On 10th July, French MPs will vote on a symbolic measure: an amendment championed by Ecology Minister Nicolas Hulot, which proposes to include “the preservation of the environment and biological diversity as well as action against climate change” in Article 1 of the Constitution, as part of a project to revise the first Article. The plan involves reinforcing the constitutional nature of the commitment, and increasing its visibility, as it is currently only found in article 34 of the Constitution. There is a political will to highlight the issue.
A very diverse global trend
But how is this dealt with in other countries? As Jacqueline Morand-Deviller(1) notes, the constitutionalisation of environmental law began in the 1970s, with the Stockholm Conference (1972), following which “Sweden, in 1974; Portugal, in 1976; Spain, in 1978” included the environment in their constitutions. Other continental European nations followed suit, Austria in 1984, Belgium and Germany in 1994, and France, belatedly, in 2004. The author notes that “Inclusion in the constitution is a general phenomenon as it is obvious that the environment has become a major political issue and that, whatever the government and its sensitivities, environmental protection needs to be enshrined at the highest legal level”.
However, Morand-Deviller notes that some countries, such as Denmark, Ireland, Australia, Japan and the United States, are content with “legislative commitment”. What strikes us in her round up, however, is the diversity of the statements. Switzerland, for example, refers to “a lasting balance between nature – in particular its capacity for renewal – and its exploitation by humanity”; Portugal states that “protecting its health is a right, preserving and improving it is an obligation imposed on everyone”; Greece insists on forest protection, Austria on protection against nuclear power; the Belgians refer to health with a “right to the protection of a healthy environment”; and amongst its fundamental principles, Italy has declared “The Republic protects the landscape and the historical and artistic heritage of the Nation”.
Outside Europe there is also a wide range of commitments: for example, Russia requires “compensation for the damage caused to health by an ecological offence”; China sees the environment as collective property; a small country like Bhutan wants “a minimum of 60% of its territory to be maintained as forest.” In Uruguay, water is a “vital natural resource” and access to drinking water and sanitation constitute “a fundamental human right”… While most constitutions include references to the environment, it is clear that there is no standard definition of this concept and each country exercises its prerogative according to its priorities.
According to Ms. Morand-Deviller, this “diversity of presentation does not necessarily have consequences for the effectiveness of the constitutional regulation” One of the most frequent appearances is the concept of “sustainable development”. However, the author makes this very important observation “Often in a ‘soft law’ context their regulatory influence sometimes remains unclear” and, as a result, the judge’s interpretation plays a major part. All this leaves a somewhat vague situation: lack of coherence on the concept of the environment, considerable potential for differing levels of support from lawyers…How did we get to this situation?
A complex concept
Awareness of the environmental cause is generally traced back to the Club of Rome meeting in 1968 and the MEADOWS report which pointed out that the planet’s resources are limited and aimed to put the brakes on the headlong progress of industrial civilisation. Then in 1972, the Stockholm Conference, which we have already discussed, would lead to the United Nations Environment Programme (UNEP). In 1976, measures were taken to control the use of chlorofluorocarbons, which were suspected to have caused the hole in the ozone layer. Then, in 1979, the German philosopher Hans Jonas wrote “Das Prinzip Veranwortung”(“The Principle of Responsibility”) which was to have a considerable legal influence, particularly on the introduction of environmental concepts into constitutions and which is also one of the origins of the Precautionary Principle.
In his work, the philosopher called for a new definition of responsibility: “No previous systems of ethics had to take into consideration the global nature of human life and the long-term future of the very existence of the species”. What developed from this consideration is what Jonas has called a “heuristic of fear”, which for him is not only a question of managing the problem from a scientific point of view, but also from an ethical viewpoint. He declares that “It is no longer meaningless to ask whether the state of non-human nature, the biosphere in its entirety and the parts of it which are now under human control, has not thereby become a possession entrusted to mankind and that it has something like a moral claim against us – not only for our own good, but also for its own good and in its own right.”(2)
So how can we circumscribe this notion of environment, fundamentally a scientific concept, which by means of philosophy, is transformed into a legislative commitment? What is this “environment” which we should refrain from having an effect on? Having taken on Jonas’ questioning of Man’s responsibility towards Nature, the philosopher Dominique Bourg expresses a doubt: “The possibility of any such destruction is absurd if what we mean by nature is all physical laws. In that sense, the only way we can act is naturally. But it is different if we confine what we understand by nature to the Biosphere, that is, all natural species and their associated environments.” However, according to him, we are not able to manage this “biosphere”, hence the need to introduce an “industrial ecology” that would establish “the greatest possible compatibility between the industrial production and consumption process and the major biogeochemical cycles.”
Therefore, we can see a progression from Jonas’s purely ethical concerns to those of Dominique Bourg, already more open to science. As the latter states, “The relative power now conferred on each one of us by science and technology gives rise to a new responsibility: we have indeed become responsible for the ecumene, that is to say for the parts of the Earth inhabited by humans now and for future generations, since we are capable of harming it on a long-term basis, and thus compromising the quality of life of the generations that will succeed us.(3)
“It is understandable that this semantic fluctuation – resulting from the multiple philosophical problems – can be quite disturbing especially when it then becomes a matter for a legislator to set in stone in a legal principle at the highest level. On the one hand, there is an ethical notion that could be based on the heuristic of fear and could simply give rise to legal systems opposing any form of technology, and on the other, a philosophical vision that presupposes that there can be a stated definition of “industrial ecology” How is the legislator able to define legislative content with an “environmental” commitment faced with all this complexity?
To take a concrete example from a review of Steven Pinker’s book, one of the keynote findings of this famous author who has reviewed an impressive amount of data is that: science and technology allow us to constantly improve the environment, and in so doing, they realise the ideas of the Enlightenment philosophers. Thus, to quote just one of his main arguments, he notes that the EPA (the US Environmental Protection Agency) estimated in 2015 that the number of polluting emissions had decreased by 2/3 since 1970, while in the same period, the world population increased by 40% and that those people drive twice as much and were 2.5 times richer. Could such results have been achieved with an “environmental commitment” in the Constitution? How will lawyers be able to tell whether a technology is environmentally friendly or not? The question is crucial. In future will a judge be able to shut down a laboratory or a company because it is harmful to whatever definition of the environment the current political structure has decreed?
An inevitable remake of the precautionary principle?
The stakes involved in this Constitutional change are considerable, as we can see. And may well wonder what the reasoning is behind it. Especially since the precautionary principle has already been included in Article 5 of the Environmental Charter since 2005. And that offers a number of guarantees in the field of environmental protection since it states that: “Where damage, however uncertain in the light of scientific knowledge, could seriously and irreversibly affect the environment, the public authorities shall, by application of the precautionary principle and within their field of responsibility, ensure the implementation of risk assessment procedures and the adoption of provisional and proportionate measures to prevent the occurrence of damage.“
Since this amendment to the Constitution, however, there has been non-stop criticism: from scientists and from companies hampered by this law. There was spontaneous widespread outcry that Louis Pasteur could never have invented his vaccine against rabies or that Marie Sklodowska-Curie could never have discovered Polonium. For our part, we demonstrated how this principle had allowed ideology to enter scientific practice, forcing researchers to give answers to non-scientific questions and asking them to demonstrate the existence of “zero risk”. As they are unable to answer these questions, they let ideologues from all sides take the lead and propose solutions that, for the moment, are outside the scope of all scientific validity. We do not see how this new approach to a legal commitment that has no unanimous definition and is as complex from the ethical point of view as from the philosophical, could fail to be viewed as an ideological appropriation.
The Constitution must remain uncluttered
As a reminder, article 4 of the Universal Declaration of Human and Citizens’ Rights of 1789 states that freedom “consists in being able to do everything that does not harm others” This article is the basis of freedom of opportunity and has regulated it for over 200 years with evident success. As Nicolas Beytout, editor-in-chief of the French newspaper l’Opinion, notes, Jean-Étienne-Marie Portalis, who was one of the creators of the Civil Code in 1804 and stated that “there should be no unnecessary laws; they would weaken the necessary laws”, would be turning in his grave if he found out about the 1,400 amendments to the constitution.
However, if the LREM group are successful in their proposed amendment to insert into Article 1 the wording “Act for the preservation of the environment and biological diversity and against climate change” as stated in Libération by the jurist Bastien François, professor of law at Paris-Sorbonne, “Faced with a law or decree that promotes economic development that damages the climate or does not take sufficient account of the damage caused, a judge would have this tool at his disposal” Some have also mentioned the possibility of enshrining the finiteness of natural resources in law…. The intention on this is clear: the ecological movement wants to dictate its own law to govern science and technology. One cannot help thinking of Bernard Sève’s warning in his commentary on Jonas in the book by Catherine Larrère and Raphaël Larrère (4) : “The ultimate catastrophe only demonstrates a global worry that we cannot define: by constant inflation, it becomes impossible to “rank and prioritise threats” and risks us not allowing ourselves to take any action. (…) By threatening a disproportionate menace, it actually introduces a new ethic of conviction (belief in an inevitable catastrophe). Hope is overturned in favour of fear, it is the negative ethics of ‘prophecies of doom’“. Hence the difficulty of integrating this ethics of conviction in the political field. It does not lend itself to democratic debate as Bernard Sève demonstrates, “governing under threat presupposes that the latter cannot be called into doubt, any public debate examining the risks is excluded. (…) Using fear to influence behaviour is not very effective (…) Motivation is more inspired by demonstrating a clear and present good rather than forecasting a far off peril (…) In the end what Jonas does not cover is the realm of argumentative rationality, the political model of prudence, that of deliberation “
Let us hope that the hands that are about to touch the Constitution after reading these few considerations are somewhat hesitant.
(1) Jacqueline MORAND-DEVILLER, “L’Environnement dans les constitutions étrangères”[“The environment in foreign constitutions”], “Nouveaux Cahiers du Conseil constitutionnel”n° 43 (Le Conseil constitutionnel et l’environnement) – April 2014, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/nouveaux-cahiers-du-conseil/cahier-n-43/l-environnement-dans-les-constitutions-etrangeres.140472.html
(2) Hans Jonas, Le Principe responsabilité[“The principle of responsibility”] p. 69.
(3) Dominique Bourg, “La responsabilité écologique”[“Ecological responsibility”] in “L’Éthique environnementale”[“Environmental Ethics”] , Paris, Sens Éditions, 2000.
(4) Catherine Larrère and Raphaël Larrère, Du bon usage de la nature : pour une philosophie de l’environnement [A good use of nature: towards an environmental philosophy] Aubier, 1997 (Critique du principe de responsabilité, ch.VII), p. 235.
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