环境法律观检讨

Reflection on the Legal Concept of the Environmental Law

当前环境法学表象繁荣的背后隐藏着专业性不强的危机,其根源在于较为落后的法律观。在一些环境法理论中作为言说基础和前提预设的"法"与作为现代法治基础的"法"存在较大差异,具体表现为法律道德主义色彩浓厚、与科学规律界限不明、主体性缺失、孤立立法、与传统法的关系失当五个方面。法律观偏失的环境法学研究在实践中只起到思想启蒙的作用,无助于环境法治的实现。要想获得理论提升和实践突破,环境法学必须对自己的核心任务和研究范围作出准确定位,牢牢把握法的本质特征,加强本土化研究,尊重现行法,采取现实主义思维,实现向法学的回归。

Chinese environmental law researchers have deviated their recognitions of law from its nature. They confuse the relationship between law and morality, and deal with legal issues in moral thought. They confuse the relationship between law and discipline, and can＇t realize the effective transformation from the laws of nature to the law of society. They copy the western experience mechanically, and lack of local reflection and self-position. They separate legislation from law enforcement, and offer legislative proposals without regard to the social foundations and conditions. And they break up the connection between environmental law and traditional law, and depart from the basic rules of law when innovate, which subvert the entire legal order. The deviation of legal concept makes the environmental law research only play an enlightenment role in practice. The results of their research are in fact the expression of their dream of ideal environmental order, rather than the application of the legal rule in the judicial practice. Although these studies are wide in topics and large in quantity, it is difficult for them to form consensus through effective argument to promote legal theory, and they are not benefit to the development of the rule of environmental law. Due to the complexity of environmental protection, environmental practices need urgently clear, specific, and practicable environmental laws and regulations to settle environmental disputes institutionally. Thus Chinese environmental jurisprudence must transform from an enlightenment theory to a theory of rule of law by narrowing the research objectives and range, grasping the essential characteristics of law firmly, strengthening the localization of studies, respecting for the existing law, and adopting a realistic thinking mode.