极限与分配——再论环境法的本位

LIMIT AND ALLOTMENT——A rediscussion about the subject of environmental law

环境问题是人类活动及其影响超出环境承受能力的极限所造成的后果。解决环境问题最根本的办法是分配 ,即把有限的环境资源在人类广泛的欲求之间做“相持而长”的分配。这种资源分配不同于收益分配 ,它体现的基本精神是义务。把体现义务精神的分配方法引入环境立法 ,必然导致环境法由传统的权利本位转变为义务本位。环境法不得不采用资源分配的办法 ,以义务为本位 。

Environmental problems are caused by human's act ivities and their influences , which go beyond the limit of environment. The basic method to solve environme ntal problems is through allotment, that is to allot the limited environmental r esources among the broad human desires and demands. Thus, both the limit ed environmental resources and the broad human desires and demands can be kept g o ing on. Different from profit allocation, this kind of allotment embodies the ba sic spirit of duty. The introduction of the allotment embodying spirit into the environmental legislation is naturally changing the environmental law from the traditional main body of right into the main body of duty. It is inevitable th at the environmental law has to take the resource allotment methods with duty as its main body. This is determined by the environment of its particular materia l conditions.