but refuses to recognize the value of nature itself. It is under the guidance of this value concept that human beings have created an unprecedented material civilization by plundering nature, but a series of problems such as environmental pollution, ecological imbalance, poverty spread, population explosion, disease and so on have followed, leading to a new survival crisis for human beings and ultimately endangering the overall interests of human society.
As far as the value of law is concerned, it also refers to the effectiveness and enthusiasm of law as an object for the subject.
The value subject of law is people, which refers to the general name of social people with sociality. The value object of law is law itself, which refers to law in a broad sense, that is, the general name of legal norms and legal facts, including the system of law, the operational facts of law and the law existing in an ideological form. [3] According to this traditional view, the value of environmental law is the satisfaction and usefulness of environmental law as a social norm to human society. Many scholars in the field of environmental law in China have positioned the value of environmental law from this traditional perspective. For example, some scholars attribute the value of environmental law to justice and interest, and think that "justice and interest are the two main values of law, and environmental law should naturally take this as its value goal". "Justice and interests are the main value requirements of environmental law, and their satisfaction should have corresponding environmental functions-safety and sustainable development." [4] Some scholars believe that environmental law has dual values-justice and utility, in which justice value includes human justice and natural justice, and utility value includes material utility and spiritual utility. [5] From the perspective of traditional legal theory of value, the above-mentioned value orientation cannot be said to be wrong. But in the final analysis, this dichotomy between subject and object stands on the standpoint of human beings, and only regards the natural system as the environment for human survival and development, and regards everything in nature as human resources, ignoring that the natural system and the human social system are a closely related organic whole. Although this kind of legislation is also aimed at protecting the environment and resources, it is difficult to get rid of the "temptation" of human interests after all. When the immediate material interests, economic interests and the need to protect the environment conflict, this kind of values will naturally advocate and give up the latter for the former. This is the fundamental reason for the deterioration of environmental resources while human beings are vigorously strengthening the legislation on environmental resources and advocating the protection of the environment and resources. Therefore, this kind of values is not desirable.
(B) repositioning the ultimate value of environmental law-from the perspective of system theory
Environmental problems are essentially the relationship between man and nature, and from the perspective of system theory, it is the relationship between human social system and natural system. The human social system is closely connected with the natural system, and isomorphic becomes an ecosystem centered on the earth. Human society is just an element in this ecosystem, which exists in the natural system itself. It must follow the general laws of the natural system and maintain the stability of the ecosystem.
As the most important department law of human society to protect the environment, environmental law has an unshirkable responsibility in protecting the ecosystem. It should not only pay attention to the interests of human society, but also maintain the balance and stability of the ecosystem. However, the traditional environmental law only regards nature as human resources from the perspective of human interests, and protects the environment only for the better development of human beings. This kind of environmental law was originally established to protect the environment, but it failed to grasp the relationship between human social system and natural system from the overall perspective, which eventually led to the further deterioration of environmental problems. System theory provides a new perspective for us to solve environmental problems correctly. Only starting from the overall interests of the ecosystem, changing the development concept centered on human interests, re-examining the relationship between human social system and natural system, and forming a benign interaction and harmonious development between them, is the fundamental way to solve environmental problems. Based on this, this paper defines the ultimate value of environmental law as the overall interests of ecology. This orientation is to fundamentally correct the traditional environment.
There is a dichotomy between subject and object in the value orientation of law, which breaks through the stereotype of anthropocentrism and establishes the environmental values of eco-centrism.
Of course, laws are made by human beings, and it is impossible to completely get rid of the influence of human interests. However, as the highest principle and spiritual value of law, it is not only the satisfaction of law to people's needs, but also the absolute transcendence of people to law. "Direction" means that the value of law has the meaning of goal and guidance, and "absolute" means that the value of law is eternal and progressive, but it can't reach the extreme completely. [6] In this regard, the value of law is always higher than the law itself, and this absolute transcendence has become the most ideal realm pursued by human beings. As a kind of law, environmental law can not get rid of the influence of human interests, but it can be repositioned from the value level to strive for the balanced development of the whole ecosystem. This value orientation is the embodiment of the absolute transcendence of environmental law.
In recent years, many scholars have noticed that man and nature should live in harmony, and put forward that the value orientation of environmental law should break through anthropocentrism and show the concept of sustainable development. If some scholars regard sustainable development strategy as the only value pursuit of environmental law, they think: "The soul of sustainable development strategy lies in the consciousness of harmony between man and environment, and the new environmental values and ethics based on the balance between ecological law and moral law. As a social subject, human beings are rational and emotional animals, and will never let people's subjective will and the natural laws of the environment follow their inclinations. Humans can actively discover the imbalance between society itself and social and natural, and actively adjust to achieve balance. Based on this sense of harmony between man and nature, the social system composed of man and environment will surely achieve sustainable development. " [7] It should be said that this view correctly recognizes that man and nature should maintain a harmonious relationship and strive to realize this ideal with the strategy of sustainable development, which is extremely commendable.
However, it is inappropriate to regard the concept of sustainable development as the ultimate value of environmental law. This is because: first of all, the concept of sustainable development is still centered on human interests, and it is still a human-centered development concept. This can be seen from the definition of the concept of sustainable development. For example, the definition of sustainable development given by the United Nations Commission on Environment and Development (WCED) is: "To meet the needs of contemporary people without endangering the development of future generations to meet their needs." Some scholars also believe that "sustainable development refers to the development of continuously improving the per capita quality of life and environmental carrying capacity, meeting the needs of contemporary people without compromising the ability of future generations to meet their needs, and meeting the needs of people in one region or country without compromising the ability of other regions and countries to meet their needs." [8] It can be seen that the concept of sustainable development focuses on the long-term development and overall interests of human society. Without getting rid of the stereotype of anthropocentrism, it will inevitably embark on the old road of "pollution first, then governance". Secondly, from the perspective of the purpose and instrumentality of legal value, the concept of sustainable development should not be regarded as an end value.
"The ultimate reason of law is the welfare of society, and the legal rules that fail to achieve this goal cannot permanently prove the rationality of its existence." [9] This utilitarian school of law has shown its lasting vitality with the development of the times. Although this is the value of law from the perspective of human welfare, it can also be compared with the value applicable to environmental law, that is, the ultimate goal of environmental law is to maximize the "welfare" of the ecological whole. In this regard, the concept of sustainable development is only a tool and means to realize the value of welfare (interest). Therefore, it can only be regarded as the instrumental value of environmental law rather than the purposeful value.
At present, there are still views that environmental law should establish two goals of "balancing intergenerational interests and realizing social sustainable development" on the basis of establishing the value concept centered on the overall interests of the global ecology, and protect human's "environmental rights" and "natural rights of the ecological world"; The former is the goal pursued by environmental legislation for the whole human society; The latter is the basic task and goal that environmental law itself should establish. [10] This view breaks away from anthropocentrism, admits that man and nature should live in harmony, and puts forward the idea of respecting natural rights, which is desirable as the ultimate value of environmental legislation. It should be said that this view is basically the same as that of this paper, but their research perspectives and methods are different.
To sum up, the earth's ecosystem is an organic whole, and the human social system and the natural system are interdependent and closely linked. Once the natural system is destroyed, human society will inevitably face a crisis of survival. Therefore, the harmony between man and nature should be our ideal realm. Although the environmental law is formulated by human society, as the soul of all things, human beings must adhere to the overall interests of the ecosystem and take the overall interests of the ecosystem as the ultimate value of legislation in order to fundamentally protect the environment, maintain the stability of the ecosystem and better protect the overall interests and long-term interests of human beings.
Second, the connotation of the overall ecological benefit value of environmental law
As the ultimate value of environmental law, the overall ecological interest has extremely rich connotations, which is the unity of the overall interests of human society and natural ecology, as well as the unity of the overall interests of intra-generational ecology and intergenerational ecology.
Unity of interests and the overall interests of natural ecology
Influenced by the utilitarian school of law, the traditional legal theory links law with interest, and regards interest as an important value pursued by law. It holds that the task of law is to adjust and protect various interests and realize the rational distribution of interests in the best way. As a new legal discipline, environmental law is based on social interests. This is because the environment, as the living condition of all mankind, cannot be privately owned or monopolized by a certain person or country, nor can it be divided by class, ideology or national boundaries. Environmental protection conforms to the interests of the whole society and even the whole mankind. The development and perfection of environmental law in any country is a beneficial contribution to all mankind.
[1 1] From the perspective of system theory, the whole earth is an organic ecosystem. In this huge and complex system, the global material circulation and energy flow continue according to the internal laws. If any link is destroyed, the whole ecosystem will be unbalanced and the human environment will be in danger. Although sovereign countries can claim their own sovereignty and stick to one position or another in international political relations and international economic relations, in the face of ecological laws, any country is the same, the spread of pollution is not limited by artificial national boundaries, and the cycle of ecosystem is not limited by ideology. [12] There is only one earth ecosystem, and the destruction of any country's ecology will endanger the survival of all mankind. In this case, "national boundaries become permeable, and the traditional division between regions, countries and countries becomes blurred." In the past, it was thought that it was entirely a matter for each country, but now it has an impact on the ecological basis for the development and survival of other countries. "[13] Therefore, in the past, the method of taking measures in isolation with the country as the unit can no longer meet the needs of solving environmental problems. For the common interests of all mankind, it has become the basic common sense of the current international community to take joint action with the same body of the earth as the unit. Therefore, safeguarding the whole human society
Interest should be an important value of environmental law.
At the same time, from the perspective of system theory, environmental law can not only proceed from the overall interests of human beings, but also take into account the interests of natural systems. This is because the natural system is the premise of human survival. Without it or its destruction, it will inevitably endanger the interests of all mankind. In recent years, although many countries have realized the seriousness of environmental problems and put forward the strategic idea of sustainable development, the environment has not improved, but has a deteriorating trend. Fundamentally speaking, it is because human beings only pay attention to their own interests and protect the environment from their own needs, but they do not recognize the interests of the natural system. It must be noted that natural systems also have their own interests. Personally, this kind of interest is the natural right of nature, which mainly includes the right of survival and development of all kinds of organisms. This right does not need human recognition, and it has been given to all kinds of creatures on earth by "heaven" long before human existence. Generally speaking, this kind of interest is the overall interest of natural ecology, that is, maintaining the stability and harmony of natural systems, which will ultimately affect the continuation and development of life on the whole earth. As the ethicist Nash wrote in the book "The Rights of Nature": "The interests of human beings are consistent with the interests of ecosystems ... The criteria for judging good and evil do not depend on individuals, but on the whole life ... Nature has the same clear and awesome rights as human beings." [14] As an advanced animal, when formulating environmental laws, we must proceed from the overall interests of the ecosystem, take into account the overall interests of human society and natural ecology, and unify them well.
(B) the unity of intra-generational ecological overall interests and inter-generational ecological overall interests
From the perspective of system theory, the overall ecological benefits should include intra-generational ecological benefits and inter-generational ecological benefits, which should be unified.
For natural systems, because they can evolve according to the natural process of biological evolution, they can maintain the balance of interests between generations through their own metabolism without the intervention of human social systems. Therefore, the overall balance of interests within and between generations is mainly in the aspect of human social system, which mainly involves how to distribute resources and wealth fairly between contemporary and future generations. In the past, present and future, all mankind has the environment of this planet, and contemporary and future generations have the same opportunity to choose and benefit from the environmental resources on which they depend for survival and development. Because social resources and wealth are in the hands of contemporary people, contemporary people become the custodians of future generations' resources and wealth. Therefore, contemporary people must consider the opportunities of future generations and the amount of resources that may be obtained. When formulating policies and measures, contemporary people should not sacrifice part of the interests and potential opportunities of future generations to some extent in order to improve their own economic welfare and quality of life. Of course, it is not necessary to improve the potential quality of life of the younger generation and unborn offspring by lowering the living consumption level of contemporary people. The concept of sustainable development is of great guiding significance for maintaining the balance of interests between generations.
At present, there are two extreme views on the balance of intergenerational interests. One idea is: "Contemporary people don't consume anything, but protect all resources for future generations and keep all aspects of the environment at the same quality level". The other extreme view is the rich model. According to this theory, whether the modernity of the future generation exists has not been fully confirmed, or whether the maximization of consumption today is the best way to maximize the wealth of the future generation. Therefore, all the consumption desires of today's generation can generate more wealth. Both views should be criticized. According to the viewpoint of system theory, in order to maintain the stability of the system, the internal structure of the system must be balanced; Otherwise, the system will mutate with the action of internal factors or the change of external conditions, making the system disorderly or unstable. There is only one earth in the world, and this earth is an organic ecosystem. Contemporary and future generations must rely on this unique ecosystem to survive. Therefore, human beings who have an unshirkable responsibility for maintaining the stability of the ecosystem must proceed from the balance of interests between generations and take into account the overall balance of interests between contemporary and future generations.
Third, the realization of the overall ecological benefit value
As a brand-new environmental legal value, the overall ecological interest is not only a breakthrough to the traditional value, but also a challenge to the traditional legal theory, and the realization of this value will inevitably face many obstacles. First of all, for a long time, all the systems and values established by human society are people-centered. This determines that environmental law must also reflect people's value choices, and human interests naturally become the center of environmental law's value orientation. On the other hand, the values of ecological overall interests adhere to ecological centralism, emphasizing that human beings and other life forms are in an equal position in law, and advocating giving natural things rights. This is obviously in conflict with traditional ideas. Secondly, laws are made by people, which have always been based on people's rights and obligations and adjusted by people's behavior relations. Environmental law takes the overall ecological interest as its value orientation, and it is bound to face the following problems: how to determine the overall ecological interest? How is this benefit distributed between human beings and nature? Since both human beings and nature enjoy rights, will there be conflicts between them?
These problems determine that environmental law is bound to contradict traditional legal theory, and how to coordinate this contradiction is another big obstacle to realize the overall ecological benefit value of environmental law. Finally, the environmental problem has become a worldwide problem, and it is impossible to protect the environment and realize the overall interests of ecology only by a certain country or region. This makes it extremely important to strengthen international cooperation in environmental protection. However, the unreasonable old international order and the conflict of interests between countries have become a major problem that international environmental cooperation must face. Faced with many obstacles, how to explore new paths is the key to realize the value of ecological overall interests. This paper puts forward the following approaches:
1. From anthropocentrism to ecocentrism.
Law is based on certain values, and the change of human environmental values will play a vital role in the development and reform of environmental law. The transformation from anthropocentrism to eco-centrism is the fundamental way to solve environmental problems and realize the value of ecological overall interests. To really change this concept, we must first change the thinking mode of dichotomy between subject and object. In the transformation of modern western philosophy from classical to modern, there has been a transformation from the dichotomy of subject and object to the integration of subject and object. In this respect, Heidegger is the representative of this transformation. In the article "The End of Philosophy and the Task of Thinking", he realized the change from emphasizing human beings to emphasizing nature, and put forward the ecological thought of "harmony between man and the world, man and nature". He believes that man's role is not to legislate for nature, nor to act as the master of nature, but to listen to the voice of nature, abide by the laws of nature and live in harmony with nature.
[16] This change of thinking from the dichotomy of subject and object to the integration of subject and object will have far-reaching significance for correctly handling the relationship between man and nature. Secondly, we should cultivate ecological awareness and establish an ecological world outlook. Ecological consciousness is people's understanding of the overall laws of the natural environment, and people's consciousness of their own behavior in order to maintain a good ecological environment.
A sense of acting according to ecological laws. In modern society, only with ecological awareness can we know what we must do and how to do it, and use this awareness to guide our behavior, so as to avoid the deterioration of the ecological environment. While cultivating ecological consciousness, we should also establish an ecological world outlook, which requires people to gradually form a correct understanding of the ecological principle of the interaction between man and nature. People must always realize that man is only a part of nature, not above it.
2. Breakthrough of legal theory: the rise of ecological law.
The transformation of traditional ideas from anthropocentrism to eco-centrism will inevitably have a great impact on the traditional legal theory based on anthropocentrism. As a legal discipline that directly reflects this concept, environmental law is most obviously affected. However, environmental law is based on the philosophy of environmentalism after all, and it cannot escape the legal formula of anthropocentrism. To truly realize the overall interests of ecology, we need a major breakthrough in legal theory, and ecological law came into being.
Ecological law is a new legal discipline that has emerged in recent years, and there are still many disputes about its concept. Some scholars believe that in order to more scientifically reflect the requirements of natural law, economic law and ecological law, better regulate human behavior, and adjust the relationship between good people and ecological environment, natural resources law, environmental protection law and land consolidation law should be combined into one, which is called "ecological law" as an independent legal department in the national legal system. [17] Some scholars also believe that ecological protection law is a comprehensive concept, and its scope involves environmental law, natural resources law, land and ecological norms of other legal departments. [18] Some scholars believe that ecological law is based on the law of interaction between man and nature revealed by ecology, and uses legal means to coordinate the relationship between man and nature. [19] Looking at these viewpoints, it can be seen that scholars basically regard ecological law as a departmental law and consider it a breakthrough to traditional legal departments. This positioning model is an innovation based on respecting the traditional legal theory, but it still has not got rid of the traditional anthropocentrism and is inevitably unable to protect the ecological balance. This paper agrees with Dr. Zheng that the theoretical basis of ecological law is ecological society, that is, with the awakening of ecological consciousness, human society has gradually changed from civil society to political society to group society, emphasizing the supremacy of ecological interests and advocating the harmonious coexistence between man and nature.
Based on this theory, ecological law takes eco-centrism as the guiding principle, emphasizing the harmony between man and nature, and its norms are scattered in the constitution, environmental law, administrative law, civil and commercial law and other departmental laws. [20] Thus, corresponding to the transformation of traditional society from civil society to political society to group society to ecological society, a gradual situation of private law → public law → social law → ecological law and the birth of * * * was formed. These four jurisdictions complement each other, and the isomorphism becomes the legal framework and theoretical system of post-modern society. From the perspective of legal theory, ecological law is mainly composed of ecological man theory, ecological right theory, ecological contract theory, ecological value theory and ecological responsibility theory. [2 1] These theories re-examine the relationship between man and nature from the standpoint of eco-centrism, raise the protection of nature to a new legal height in an unprecedented way, and form a unique legal theoretical system. This is of great significance to maintaining the stability of the ecosystem and realizing the harmony between man and nature. Of course, we still have to admit that many theories of ecological law are still immature and even criticized by many scholars. How to further improve this theoretical system is still a long-term and arduous task.
3. International cooperation in environmental protection: development of international environmental law
Human beings live in the same global village, and the integrity of the global ecosystem will eventually bring all countries into the unified track of environmental protection, so the rise of international environmental law becomes inevitable. To overcome the obstacles in international environmental cooperation, we must pay attention to the following two points. The first is to build a new international development order and an internationally recognized model of international development law. After decades of efforts, the "international development law" to adjust the economic inequality between sovereign countries has gradually emerged. In essence, the international development law is a transitional law, and its purpose is to establish a new international economic order. It is embodied in a set of rules for adjusting international relations, focusing on promoting fairness, mutual cooperation and making up the inequality between developing countries and developed countries.
International development law unites countries at different stages of development and negotiates global ecological and development issues as never before, which is of great significance for promoting the formation of international environmental law and improving world environmental problems. Secondly, a series of "soft laws" on ecological and environmental protection are formulated by international organizations to avoid contradictions and conflicts in environmental cooperation between countries, and then gradually rise to "hard laws" on the international environment with the maturity of conditions. Since 1970s, the international community has adopted many declarations and resolutions on ecological and environmental protection, such as the Declaration on Human Environment, the Declaration on World Parks Congress, the Declaration on Environment and Development, the Tokyo Declaration on Earth Environment and the World Charter for Nature. Although these resolutions and declarations are not binding, they reflect the existing or emerging principles, rules and systems of international environmental law. It is under the impetus of these declarations and resolutions that the international community has reached a large number of international environmental protection treaties. Of course, we should also see that the formation and improvement of international environmental law still have a long way to go and still need the joint efforts of all countries in the world.
Precautions:
(1) system theory is a scientific theory that rose in the 20th century. This theory advocates treating objectively existing things with systematic views and thinking, grasping things as a whole, and analyzing the interdependence and mutual constraints among their internal elements. System theory is essentially a methodology to understand things. This methodology looks at the world from a holistic and connected point of view, breaking through the defects of traditional isolated, one-sided and partial understanding of things, and is of great significance for understanding and revealing the essence of things.
(2) At present, there are two views about the adjustment object of environmental law. One view is that environmental law only regulates the relationship between people. Li See Ainian: The Environmental Protection Law cannot directly adjust the relationship between man and nature, Law Review, No.3, 2002; Another view is that environmental law should not only adjust the relationship between people, but also adjust the relationship between people and nature. See Cai Shouqiu: Essence and Significance of Environmental Law Theory, Modern Law No.4, 200 1. This paper adopts the latter viewpoint.
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