The project aims to investigate a cross-legal theoretical approach which regards human beings and their needs as well as a dependent part of the surrounding nature, placing them at the center of engagement with the law. The aim of the project is to assess the feasibility of a new methodological approach to jurisprudence (law and nature) and to formulate its initial components. The suggested approach asserts to be both theoretically robust and practically feasible.
The current situation and initial conditions
Mankind is currently living in the Anthropocene, modifying nature at a faster pace and more intensively than ever before. The consequences are grave: extreme weather events, rising sea levels, climate change, crop failures and mass extinction of species, just to name a few. These, in turn, affect every single area of human life, from health to food security to transportation and trade.
If the habitat change is caused by human behaviour, it is obvious to control human behaviour in a nature-compatible way in the future. Law is a major factor influencing human behaviour by prohibiting or forbidding certain types of behaviour.
Previous approaches to law and nature
The field of law has already addressed the concept of “nature”. Nevertheless, there is currently no systematic theory that combines legal and natural science insights in an interdisciplinary approach aimed at shaping law to enable human survival in harmony with nature as closely intact as possible. This is the objective of the present project.
The discussion of natural law may be considered classic, but it is related to the nature of human beings and rights resulting from this, but does not deal with rights of nature or the environment. During the 1970s and 1980s, a debate arose about the emergence of law, which was also about a kind of natural self-generation. However, this was less focused on the position of humans in nature and more on novel approaches to defining what constitutes law.
The United Nations Human Rights Council has recently recognized the right to a healthy environment as a human right, which is closer to the research approach proposed here. The Council of Europe is currently discussing the adoption of a protocol to the European Convention on Human Rights that would recognise the right to a healthy environment. At the international level, there has been a recent proposal to introduce a new offence (ecocide) under the jurisdiction of the International Criminal Court. In addition, the concepts of “Earth System Governance” and environmental constitutionalism have prompted initial approaches to conceiving law by taking into consideration the knowledge that humans massively contribute to the transformation of nature. In a similar direction, some countries have already granted legal personality to rivers, allowing for the implementation of nature conservation measures. Furthermore, the literature has begun to focus on the rights of flora, fauna and natural areas.
Recently, the first judgments on the protective impact of national fundamental rights in the field of climate change and environmental protection have been delivered. Individuals seeking legal protection have achieved partial success with their claims in countries such as Germany, the Netherlands, and Ireland. However, courts that are tasked with adjudicating individual cases and are constrained by the relevant but disparate laws are not able to build a comprehensive legal infrastructure. At the same time, dialogues that emphasise only particular aspects of law and nature (e.g. animal rights, rights of nature) may lead to further fragmentation of the legal framework without corresponding benefits.
Shortcomings in current environmental legislation
Current environmental and nature conservation law has the following shortcomings:
1. It is fragmented. For example, the plan for a uniform environmental code has failed. Various regulations only address individual environmental media or conditions (BBodSchG, WHG, TA Luft) without being able to sufficiently consider the interactions of interventions.
2. Different regulatory approaches apply to the various environmental conditions or environmentally damaging behaviour. At best, there are only a few overarching concepts. For example, there is no uniform procedure for the planning and approval of large-scale projects. These decisions are made either in the form of a plan approval or a permit. These differ both in terms of content (e.g. in the approval procedure the question of the location of the project is not part of the overall consideration) and in terms of the general regulations to be applied.
3. There are no overarching regulations regarding the consideration of nature's interests. During planning and approval procedures, nature is a matter that needs to be considered when deciding on project approval. However, this concern may be outweighed by other concerns. Moreover, the time factor is almost completely ignored: the law does not take into account that in many places nature has already been permanently changed by human intervention, nor does it take into account how interventions will develop in the future.
4. The responsibility of advocating for nature's interests primarily falls on officially recognized nature and environmental protection organizations, which are authorized to do so in legally designated cases (UmwRG). This has resulted in a situation where individual plant or animal species are used as substitutes in the debate about the benefits and drawbacks of these projects, and only environmental organizations advocate for their preservation. As a result, the general public often has a limited understanding. Furthermore, opposing sides emerge (“the” economy or agriculture versus “nature”).
Objective: research perspective “Law and Nature”
The primary objective of the project is to determine whether a new discipline in jurisprudential research theory called “law and nature” can be developed, similar to existing approaches such as “law and economics”. This project is intended to serve as the first step in exploring this new theoretical approach to “law and nature”.
Law cannot determine what state of nature is necessary and desirable. In this case, law can only use goals determined by other disciplines as a guide. Nevertheless, the main method of jurisprudence of legal dogmatics lacks interdisciplinarity. In order to make the new theoretical approach practicable, it is therefore necessary to examine how a nature- or environment-oriented method of interpretation can be integrated into dogmatics.
The Research Team
