论文部分内容阅读
环境权作为一种新型权利,其内涵和外延是许多中外学者探讨的理论难题。但是环保运动的发展和环境权理论的探讨,都没有使环境权作为一个明确的法律概念并获得有效的证成,这导致了“在立法上设立环境权来保护环境利益”流于口号。环境权概念具有复合性,即主张免于环境破坏的消极权利属性和主张政府改善环境的积极权利属性,而这两方面的权利属性与已有权利体系存在着一种紧张性的关系。这种紧张性关系正是环境权迟迟不能在法律上证成的原因。同时,这种紧张性的关系直接根源于自由主义传统,在自由主义的框架下只能将环境权作为一种特殊的权利来分别考量其两方面的权利要求,难以有所突破。
Environmental rights as a new type of rights, its connotation and extension of many Chinese and foreign scholars to explore the theoretical problems. However, the development of the environmental protection movement and the discussion of the theory of environmental rights have not made the environmental rights a clear legal concept and have been effectively proved. This has led to the slogan of “establishing the environmental right to protect the environmental interests in legislation” . The concept of environmental rights is compound, that is, the negative rights of claiming to be free from environmental damage and the positive rights of advocating the government to improve the environment. However, the rights of these two aspects have a tense relationship with the existing right system. This tension is the reason why environmental rights have not been proved legally. At the same time, this tension is directly rooted in the tradition of liberalism. Under the framework of liberalism, environmental rights can only be considered as a special right to separately consider the claims of the two parties and it is difficult to make breakthroughs.