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The Concept of New (Ecocetric) Legal Philosophy
by Dr. Senko Plicanic

“Teach your children what we have taught our children: that the earth is their mother. Whatever befalls the earth befalls the sons of earth. If men spit upon the ground, they spit upon themselves. The earth does not belong to man, man belongs to the earth. Man did not weave the web of life, he is merely a strand in it. Whatever he does to the web, he does to himself.”
~ Chief Seattle, The Squamish, 1854
(1)

“No real progress can be made in environmental law unless some of the insights into the sacredness of land derived from traditional tribal (Indian) religions become basic attitudes of the larger society.”
~ Vine Deloria, Jr., Standing Rock Sioux, 1991
(2)

1. Basic premises

The initial premise: “impotence” of the environmental protection law

In the past decades the awareness (3) of the necessity to “legislate temperance”(4) in human (economic) interaction (5) with Nature has been heightened (6).The inefficiency and/or “impotence” (7) of the normative reaction to the “destruction of Nature” (8), i.e., the development of the “environmental law” (9) in the second half of the 20th century is becoming increasingly evident. The scope of the destruction of Nature has been broadening. The environmental protection law has thus not influenced the resurrection of “destroyed Nature.” (10)

Thanks to the scientific findings in the last few centuries concerning man's co-dependent and equi-valent centrality in the “cosmic network” of biotic natural entities (11), the main levers which have brought about the destruction of Nature and are at the same time the main reasons for the inefficiency and/or “impotence” of the environmental protection law have become increasingly prominent.

The essential reasons for the current excessiveness (intemperance) of man's interaction with Nature (the reasons for the “destruction of Nature”) and/or reasons for the inefficiency of the current normative interference (i.e., the environmental protection law) should be sought for in the dominant anthropocentric cultural paradigm (12) of the western cultures (13) oriented towards an un-limited material progress.

The morality “controlling” man's interaction with Nature has remained unchanged, i.e., utilitarian. (14) The “ecological reason” stems from the belief that man's exploitation of nature has gone too far and hence is in favour of limitation and prevention of nature pollution and of a more rational exploitation of nature. The implementation of the ecological reason leads therefore to a more rational exploitation; however, man's interaction with Nature continues to remain destructive (exploitative).

The spiritual background of environmental protection law is comparable to the spiritual background of the first legal norms which limited industrial pollution (before the “environmental explosion” of the '60s).(15) The spiritual background of both is anthropocentric – there is no shift in the comprehension of Nature which continues to be understood instrumentally, i.e., as “environment” for the use of man and has to be kept clean or in some other way befitting man's comfort and health. (16)

The environmental law of the first wave does not differ in its essence from the contemporary legal norms intended for the restriction of pollution.

The anthropocentric background of the “environmental protection law” is already evident in the terminological context of the environment (and the non-existent Nature), revealing the subject of the environmental law, which is man's immediate environment. The prima facie evidence of the mentioned argument is the substantive orientation of the environmental protection law. The criterion of this protection is man and not the natural equilibrium of all biotic communities.

The thelos of environmental protection law is therefore in compliance with the dominant anthropocentric construction of nature for the purpose of ensuring a clean environment for man, man's health and comfort. The ecologisation of the first wave targets the restriction of pollution; thus the environmental protection law is the law of protection from pollution designed for man only.

At the same time, the issue of the use of Nature, understood as a sum total of “natural resources,” remains “untouched." The orientation of the western cultures towards un-limited material progress makes such “ignorance” of the first-wave of ecologisation logical. The limitations of the use of Nature, i.e., prohibitions and limitations which would impose on man a careful and respectful utilitarian interaction with Nature would represent an indirect obstacle to non-restricted production of material goods, and thus a hindrance to one of the key values of the western culture, which is the increase of material wealth.

The development of the ecologisation of law so far has reflected the dominant utilitarian orientation of the western cultures. “Ecological rationality” (17) which has encouraged the formation of the environmental law has preserved its anthropocentric nature. The thelos of the environmental law is not the transformation of un-limitedness (exploitativeness) of the utilitarian (and in general burdensome) interaction with nature, but merely the formation of “safety mechanisms” for the purpose of the protection of human health and comfort.

In terms of such premises, the “impotence” of the environmental law is logical, i.e., no improvement is noticeable in the “environment;” on the contrary, the scope of the destruction of Nature is broadening.

If anthropocentrism (exploitativeness) as the basis of human utilitarian interaction with nature has led to the “destruction of nature,” there is no doubt that the ecological reason remaining within the anthropocentric construction of Nature can not lead to its “resurrection”. Only the setting-up of the ecocentric construction of Nature may lead to the “resurrection” of Nature.

This orientation must be followed by the nomos (18) of the western cultures. A new law of nature on the basis of the new, ecocentric ontology and ethics is therefore necessary. (19)

Second premise: from the anthropocentric to the ecocentric (philosophical) construction of Nature – creation of a new (ecocentric) “philosophy of nature”

In the last decade, the issue of a redefinition of the relationship between man and Nature has become an increasingly important philosophical issue also within the western philosophy which has throughout its history been predominantly anthropocentric (and anthropomorphic). (20)

A “new philosophy of nature” (21) incorporating the ecological awareness (22) is arising also from the western philosophical tradition, i.e., from the pre-Socratic philosophy (23) which was relegated to the “dustbin of history” with the advent of “homo mensura” and the ensuing anthropomorphizing of the western philosophical thought.

The entrapment of the western civilisation in the ontological duality of the (anthropomorphic) spirit and matter which has placed man on the pedestal, at the crown of creation, and made him the master of the universe, has not been questioned, not even by Kant, who is well known (24) for solving another dualist issue of the West (epistemological dichotomy between reason and experience). (25)

In conjunction with the new ontology and the new ethics, the “new philosophy of nature” represents one of the key starting points for the transformation of nomos, i.e., a transformation of new legal and political philosophy and thus also new (instrumentalised) law of nature.

In view of the centrality of nomos in the western cultures, its very transformation is quintessential for the enforcement of the ecocentric social construction of nature. The transformation of nomos means the transformation of the system (26) which regulates the behaviour of man at the everyday level, i.e., the normative legal system.

In terms of the “status of Nature,” the current “ecologisation” of nomos (27) connotes in particular the creation of obstacles and constraints of human interaction with Nature. The measure for human interaction with Nature is the maintenance of natural equilibrium.

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The “resurrection” of environmental awareness in this century has triggered different approaches to the philosophical construction of nature.

The ecological situation at the turn of the 20th century (28) triggered (first in the USA) the beginning of ecological anthropocentric awareness. (29) The criterion adopted in this approach to the issues of the “destruction of Nature” is the criterion of human health and comfort which necessitates the cleaning of the environment and a more careful exploitation of natural resources (30). The philosophical framework for this approach is still Cartesian, issuing from the anthropocentric ontology and utilitarian ethics.

This (philosophical) approach represents the baseline for the dominant political and legal construction of Nature, i.e., “environmental protection.” (31)

At the same time, the ecological impulse spurred (again first in the USA) the creation of the ecological ecocentric awareness,(32) which rejects the anthropocentric construction of nature and takes into account the new scientific developments, giving rise to a new, ecocentric ontology and ethics. From the ontological point of view, man's place is in Nature, as an equi-valent and co-dependent part of Nature. This ecocentric ontology has also given rise to the ecocentric ethics which imposes on man a respectful interaction with other natural entities preserving the natural equilibrium. (33)

The above approach is the departure point for the further development of ecocentric philosophy of nature.(34) The key philosophical orientation is the philosophy of “deep ecology.” (35) Together with the already mentioned ecocentric ontology (36) and ethics (37), one of its basic premises is the “naturalness” (38) of man's (material) interaction with other natural entities. However, man's centrality in Nature and man's co-dependence and connectedness with other natural entities demand a respect for the limitations of the natural equilibrium,(39) which also connotes an enframing of the current un-limitedness of human interaction with Nature and/or satisfaction of human (material) needs within the constraints of the natural equilibrium. (40)

The philosophy of “deep ecology” stems, therefore, from a redefinition of the progressiveness of human development, in particular, the orientation of the western cultures into un-limited material progress. It implies, therefore, a redefinition of the “functioning economy” of western cultures. (41)

The new “philosophy of nature” (42) has been gradually gaining ground since its initial position of “counterculture”, (43) and has become increasingly prominent within the established western philosophy.(44) It represents a philosophical departure point for a new, ecocentric paradigm.(45) This discussion, however, stresses its political operationalisation, comprised in the concept of “sustainable development,” which is the basis for the transformation of western cultures.

Third premise: the concept of “sustainable development” and the necessary formation of »systemic ecocentrism« of the western cultures (premises of ecocentric legal and political philosophy)

The ecological situation, on the one hand, and the increasing scope of ecocentric ecological awareness, on the other hand, led to a global political agreement at the turn of the century in the form of the principle of sustainable development.(46)

The principle of sustainable development is understood as a political operationalisation of the ecocentric ecological awareness.(47) It is understood, therefore, as an approach requiring humankind to adapt their interactions in conjunction with other biotic communities to the basic “law of Nature”, i.e., inter-connectedness of all natural entities. In this context, the preservation of a balanced state of Nature (all biotic communities) is essential. With regard to the centrality of the (un-limited) material progress, the adjustment of the production process of material goods is therefore essential, i.e., the adjustment of economy. It should be emphasised that this is not the principle of “zero growth”,(48) but a principle of adjustment of material progress (development) to the constraints of natural equilibrium.(49) In reference to the existing excessiveness of the economic interaction with Nature (50), the current adjustment implies, of course, a limitation of the economy.

As an inter-national political agreement, the principle of sustainable development has a twofold meaning. Firstly, it is a political and social programme of cultural transformation of human communities all over the planet. And secondly, with regard to the actual social organisation of man (national states) it must be suitably incorporated within the individual social systems, providing therefore a relevant framework for the transformation of law. When incorporating the principle of sustainable development into legal order, the pervasiveness of anthropocentrism in all segments of the western cultures needs to be taken into account.(51) The ontological and ethical orientation of the said principles does not have its “roots” in the existing (legal) value system and/or established western legal and political philosophy.(52) The western legal philosophy has not included other natural entities in the quest for the “human formula.” (53)

From the ecocentric ontology, i.e., co-dependent centrality of man in “ecological community” (54) issue the rules of behaviour, i.e., ethical norms, with the following essential commandments: show respect for other natural entities, treat them with respect and satisfy own personal (material) needs within the limits of the natural equilibrium. When other natural entities are being used (to meet own needs) the limit determined by the natural equilibrium must never be overstepped. The basic value of the nascent culture is the maintenance of the natural equilibrium; its implementation necessitates a limitation and/or adjustment of one of the key existing values – material progress and/or un-limitedness in satisfaction of material needs. The limitation is necessary because the un-limitedness of the material progress has brought about the destruction of Nature. Man must return within the boundaries set by the natural equilibrium.

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The oppositeness of the above mentioned values is manifest: on the one hand, there is unlimited exploitation of nature generated by the tendency towards an un-limited material progress and, on the other hand, the need for the adjustment of the use of Nature and/or the adjustment of satisfaction of material needs to the constraints of the planet and/or Nature, i.e., constraints defined by natural equilibrium. However, this is not the oppositeness between the value of the material progress itself and the value of the preservation of natural environment. The oppositeness relates to the un-limitedness of material progress, i.e., the un-limitedness and/or exploitativeness of human interaction with Nature.

It has to be established that despite the “breakthrough” of the issues of the relationship between man and other natural entities from the margins of philosophy (“counterculture”) in the last decade (55), Nature continues to be ignored in the dominant contemporary legal philosophy and social theory (political philosophy) regardless of the ideological or philosophical origin.

Regardless of the possible reasons for such ignorance, this stance, today, when these issues have become global political issues (56) can not be explained otherwise than by entrapment within the context of anthropocentric orientation of the western culture.

Man's “descent” into Nature implies, therefore, a value system which has “no roots” (57) in the western cultures. In other words, in the actual established legal and political philosophy as the “ideological superstructure« and the starting point of the positive law and the state, the central position is taken by man and just satisfaction of man's material needs, whilst Nature (natural equilibrium) remains “outside the door.”

The successful transformation of law and/or its effectiveness (influencing the change in the treatment of other parts of nature in everyday life) is therefore directly related to the incorporation of values introduced by the new awareness in a (legal) value system of the western cultures. The first step of the transformation of law is therefore the ecologisation of legal philosophy.

2. The concept of ecocentric legal philosophy

2.1. Introduction

Nomos is understood as the normative social system of the western cultures, whereas the rules of behaviour are characterised by the attribute of lawhood. In the western cultures, nomos is thus the synonym for legal rules governing behaviour. The content of these rules depends on the context determined by the legal and political philosophy and/or the spiritual framework of a certain culture as the “ideological” superstructure of nomos.

The nomos of the western cultures has ever since the mentioned turning point of the “homo mensura”, (58) i.e., the separation between humanity and nature, lost touch with the “law of Nature” (nomos theios) and has become the “property” of man - “human law” (anthropeioi nomos)(59). In the history of the western civilisation, the idea of law (60) has been linked only to man.

In this regard, it should be noted that this essay does not deal with the issue of lawhood (statehood) as the key attribute of “anthropeioi nomos”, (61) but that we are interested in the centrality of man in Nature and/or the incorporation of the “natural law” in the “human formula”. (62) The idea of law (justice) overlaps at this point with the issue of legal ontology. In this sense, the human formula and/or its part which regulates human behaviour in relation to other natural entities (“nomos interspecies”) (63) is understood as the “correct path” (64) which ensures a harmonious centrality of human community in Nature.

The lawhood of the rules of behaviour is understood as a departure point (65) whereby the desired de-anthropocentrism of nomos needs to be redefined.

It is not possible to discuss the lawhood of the “human formula” without the state. The state is understood as a result of social agreement reflecting man's social aspect (Aristotle's zoon politikon). (66)

From the point of view of redefinition of the relationship between human and other biotic communities, the incorporation of Nature in the basic social agreement or the contrat social (social agreement) is crucial and is understood as the “sample-genetic definition of civil life,” as an idea of the hypothetical original state, as the widest framework for human social aspect, i.e., a frame for human community, society, in short, the “generator of civil society,” whilst for the purposes of our essay, the focus lies on the entry of Nature in nomos, i.e., the (authoritative) normative system of human community.

In this sense, social agreement is understood as the contract of statehood providing the basis for the operation of the state, assigning the attribute of lawhood (67) to the “human formula.” The contract of statehood, therefore, is understood as the basic consensus regarding human social organisation which at the “material” level, the level of the positive law, is represented by the constitution, whereby we are interested in particular in that part of the contract of statehood (constitution), as a social pact, which refers to the substantive definitions, i.e., definitions of the fundamental common values and goals.

2.2. Shaping of ecocentric legal philosophy

2.2.1. Premises of natural law

The scientific realisation of man's centrality in the network of co-dependent natural entities (“prima ontologia”) is certainly one of the realisations of the natural, cosmic law, the “divine nomos” (“nomos theios”), i.e., law which throughout the history of the western man has provided the criteria and norms for human behaviour.

The fundamental natural law (Logos - Heraklit, common to all natural entities, is the co-dependence and the inter-connectedness of all natural entities. The fundamental (cosmic) law is thus the same for all Nature, which means that all living beings must abide by it. It is the “cosmic formula” showing man his place in the cosmos (Nature); another issue altogether is the “human formula” and what it should be like.

In terms of rules of behaviour which man should respect in interacting with other natural entities, it is (thanks to prima ontologia) no longer possible to talk of the “indisposition” (68) of nature, i.e., the problem which condemned the philosophy of natural law (69) to failure in its search for the criteria and norms for human behaviour “which would turn out to be resistant to human arbitrariness.” (70)

“Prima ontologia” is thus cognisance obtained from Nature, allowing man to understand (71) the criteria and norms for his behaviour towards other natural entities. (72) Prima ontologia and the ensuing rules of behaviour represent the cognisance of the natural, cosmic law – order that must be taken into account in the formulation of the positive law. They are therefore the legitimisation of the correct or just law (at least in terms of the relationship with other natural entities). (73)

“Prima ontologia” shows man his initial centrality – centrality in Nature. Man, therefore, is not merely a social, political being (zoon politikon), but is (first and foremost) a natural being (zoon physicon). The basic law of nature, the cosmic order, and the inter-interconnectedness and co-dependence of all natural entities are for the western man, defined in culture as the antipode of wild nature,(74) a given, committing him to action in compliance with the cosmic order.

The image of Nature as a dynamic interaction of mutually intertwined and co-dependent natural entities, signifies the restoration of the organic image of Nature. (75)

The above mentioned philosophical premise of law is also the basic premise of pre-Socratic philosophy (Ionic nature scientists) which was relegated to the “dustbin of history” with the advent of “homo mensura” and the ensuing anthropomorphizing of the western philosophical thought. As shown above, the centrality of western civilisation in the ontological anthropocentrism stemming from the ontological duality, was not questioned, not even by Kant in his (famous) solution of the other (epistemological) duality of the West. (76)

The ecocentric ontology (prima ontologia) and the ensuing ecocentric ethics has long-term consequences for the shaping of human nomos. It demands that man create law and social order in compliance with the mentioned premise of the “natural law.” This means a departure from the western man's centrality in ontological duality which places man apart from Nature (cosmos). In creating order, the rules of behaviour, and laws, man must take into account his position in Nature (he is part of Nature and not its master) and his vital connection with other biotic communities.

If we paraphrase A. Kaufmann through the optic of ecocentrism, “law is a cluster of mutual relations of people and relations towards other natural entities.” (77) The mentioned (scientific) cognisance of the basic law of nature translated into the “philosophical language” means the following: the ontology of relations (among people and between man and the other parts of Nature), i.e., “prima ontologia.” (78)

If the western legal philosophy has dealt so far with the filling of the void which has occurred with the “banishment of Nature,” Nature has re-surfaced as the force aided by science to guide human behaviour in relation to other natural entities.

The search for the natural law does not focus on a preordained collection of natural laws which would determine the rules of social (human) order, but merely the “cosmic order” which would show man his true place in creation, in Nature.

This is then the issue of relation between man and Nature and hence the issue of “cosmic formula.” From here on it becomes the issue of the “human formula”, i.e., human nomos.

The answer to the issue of what the “human formula” should be like depends on the cognisance of the “cosmic formula.” The ideological and value orientation of the human law (and hence the rules regulating the relationships between people) depends on the previous ontological cognisance of the relationship of man with Nature, the remaining cosmos. (79)

Insofar as “prima ontologia” is based on the image of wild nature which man must cultivate to establish order, the ideological basis for human nomos also rests on the image of the man as a savage, living in a natural state “bellum omnis contra omnem.” Hence the human nomos is a means of creating social order from the natural state of chaos and dis-order. (80)

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If, on the other hand, prima ontologia is based on man's centrality in the dynamic harmonious relationship with nature, this underlying view has a corresponding value system in human nomos.(81) The anthropological and, therefore, empirical confirmation of the mentioned link can be found in most non-western (“primitive”) cultures.(82)

If the western philosophy of law has been predominantly characterised by an awareness of a lack of knowledge about human law (and what it should be), this, according to Kaufmann, (83) only reveals a deep insecurity as to what man really is. Or, in the words of Dostoyevsky: “The ant knows the formula of its abode, the bee knows the formula of its beehive – they know it not in a human way, but in their own way – but that is all they need. Only man does not know his formula.” (84)

The search for man's “formula” begins in “prima ontologia”, i.e., in the knowledge of the oneness of the reality whose part man is. The subjective-objective notion of reality in which man “observes” Nature “from above” and questions his own essence does not, of course, provide the framework for solving the riddle of man's formula.

The different ontological premise of man's position in the universe, i.e., “ontology of relationships,” provides assistance in the search for the “correct and just” human nomos. Only cosmic nomos exists objectively (in nature), whilst man must find his own nomos, his own “formula.”

The ecocentric value orientation of nomos will thus have to be gradually reflected within that part of “human formula” which regulates the mutual interaction of human community (i.e., in the “internal law” of human community). The inter-connectedness of all natural entities (human and other biotic communities), i.e., mutual ecocentric interaction, as the ontological characteristic of man's position in cosmos, is (also) the underlying value of the “internal human law." (85)

2.2.2. Redefinition of the western legal philosophy – natural equilibrium as the underlying universal legal value (ecocentric legal philosophy)

2.2.2.1. Idea of law

The scientific realisation of man's central position in the network of co-dependent natural entities (“prima ontologia”) has re-introduced the issues of man's centrality in Nature on the stage of the western philosophy. Other natural entities "have returned" to the western philosophy of law, for centuries “burdened” merely with the issues of man.

The determination of the rules of conduct which man must respect in interaction with Nature also implies an expansion of the idea of law itself (justice and correctness). Justice also refers to the interaction between man and Nature and not only to the interaction within human community. Just law, therefore, (from the point of view of relationship between human and other biotic communities) is law which complies with the ecocentric ethics, law which directs man's conduct in order to preserve the natural equilibrium. Consequently, the economic interaction has to be maintained (kept) within the framework ensuring the vitality of other biotic communities. (86)

“Prima ontologia” as the scientific cognisance of the dynamic link and co-dependence of all biotic communities is the philosophical premise of nomos. The connectedness and co-dependence, i.e., the ecocentric ontology, implies the exercise of respect and care in human interactions with other natural entities, and hence implies the ecocentric ecological ethics. (87) Its essence is to keep the economic interaction within the framework ensuring the vitality of other biotic communities. (88)

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At this point we have to address the issue of whether the obligation to respect the natural equilibrium stems from the “rights” of other (living and non-living) natural entities. And whether the prima ontologia demands an expansion of the theory of rights to other natural entities. The concept of the expansion of legal rights was developed by Christopher Stone in his well-known article Should Trees Have Standing? - Toward Legal Rights for Natural Objects.(89) In a similar vein, Levi-Strauss argues for the proposed amendment of the Universal Declaration of Human Rights.(90)

Stone posits that the (scientific) cognisance of man's co-dependent centrality in Nature dictates an expansion of rights to other (living and non-living) natural entities. In a persuasive argumentation, which he begins with a review of the historic expansion of rights (from slaves to legal persons), Stone argues for the expansion of rights. In this he follows the pragmatic orientation, i.e., the possibility to represent the interests of other biotic communities before the courts. The essence of Stone's conception is the possibility of setting up guardians to represent the rights of other biotic communities before the courts.

Levi-Strauss's argumentation is somewhat narrower in that it proposes an expansion of rights to encompass the community of life. In recognising the rights, he aims higher, i.e., to the creation of the new Declaration of Rights. “May we then imagine such a basis for freedoms which would be self evident enough to be applicable to all without discrimination? Only one was noticed; however, it demands that man be no longer defined as a moral being, but as a living being, which is his most noticeable property. If, however, man's rights are most of all the rights of a living being, it follows directly that the natural boundaries for these rights, recognised for humankind as a species, are defined by the rights of other species. The rights of humankind terminate when their implementation endangers the existence of another species.” (91)

The system of (human) rights is one of the central elements of the social organisation of western cultures. The right is actually a materialisation of justice (a just state respects the rights; human interaction is just if rights are respected). If in our search for the answer to the question, we depart from the actual philosophical context of rights, a single conclusion is possible. Justice in relationship to others (and hence also natural entities) is only possible if they have rights.

As shown above, humankind is in a period of transition from the “environmental protection” to the “maintenance of the natural equilibrium”. An essential difference between the two is that the latter demands that man respect other biotic communities. We believe that this basic position necessitates the recognition of the rights of other biotic communities. (92)

Although some may disagree, it should be noted that the value systems with regard to rights have shown to be transitory in history (slaves, women), so we can expect this to be the case with regard to the rights of natural entities. (93)

Despite the seemingly impossible establishment of the rights of other biotic communities de iure, some legal acts have managed to assign these rights de facto. Ortolano cites the example of the American Endangered Species Act (ESA) protecting the animal and plant species identified as endangered and demonstrates that the lawmaker de facto recognised the rights of individual animal species by granting them protection. (94)

We believe that the definition of natural equilibrium should be considered the criterion of human interaction with other biotic communities for de facto recognition of their rights, namely the right to existence. Respect for natural equilibrium also “covers” the rights of other biotic communities to existence. The threat to natural equilibrium should be understood as endangerment of the right of other biotic communities to existence. Respect for interaction with Nature issues from the rights of other biotic communities to existence and implies the obligation to maintain the natural equilibrium.(95) This provides the basis for the maintenance of the natural equilibrium as a duty for man as an individual and as a duty for the state to ensure it.

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A shift from the existing framework of “environmental protection” to the framework of “maintenance of the natural equilibrium” means therefore a shift from the anthropocentric approach of “environment purification” to the ecocentric approach of the maintenance of the state of equilibrium in relationships between human and other biotic communities, whereby the approach is dynamic and not static.

The concept implied is the concept of “dynamic equilibrium”, whereby human interaction with other parts of Nature is inherent to the “dynamics of nature.” The ethical imperative therefore is not the withdrawal of man from Nature but an attitude of respect in interaction.(96)

Tarlock (97) draws attention to the importance of understanding the dynamism of natural equilibrium in the creation of the natural law. Unlike the current prevailing belief with regard to the static nature of the natural equilibrium, the transformation of the natural law must take into account the latest scientific findings with regard to the dynamic and chaotic nature of the constantly changing ecosystems. According to Tarlock, such a scientific premise dictates a turning point in the natural law. “Enhancing the capacity” of law for an ongoing monitoring of the “dynamism of nature” is essential. (98)

2.2.2.2. Legal values
The incorporation of Nature in the very essence of law inevitably triggers a redefinition of legal values. The natural equilibrium, i.e., the equilibrium of life (including human life), as a central value of ecocentric ecological awareness is becoming a legal value. In this sense, we could speak of the expansion of the legal subject, i.e. the expansion of values which are the subject of legal protection.

The following is of crucial importance: natural equilibrium is becoming a basic and a common legal value.

2.2.2.2.1. Natural equilibrium as a fundamental (basic) legal value

The definition of natural equilibrium as a criterion (framework) of correct law places the maintenance of natural equilibrium as a legal value in initial position. It is obvious that the natural equilibrium is thus becoming a fundamental legal value, a fundamental criterion of the correctness (justice) of law.

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The initial position of natural equilibrium means that the constraint of natural equilibrium defines in particular the human interaction which has the function of satisfaction of (material) needs, i.e., economic interaction.The initial position of the maintenance of natural equilibrium as a legal value implies the enframing of the other (legal) value, i.e., the satisfaction of material needs (economic interaction).

In his satisfaction of (material) needs, man is no longer un-limited,(99) but is constrained by the framework defined by the natural equilibrium.

A redefinition of legal philosophy directly limits the exploitativeness (un-limitedness) of the satisfaction of human material needs (but does not limit the satisfaction of material needs as such) and/or redefines the orientation of the western cultures towards an un-limited material progress, (100) which means that man has returned within the boundaries set by the natural equilibrium. The initial position of the maintenance of natural equilibrium thus does not mean the “sacrifice” of economic progress,(101) but implies its enframing within the boundaries of the natural equilibrium.

2.2.2.2.2. Natural equilibrium as a common legal value

The maintenance of the natural equilibrium is also a value in the common, public interest of human community.(102) This does not relate to what we want as individuals, but to what we are as a human community.(103) The collectivity, commonality of natural equilibrium as a legal value is the foundation for the creation of the ecocentric social theory (political philosophy). The definition of natural equilibrium as a basic and common legal value implies that the maintenance of natural equilibrium is defined as the fundamental public interest.

The “initial position” and “commonality” of the natural equilibrium assign the state the role of the guardian of the interests of human community as well as the interests (rights) of other biotic communities. They thus represent the legitimisation of state activities affecting the environment in the private sphere (104) and thus provide the baseline for a redefinition of the political philosophy of the western cultures.

2.2.2.2.3. Maintenance of natural equilibrium as a human right

The investiture of the natural equilibrium in the system of legal values also gives rise to the necessity of the definition of the maintenance of the natural equilibrium as human right.(105) Considering the necessity of the establishment of the active role of the state in the maintenance of the natural equilibrium, the state should ensure also this right. In our opinion, the environmental right should also comprise the right to the maintenance of the natural equilibrium as a traditional human right, and the guardianship of other biotic communities, i.e., the possibility of “civic” interference also in the interest of other biotic communities.(106) Stone's concept of legal guardianship of the interests of other biotic communities has led (first) in the American law (and later elsewhere), also on the basis of the well-known separate opinion by the Supreme Court Judge William O. Douglas in the case Sierra Club v. Morton,(108) first towards the liberalisation of the “standing doctrine(109) and later towards the creation of the statutory instrument of “legal guardianship” by so-called class-action.(110)

2.2.2.2.4. Relationship between the new legal value and the existing legal values

The initial position of the natural equilibrium (111) addresses the issue of relationship of the new legal value towards the existing fundamental legal values of the western cultures. At issue is in particular the question of conflict between the new legal value, i.e., the maintenance of natural equilibrium and other legal values firmly implanted in these cultures.

The conflicting character of the “emerging” value becomes obvious at the moment when its incorporation in the legal order demands an adjustment (limitation) of certain “deep-in-structure” values of the western cultures (nomos). At issue is in particular the un-limitedness of the economic(112) interaction of human and other biotic communities and the related material progress as one of the basic (legal) values of the western cultures.

The enforcement of the maintenance of natural equilibrium may also demand a limitation of another legally protected value, for example, the right to the freedom of movement or some other human right. Thus, for example, the administrative court of the state Baden Württemberg in its review of the regulation prohibiting night diving in the lake because of its negative impact on water organisms rejected the complaint by a plaintiff who claimed that this represented an inadmissible interference with the constitutional (human) right to personal development (paragraph 1 of Article 2 of the German constitution). The administrative court estimated that the public interest (of the maintenance of “well being” of water organisms) justifies the said limitation. (113)

The following two values are at “conflict” here: natural equilibrium and material progress. The definition of the maintenance of the natural equilibrium as the fundamental, shared value legitimises an interference (limitation) with regard to other legal values, in particular the un-limitedness of the economic interaction. Such an intervention often represents the limitation of other legal values, also of private property. (114)

The initial position of natural equilibrium is not absolute; it is limited with the vital needs of human community.(115) Nevertheless, each time an activity affecting Nature takes place for the purpose of meeting man's vital needs, the limits of the natural equilibrium must be taken into account as much as possible. (116)

*****

The new value, i.e., the maintenance of natural equilibrium, must be “materialised” in the “contracts of statehood” and/or constitutions of the western countries, which means that as a category it features next to “freedom” and “democracy.” (117) The entry of Nature in the western (legal) value system, i.e., in the contract of statehood (constitutions) is, as we have shown, conditio sine qua non for an efficient change in the legal order and, in the final analysis, for a change in man's attitude towards Nature. (118)

3. In Place of Conclusion: brief evaluation of the inclusion of the ecocentric legal philosophy in the Slovene Constitution

3.1. General

Slovenia's Constitution (119) may be classified among those (rare) constitutions which from the point of view of constitutional and legal treatment of the ecocentric legal philosophy with its key attribute (maintenance of natural equilibrium) are manifestly modern. In the continuation, we will focus on two constitutional categories which have to a large extent incorporated the new (philosophical/political) view of Nature; the provision of Article 67 which speaks of the environmental benefit of property and the provision contained in paragraph 1 of Article 72 concerning the right to a healthy environment.(120)

3.2. Ecocentric or anthropocentric interpretation of the Constitution

It should be noted that some constitutional theoreticians reject the possibility of incorporation of the ecocentric orientation in the constitution (and in general in law). Such views are mostly premised on the argument that it is nonsensical to view the ethics which imposes on man a respectful interaction with other parts of Nature as ecocentric, in view of the fact that the motive for a change in man's attitude towards other (in particular, the living) beings for the purposes of their preservation serves the interest man with regard to the maintenance of a healthy life and survival (of the current and, in particular, the future generations). This should mean that such an approach in its essence may only be anthropocentric.(121) Herewith, we should take note that the ecocentric orientation involves, on the one hand, the ecocentric ontology and, on the other hand, the ecocentric ethics. The ecocentric ontology sees man as a co-dependent and equivalent part of Nature. It issues from the contemporary scientific findings of man's centrality in the network of co-dependent natural entities. These findings reveal man's initial centrality in Nature. Man is therefore not only a social, political being (zoon politikon), but also and foremost (hence the attribute of »the initial position«) a natural being (zoon physicon). The fact that all natural entities are interlinked and co-dependent commits the (western) man, identified in the culture as the antipode of wild nature, to act in compliance with the mentioned centrality and dependence. Man must therefore take into consideration his position in nature and his vital connection with other biotic communities and must act towards these other beings in a way that reflects this knowledge. The ecocentric ethics examines what this action should be like. Its essence is the belief that man must treat other natural entities with respect and use them moderately (food chain). The limit to which man may interfere with other natural entities is natural equilibrium. In using and/or otherwise interacting with nature, man must not destroy the natural equilibrium. As the prevalent ethics today is exactly the opposite, i.e., anthropocentric (122) (according to which man interacting with the other parts of Nature does not need to preserve the natural equilibrium, and/or exactly the opposite, this ethics has even encouraged unlimited and destructive interaction with Nature), it is clear that the enforcement of ecocentric orientation means limitation and/or adaptation of all human activities, in particular economic activities. Man is to return within the constraints of the natural equilibrium. What is essential is the maintenance of natural equilibrium and not merely the protection of man's immediate environment. This is a crucial difference between the approach based on the principle of »sustainable development« and the current approach of »environmental protection«, which has mainly dealt with the »purification« of man's immediate environment.

Of crucial importance for the enforcement of ecocentric orientation is thus the enforcement of ecocentric ontology (maintenance of natural equilibrium). The motive for such orientation is still anthropocentric. In this case, natural equilibrium is maintained to benefit man, (123) and not because we would recognise the value of other parts of Nature ( for example, animals and plants) as separate from man's needs and advantages. (124) However, what matters is the shift from the »protection of man's immediate environment to the »maintenance of natural equilibrium« regardless of the motive for such shift.

It is in the interest of man to maintain the natural equilibrium, and in particular other forms of life. In reference to the existing destructive attitude towards other forms of life, it is clear that a drastic change in the value system is necessary. (125) This is where the meaning of ecocentric orientation lies. It is therefore important to explain the Slovene Constitution in this light. We should mention that the Slovene law is already developing in this direction. The Environmental Protection Act (Ur. l RS 32/93, hereinafter referred to as: EPA) clearly reveals an ecocentric orientation already in the provisions of Article 1. Paragraph 2 of Article 1 of the EPA prescribes that the direction of development processes, spatial-planning activities and other environmental activities must take into account the appropriate balance between development and environmental needs. In paragraph 4 of the said Article the law specifies that the criterion for all action and norms of environmental protection is, in addition to human health, also the health and well being of other organisms.

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3.3 Environmental function of property

With regard to the importance of private property in the western society, the connection of the property with the environmental concept (next to the already established social concept) constitutes a significant improvement. Slovenian Constitution is clear about that, (126) unlike the German constitution which lays down in the second paragraph of Article 14 the general notion that property is binding and that its use must serve the public interest, but does not speak in particular of the environmental function of property. (127) The said provision of the Constitution clearly shows that »Nature has entered« the constitutional sphere.

3.3.1.Relationship between the determination of content and the limits of property and the (authorised) interference

The Constitutional provision referred to has great significance for the enforcement of the ecocentric orientation (expressed in the principle of sustainable development) in the legal order and in real life. In compliance with the constitutional authority, the lawgiver may determine the content and the limits of the property based on the fundamental criterion of the maintenance of natural equilibrium.

The lawgiver's determination of the content and the limits of property often involves limitations of the freedom of property which may relate to the obligation to endure something (128) or demand action from the owner. (129)

In relation to the issue of determining the content and the limits of property we should in particular emphasise the issue of relationship between the legal specification of the manner of exploitation of property and the authorised activities. Statutory specification of the manner in which property is to be exploited does not represent an interference, even though it often results in a certain limitation of the freedom of ownership and/or reduction of the proprietor's “manoeuvring” space. As this does not constitute an interference, the owner is not entitled to compensation. The related issue is the issue of limit. The lawgiver’s authority concerning the manner of exploitation of property which leads to the limitation of the owner’s freedom which is to be borne without any compensation has a certain limit. When this limit is exceeded, this results in an interference (expropriation), which may be authorised, if it meets the strict criteria also developed by the constitutional practice. (130) The Constitution itself does not specify the said limits. There are two theories in the German constitutional doctrine concerning the determination of the mentioned limit: the theory of the special victim, developed by the Federal Court (“Sonderopfertheorie”) and the theory of suitability represented by the Federal Administrative Court (“Zumutbarkeitstheorie”). The former concerns dispropriation in the case the lawgiver imposes a special burden on an individual or a specific group in comparison to other comparable groups. This special burden may be special in terms of weight or in comparison to other owners. The advantage of this theory is its persuasiveness: the individual is compared to other individuals. The following scruple is raised: if the lawgiver delimits the groups on the basis of authorised criteria and places a greater burden on some of them, who should they be compared with? In response to this deficiency, the Federal Administrative Court used another criterion: undue burden may not be imposed on the individual. However, this criterion does not specify the quantitative limit for the still allowable limitations. Judicial practice must therefore review each case separately.

3.3.2. Determination of the content and the limits of property as an obligation of the state

By introducing the environmental function of property, the Constitution has not only expanded the function of property (also) with environmental protection issues (maintenance of natural equilibrium), but has, in relation to the provision in paragraph 2 of Article 72 of the Constitution (which imposes on the state the duty to maintain a healthy environment and/or the natural equilibrium), actually imposed on the state the duty to maintain a healthy living environment and/or the natural equilibrium (also) by determining the method of exploitation of property. The lawgiver has not only been given authority to define the mode of exploitation of property in compliance with the interests of »environmental protection« (maintenance of natural equilibrium), but also the obligation to do so. A function of the state, therefore, is to define the framework for human interaction with Nature. This also means the determination of the mode of property exploitation and/or limitation of its absoluteness in relation to Nature.

3.3.3. Scope of the environmental function of property

The logic of the environmental function of nature is based on the belief that the property right, as a special form of material custody of human freedom, must enjoy a suitable constitutional protection; however, the freedom of the individual in the area of property may not be unlimited and/or may not concern only the individual owner. The interests of other members of the community must be taken into account when implementing these rights. (131) In terms of the environmental function of property, the issue is raised whether this is a special form of social function – among the interests of other members of the community that have to be respected is the interest in healthy environment and/or preserved natural equilibrium. We believe that such an explanation would be too narrow – in such case it would be enough to introduce a provision on the social (and not economic) function of property in the Constitution. The provision on the environmental function of property must therefore be understood in a broader sense – it also refers to the respect for the vested interests of other parts of Nature (in particular the living beings, animals and plants). We are therefore in favour of the ecocentric interpretation of this constitutional provision. The interest of other parts of Nature which is given constitutional protection is the survival of the species. This explanation is further supported by certain international agreements (referring to the protection of certain animal species), which were ratified by Slovenia and which limit human interaction with certain animal and plant species in order to preserve them. (132) The lawgiver is thus obliged to account for the »interests« of other parts of nature specified in international agreements when determining the content and the limits of property. Such constitutional explanation may, of course, entail a larger scope of limitation of the freedom of ownership. The lawgiver is under obligation to take into account not only the interests of other people but also the »interests« of other living beings (animals, plants).

3.3.4. Environmental function of property as the basis for the constitutional protection of property rights

In addition to this »negative« side of the issue, i.e., the limitation of the freedom of ownership, this Constitutional provision also has a »positive« side. With this provision, the Constitution guarantees the protection of a new element of property, namely the owner's expectation that his property (referring to land) will remain unpolluted and/or remain in a healthy environment. Within this framework, the owner of the property which is polluted also expects that the state of affairs will be repaired. In our opinion, this concerns a special ownership entitlement granted to the owner by the mentioned constitutional provision. The state must ensure that this entitlement will also actually be protected. Also in this case, there exists a connection between the said constitutional provision and the provision of the second paragraph of Article 72 of the Constitution which assigns guardianship of the healthy living environment to the state. In this function, the state is obliged not only to determine the conditions and methods of carrying out economic and other activities, but also to specify by law the environmental function of property. The Constitutional Court has already adopted the position that the omission of specification of conditions and methods for the carrying out of economic and other activities would be unconstitutional. In our opinion, the same logic also applies in the event of cancellation of the statutory governance of the environmental function of property. Such omission would also be unconstitutional.

This raises the issue of whether legal protection is guaranteed for the owner in the case of interference in ownership entitlement. In other words, is the state responsible or at least co-responsible for the damage borne by the owner because of excessive pollution? With regard to the newer German theory and legal practice, the state in such cases should be responsible, in particular for any omissions of the measures necessary, intended for the prevention of excessive pollution. These are activities which the state should not allow on the basis of its regulations. (134) A further issue is whether the owner is constitutionally protected also in the case when damage results from excessive pollution which is the result of the lawgiver's omission of statutory specification of the content and limits of property and/or the government (administration) has not, on the basis of legal regulation, issued adequate regulations intended to prevent excessive pollution. We believe that the owner should have constitutional guardianship also in this case, taking into account the above mentioned categories of the »minimum environmental standard«.

3.4. Right to a Healthy Living Environment

In the first paragraph of Article 72 the Constitution defines that each person has a right in accordance with statute to a healthy living environment. Such constitutional provision is comparatively rare as well. (135)

3.4.1.Legal nature of the right and its judicial protection

3.4.1.1. Legal nature and constitutional protection

The issue raised in connection with this right is whether this is a basic human right with guaranteed constitutional protection. The issue is raised because this right has not been included in Chapter II of the Constitution, which regulates human rights and fundamental freedoms, but in Chapter III, where economic and social relations are regulated. Some authors object to its nature of a fundamental human right also because the Constitution imposes on the lawgiver the regulation of the method of its implementation.

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The position of the Constitutional Court is that it is possible to use constitutional complaint to protect those constitutional rights which are not included in the chapter on fundamental human rights and freedoms. (136) Regardless of the fact whether the said right is included in basic rights, the constitution guarantees its protection in constitutional practice. In the second paragraph of Article 15, the Constitution lays down that the manner in which human rights and fundamental freedoms are exercised may be regulated, but only by statute, whenever such regulation is authorised by this Constitution or whenever such regulation is necessary by reason of the particular nature of the individual rights or freedoms. For the case at hand, it is foreseen in the Constitution that the method of implementation of this right would be prescribed by law. As statutory protection has also been foreseen for the implementation of certain rights from Chapter II, (137) such provisions of the first paragraph of Article 72 of the Constitution may not be used as an argument against the integration of the said right among human rights.

With reference to the above, we can ascertain that the right to a healthy living environment is a constitutionally guaranteed right.

With regard to the provision of the second paragraph of Article 72 of the Constitution, which imposes on the state the duty to maintain a healthy and clean environment, we can ascertain that this is the case of the so-called right to »positive status«. This means that this right must be ensured by the state through the action described above. This was the position adopted by the Constitutional Court already in the above-mentioned case concerning the legal regulation of the operating time of catering establishments. (138) In the opinion of the Constitutional Court, everyone has the right to a healthy living environment and the state has the obligation to ensure it on the basis of the provision of the first paragraph of Article 72 of the Constitution. This objective is not only provided by the Constitution but also desired. With the statutory regulation of the operating time of catering establishments, the lawgiver wanted to reconcile the interests of caterers with those of the residents in the neighbourhood and, subsequently, to ensure the residents the right to a healthy living environment.

3.4.1.2. Legal protection with regard to individuals

In the case when the individual's right to a healthy environment is put at risk by other individuals, the individual enjoys legal protection in accordance with Article 15 of the Environmental Protection Act (a Slovene citizen or organisation may file a complaint against the holder of an excessive activity affecting the environment, causing a risk to the environment, to cease the activity affecting the environment); legal protection against emissions under the law of property and the law on good neighbourliness is provided in compliance with Article 42 of the Basic Property Law Relations Act (139) (by filing a complaint, the owner of a property may demand from the owner of the neighbouring land to stop emissions) and protection under the obligations law in compliance with Article 156 of the Obligations Act (140) (using the institution of complaint every one may demand from the operator to remove the source of danger for the environment).

3.4.2. Content of the right

3.4.2.1. Right to the maintenance of the natural equilibrium

As said before, the provision of the first paragraph of Article 72 should be interpreted more broadly – as not only referring to the »healthy living environment«, but also to the »maintenance of the natural equilibrium«. To provide the »substance« of both notions is the subject of regulatory framework. In our opinion, the Constitution authorises the lawgiver (using the wording of the first paragraph of Article 72: »…in accordance with statute…«) to also define the content of the right and not only the method of its implementation.

The natural equilibrium is defined in Article 3 of the Nature Preservation Act (141) as a state of mutually balanced relations and influences of living beings among themselves and their habitats. The Act further specifies that the natural equilibrium is upset if the activity affecting the environment destroys the quantitative or qualitative structure of the habitat of plant or animal species, encroaches on or destroys their habitats, destroys or changes the functioning capacity of the ecosystems, interferes with the interconnectedness of ecosystems or causes significant isolation of individual populations. The mentioned statutory provision represents, in conjunction with many other provisions of the mentioned law, the law on environmental protection and a number of other statutory regulations, the foundation for the specification of the content and/or the scope of this right. We believe that the content of this right may be identifiable in this manner.

3.4.2.2. Duty to preserve the natural equilibrium (and/or the survival of animal and plant species) - is it the right of animal and plant species?

From the right to a healthy living environment (maintenance of the natural equilibrium) stems the duty to preserve a healthy living environment (natural equilibrium). The Constitution does not define such duty with regard to the »healthy living environment« but specifies, however, a certain kind of restricted environmental duty in the first paragraph of Article 73. (142) We believe, however, that the Constitution should be interpreted in such a way that the individual has the duty to maintain a healthy living environment (natural equilibrium).

In relation to the indicated duty, the question arises whether the Slovene Constitution and the Slovene law may have an even broader interpretation, in the sense that the said duty gives rise to the rights of animal and plant species. May we find the foundations for the rights of animal and plant species in Slovene law?

First it should be noted that certain ratified international agreements, for example on the protection of individual endangered animal species, forbid their killing. This definition de facto gives rise to their right, in particular the right to life (to survival).

In reference to the above, we should take note of the provisions of Article 118 and 137 of the Environmental Protection Act which indirectly recognise the rights of other parts of nature. Article 118 of the Act authorises the Environment Protection Institute (which will be founded by the Government in order to perform an extensive set of tasks relating to environmental protection) to represent the »interests of the preservation of biodiversity and the protection of nature values« in all administrative and judicial procedures concerning biodiversity, nature values or protected areas. The similar provision of the third paragraph of Article 137 authorises societies, having the status of societies in public interest, to represent the »interests of nature preservation« in all administrative and judicial procedures. Of special importance is the possibility to represent the »interests of Nature« in judicial procedures, and thus also in the procedure before the Constitutional Court. Thus the lawgiver has assured constitutional protection also to animal and plant species. It is of lesser importance whether the animal and plant species have constitutional protection because their »rights« or merely »interests« have been recognised.

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4. Literature:

1. Attfield, Robin in Belsey, Andrew, 1994, Philosophy and the Natural Environment, Cambridge University Press, Cambridge.

2. Baker, Susan, Maria Kousis, Dick Richardson and Stephen Young (ed.), 1997, The Politics of Sustainable Development, Routledge, London.

3. Breuer, Ruediger, 1988, Umweltschutz, in Besonderes Verwaltungsrecht, Walter de Gruyter, Berlin..

4. Breyer, Stephen, 1982, Regulation and Its Reform, Harvard University Press, Cambridge, Massachusetts.

5. Brooks, O. Richard, 1986, Coercion to Environmental Virtue: Can and Should Law Mandate Environmentally Sensitive Lifestyles?, The American Journal of Jurisprudence, 21 (1986).

6. Buck, J. Susan, 1996, Understanding Environmental Law and Administration, Island Press, Washington, D.C.

7. Buckingham-Hatfield, Susan&Evans, Bob, 1996, Environmental Planning and Sustainability, John Wiley & Sons, Chicester, United Kingdom.

8. Bugari_, Bojan, 1997, From Plan to Market - One Way or Alternative Paths? (A Critique of Institutional Reforms in Central and Eastern Europe), doctoral dissertation.

9. Dama_ka, R., Mirjan, 1986, The Faces of Justice and State Authority (A Comparative Approach to the Legal Process), Yale University Press, New Haven.

10. Dryzek, S. John, 1997, The Politics of the Earth (Environmental Discourses), Oxford University Press, New York.

11. Eder, Klaus, 1996, The Social Construction of Nature (A Sociology of Ecological Enlightenment), SAGE Publications, London.

12. Edley, F. Christopher, 1990, Administrative Law (Rethinking Judicial Control of Bureaucracy), Yale University Press, New Haven and London.

13. Findley, W. Robert&Farber, A. Daniel, 1992, Environmental Law, West Publishing Co., St. Paul, Minnesota, USA.

14. Goldenman, Gretta, 1993, Environmental Liability and Privatization in Central and Eastern Europe, A Report for the Environmental Action Programme for Central and Eastern Europe, OECD.

15. Gottlieb, S. Roger (ed.), 1997, The Ecological Community, Routledge, New York.

16. Guha, Ramachandra&Martinez, Alier Juan, 1997, Varieties of Environmentalism (Essays North and South), Earthscan Publications, Ltd., London.

17. Hardin, Garet, The Tragedy of the Commons, 1968, 162 Science, 1243 (1968).

18. Jaenicke, Martin &Weidner Helmut, 1997, National Environmental Policies (A Comparative Study of Capacity-Building), Springer-Vrelag, Berlin.

19. Johnston, R. J., 1996, Nature, State and Economy (A Political Economy of the Environment), John Wiley&Sons, New York.

20. Kaufmann, Arthur, 1994, Uvod v filozofijo prava (Introduction to Philosophy of Law), Cankarjeva zalo_ba, Ljubljana.

21. Kiss, Alexandre&Shelton Dinah, 1995, Manual of European Environmental Law, Cambridge University Press.

22. Kloepfer, Michael, 1989, Umweltrecht, C.H. Beck’sche Verlagsbuchhandlung, Munchen.

23. Kloepfer, Michael, 1996, Bonner Kommentar zum Grundgesetz, 77.Lfg.

24. Lersner, Heinrich, 1990, Verfahrensvorshlage fur umweltrechliche Grenzwerte, Natur und Recht 12/1990

25. MacDonnell, J. Lawrence&Bates, F. Sarah (ed.), 1993, Natural Resources Policy and Law (Trends and Directions), Island Press, Washington, D.C. and Covelo, California.

26. McCormick, John, 1995, The Global Environmental Movement, John Wiley & Sons, Chichester, United Kingdom.

27. Ortolano, Leonardo, 1997, Environmental Regulation and Impact Assessment, John Wiley & Sons, New York.

28. Percival, V. Robert&Alevizatos, C. Dorothy (ed.), 1997, Law and the Environment, Temple University Press, Philadelphia.

29. Ponting, Clive, 1993, A Green History of the World (The Environment and the Collapse of Great Civilizations), Penguin Books, New York.

30. Przeworski, Adam, 1995, Sustainable Democracy, Cambridge University Press, Cambridge, USA.

31. Revesz, L. Richard (ed.), 1997, Foudations of Environmental Law and Policy, Oxford University Press, New York.

32. Rose-Ackerman, Susan, 1995, Controlling Environmental Policy (The Limits of Public Law in Germany and the United States), Yale University Press, New Haven and London.

33. Sagoff, Mark, 1996, The Economy of the Earth (Philosophy, Law and the Environment), Cambridge University Press, New York.

34. Sax, L. Joseph, 1990, 'The Search for Environmental Rights,' 1 Journal of Land Use and Environmental Law, 93 (1990).

35. Schoenbaum J. Thomas & Rosenberg, H. Ronald, 1991, Environmental Policy Law (Problems, Cases, and Readings), The Foundation Press, Inc., New York.

36. Stone, D. Christopher, 1972, Should Trees Have Standing? - Toward Legal Rights For Natural Objects, 45 Southern California Law Review, 450 (1972).

37. Stone, D. Christopher, 1988, 'The Environment in Moral Thought', 56 Tennessee Law Review, pp. 1-13.

38. Strauss - Levi, Claude, 1985, Oddaljeni pogled (The View from Afar), _KUC, Filozofska Fakulteta, Ljubljana.

39. Tarlock, A. Dan, 1988, 'Earth and Other Ethics: The Institutional Issues', 56 Tennessee Law Review, pp. 43-77.

Stephen, 1988, The Case for Cosmic Prudence, 56 Tennessee Law Review, pp. 29-43.

41. Unger, Mangabeira Roberto, 1997, Democratic Experimentalism (The Programmatic Path to the Left Now: An Argument and a Manifesto), Verso, London.

42. Zimmerman, E. Michael, Contesting Earth’s Future (Radical Ecology and Postmodernity), 1994, University of California Press, Berkeley.

43. Umweltgesetzbuch (UGB-KomE), 1998, 'Entwurf der Unabhaengigen Sachverstaendigenkommission zum Umweltgesetzbuch beim Bundesministerium fur Umwelt', Naturschutz und Reaktorsicherheit, Duncker & Humblot, Berlin.

44. Wicke, Lutz&Blenk Liselotte, 1991, Umweltoekonomie und Umweltpolitik, Deutscher Taschenbuch Verlag, Munchen.

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Notes:

1) The Squamish are North American Indians (according to Ponting, op.cit., p. 150).

2) The Sioux are North American Indians (according to Hill, 1994, p. 27)

3) This concerns the paradigm of the “nascent culture,” as reflected directly in the global political consensus, with regard to the necessity of the transformation of the western cultures, expressed as the concept of “sustainable development.”

4) Expression used by Hardin (Garett Hardin, The Tragedy of Commons).

5) The direct subject of the law is the interaction between man and Nature. The interaction is twofold: spiritual, on the one hand, and material, on the other hand, (the use of Nature and waste disposal). Within the latter, economic interaction is specially important. Economic interaction is instigated by the desire to meet man's needs, whilst from the point of view of Nature and/or natural equilibrium it burdens the environment. It covers utilitarian interaction (to meet man's needs, in particular, energy needs) and waste disposal (in the broader sense) and nowadays (mostly industrial waste), i.e., pollution.

6) The concept of “Nature” comprises a set of different, mutually co-dependent natural entities and/or biotic communities, and the concept of “nature” “something that needs to be mastered and used for the purpose of continuous growth and progress of the society.” (According to Pirnat, 1987, p. 178). With other “natural entities” other parts of Nature are understood. In this sense, man is a natural entity (as a part of Nature). When we wish to emphasise the “collective” nature of relationships between individual parts of Nature, expressions like “human community” and “other biotic communities” are used.

7) Expression used by Eder (Klaus Eder, The Social Construction of Nature).

8) Expression used by Carolyn Merchant (The Death of Nature).

9) “Environmental law” implies the results of the current normative response of the western cultures to the “destruction of Nature,” i.e., “environmental protection law” and/or “first wave of environmental law.”

10) For increasing “destruction of Nature” in this century see Simmons, 1993, and Ponting, 1993.

11) The findings of quantum physics (W.Heisenberg, N. Bohr, G. Chew et al.) and other nature sciences (H. Maturana, F. Varela et al.) reveal the co-dependence and equi-valence of all natural entities including man. We should call the reader's attention to the knowledge which for millennia has been accessible to other cultures (Australia's “aborigines,” the North-American Indians). At the same time, this knowledge could be traced back to the very threshold of the western cultures to the time before Socrates. The western civilisation needed two thousand and five hundred years to acquire the knowledge which other cultures have had since the beginning. The path to this knowledge has been paved with the destruction of Nature and the destruction of most of these “primitive” cultures. The West is increasingly aware that the tradition of these “primitive” cultures which it has been destroying with such thoroughness contains human knowledge amassed through millennia (according to the latest anthropological and archaeological research, the history of Australia's “aborigines” has continued uninterrupted for 80,000 years - Dreamtime) of the norms of human behaviour, ensuring harmony between human needs and Nature, to which man also belongs. It is a well-known fact that one of the key characteristics of the non-European “non-civilised” cultures (one of the fundamental criteria of civilisation was the scope of “cultivation” (exploitation) of Nature) has been environmental sensibility. This knowledge must, therefore, be incorporated in human culture. To paraphrase Bacon, knowledge is power, but not the power to destroy and to dominate Nature, but power to re-introduce harmony (equilibrium) with Nature.

12) The expression “paradigm” originates in the ancient Greek (“paradeigma”) and means a “model”, “pattern”. The notion of “paradigm” should be understood in this essay as a combination of beliefs, perceptions and values which form a certain conception of reality in science, philosophy, and in society and/or culture in general (For more detail on scientific paradigms see T. Kuhn, Structure of Scientific Revolution).

13) For more detail on the anthropocentric orientation of the western cultures and/or the basic attributes of the dominant cultural (Cartesian) paradigm from the point of view of relationship between man and Nature see Pli_ani_, 1998.

14) The use value of Nature is therefore quintessential: “Nature is perceived and experienced as an object of human needs.” (Eder, op.cit., p. vii).

15) These are legal norms established before the creation of the environmental law at the time of the “industrial revolution.”

16) The same is expounded by D.A Tarlock, op.cit; K. Eder, op.cit.; Ortolano, 1997 and Dryzek, 1997

17) This expression is used by Eder, who wishes to emphasise the rationalist (Cartesian) basis of the environmental law. “When we speak of ecological reason we mean that the exploitation of nature has gone too far and that the pollution of nature must be limited. If we were to follow only this rationality, that would indeed make our exploitative interaction with nature more rational, but it would remain an exploitative way of interacting with nature.” (Eder, 1996, p. vii)

18) Nomos is understood as a normative social system of the western cultures, whereby the rules of behaviour are characterised by the attribute of lawhood. In the western cultures nomos is a synonym for legal rules governing behaviour. Their content depends on the context defined by the legal and political philosophy and/or the spiritual framework of a certain culture as the “ideological” superstructure of nomos.

19) The term “environmental law” connotes a set of legal norms governing man's communication with other cosmic phenomena (nature) – thus determining the rules of behaviour towards other biotic communities which, together with the norms regulating human private interaction and norms regulating social interaction, i.e., norms regulating man's social and political character, represent the “human” nomos, the “human formula.” (Kaufmann, 1994).

20) The issue of relationship between man and other natural entities received minimal attention within the established modern western philosophy. Within the framework of this essay it is not possible to examine in more detail certain exceptions. Of the modern philosophers “stricto sensu” we should only mention Heidegger (his philosophical ecocentrism is explored in more detail by Michael E. Zimmerman in Contesting Earth’s Future, pp. 91-150; of considerable interest is also Levi-Strauss’s ecocentric “practical philosophy” (See L.Strauss, The View from Afar). Nietzsche in Bergson also indirectly opposed the rationalist anthropocentrism (See M.E. Zimmerman, op.cit., pp. 57-91).

21) The established term is “Environmental Philosophy.”

22) The “secular” awareness and not the philosophical awareness “stricto sensu” is meant here, created at the time of “destruction of Nature” and encouraged by the scientific findings and traditions of other cultures.

23) For more detail see Andrew Belsey, Chaos and Order, Environment and Anarchy, in Philosophy and the Natural Environment, (ed. Robin Attfield and Andrew Belsey), pp. 157-167.

24) When he argued that it is not possible to cognise objectivity only through the faculty of mind (on the basis of reason and senses). Reason does not cognise things “per se”, as they are “in reality”, but only as they “appear” through the medium of senses (experience). As reason is not able to see, only sensual and experiential objects are given, i.e., “phainomena” of objects (objectivities). Reason may not penetrate “noumena”, “things in themselves”, i.e., the objectivity itself. It is not capable of “penetration” (in the sense of spiritual-intellectual gaze), but is merely the faculty of thinking the object of the sensuous gaze. It is only capable of synthesising the varied, contained in the sensuous gaze, into a notion. Reason thus processes and shapes only that which is transmitted by senses, i.e., phenomena. The cognisant use of rational notions does not refer to the reality per se, but to its phenomena: the objects of possible experience. There can be no a priori knowledge except of objects of possible experience. (Kaufmann, op.cit., pp. 85-86). For more information see Palmer, Looking at Philosophy, pp. 35-36.

25) If we accept Kaufmann’s interpretation of the connection between the dominant orientation of philosophy with the actual (ecological) circumstances of individual periods (Kaufmann, 1994, pp. 27-32), Kant was primarily concerned with epistemological issues i.e. the issues of cognition of reality, because he lived in a period of transition. The fundamental philosophical issue at a “time of doubt and mistrust” (ibidem, p. 28) is the following: How to arrive at the knowledge of the “external world” from my awareness? This means: How can I know anything? What is at stake here is not a thing, object, entity, but an awareness, a method. What can easily happen is what Goethe reproached Kant’s philosophy at one point, namely, that it no longer arrives at the object (ibidem, p. 29).

26) This is the incorporation of the systemic ecocentrism in the western cultures.

27) The “ecologisation” of nomos implies the incorporation of new ontology and ethics into a legal value system.

28) The “destruction of Nature” as a result of intense development of “industrie.” For “state of Nature” at the turn of the 20th century see John McCormick, The Global Environmental Movement, pp. 1-20 and Ponting, op.cit., pp. 346-393.

29) This is so-called “shallow ecology.” “Shallow ecology is anthropocentric, or human-centred. It views humans as above or outside of nature, as the source of all value, and ascribes only instrumental, or “use” value to nature.” (F. Capra, The Web of Life, p. 7)

30) Whilst the approach of “cleaning up the environment” can not be incorporated in a philosophical context, the approach of “rational” exploitation of natural resources is connected with the “conservation philosophy,” which is usually linked in literature to the name of Gifford Pinchot, a well-known forestry expert from the USA from the beginning of the 20th century.

31) “Environmental protection” is an approach dealing mostly with the issues of pollution, which it approaches from the point of view of anthropocentric construction of nature. It sees man as the master of nature and the issue of “destruction of nature” as merely the issue of the pollution of his environment. Such approach does not perceive the issue of the “destruction of Nature” as a deeper problem of man’s un-limited interaction with all forms of Nature and not only man’s environment.

32) This is so-called. “preservation philosophy,” personified at the level of “practical philosophy” by John Muir and Aldo Leopold and at the level of philosophy “stricto sensu” by Henry David Thoreau and Ralph Waldo Emerson. (See also McCormick, op.cit., pp. 1-26 and A. Dan Tarlock, Environmental Law, But Not Environmental Protection, in Natural Resources Policy and Law (ed. L.J.MacDonnell&S.Bates), pp. 162-182).

33) “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” (Aldo Leopold, A Sand County Almanac, in Law and the Environment (ed. R.V. Percival&D.C. Alevizatos), p. 4. Regarding the issue of ecocentric ethics, i.e., ethics which emanates from man’s co-dependence and connectedness with other biotic communities (i.e., ecocentric ontology) and commands a respectful interaction with Nature, the question of motive of the ecocentric ethics arises. Why should I show respect for other biotic communities? The motive may be heteronomous and I show respect because I realise that I endanger myself if I continue the exploitative interaction. In this case, Nature only has instrumental value. Nevertheless, this approach represents significant progress in comparison with the anthropocentric ecological ethics. Whilst only imposing the protection of man’s environment, the ecocentric ecological ethics with its heteronomous motive refers to the maintenance of the equilibrium of biotic communities, or Nature as a whole, that I show respect because other parts of Nature have intrinsic value – they are a value in themselves apart from the importance they carry for man. This issue will be examined in more detail in Chapter 2, Part 3 of this essay.

34) At the level of legal construction of nature this approach influenced the formation of the legal category of “nature values” – national parks, first in the USA at the turn of the 20th century.

35) This opposes the above mentioned “shallow ecology” based in anthropocentrism. The approach was introduced by Arne Naess, a Norwegian philosopher. See A. Naess, The Deep Ecological Movement: Some Philosophical Aspects, in Law and the Environment (ed. Percival&Alevizatos), pp.. 91-96; M.Zimmerman, op.cit. and A. Naess, Sustainable Development and the Deep Ecology Movement, in The Politics of Sustainable Development (ed. Susan Baker et alt.), pp. 61-71.

36) “Human species, along with all other species, are integral elements in a system of interdependence such that the survival of each living thing, as well as its chances of faring well or poorly, is determined not only by the physical conditions of its environment but also by its relations to other living things. (...) Humans are not inherently superior to other living things, they are members of the Earth’s Community of Life in the same sense and on the same terms in which other living things are members of that Community.” (Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics, in The Foundations of Environmental Policy and Law, pp. 29-30)

37) “Human use of the environment should not be destructive but should enhance the diversity, integrity, stability, and beauty of the biotic community. Individual plants and animals used by humans should be thoughtfully selected, skilfully and humanely dispatched and carefully used so as to neither waste or degrade them.” (Wendy Donner, Inherent Value and Moral Standing in Environmental Change, in Earthly Goods (ed. Osler Hampson&Judith Reppy), pp. 61-62.)

38) Unlike certain extreme approaches, “inspired” by Leopold’s ethics and the “state of Nature” at the beginning of the 20th century, advocating the approach “let nature be nature” or striving for extreme limitations of human interaction with Nature. (For more detail, see A.D. Tarlock, op.cit., pp. 179-181).

30) Natural equilibrium is defined as the limit of human interaction with other natural entities, whereby the natural equilibrium defines the equilibrium of life of all biotic communities. Such is the prevailing approach. There are, however, more radical approaches where the ecocentric ethics claims respect for individual members of other biotic communities and also – the respect for “non-life”, i.e., non-living parts of Nature. (For more detail, see Richard L. Revesz, Foundations of Environmental Law and Policy, pp. 39-44).

40) “Richness and diversity of kinds of living beings have intrinsic or inherent value. Humans have no right to reduce this richness and diversity except to satisfy vital human needs.” (A. Naess, Sustainable Development and Deep Ecology, p. 65)

41) Also cf. Hazel Henderson, Ethical Implications of Agenda 21, in Ethics&Agenda 21, p. 28.

42) Or the “ecosophy” (philosophy of ecological harmony). See also Slovene philosophy Tine Hribar, Ekologija in ekozofija (Ecology and ecosophy), Glasnik slovenske Matice, No. 1-2/1991, pp. 11-16.

43) See an extensive discussion on the relationship of modern “post-modern” philosophy (in particular Derrida and Foucault) towards the philosophy of “deep ecology” in R.E.Zimmerman, op.cit., pp. 91-150.

44) See R. Attfield & A. Belsey, Philosophy and the Natural Environment.

45) Capra, The Web of Life, p. 6.

46) Declaration of the UN Conference on Environment and Development 1992.

47) Such an approach is crucial. Dick Richardson in his in-depth study of the concept of “sustainable development” calls attention to some of his anthropocentric predecessors (Brundtland Commission Report, Our Common Future). “Our Common Future not only emphasised that economic growth was still an objective of human society, but also advocated a five or even tenfold increase in world manufacturing output. It accepted the Western development paradigm and profligate Western lifestyle as a model for the industrialising world. Ecological sustainability was not seen as primary in the policy-making process, but rather as only one of a number factors.” (Dick Richardson, The Politics of Sustainable Development, p. 52) That is why the necessity of incorporation of the concept of “sustainable development” in ecocentric framework should be emphasised.

48) This was proposed by the Club of Rome (Meadows, Limits to Growth).

49) The implementation of the principle of sustainable development is therefore connected with the definition of the “natural equilibrium.” In Slovenian law, the natural equilibrium is defined in Article 3 of the Nature Protection Act (Ur. l. RS 56/99 and 31/00) as a state of mutually balanced relations and influences of living beings among themselves and their habitats. Under the law the natural equilibrium is upset if human activity destroys a biocenosis in terms of quantity or quality; if it encroaches on or destroys the habitats of plant or animal species or affects the proper functioning of ecosystems; if it interrupts the mutual connection between individual ecosystems or causes a significant isolation of certain populations.

50) Cf. Richardson, The Politics of Sustainable Development, in The Politics of Sustainable Development (Baker et al), p. 56.

51) Eder ascertains that the pervasiveness of anthropocentrism in the western cultures practically “pushes” us into the exploitation of nature. (Eder, 1996, p. vii).

52) One of the quintessential values of the western cultures is the material progress and/or the satisfaction of material needs. This value is directly connected with the exploitative and/or anthropocentric attitude of man towards other natural entities.

53) Kaufmann, 1994, p. 134.

54) Expression used by Gottlieb (“Ecological Community”).

55) “Until recent decades, most western thinkers and traditions have been silent about the evolving rape of nature and its consequences for humanity. (...) An occasional Romantic poet, a tradition of conservationism very much outside of mainstream social and ethical theory, early (largely ignored) glimmerings in Heidegger and the Frankfurt School (...) - these exceptions prove a rule of profound intellectual blindness. Theorists for the most part took it for granted that how humanity treated the nonhuman world was not a serious problem.” (Gottlieb, The Ecological Community, p. x)

56) This is a global ecocentric political construction of nature, “materialised” in the Rio Declaration.

57) “Environmental Law is entering a critical phase because environmentalism is at a turning point. The real debate about how environmental considerations should be integrated into the economic and social order is just beginning. The next debate will be centred around the forthcoming re-evaluation of the core legislation of the environmental decade.” (D. Tarlock, Environmental Law, But Not Environmental Protection v Natural Resources Policy and Law (ed. L.J. MacDonnell&S.F. Bates), p.

58) In the original: metron anthropos.

59) Cf. D.R. Kelley, The Human Measure, pp. 31-33 and Sinha, Jursiprudence, pp. 18-22.

60) The idea of law and/or the concept of law is connected with justice. In our examination of the issue of the rules of human behaviour in relation to other natural entities, we are interested in the substantial aspects of the legal philosophy, i.e., the substantive issues of the correct, just law.

61) We are not dealing with the anarchist political philosophy. Concerning law and state in the anarchist political philosophy see the excellent study by authors T. Holterman and H. van Maarseven, Law and Anarchism.

62) This is Dostoyevsky’s syntagm who once said: “ The ant knows the formula of its abode, the bee knows the formula of its beehive – they know it not in a human way, but in their own way – but that is all they need. Only man does not know his formula.” (according to Kaufmann, op.cit., p. 134).

63) For the purpose of transparency, for that part of the human formula which specifies the rules of behaviour with regard to other biotic communities, the term “nomos interspecies” or “law of Nature” will be used and for other parts of the human formula (the rules regulating man’s private interaction and the rules regulating man’s social interaction, i.e., man’s social and/or political thought, the term “internal law” will be used.

64) For understanding law as the “correct path” see G.P. Fletcher, Basic Concepts of Legal Thought, pp. 38-39. For general issues of legal ontology cf. R.A. Posner, The Problems of Jurisprudence, pp. 161-247.

65) Here we should call your attention to the fact that the established western legal and political (liberalist) philosophies emanate from Hobbes’ syntagm “homo homini lupus” and the ensuing “bellum omnium contra omnes” (hence from the assumption that man is an aggressive and selfish being) as a starting point and/or “natural state” into which subsequently enter the law and state, at the transition from a natural (pre-legal, pre-civilisation) state into a social state. This is a vulgarised interpretation of Darwin’s theory, so-called social Darwinism (socio-biology), which perceives the basic “law of nature” as the food chain in which “big fish eat small fish” and applies this to the understanding of relationships among people. According to this view, conflicts among individuals and groups are resolved by competition of the parties in conflict. Such method of resolving conflicts is natural (biological), whilst resolving conflicts (contentiousness and conflictness are, as has been said before, the basic property of human community in a “natural state”) through the interference of state and law is an artificial method of conflict resolution. Regardless of the already mentioned fallacy of Hobbes’ assumption of the “natural state” of man, i.e., regardless of the fact that in the past there existed cultures with a different value orientation (the Iroquois, the Huron, etc.- see also Weatherford, op.cit. and Margaret Mead, Growing up on Samoa; cf. also P. Wenz, Environmentalism and Human Oppression, in Ecological Community, pp. 3-21 and Zimmerman, Contesting Earth’s Future, pp. 165-170), the fact that the contentiousness and conflictness seems to be, in accordance with the mentioned empirical findings in the recent decades, a prevailing characteristic of the western culture. It is contentious, however, whether it is possible to expand such a finding (eurocentric) to encompass man as a species. It is contentious, therefore, whether aggressivity in relations among people in the western cultures, evident practically at every step of the way (at the empirical level as well as the level of imagination - media), allows the conclusion of man’s “wolf-like” nature (biological-instinctive orientation).

66) In this sense we issue from the liberalist (social/political and philosophical) context of contractuality simply because of its (liberalist) all-encompassing empiricism in the contemporary western cultures. According to de-Shalit (Avner de-Shalit, Is Liberalism Environmental-Friendly? in The Ecological Community, p. 83), when discussing the transformation of nomos, it is necessary to take into account (the philosophical orientation) of the actual prevailing political context, i.e., liberalism.

67) Cf. D. Gauthier, The Social Contract as Ideology, in Contemporary Political Philosophy (ed. R.E. Goodin), pp. 27-44 and Q. Skinner, The State, ibidem, pp. 3-26..

68) Kaufmann, op.cit., p. 50.

69) The only substantial philosophy of law.

70) Kaufmann, op.cit., p. 50.

71) This is a scientific, and thus intellectual (rational) cognisance of the “cosmic law”. Kant rejected the possibility of rational cognisance of the objective world, but not entirely. He attributes to reason the potential for a priori knowledge of the objective world (not through sensuousness) within the mathematically supported natural science. Kant therefore admits the possibility of a rational cognisance of just law, if such cognisance is achieved with the aid of science. (Cf. Kaufmann, op.cit., pp. 83-86). Thus also Richard O. Brooks, Can and Should Law Mandate Environmentally Sensitive Life Styles, 1986 The American Journal of Jursiprudence 21 (1986), p. 36.

72) Cf. H.L.A. Hart, the Concept of Law, p. 178.

73) Natural law has always been understood as the criterion of the positive law, as a criterion of its legitimacy. According to the classical approach, the natural law provides the basis for the positive law.

74) Culture as the domain of order as an antipode to nature as the domain of disorder, chaos, stems from the already mentioned image of nature as a chaotic world which man must leave behind.

75) In his discussion of the connection of natural law with the image of nature, Posner establishes the fatal consequences of the changes of the image of nature. “It was one thing to speak of natural law when nature was conceived to be the expression of divine love or order, and quite another to find universal legal norms in Darwinian nature, red in tooth and claw. The natural law project has never recovered from what Nietzsche called the death of God (at the hands of Darwin).” (Posner, op.cit., p. 14)

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76) Although, according to Kaufmann, there was, in the field of philosophical epistemology, no way back after Kant’s philosophy (epistemology), it should be emphasised that Kant was aware, even though his ontology/cosmology remains within the anthropocentric “mainstream” western philosophy (man is the master of nature), of the harmoniousness of the “starry sky above;” he saw it, however, (within the spiritual framework of his period - the liberation of man) merely as a universe of religious-artistic intuition and not as a guide for human action in relation to other natural entities. See also Solomon&Higgins, op.cit., pp. 213-214.

77) Kaufmann, op.cit., p. 32.

78) “Instead of the ontology of substance, ontology of relations should be developed.” (ibidem, p. 32)

79) For more detail on the connection of human relations with Nature inside human community see Wenz’s study, Environmentalism and Human Oppression, in The Ecological Community (ed. R. Gottlieb), pp. 2-21. On the basis of anthropological sources, Wenz demonstrates the direct link of the “conquest” of nature, i.e., the anthropocentric social construction of nature with the wish to control, dominate, or, in the words of Derrida “control-impulse.” “Human oppression results largely from technologies and institutions developed under the guidance of mainstream anthropocentric views. (...) Devaluation of nature is related not only to the development of more advanced agriculture, increasingly complex social divisions of labour and relations of exploitation, but also to the desire for control.” (ibidem, p. 4)

80) Hobbes’s legal and political philosophy is one of the cornerstones of the western culture. For an analysis of the western cultures from the point of view of a “mechanical” model of social community see Merchant, op.cit., pp. 206-215.

81) The connection of man with other parts of Nature and man’s relationship with fellow human beings was already the subject of study by Montaigne in the western philosophy. Montaigne posits that a brutal attitude towards animals leads to the brutal attitude to people. (For more detail see Kirn, Ekolo_ka (okoljska) etika (Ecological (Environmental) Ethics pp.10-11).

82) Within the framework of this essay it is not possible to give more attention to this issue. For more information on the direct relationship of individual cultures of the North American Indians with nature and human relationships (also between men and women) see Llewellyn, The Cheyenne Way; Weatherford, Indian Givers; Forbes, Columbus and the other Cannibals and Wesel, Matriarchy Myth.

The underlying ecocentric value of human nomos is best illustrated by the wisdom of the chief of the Indian tribe Nez Perce: “Treat all men alike. Give them all the same law. Give them all an even chance to live and grow. All men were made by the same Great Spirit Chief. They are all brothers. The earth is the mother of all people, and all people shall have equal rights upon it.” (Chief Joseph, Nez Perce, 1879, according to Hill, Jr. (Oneida), op.cit., p. 48).

83) Kaufmann, op.cit., p. 134.

84) ibidem, p. 134.

85) Interactiveness in the sense specified above as a characteristic of human “internal law” has been established by Unger with regard to ancient China. “All in all, the feudal world of ancient China provides us with wonderful example of society almost wholly dependent on interactional law and not yet acquainted with other sorts of law.” (R.M. Unger, Law in Modern Society, p. 96)

86) This approach has been criticised by certain ecocentric philosophers as “speciesism.” (for more detail see Revesz, op.cit. p. 43). Such criticism is accepted at the philosophical level; however, in the process (collective action) of “resurrection of Nature” it should be emphasised that human community has only just entered the transition phase from anthropocentrism to ecocentrism. In view of that, the philosophical approach of “deep ecology” (the respect for life of individual natural entities) or the approach of prof. Stone (the respect for life and thus also of non-living nature) may represent a very remote goal indeed.

87) The motive for ecocentric ecological ethics may be heteronomous when we show respect and care in our interaction with other natural entities because we are aware of the negative consequences caused by the aggressive exploitativeness of the human community (in the words of Chief Seattle: “Man did not weave the web of life, he is merely a strand in it. Whatever he does to the web, he does to himself.”) or autonomous when we show respect and care because of the natural entities themselves.

88) This approach has been criticised by certain ecocentric philosophers as “speciesism.” (for more detail see Revesz, op.cit. p. 43). Such criticism is accepted at the philosophical level; however, in the process (collective action) of “resurrection of Nature” it should be emphasised that human community has only just entered the transition stage from anthropocentrism to ecocentrism. In view of that, the philosophical approach of “deep ecology” ( the respect for life of individual natural entities) or the approach of prof. Stone (the respect for life and thus also of non-living nature) may represent a very remote goal indeed.

89) 45 Southern California Law Review, 450 (1972).

90) C. Levi-Strauss, The View from Afar, pp. 340-346.

91) Levi-Strauss, ibid, p. 342.

92) Cf. Ortolano, op.cit., pp. 37-39.

93) We should emphasise that to recognise rights to other biotic communities would certainly not mean that their rights would be equal to the rights of the people and it would also not mean that all biotic communities would have equal rights. The criterion for the scope and the type of rights is natural equilibrium. It is not possible to examine this issue in greater detail within the framework of this essay. See also C. Stone, The Environment in Moral Thought; S. Toulmin, The Case for Cosmic Prudence; D. Tarlock, Earth and Other Ethics: The Institutional Issues, in 56 Tennessee Law Review, vii-234 (1988).

94) Ortolano, op.cit, p. 38. We should emphasise that to recognise rights to other biotic communities would certainly not mean that their rights would be equal to the rights of the people and it would also not mean that all biotic communities would have equal rights. The criterion for the scope and the type of rights is natural equilibrium. It is not possible to examine this issue in greater detail within the framework of this essay. See also C. Stone, The Environment in Moral Thought; S. Toulmin, The Case for Cosmic Prudence; D. Tarlock, Earth and Other Ethics: The Institutional Issues, in 56 Tennessee Law Review, vii-234 (1988).

95) This, of course, is not an absolute. The duty to preserve the natural equilibrium (respect for the right of other biotic communities to existence) is limited with so-called basic (vital) needs of man (See also op. No. 450).

96) Such ethical approach could be expressed also with the paraphrase of the well-known Leopold’s maxim: “A thing is right when it tends to preserve the dynamic (added by P.S.) integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” (A. Leopold, A Sand County Almanac, according to Revesz, op.cit., p. 41)

97) Tarlock, The Nonequilibrium Paradigm in Ecology, in Law and the Environment, pp. 25-31.

98) “The major institutional change necessitated by the nonequilibrium paradigm is the need to apply adaptive management to biodiversity protection. (...) We favor management consistent with the core idea of the rule of law - consistent application of fixed rules to yield a single, final decision. Our environmental laws accept a scientific premise and then requires its continued application regardless of subsequent research findings and thinking. (...) Adaptive management, in contrast, is premised on the assumption that management strategies should change in response to new scientific information.” (ibidem, p. 31)

99) The un-limitedness of the (economic) interaction with Nature is linked with the conviction of the western cultures that the (material) development also is un-limited. This conviction, however, rests (implicitly) on the belief in the progressiveness of human (planetary) history, i.e. constant progress – the transition from worse to better. Cf. also Mitcham, The Sustainability Question, in The Ecological Community (ed. Gottlieb), p. 362.

100) Cf. Christopher Stone, The Gnat Is Older Than Man: Global Environment and the Human Agenda, in: Law and the Environment (ed. Percival&Alevizatos), p. 420.

101) To assume that the conflictness of the maintenance of natural equilibrium and material progress is insurmountable is a fallacy. In the conflict involving the maintenance of the natural equilibrium, the un-limitedness of the material progress exists insofar as it is linked with the un-limited burdening of Nature, and thus the exploitation of Nature. The principle of sustainable development rejects the concept of zero growth (Club of Rome) and/or “zero sum mentality.” Without having to discuss man’s inherent developmentality (For more information see Pli_ani_, 1998) we can establish that it is not problematic per se, but that the un-limitedness of the (material) development is problematic. The basic premise should therefore be the orientation towards the material progress with its enframing as the key. The key issue is how to achieve the enframing. In our view, for the existing state (destruction of Nature) and for the “dynamism of nature,” state interference in the private sphere (in particular the economy) is crucial. It is premised on the assumption of the impotence of the western economy (market), and thus its incapacity to itself provide the necessary enframing. The reason for this should be sought in its inherent orientation towards the maximisation of material progress.

102) In his classical study, Sagoff sees the difference between the common, public interest (common value) and the private interests (values) of individuals with regard to relation to Nature as the difference between the interests of man as a consumer and the interests of man as a citizen. “(Sagoff, The Economy of the Earth, in Foundations of Environmental Law and Policy, ed. Revesz, p. 18)

103) ibidem, p. 22.

104) Cf. Levi-Strauss, 1985, p. 391.

105) Cf. Sax, 1990.

106) This is based on the “ guardianship concept” developed by Christopher Stone in his article Should Trees Have Standing? - Toward Legal Rights for Natural Objects, 45 Southern California Law Review, 450 (1972).

107) The guardianship concerns the interests of animal and plant species (and not individual natural entities).

108) The Supreme Court of the United States, 1972 405 U.S. 727, according to Schoenbaum& Rosenberg, 1991, pp. 23-25.

109) The courts increasingly allowed the filing of complaints with regard to the protection of the interests of other biotic communities. See also Ortolano, 1997, pp. 43-44.

110) See also Schoenbaum&Rosenberg, op.cit., pp. 28-33; Parcival et al., op.cit., p. 285; Ortolano, op.cit., pp. 43-44 and Kiss&Shelton, 1995, p. 480. In the Slovene law, the provision with regard to such complaints is contained in Article 15 of the Environmental Protection Act (Ur. l. RS 32/93).

111) The definition of natural equilibrium as a basic common legal value opens up the issue of the role of science as a source of the knowledge of the limits of the natural equilibrium (For more detail see Mark Sagoff, Ethics, Ecology, and the Environment: Integrating Science and Law, 56 Tennessee Law Review 1, 77 (1988)). The issue of reliability of scientific knowledge and the possible “technocratic approach” of the western cultures is thereby raised (See A. Dan Tarlock, The Nonequilibrium Paradigm in Ecology and the Partial Unravelling of Environmental Law, in Law and the Environment, pp. 29-31).

112) The “economic” interaction implies human activity in Nature for the purpose of production of material goods (for personal needs or for the purpose of marketing).

113) VGH Mannheim, NVwZ 1988, 168.

114) This concerns the restriction of the freedom of ownership (ecological function of property) and also direct divestment – expropriation of private property. The incorporation of the natural equilibrium as a basic common legal value in the legal value system (the Constitution), and therefore the definition of the maintenance of the natural equilibrium as the fundamental public interest, is, in our opinion, a circumstance which the citizens (owners) are expected to count on. This means that the weight of public interest is a priori very high, which has to be taken into consideration by the Constitutional Court when weighing both values, i.e., private property and natural equilibrium (principle of proportionality).

115) See Richardson, op.cit., pp. 50-51; Taylor, Respect for Nature: A Theory of Environmental Ethics, in Foundations of Environmental Law and Policy (ed.Revesz), pp. 29-44 and Stone, 1988, pp. 1-13.

116) This is the so-called “principle of minimum wrong.” (Taylor, op.cit., p. 36).

117) Cf. Buckingham-Hatfield, Environmental Planning and Sustainability, p. 4f.

118) In our opinion, the already adopted international acts which provide the grounds for the principle of sustainable development (Rio Declaration and several conventions) necessitate the amendment and/or change of constitutional acts of individual countries. Of key importance is the incorporation of the ecocentric legal philosophy (and hence the incorporation of the natural equilibrium in a system of legal values as a priority) as well as the incorporation of the ecocentric political philosophy (and thus the definition of the state as a guardian of its natural equilibrium). Certainly the inclusion of the above-mentioned international legal acts in the legal order of the individual country, even without a corresponding amendment of the constitutional act itself, requires that the existing constitutional provisions be interpreted in accordance with the principle of sustainable development.

119) The new Slovenian Constitution was adopted in 1991

120) Those categories of the constitutional law which in our opinion are vitally important for the interpretation of the Constitution with regard to the principle of sustainable development have in particular been set out. Certain other provisions of the Constitution are also important (for example, the provision of the third paragraph of Article 72, determining so-called environmental damage liability, and the provision of the fourth paragraph of Article 72 specifying the protection of animals from cruelty and the provision of the first paragraph of Article 70, in which the national assets are referred to.

121) Kloepfer, 1996, in Bonner Kommentar zum Grundgesetz, 77.Lfg, pp. 29 and 30.

122) The anthropocentric ethics issues from the anthropocentric ontology which is based on the conviction of man’s superiority in relation to nature. Furthermore, man as the master of nature is entitled to its unlimited use, regardless of the consequences of such use for the natural equilibrium.

123) This is an instrumental or utilitarian understanding of other natural entities. These are values only inasmuch as they are the condition and the means for the satisfaction of man’s material, aesthetic and other needs.

124) In this case, the other natural entities have a recognised intrinsic value. This means that the natural equilibrium must be preserved not only because of its importance (value) for man, but also because of its importance for other natural entities. Kirn cites (Kirn, 1992, pp. 18-21) an adaptation of Kant’s categorical imperative: Never treat a natural entity as a means to achieve one’s own goals. Treat it with respect so that your conduct may become a general law ensuring a permanent existence of the human species and life in general.

125) This conclusion was also reached by Kloepfer (op.cit, p.30), who rejected the “instrumental” evaluation of other parts of Nature and strove for a wholesome change of man’s attitude towards them.

126) In the first paragraph of Article 67, the Constitution specifies the following: “The manner in which property is acquired and enjoyed shall be regulated by statute so as to ensure the economic, social and environmental benefit of such property.”

127) The German basic law (Grundgesetz) specifies in the second paragraph of Article 14: “Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.”

128) For example, the proposal of the Water Act (Poro_evalec, 14.3.2000) specifies in Article 39 that the owner or any other proprietor of the water or coastal land must ensure to the provider of the public service for the purpose of the performance of the public service of water protection, the performance of works relating to the public service and allow unhindered access to the land, if such access is not possible through public or private roads or paths. Article 27 of the Environmental Protection Act contains a similar provision laying down that the providers of different economic activities must kept the emissions of various pollutants within the limits defined by a governmental decree.

129) An example of such a situation is the provision of Article 114 of the above of the aquatic or coastal land must repair the embankments and the bottom of watercourses, purify and tend to the banks and the coast, remove the debris and remove from the watercourse the waste and other abandoned or deposited objects.

130) This is above all the “principle of proportionality.” The Slovene constitutional practice involving the interference in a constitutional right is, in general, also based on the principle of proportionality. Interference with a constitutional right is subject to strict constitutional review on the basis of so-called “test of proportionality.” According to the latter, an interference is allowed only if it is necessary (inevitable) for the protection of other human rights. The interference must also not be excessive, which means that only the mildest of all interferences is allowed to ensure the desired goal allowed by the Constitution – the protection of equally important rights of others.

131) Constitutional Court Decision US U-I-243/96.

132) For example, the Convention on Biodiversity (Ur. l. RS 7/96 and 30/96) and the Convention on the Conservation of Migratory Species of Wild Animals (Ur. l. RS 88/98). Also relevant are EU regulations.

133) Constitutional Court Decision US U-I-263/95.

134) Steiger, 1982, Verfassungsrechtliche Grundlagen in: Grundzuege des Umweltrechts

135) German Constitution, for example, does not contain such provision.

136) In the Constitutional Court Decision Up 41/94 the right to free enterprise, specified in Part 3 of the Constitution, was deemed to be the subject of constitutional-court protection within the procedure of the constitutional complaint. In the same part of the Constitution, the right to a healthy environment is also specified.

137) For example, the right of the citizen to participate in public affairs. According to Article 44 of the Constitution, Slovene citizens have the right to participate in public affairs in accordance with the statute.

138) Decision U-I-263/95.

139) Ur. l. SFRJ 6/80 ff.

140) Ur. l. SFRJ 29/78 ff.

141) Ur. l. RS 56/99 and 31/00

141) "Each person shall be obliged, in accordance with statute to protect rare and precious natural areas, as well as structures and objects forming part of the national and cultural heritage.”

Dr. Senko Plicanic,
Assistant Professor, Faculty of Law
University of Ljubljana
Poljanski nasip 2
1000 LJUBLJANA
SLOVENIA/EUROPE

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