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)

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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 (maint