A Theoretical Study Of Environmental Legislation On The Center Of Gravity Of Obligations

Although many existing international treaties and national legislation have the expression that “everyone has the right to enjoy a safe,clean,healthy and sustainable environment”,and many scholars advocate environmental protection legislation centering on the concept of environmental right,this does not mean that there are no legal theoretical problems in these expressions and legislative theories.Since environmental duty is a universal duty of human beings,it does not attach any exemption conditions and does not depend on the will of the obligee,so it is conceptually impossible to form an environmental right with directed duty.Therefore,even if the environmental right is stipulated in law,it also faces the problems of availability and relief.Based on this,the paper chooses environmental right and environmental duty as the research objects,aiming to deepen the understanding of environmental legislation theory.Theoretically speaking,in order to understand the theory of environmental legislation thoroughly and comprehensively,four basic issues need to be clarified: why to make environmental law,what is the object of environmental law,what to rely on to achieve the goal that environmental law tries to achieve,and how to establish duties and rights in environmental law.This corresponds exactly to the topic of the purpose,object,means and the relationship between duty and right of environmental law.Environmental law solves the problem of environmental damage caused by the vicissitude of social system lagging behind the vicissitude of technological tools.The key to solving the problem lies in renewing the self-evaluation of human society.Environmental ethics and human rights theory provide two “environmental rights”,one is in the sense of “right of the environment”,the other is in the sense of “right to environment” for self-evaluation.The former is subject to whether the environment can become a suitable subject of rights.The latter is driven by prudent anthropocentrism,however,the concept of “environmental right” based on human rights theory cannot be accommodated by the functions of “selective” and “exclusive” right.The third-party evaluation supplemented by “conscience” and “rationality” can break the deadlock.Taking the “conscience” of life emotions and the “rules of nature” of the laws of nature as the basis for human society’s evaluation can form a moral rule of “no damage to the environment”.On the basis of this moral rule,the purpose of the environmental law directed to the environmental protection duty is clarified.According to the theory of environmental right,since the environment bears two legal benefits of “economic benefit” and “ecological benefit”,it is necessary to transform economic benefit into “resource-based environmental right”,and ecological benefit into“ecological environmental right”.And it can achieve a balance between economic benefits and ecological benefits by reconciling these two types of environmental rights.However,the practice of taking rights as benefits and benefits as rights does not solved the conflict of environmental rights.According to the theory of environmental duty,environmental law aims at “environmental damage”,which is the opposite of“environmental benefits”,but it does not analyze the causal relationship between“environmental damage” and “environmental behavior”.From the law of the formation of environmental legal rules,because the environmental behavior of people leads to environmental damage and thus causes damage to people,so the society and the state through legislation to regulate the behavior of people to protect and use the environment.Therefore,environmental law adjustment is the environmental behavior of people rather than environmental damage.In terms of how the environmental law regulates people’s environmental behavior,the theory of environmental right advocates creating environmental rights and establishing the legal relationship between environmental right and environmental duty,while the theory of environmental duty advocates the method of “setting-executingfulfilling”.The former fails to notice that the nature of “ecological environmental right”is an objective “environmental benefit” rather than a subjective “environmental right”,and also neglects the public’s “environmental damage”,which cannot rely on private rights to obtain basic protection and relief.The latter has slipped to a legislative model of“state power-environmental duty”,and lacks regulation of the behavior of the power organs.In fact,according to the author’s point of view,“environmental duty” is a general duty rather than a specific duty,there is no corresponding environmental right;“environmental duty” refers not only to citizens,but also to the government and enterprises,even it is especially important to the government and enterprises.As far as the issues addressed by environmental law are concerned,whether it is pre-prevention,process supervision or post-treatment,it refers to the obligatory behavior rather than the optional behavior.As far as the content of environmental laws and regulations is concerned,it mainly comes from the law of nature,that is to say,the subject can enjoy the environmental utilizing right only on the premise of fulfilling the duty rule.The existing theory of environmental right believes that environmental duty come from,serve and obey environmental right.Adopting a natural law perspective on the source of environmental right,thinking that environmental right is natural right that precede national law.However,it adopts legal positivism on the source of environmental duty,and takes the environmental duty is a disadvantage and burden stipulated in national law.This basis does not come from the concept of right and duty in the same academic theory,which does not conform to the normative requirements of academic logic.The existing environmental right theory takes the “two-person society” as the background model and puts “environmental duty” in the legal relationship of “environmental rightenvironmental duty”,ignoring the fact that the original and universal “environmental duty”has no corresponding right.To understand this “environmental duty”,the “evaluation theory” in the context of a “three-person society” should be used as the basis to define environmental duty with the appropriateness of environmental protection behavior and environmental right with the legitimacy of environmental utilizing behavior,then analyze the relationship between both based on this.After the above analysis,the author argues that it should be guided by the value of the “duty-based” and in accordance with the logical structure of “purpose-object-meanssetting” to focus on answering questions about the normative purpose,object,means,and duties of environmental law to consider the theoretical construction of environmental legislation.For the theory of environmental legislation,the “duty-based theory” provides an effective analytical framework that can reasonably define the conceptual meaning of“environmental duty” and “environmental right”,position “environmental duty” as“environmental protection duty” and “environmental right” as “environmental utilizing right”,which provides a new perspective for clarifying the relationship between the two.It is also important to understand “environmental duty” as “should be” of environmental protection behavior and “environmental right” as “legitimacy” of environmental utilizing behavior,which not only sets the bottom line for “protecting the environment”,but also leaves enough space for the “utilizing environment”,reconciling the relationship between“environmental protection” and “economic development”.At the same time,the emphasis on the “duty-based theory” of environmental legislation also provides a basis for sanctions against violations of environmental protection duty,and is the only way to the rule of environmental law.