Civil Codes and the Environment
In the face of the irreversible impact on the planet’s climate and ecosystems produced in the Anthropocene era, scholars have been reflecting on the current role of private law and civil codes of the 21st century to better identify environmental liability and to evaluate principles capable of limiting the ecological dark side of the well-established notions of individual property, State sovereignty, accountability and legal personhood (discussing the idea of new civil codes in Europe and abroad, see M. Graziadei and L. Zhang (eds.), The Making of the Civil Codes, Singapore: Springer, 2022). Compared to the twofold man-man logic, an interdisciplinary discourse, which focuses on the man-nature logic, emerges: acknowledging that natural resources are finite and that human impact on the earth is critical pushes the legal system to accept a category of individual rights related to the environment beyond the logic of mere conservation.
My recent book Greening the Civil Codes: Comparative Private Law and Environmental Protection (Routledge 2023) takes into account scholarly discussions and developments showing how legal systems emphasize an interesting eco-law dialogue between international law, constitutional law and non-statute law, which could enrich the new attitudes of private law from a comparative perspective. In Europe, where historical civil codes have not specifically addressed the problem of environmental pollution, there is a need for specific and innovative provisions to link the ecological interests of individuals and the community with the new regulatory tools of the European Union (EU). This is particularly the case after the commitment of the new EU Commission (2019), which launched one of the most ambitious environmental programs ever presented (the so-called Green New Deal), to decarbonize Europe by 2050 (see B. Pozzo-V. Jacometti (eds.), Environmental Loss and Damage in a Comparative Law Perspective, Cambridge: Intersentia, 2021). The recodification of private law casts a critical light on what has been considered the model civil code par excellence: that is, the contextualization of the environmental focus by the French legal experience with regard to compensation. In this framework, I highlight, from a comparative perspective, how France, Germany, and Ukraine innovated their new or revised civil codes thanks to a new lemmas and new lexicons. In Latin America, a trend is emerging for the greening of new codes and new civil codes projects with some reference models, where innovative private law objectives are invoked, including sustainable consumption, the preservation of ecological coexistence, the conservation of the environment and the social wellbeing as values to be weighed against economic activities and in relation to the social development. Even more meaningful is the Chinese experience that fully emblemizes this trend of greening the civil code: the recent Civil Code of the People’s Republic of China marks the development of an ecological legal path thanks to the so-called ‘‘green principle’’ which opens a new methodological style to enforce the rule of the environmentally careful citizen (see S. Lanni, Dalla Cina con rigore. Brevi note sul codice civile del Catai, in Calumet. Intercultural Law and Humanities, 2/2021, pp. 60-77).
The 21st century has opened the door to the challenge of a deep eco-criticism of private law (see U. Mattei and A. Quarta, The Turning Point in Private Law. Ecology, Technology and the Commons Cheltenham: Edward Elgar Publishing, 2018). The research carried out for this book highlighted how a slow but inevitable environmental awareness is progressively spreading across the institutions, rules and principles of private law. It has influenced the drafting of new civil codes (especially those of Argentina, Puerto Rico, and China), as well as the writing of new ones (Colombia) and, not least, the updating of those currently in force (France, Germany). For the above-mentioned reasons, my book underlines how people of the entire world will be confronted with environmental issues for a long time from now on, so civilians are called upon in the same way to share their reflections in the framework of renewed civil codes’ common purposes. Legal scholarship has multiplied books, reviews and other editorial products dedicated to climate change and environmental tort law. However, this book fills a gap in the literature related to the lack of consideration of the impact of the Anthropocene era on civil law both in terms of legal reasoning and trends for new civil codes. It offers a perspective that goes beyond national boundaries and theoretical discussions because the circulation of new projects of civil codes expands the role of the civil law system and the idea of codification as a method of legislative expression in Europe, Asia, Latin America and abroad (it emerges clearly, for example, from the national reports of the Second Intermediate Thematic Congress of the International Academy of Comparative Law (Taiwan, 2012) on the general theme of “Codifications” (see R. Sacco, Codificazione, ricodificazione, decodificazione, in Digesto delle discipline privatistiche, V Aggiornamento, Turin: Utet, 2011, ps. 319 ff.).
Supporting a New Climatarian Person
Comparative lawyers know that strategies for the reduction of greenhouse gases and adaptation to climate change in the Anthropocene era rely on a wide range of soft law and hard law instruments. However, they also know that the national landscapes require a radical renewal of political actions and legal mechanisms to achieve them, as well as to define and enforce the environmental duties of individuals. It is like saying that new civil codes should read the traditional approach towards property rights against the environmental warnings, just as they should increase duties and responsibilities by supporting a new climatarian person (i.e. a “climate-conscious” person – see definition on page 41 of my book) before a new climatarian consumer. In current political and scholarly debates on the strengthening of sustainable consumption, not only are the possibilities of fostering a green lifestyle for developed countries attracting attention, but also those for the low and middle-income classes of emerging countries. Million consumers in the BRICS countries (Brazil, Russia, India, China and South Africa) are expected to attain a level of consumption equivalent to that of more developed countries within the next 10 years, as well as to adopt a pattern of ecological consumption based on the negative environmental behaviors and resource-intensive lifestyles of industrialized countries (see S. Lorek and P.J. Vergragt, Sustainable Consumption as a Systemic Challenge: Inter-and Transdisciplinary Research and Research Questions, in L.A. Reisch-J. Thøgersen (eds.), Handbook of Research on Sustainable Consumption (Cheltenham: Edward Elgar, 2015), p. 19). It seems suitable to counter the needs of the growing number of so-called “climatarian consumers’’ and, at the same time, to re-evaluate the sustainability of choices in the field of private law. The discussion points to an articulate consideration of the manners in which the consumers might satisfy their interest in receiving accurate information on environmental protection and their role in environmental preservation, especially referring to labeling and green claims.
Evidence of reduction in pollution and changes in social attitudes are also supported by substantive economic theory that leads to reconsider the traditional view of the law-economy-society relationship, bringing out a line of thought in which the obligation to rethink the meaning of development in which the consumer machine can no longer be separated from private law. The aim of market regulations that seek to better protect nature and the world’s natural resources is characterized by a heated debate, the two “opposing” ideological viewpoints that have been voiced in the last decades by Serge Latouche (see S. Latouche, Would the West Actually be Happier with Less? The World Downscaled, in Le Monde diplomatique, December 2003; Id., S. Latouche, Farewell to Growth, Eng. translation by D. Macey (Cambridge: Polity Press, 2010) and Herman Daly (Steady-State Economics: The Economics of Biophysical Equilibrium and Moral Growth (San Francisco: W.H. Freeman, 1977). As argued in the book, the aforementioned scholars have conflicting views on the role of growth. Whereas Daly advocates a steady-state economy, Latouche champions the idea of degrowth (see p. 28 of my book.). However, beyond what would seem to be an irreconcilable debate, I emphasized how it is possible to recognize a common theme, which finds its theoretical foundation in the clear conceptual distinction between “development” and “growth”: The co-benefit approach of the aforementioned scholars basically accepts that true development cannot simply be measured on a single parameter of GDP growth.
The Legal Value of Nature through the Lens of Comparative Law
Although remarkable insight and pieces of evidence have been achieved to rethink the different legal systems from an ecological perspective, and although new private law yardsticks are improving the environmental sustainability of civil law, it seems they cannot provide adequately for the protection of a healthier world without the changing perspective offered by comparing legal systems. Over the course of this research, it emerged that the new civil codes are influenced by the sensitivities of the new constitutional approaches to the environment and the preservation of natural resources, as well as by a new view of the theory of the commons shaped by a broad view of private law. It also emerged that contemporary literature provides a valuable opportunity to address ecological issues by rethinking the boundaries between public and private law, between law and other sciences, and by outlining a subject of law critical of the hegemonic thinking of Smithian roots.
Many scholars underline the value of nature and stress the importance of legal tradition to focus on a common culture of environment. Questioning if the acceptance of nature being viewed in terms of individual and collective rights could promote a different perspective than that related to the precautionary principle, or even than that linked to environmental protection as a fundamental right, I evoke from a comparative perspective the indigenous idea of self and its relationship with Nature, as it was principally fixed in the Andean constitutionalism. The understanding of the “rights of nature” (Pachamama) and “well-living” (sumak kawsay) according to Ecuador’s constitutional approach (2008) made the Andean philosophy legally binding not only for indigenous people (Article 71 of the Constitution of Ecuador that sets out the fundamental rights of the Nature or Pachamama “the Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes”). Andean new principles offer radical answers to deep problems that humanity is going through in relation to humans, as well as humans and other species and the Earth (D. Amirante-S. Bagni (eds.), Environmental Constitutionalism in the Anthropocene. Values, Principles and Actions, London: Routledge, 2022). They disrupt the anthropocentrism of the Western matrix and recover a non-instrumental vision of nature.
My book pays attention to the link between the Constitution and environmental law to bridge the existing gap between international environmental principles and the daily legislative and administrative practices in many States and local institutions. It is important to discover legal instruments of ecology in the context of an increasingly “private constitutional law”, which highlights the lawyer’s activity and her responding ability to the anthropogenic causes of environmental degradation from a different point of view. Looking from a comparative perspective at the ‘‘deeply green tradition’’, the concept of Nature as ‘‘non-negotiable benefit’’ cannot be separated more from ‘‘democracy’’, since only democratic forms of state government and democratic decision-making by state authorities can jointly and effectively face up the problem of survival of the geo-human system. The contributions of consumer law, environmental law, constitutional law, private law and international law are considered together along with extra-legal factors to better understand the feasible ecological measure of new civil codes and, even before, the national sensitivities towards development discourses detached from a purely economic logic. Precisely in this regard, the law cannot be studied and understood in isolation from the cultural context in which it is produced, observed and applied; indeed, the reference to environmental experiences such as those of China and Latin America shows how extra-legal factors are intrinsically related to the nature of newly legal rules, so that legal anthropology provides a crucial epistemological instrument for students, academics and lawyers.
Posted by Sabrina Lanni, Comparative Law Professor and Jean Monnet Chair ENFASIS, University of Milan (sabrina.lanni@unimi.it)
Suggested citation: S Lanni, ‘Greening the Civil Codes: Comparative Private Law and Environmental Protection (Routledge 2023)’, BACL Blog, available at https://british-association-comparative-law.org/2023/11/17/greening-the-civil-codes-comparative-private-law-and-environmental-protection-routledge-2023-by-s-lanni/
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