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The scholarly foundations of environmental constitutionalism in the age of the Anthropocene

Abstract

Advancing the specific feature of “a praxis in search of a theory”, nowadays environmental constitutionalism represents one of the driving factors of a new constitutional age, complementing the individual dimension of constitutionalism, liberalism, as well as the social and biological dimensions. Moving from these considerations, the article diachronically addresses scholarly debates related to environmental constitutionalism, with the aim of highlighting its pivotal role in shaping a novel legal approach for the Anthropocene.

Parole chiave
  • Environmental constitutionalism
  • comparative constitutional law
  • Anthropocene
  • constitutional theory
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1. Introducing environmental constitutionalism

Nowadays, constitutional law is called upon to play a fundamental role with respect to the protection of the environment in the age of the Anthropocene, integrating the innovations coming from the international context, the social evolution and academic scholarship. Constitutional law has the challenging task of conveying an effective and coherent framework for the action of political and administrative powers (both national and local) and civil society, aimed at the protection, promotion and enhancement of the environment, but also for the organization of the state in relation to new and pressing environmental needs. However, in the context of the contemporary liberal-democratic constitutionalism, the substantial subordination of environmental values and interests to other priorities––essentially of an economic nature––has produced weak and insufficient protection, leaving to environmental constitutionalism a further mission of axiological, deontological and foundational nature: definitively consolidate environmental values, giving centrality to the relationship between man and the environment (between man and nature), within the general principles of constitutionalism.

Environmental constitutionalism, in this perspective, aims at being one of the driving factors of a new constitutional age (that we can locate in the first century of the third millennium) capable of originating an integral notion of the human being. Such a theory enables us to complement both the individual dimension of constitutionalism (XVIII and XIX centuries) and liberal revolutionary constitutionalism, and its social dimension (XX century), with its biological (or natural) dimension. The latter becomes a component that develops and completes the grammar of constitutional values, and can be substantially shared on a global scale among the world’s major legal traditions. 

This is visibly a process of collective construction that involves the three different active formants outlined by comparative law, e.g., the legislative, the jurisprudential and the scholarly. This collective construction can and must be developed not through the application of a specific formula or a given constitutional model, but according to the different political, legal, cultural and anthropological perspectives and sensibilities of any single constitutional system involved in its application. Such a process of transformation has already taken its first steps in the last decades of the XX century, in what I call the ‘nascent’ phase of environmental constitutionalism. Unfortunately, this transformation has not been accompanied by a doctrinal elaboration able to outline its foundations. This has produced a phenomenon that I have defined as the paradox of environmental constitutionalism, considering it “a practice in search of a theory”1. Indeed, in the field of general constitutional studies and in constitutional law textbooks, environmental constitutionalism is absent. This short-sightedness of mainstream constitutionalist scholarship is certified, for example, by the surprising exclusion of environmental issues from one of the most comprehensive compendiums of comparative constitutional law, such as The Oxford Handbook of Comparative Constitutional Law, which does not even consider the emergence of environmental protection in the special sections devoted to ideas, trends and overlapping rights2. There is, therefore, a need for in-depth reflection and systematization regarding recent developments in environmental constitutionalism, integrating them into the larger constitutional debates. Environmental constitutionalism must fit in the broader framework of the relationship between the state, the constitution, social communities, and of the different conceptions of the person/individual within the world’s legal traditions. Thus, to illustrate the scholarly foundations of environmental constitutionalism this contribution has to start with an analysis of the rare yet meaningful contributions by environmental law specialists.

2. “From the beginning”: The birth of environmental constitutionalism

Recently, the importance of environmental constitutionalism, both within constitutional studies and environmental law studies in a narrow sense, has been emphasized by several authors. One of the most persuasive descriptions is offered by two scholars from the common law area (James May and Erin Daly), that categorise a wide range of reasons regarding the fact that constitutional level proves to be the most effective in addressing the challenges posed by the environmental crisis, especially if compared to the international level and to the lower ones (legislative, administrative, etc.)3. The greater stability and durability of constitutional law, compared to ordinary legislation or rules, implemented indirectly through international law: environmental protection is better guaranteed with respect to the hazards of shifting parliamentary or legislative majorities or the vicissitudes of adherence to international treaties and their implementation4. Another preferential element is the hierarchically rank of constitutional norms, which gives them a more effective symbolic value and behavioural model than mere normative precepts, fostering a shared adherence by citizens to environmental values beyond the divisions of political orientations. According to May and Daly, a further aspect should therefore be considered, concerning the possible constitutional identification of subjective legal situations linked to the enjoyment of the environment, which should make it possible to overcome those procedural-processual burdens that very often make environmental rights and interests difficult to enforce (e.g., in the Italian case, the legitimacy to act in matters of environmental damage, which is generally difficult for citizens). Overall, according to the two American authors, “environmental constitutionalism can provide a safety net for addressing environmental issues and can be an efficient and effective national mechanism for inculcating environmental ethics.”5. In my view, therefore, a further element assumes fundamental importance, particularly in federal and regional states, namely, the stabilizing function of a high degree of environmental protection that can be guaranteed by constitutional law, as opposed to diversified (or even conflicting) choices that lower territorial levels may take.  

Among the scholarly modernisations that have enriched the environmental law debate over the past decade, one of the most interesting is the pioneering David Boyd’s book The Environmental Rights Revolution6, which paved the way for the rebirth of environmental constitutionalism by providing an initial quantitative assessment of its development. The main merit of Boyd’s work is that it highlights the emergence of an important (albeit uncoordinated) body of constitutional norms aimed at environmental protection, primarily analysed by searching for the existence of various forms of rights to the environment, both in constitutional texts and in judicial decisions. However, his contribution, in terms of method and general approach, remains firmly anchored on two traditional elements of environmental legal comparison tout court, namely the functionalist method and the rights-based approach. From the first point of view, therefore, rather than investigating in depth the constitutional roots of the environmental revolution indicated in the book’s title, the work mostly seeks to demonstrate a correlation between the existence of constitutional rules and a set of quantitative indicators on the effectiveness of environmental performance, which are, however, partial and highly differentiated (also in relation to the disproportion of the geographical areas under consideration). In his conclusions, Boyd points out that “nations that contain constitutional environmental protection standards achieve superior environmental performance”7, but without being particularly convincing even from the point of view of quantitative analysis8. Furthermore, the traditional common law rights-based approach (essentially based on a mere defence of human rights) basically re-proposes a judicial approach to environmental constitutionalism, with all  its limitations already shown in the past. From the point of view of scholarly analysis, in fact, this approach inclines to oversize the jurisprudential formant, which becomes almost the only point of reference in the constitutional sphere. From the structural point of view it entrusts the construction of constitutionalism to the potential mutability of jurisprudence, perpetuating the traditional absence, typical of classical environmental law, of a stable axiological dimension regarding the protection of environmental values and interests.

In this regard, dissatisfaction with the traditional view of an environmental constitutionalism restricted to the rights approach and to litigation strategy is also emerging among scholars from the common law area, and alternative proposals are evolving. These start from a contradjucative approach, based on the recognition of the importance of constitutional principles that can guide the actions of administrations and governments. In particular, Lael Weiss points out that reasoning about the environment only in terms of judicial strategies for solving empirical cases has “limited interest for constitutional theory,”9 and that “the terms of the current debate do not allow for an assessment of the significance of environmental constitutionalism as a specific constitutional phenomenon.”10 Overall, the negligible attention given so far to environmental constitutional rules and principle has led to “an inadequate, descriptively, and unattractive, normatively, picture of environmental constitutionalism.”11 Weiss’ proposal is based on improving both the programmatic elements of environmental constitutionalism (general aspects included within preambles and introductory sections of constitutions) and the directly binding elements that the author calls, reversing a typical common law category, “non-rights provisions.”12 Among these, at least three categories of constitutional norms should be considered, the first is constitutional duties toward the protection of the environment, which are widely included in constitutions of all latitudes and are addressed both to individuals (as civic duties) and to public authorities. The second includes rules that attribute sovereignty over environmental resources to public powers, thereby configuring obligations for the state and other territorial authorities to act for their protection and enhancement (particularly effective in light of the public trust theory, where applicable). The third can be identified in the guiding principles of state policy, which represent a widespread category of constitutional environmental norms, as I have amply demonstrated above, being bearers of strategic rationality, that are applicable in a flexible and therefore more effective way to an extensive range of connections and situations. In conclusion, this approach, which does not clearly differ from that of some civil law constitutions, such as the Spanish, Portuguese and, in terms of the centrality of principles, the French one, demonstrates how environmental constitutionalism, considered as a transformative and structuring element of contemporary constitutional orders, can represent a significant ground for dialogue and potential convergence between different legal traditions.

3. The civil law approach to environmental constitutionalism

The French-speaking literature’s interest in environmental constitutionalism seems to have awakened recently, probably as a belated consequence of the consolidation of the 2005 Charte de l’environnement (the boldest European constitutional reform in the environmental field). Indeed, we are now witnessing a flowering of writings, mainly originating from seminar and conference initiatives, that originated collected works. Prominent among these is the remarkable 2019 volume edited by Jochen Sohnle, which brings together a series of contributions on the impact of environmental constitutionalism on legal systems.13 Sohnle identifies four dimensions of this impact: ideological, pragmatic, comparative, and international. With reference to the ideological dimension, the book highlights that environmental constitutionalism offers a synthesis of classical democratic constitutionalism theories and ecological thought, while the impact of the pragmatic dimension is evident from the wide dissemination of environmental issues in the constitutional texts. The comparative dimension, beyond the fundamental contribution of knowledge it can guarantee, would then contain an added value consisting in its aptitude “to identify general principles of environmental constitutionalism,” contributing to strengthening and fostering the fourth dimension, i.e., the international, which first elaborated many principles of environmental law and continues to be a laboratory for new principles in this field.14 Adopting this key, then, environmental constitutionalism can be seen as a combination of “constitutional environmentalism, environmental constitutional law and general environmental principles, developed through the methods of comparative and international law.”15

An interesting reconstructive effort, geared toward delineating the contours of a droit constitutionnel de l’environnement, is offered by Marie-Anne Cohendet. After recognizing the predominantly impressionistic character of constitutional reflections on the environment in French doctrine, she proposes to bring “this new subject to the baptismal font, granting it all the space it deserves.”16 Significantly, Cohendet highlights how the protection of the environment “concerns all aspects of constitutional law and not only constitutional litigation, which represents a pathology of law.”17 Thus, from the perspective of constitutionalism, environmental law can no longer be considered a mere “box of rules” as in the past,  it must become a subject studying norms from a theoretical perspective as well. In particular, among the contributions that constitutionalism can make to environmental protection, the greater legitimacy it gives to environmental rules, both in terms of their symbolism and their stability, is emphasized first and foremost. According to Cohendet, moreover, the presence of constitutional precepts can decisively facilitate the preparation and implementation of environmental policies (beyond the inputs of international and supranational law), as well as ensure that they are more effective, both in terms of legislative and administrative implementation, and in terms of judicial protection, by providing a certain textual basis for judges and, in particular, for constitutional ones.18 Ultimately, constitutional environmental law “concerns all areas of constitutional law and, in particular, the organization of powers, which, in a democracy, is intimately linked to the existence of and respect for political rights,” and thus cannot be reduced to a merely technical instance since “the effectiveness of these rights depends on all those involved, namely citizens, associations, scholarship, but also and above all judges.”19

4. “Bringing it all back home”: A constitutional theory for the Anthropocene

Probably the most comprehensive version of the theoretical foundations of environmental constitutionalism can be found in the Louis Kotzé’s Global Environmental Constitutionalism in the Anthropocene, which offers a specific analysis to the “fundamentals of environmental constitutionalism.”20 The author starts from the assumption that neither narratives based on global dangers and threats such as, for example, that of climate change, nor political slogans such as that of sustainable development, “have been able to instil the type of radical new regulatory thinking, let alone actual reforms, that are capable of changing human behavior vis-à-vis the environment,”21 while the idea of the Anthropocene contains in itself the potential to achieve this goal, it is conveyed through a higher-level normativity, which can only be ensured by constitutions. In his historical outline, Kotzé recalls how a reflection aimed at emphasizing the need for environmental constitutionalism not exclusively linked to the assertion of rights in judicial ways can be traced to some German authors such as Michael Kloepfer and Klaus Bosselmann, which in the 1990s theorized the development of an environmental state and an ecological state. For Kloepfer, the protection of environmental values cannot be entrusted to individual initiatives (or to the judicial forum) but must necessarily be framed as a primary task of the state (particularly the environmental state), even at the cost of requiring sacrifices of the traditional freedoms of citizens, which must, however, be appropriately balanced in order to avoid an “ecological dictatorship.”22 According to Kloepfer, therefore, environmental protection cannot be just one of the many goals of the state, but must become the main foundation of the entire state organization, its politics and society, so that it constitutes the Grundnorm of state policy.23 While Kloepfer’s centrality of environmental protection in contemporary state policies does not particularly depart from an anthropocentric-instrumental view (which will prevail in Germany at the time of the 1994 constitutional revision), Bosselmann’s proposal for an ‘ecological state’24 turns out to be much more radical. This author starts from a substantive critique of the rule of law as the bearer of an idea of unlimited development, which, through the promotion of constitutional ideals such as materialism and individualism, has, in fact, enabled the production of serious ecological damage. According to Bosselmann, on the other hand, the foundation of the ecological state lies in the recognition that man and nature constitute an inseparable dialectical unicum in which one is part of the other, therefore an appeal for the prevalence of ecological interests over economic ones, which have traditionally been supported by lobbying pressure. In Bosselman’s proposal, this basic principle should lead to a radical change in state policies and structures, but this will necessarily have to be supported at the constitutional level, as the latter is the only capable of stabilizing such a transformation.

In relation to these theories, Kotzé sharply notes that they are fundamentally based on a Rechtsstaats approach and must therefore be integrated into a broader dimension. To achieve this, it is necessary to move from the idea of the “environmental (or ecological) state” to an environmental constitutionalism, embracing an evolutionary view of constitutionalism as a whole. For Kotzé, in fact, “the environmental constitutionalism narrative is clearly also forward looking and sets an idealistic vision of a potentially more contemporary, notionally enlarged, ecologically-oriented constitutional state that has progressed beyond the social-welfare state and that, through its constitution, has to redefine its traditional role in the larger scheme of governance matters.”25 Such a perspective would thus represent an evolutionary stage in the development of the constitutional rule of law and, ultimately, of constitutionalism itself. Here, Kotzé attempts to coherently combine the approach of the European ecological constitutionalism (particularly related to the German legal culture), which is characterized by a structural and state-centric conception distinctive of civil law, and the common law approach that considers the constitutionalisation of the environment through a rights-based approach. On the whole, his proposal for environmental constitutionaslism is in fact centered on a mix of different elements of both structural (objective) and subjective features and cannot be reduced to the mere assertion of rights relating to the environment (whether substantive or procedural), as it touches on “the different elements under the conceptual umbrella of the constitutional state including, the rule of law, constitutional supremacy, judicial independence and the review functions of courts, and democracy.”26 Environmental constitutionalism thus involves a reinterpretation of both formal and substantive aspects of the entire constitutional structure, ranging from the reaffirmation of the supremacy of the Constitution, to the role of the democratic principle (through the strengthening of participatory institutions), to a more complex view of the separation of powers. However, this highly intricate methodological proposal does not capture the theoretical potential coming from the new environmental constitutionalism of the Global South (substantially neglected, with the exception of the South African system, the author’s system of reference)27, especially if we take into account its fundamental contribution to the recent development of environmental constitutionalism28, recovering its necessary axiological dimension. In contrast, a Spanish scholarly movement, critical on the constitutional approach to the environment of the 1978 Iberian text (with its predominantly sustainable development-oriented approach), has been highlighted through the Jordi Jaria Manzano’s La Constitución del Antropoceno29. Bringing back to the terrain of constitutional theory some considerations typical of critical eco-socialist thought, Manzano moves from the idea that traditional (Western) political discourse, “developed from the fundamental separation between the space of political community (polis) and citizenship (civitas) and that of physis, as an external element that represented, at the same time, a reservoir of resources but also an unknown and threatening territory.”30 This separation persists to the present day as a juxtaposition between the social and the natural dimensions, consistently regarded as alien to humankind, so that even in the most up-to-date models of cosmopolitan society and state, “the biophysical basis of systems of social reproduction”31 remains excluded. In particular, the economic system based on capitalism and liberal institutions determines a connection between man and nature, and thus, in the terminology of eco-socialism, a social metabolism, which defines the corelation between society and nature in terms of the exploitation of natural resources. In this sense, according to Manzano, “an instrumental conception of nature, which is conceived only according to its possibilities for exploitation by human beings.”32

In constitutional terms, this separation of the humankind from the natural foundations is fostered and encouraged by the liberal-minded conception of society merely as a sum of abstract individuals, essentially united by their membership through the nation-state and by the (generalized but individual) claim to rights of freedom, first in the form of negative liberties and then of social rights. According to Manzano, “the welfare of the individual, conceived as the capacity to appropriate resources––the individualism of private property––ultimately becomes an element in the justification of society itself.”33 And the situation will not change in the XX century as “even if the welfare state expands the space of political action, the central idea that it basically serves individuals remains.”34 In his theory, both the idea of the constitution as a social contract and the idea of the fundamental charter as a code create a substantial link between constitutionalism and a closed social system. Thus, there is no conceptual or factual space for a valorisation of nature (reified as a mere container of resources) within the essential elements of constitutional discourse. For this reason, classical constitutionalism has always ruled out the possibility of considering the environment as a foundational element of the axiological core of constitutions, at best coming to recognize the enjoyment of a healthy environment as an individual right or as a third-generation social right. In this sense, one can partially subscribe to the critique of those who consider that environmental law as conceived within liberal-democratic constitutionalism ‘cannot go beyond the Pillars of Hercules’ of an instrumental protection of human rights in their fundamentally individual dimension, or of a sublimation of this dimension in consideration of the interests of future generations, lacking, however, of ‘openings’ in an ecological and systemic sense. This evident limitation is clearly observable in German constitutionalism, notably with its constitutional revision of 1994, which represents a model of advanced European environmental constitutionalism, taken up most recently, mutatis mutandis, also by the 2022 Italian constitutional amendment. The most interesting element of Manzano’s analysis is that in the Anthropocene, faced with the need to counteract the process of human destruction of the planet’s basis of life, both sovereignty as absolute and self-sufficient power of the state and the narrative of rights as priority instruments of human self-realization simultaneously enter crisis. Faced to the demonstration that we are in the presence of a limited and vulnerable Earth-system, “the utopian aspirations of rights”35 are diminished. Such a crisis of modern constitutionalism, which also fully involves liberal-minded neo-constitutionalism, opens the space for holistic visions of the relationship between humankind and nature based on the concepts of mutual interdependence and responsibility. In such a space, environmental constitutionalism can be situated as an original contribution to the general theory of the constitution.

In conclusion, highlighting the urgency of discussing environmental problems in constitutional terms does not automatically imply the assertion of a disciplinary supremacy of the constitutional dimension over other approaches, such as the international, supranational, or administrative law ones. On the contrary, a mature development of constitutional environmental law is a necessary step to complement and implement the role of other areas within a multilevel environmental law, an analytical perspective that has been too quickly abandoned in favour of global or transnational approaches. In other words, the constitutional dimension is the missing link in the chain of environmental law, because it is the only level capable of giving substance to internationally developed principles by applying them to the national legal system, without entrusting the implementation of environmental rules to uncoordinated laws, policies, and administrative practices––or only to judicial responses.

  1. D. Amirante, Environmental Constitutionalism through the Lens of Comparative Law. New Perspectives for the Anthropocene, in D. Amirante and S. Bagni (eds), Environmental Constitutionalism in the Anthropocene, Routledge, London-New York, 2022, p. 148ff. ↩︎
  2. M. Rosenfeld and A. Sajò (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford, 2012. ↩︎
  3. J.R. May and E. Daly, Global Environmental Constitutionalism, Cambridge University Press, Cambridge, 2014; see also L.-J. Kotzé, Global Environmental Constitutionalism in the Anthropocene, Hart, Oxford, 2016, p. 33. ↩︎
  4. A typical case arising from the indirect enforcement of international environmental rules is that of the US administration: under President Obama initiated a series of measures to combat climate change, only to retract this commitment under the Trump administration (from 2016 to 2020), only to change again policies following the presidential election of Joe Biden and, again, changing again under the current presidency. ↩︎
  5. J. May and E. Daly, Global Environmental Constitutionalism, cit., p. 35. ↩︎
  6. D.R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment, University of British Columbia Press, Vancouver, 2012. ↩︎
  7. Ibid, p. 276. ↩︎
  8. From  a quantitative point of view, indicators are quite heterogeneous, such as data on the ecological footprint of 150 nations provided by the UN, a ranking of environmental performance that, however, covers only 30 OECD countries, a study by the Conference Board of Canada (a private Canadian think tank) that, however, analyses environmental indicators related only to the 17 amongst richest OECD countries (along with other miscellaneous data). ↩︎
  9. L.K Weiss, Environmental constitutionalism: Aspiration or transformation?, in International Journal of Constitutional Law, v. 16, n. 3, 2018, pp. 836-870, p. 838. ↩︎
  10. Ivi, p. 842. ↩︎
  11. Ibid. ↩︎
  12. Ivi, p. 844. ↩︎
  13. J. Sohnle, Environmental Constitutionalism: What Impact on Legal Systems?, P.I.E. Peter Lang S.A., Brussels, 2019. ↩︎
  14. Ivi, p. 36. ↩︎
  15. Ivi, p. 40. ↩︎
  16. M.A. Cohendet (dir.), Droit constitutionnel de l’environnement, Mare&Martin, Paris, 2021, p. 21. ↩︎
  17. Ibid. ↩︎
  18. Ivi, p. 33. ↩︎
  19. Ivi, p. 39. ↩︎
  20. L.-J. Kotzé, Global Environmental Constitutionalism in the Anthropocene, cit., p. 133. ↩︎
  21. Ibid. ↩︎
  22. M. Kloepfer (ed.), Umweltstaat als Zukunft: juristische ökonomische und philosophische Aspekte, Economica Verlag, Bonn, 1994. ↩︎
  23. Ivi, p. 105. ↩︎
  24. K. Bosselmann, Im Namen der Natur: Der Weg zum ökologischen Rechtssaat, Scherz, Bern, 1992. ↩︎
  25. L.-J. Kotzé, Global Environmental Constitutionalism in the Anthropocene, cit., p. 152. ↩︎
  26. Ivi, p. 175. ↩︎
  27. Ivi, p. 156. ↩︎
  28. On this author’s scepticism toward Latin American constitutionalism, see P. Villavicencio Calzadilla and L.-J. Kotzé, Environmental constitutionalism and the ecocentric rights paradigm: the rights of nature in Ecuador and Bolivia, in Vv.Aa., New Frontiers in Environmental Constitutionalism, UNEP, Nairobi, 2017, p. 175. ↩︎
  29. J. Jaria Manzano, La Constitución del Antropoceno, Tirant lo Blanch, Valencia, 2020. ↩︎
  30. Ivi, p. 29. ↩︎
  31. Ivi, p. 30. ↩︎
  32. Ivi, p. 45. ↩︎
  33. Ivi, p. 93. ↩︎
  34. Ivi, p. 101. ↩︎
  35. Ivi, p. 149. ↩︎