Abstract
This chapter will show the human right to a healthy environment and the international judicial development as to the need for formal recognition of clearer responsibilities while demonstrating case law that supports its indirect recognition in international law under Art. 8 of the ECHR and Art. 1(1) related to court’s rulings in favour of environmental protection measures and at the cost of limiting private property rights, also shown via the Inter-American Commission on human rights. The chapter will also show possible complications in the implications of environmental legislation with regard to property rights and other current propositions for social individual property rights related to the environment while giving the reader the basis on natural law principles, its historical background and use until today.
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Notes
- 1.
For an overview and discussion of the results of the WSSD, see generally: Perrez (2003, 1222).
- 2.
For a few more examples, see Sky Österreich GmbH v Österreichischer Rundfunk, where it was held that the limitation on the conduct of business was justified for the protection of the general interest; The Irish Farmers Association et al. v Minister for Agriculture, Food and Forestry, Ireland and Attorney General, point 27. See also Case of Chassagnou v France (162 and on); Case of Zwierzynski v Poland (Para. 71). See more examples in Lenaerts and Vanvoorden (2006, 238).
- 3.
It is argued that this is because of the overdrafting of positive law , the scientific illusion of progress and the rise of utilitarian philosophy within society (granting the state unrestricted power). However, the latter furnishes no criterion by which actions or laws can be criticised. Moreover, natural law always appears in all human civilizations. See S.L.R. (1957, 455–514), an inspiring summary and analysis of natural law and its relevance to today’s lawyer.
- 4.
For a foundation , see this chapter. ‘[I]f we are to explain why any kind of law is binding , we cannot avoid some such assumption as that which the Middle Ages made, and which Greece and Rome had made before them, when they spoke of natural law ’ (Brierly 1949, 57).
- 5.
Cicero (54 and 51 BC): ‘[I]t summons to duty by its commands, and averts from wrongdoing by its prohibitions. … It is a sin to try to alter this law , nor is it allowable to repeal any part of it, and it is impossible to abolish entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law , its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature , and by reason of this very fact he will suffer the worst punishment.’ Cicero (54 and 51 BC), De Republica, Bk. 11, Section 1. For Cicero (54 and 51 BC), the basis of law and government is that it is ‘intrinsic in nature,’ lex natura or lex naturalis. See also Cicero (54 and 51 BC) De Republica, Bk. 11, Section 4: cited in Pound (1914, 608).
- 6.
Cicero (54 and 51 BC) created a legal precedent before a Roman court that held throughout the Western world for two thousand years. He argued that one of the laws of Rome was unlawful, being contrary to natural law : ‘There is in fact a true law —namely, right reason—which is in accordance with nature , applies to all men, and is unchangeable and eternal.’ This legal precedent was rarely openly rejected in the West until the twentieth century (see Cicero (54 and 51 BC), De Republica, Bk. 2, Section 11; see also, Bk. 1, Section 58; see also within Donald (2011, 5), History, Para. 4–6).
- 7.
Glafey (1723, Vernunft-und Volcker-Recht, 207, 213) also writes that the law of nature (ius nature) is a ‘genuine law (lex) since God wanted man “to act in accordance with the rule of nature” and had revealed (it) through reason.’ Cited in Daston and Stolleis (2008, 71), who state that according to late eighteenth-century authors, ‘non positive laws derived from reason (law of nature lex naturae/naturals)’ together with positive law in its various forms.
- 8.
See, e.g., Beutel (1952, 167–169); Dennis v United States (508). ‘The trouble with Mr. Justice Vinson’s argument is that the founding fathers, being disciples of the natural law , believed in absolutes. … whether one likes it or not, the natural law theories of absolute truth have exerted a tremendous influence upon our law makers and the drafters of our Constitution. Natural law absolutes have found their way into the very structure and fabric of our legal system (Beutel 1952, 168–169). Here, Miss Silving says: ‘[The] doctrine of natural law … calls for technical utilization of that doctrine as a carrier of a legislative message. … Silving (1955) 485, n. 12: cited in S.L.R. (1957, 496).
The interpretation of the 14th amendment, as found in Brown v Board of Educ. (1180), is criticised, although agreeing with the result. ‘[T]he taboo against natural law , extending even to its acceptance as a historical fact expressed in positive legal enactments is unjustified. …’ Silving (1955, 486, n. 14): cited in S.L.R. (1957, 496). Natural law may also be legislatively enacted as a principle of construction. See, e.g., California Code Civil Procedure 1866: ‘When a statute or instrument is equally susceptible to two interpretations, one in favor of natural right, and the other against it, the former is to be adopted.’ Last cited by a California court in Estate of Lund (1945, 26 Ca1. 2d 472, 492, 159 2d 643, 654. Cited in S.L.R. 1957, 496).
- 9.
I also argue that the phrase ‘nonsense upon stilts’ is taken out of context since it only attacks natural law if it has no obligations which is not the case, see more in this book pages 437–438.
- 10.
The following sections on the higher guiding role of natural law are inspired by this review, which defends natural law with an outstanding number of citations and examples of case law . I refer only to relevant references that I verified while adding supporting references. Note that the following references are not decisive of the superior place Locke gives to natural law because Locke’s words are clear enough on this. The purpose is a general defence of natural law with references demonstrating natural law ’s actual influence as a basis for positive law within different civilisations over time.
- 11.
E.g., on Judaism, Novak (1998, 117). Corbin (1957, 39) is in association with Islamic Publications for The Institute of Ismaili Studies (Muslim). Asian Indians deify natural law as Dharma, ‘The Right Way.’ For the Christian tradition, e.g., Burns (2000, 929–946); Aquinas (1265–1274, Summa Theologica, Part I-II, Question 90–91, Art. 1, 2, 4); D’Entrèves (1951, 52–53). See also Chroust (1950, 285; 1946, 2); also, S.L.R. (1957, 459–460). For a good review of natural law in religions, see Strauss (1953, 81–119, fn. 7).
- 12.
‘The canon law of the Roman Catholic Church is an old and developed legal system of the Roman type, resembling in most respects to other positive systems of law . It is an interesting example of a positive law system which is extremely conscious in its applicability to the natural law , applying its rules by methods similar to those of the old English cases. It is ‘open to’ the guidance and normative force of Natural Law on every level of legislative and jurisdictional activity’ (Kuttner 1950, Natural Law and Canon Law, 85, 116: cited in S.L.R. 1957, 460, fn. 15).
- 13.
See Wild (1953, 136), Doyle (2010, 508), Howland (1993, 428, 517–518, 540), Plato (385–380 BCE, The Symposium, Para. 205e–206a, 211d–e), Aristotle (350 BC; Nicomachean Ethics, Bk. VII, Ch. 1), Donald (2011, 3, Paras. 8–10), Le Bel (1949, entire Proc. 3), Wormuth (1948, 45). See further, S.L.R. (1957, 459).
- 14.
- 15.
It is argued that after 1780, eight or more new systems of natural law appeared at every Leipzig bookseller’s fair. See Rommen (1936, 106). But there was never a unanimous agreement on the unification of natural law .
- 16.
‘[T]he classical natural law philosophy teaches, as one of its prime tenets, that the natural law and its fundamental principles are inadequate to solve the complex problems of human society . The natural law demands implementation by civil law ; and such implementation frequently involves, not merely research and argumentation, certitude and probability, but also trial and error experimentation’ (emphasis added) (Kenealy 1955, 259, 266: cited in S.L.R. 1957, 482).
- 17.
Natural law is referenced in governmental law ‘(1) in legislation or decision-making, (2) in cases where the positive law is definite and contravenes the natural law , or (3) in cases where there is some indefiniteness in the relevant positive law and a determination of a particular case must be made’ (S.L.R. 1957, 486–487).
See also Para. 7 of the Austrian Civil Code (1812) for an explicit reference to natural law . Many references on natural law are taken, after verification, from the very impressive review on Natural law in all times (S.L.R. 1957).
- 18.
To avoid repetition, for many undeniable references on this, I refer the reader to Chapter 6, subtitle Locke as the very foundation for the common law of property, pages 219–221 with all the related references; Chapter 2, subtitle US Property rights as per the founders—Inspired by Locke, pages 52–55 under this book, with all the related references. For other good references, see S.L.R. (1957, 461, also in fn. 20).
- 19.
As further evidence, many articles have been written about the reflection of natural law within case law : administrative law (Schwartz 1953, 169); eugenic sterilization (Gest 1950, 306); criminal law (Katz 1955, Natural Law and Human Nature, 1: cited in S.L.R. 1957, 509), Bankruptcy and statute of limitations (Burke 1949, 47, 65, 67, 73–79: cited in S.L.R. 1957, 509); right-to-work laws (Falque 1956, 201; Fitzpatrick 1956, 308; Keller 1956, 198, 190: all cited in S.L.R. 1957, 509). For a detailed analysis of those articles and case law , see S.L.R. (1957, 509). See also Hutcheson (1950, entire Proc. 43). See also Thompson v Consolidated Gas Util. Cor The district judge whose opinion was affirmed in this case is Chief Judge of the Fifth Circuit, Hutcheson (1950), see entire Proc. 43. For additional cases, see S.L.R. (1957, 487, 494–507).
- 20.
For confirmations, see ‘[T]he power of the state had been utilized in our time to deny and to crush every human right which our society guaranteed and cherished. These decades have seen … the glorification of war and violence, the utter disregard of treaty obligations, the concentration camps and a multitude of other horrors, often authorized by the positive laws of the state. Hitler particularly made a point of the scrupulous observance of legal forms’ (S.L.R. 1957, 463).
- 21.
Positive law systems of government that do not recognise natural law provide no higher moral security and criticism concerning the power of the state. The ‘positivist’ definitions of law such as ‘the command of the state’ or ‘a prediction of what particular governmental organs will do in given situations furnish in themselves no criterion by which these actions or laws can be criticized’ (S.L.R. 1957, 463; see also S.L.R. 1957, 467–469, 471–472, 490–492, fn. 132–152). The following section is inspired by many of the references mentioned, after being verified, while adding others, demonstrating the need to revive natural law .
- 22.
E.g., Mortimer Adler, former professor of philosophy at the University of Chicago and present director of the Institute for Philosophical Research in San Francisco; Emil Brunner, chancellor of the University of Zurich; Alexandre Passerin d’ Entrèves, professor of Italian studies at Oxford University; Hallowell, professor of political theory at Duke University; Walter Lippmann, political news columnist; author Jacques Maritain, French philosopher and diplomat, presently in the philosophy department of Princeton University; Heinrich Rommen, professor of political science at Georgetown University; Leo Strauss , professor of political theory at the University of Chicago; John Wild, professor of philosophy at Harvard University; Sir Ernest Barker, professor of political theory at Cambridge University. Their texts, with detailed references, are found in S.L.R. (1957, 466–469, 471–472, fn. 41, 45, 68).
- 23.
Natural law jurisprudence is of much interest in Italy and Germany. With reference to Germany, see Bodenheimer (1954, 379), see also in S.L.R. (1957, 466), see also Fuller (1954, 457, 481–485), Banner (1953, 218), Dulles 1948, ‘Which way to world peace—Revolution or reform?,’ 7: cited in S.L.R. (1957, 467).
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Hiller Marguerat, S. (2019). The International Human Right to a Healthy Environment, Human Right Obligations for Nature and Possible Difficulties of Implementations. In: Private Property Rights and the Environment. Palgrave Studies in Environmental Policy and Regulation . Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-97900-7_5
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DOI: https://doi.org/10.1007/978-3-319-97900-7_5
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