理想与现实的鸿沟:反思环境权入宪

The Gap between Ideality and Reality:Reflections on Incorporating the Right to Environment into Constitution

环境权作为第三代人权,通过立法进入宪法是应然的法律逻辑结果。我国现行的环境立法和环境权入宪的价值目标尚存在着模糊性,我国理论界和实务界对于环境权的基础理论和制度体系难以达成共识,单向性的环境权入宪之于中国实践具有不可调适性,这使得我们需要反思现阶段主张环境权入宪主张。环境权入宪是历史趋势,当下最需要做的是为这一理想的实现做好充分的理论和制度准备。

It is of legal logic to incorporate the right to environment,which is the third generation of human rights,into Constitution through legislation process.The existing studies have provided two basic approaches for this legislative incorporation.However,both of the current environment legislation of China and the value objectives of this incorporation are ambiguous.Furthermore,it is hard to reach a consensus on the fundamental theory and institutional system of the right to environment theoretically and practically.The unidirectional incorporation of the right to environment into Constitution is either inadaptable or incompatible to the reality and practice in China,which makes it necessary to reflect on the incorporation of the right to environment into Constitution at present.It is a historical trend to write the right to environment in Constitution,but currently the most important step is to make adequate theoretical and institutional preparation for the realization of this idea.